SF 1455

Introduction - 83rd Legislature (2003 - 2004)

Posted on 12/15/2009 12:00 a.m.

  1.1                          A bill for an act 
  1.2             relating to administrative penalty orders; authorizing 
  1.3             administrative powers, penalties, and remedies for 
  1.4             public safety purposes; proposing coding for new law 
  1.5             in Minnesota Statutes, chapter 299A. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  [299A.80] [ADMINISTRATIVE POWERS AND PENALTIES; 
  1.8   GENERAL.] 
  1.9      Subdivision 1.  [DEFINITIONS.] (a) For purposes of sections 
  1.10  299A.80 to 299A.803, the terms defined in this subdivision have 
  1.11  the meanings given them. 
  1.12     (b) "Administrative agent" means a person or entity 
  1.13  licensed by or granted authority by the commissioner of public 
  1.14  safety under: 
  1.15     (1) section 168.33 as a deputy registrar; 
  1.16     (2) section 168C.11 as a deputy registrar of bicycles; or 
  1.17     (3) section 171.061 as a driver's license agent. 
  1.18     (c) "Other authority" means licenses, orders, stipulation 
  1.19  agreements, settlements, or compliance agreements adopted or 
  1.20  issued by the commissioner of public safety. 
  1.21     (d) "Commissioner" means the commissioner of public safety. 
  1.22     (e) "License" means a license, permit, registration, 
  1.23  appointment, or certificate issued or granted to an 
  1.24  administrative agent by the commissioner of public safety. 
  1.25     Subd. 2.  [APPLICABILITY.] Sections 299A.80 to 299A.803 
  2.1   apply to administrative agents licensed by or subject to other 
  2.2   authority of the commissioner. 
  2.3      Subd. 3.  [CUMULATIVE REMEDY.] The authority of the 
  2.4   commissioner to issue a corrective order or assess an 
  2.5   administrative penalty under sections 299A.80 to 299A.803 is in 
  2.6   addition to other remedies available under statutory or common 
  2.7   law, except that the state may not seek a civil penalty under 
  2.8   any other law for a violation covered by an administrative 
  2.9   penalty order.  The payment of a penalty does not preclude the 
  2.10  use of other enforcement provisions, under which civil fines are 
  2.11  not assessed, in connection with the violation for which the 
  2.12  penalty was assessed. 
  2.13     Subd. 4.  [ACCESS TO INFORMATION AND PROPERTY.] The 
  2.14  commissioner, an employee, or an agent authorized by the 
  2.15  commissioner, upon presentation of credentials, may: 
  2.16     (1) examine and copy any books, papers, records, memoranda, 
  2.17  or data of an administrative agent; and 
  2.18     (2) enter upon any property where an administrative agent 
  2.19  conducts its place of business to take actions authorized under 
  2.20  statute, rule, or other authority, including (i) obtaining 
  2.21  information from an administrative agent who has a duty to 
  2.22  provide information under statute, rule, or other authority, (ii)
  2.23  taking steps to remedy violations, or (iii) conducting surveys 
  2.24  or investigations. 
  2.25     Subd. 5.  [FALSE INFORMATION.] (a) An administrative agent 
  2.26  may not: 
  2.27     (1) make a false material statement, representation, or 
  2.28  certification in a required document; 
  2.29     (2) omit material information from a required document; or 
  2.30     (3) alter, conceal, or fail to file or maintain a required 
  2.31  document. 
  2.32     (b) In this section, "required document" means a notice, 
  2.33  application, record, report, plan, or other document required 
  2.34  under statute, rule, or other authority. 
  2.35     Subd. 6.  [ENFORCEMENT.] (a) The attorney general may 
  2.36  proceed on behalf of the state to enforce administrative 
  3.1   penalties that are due and payable under section 299A.802 in any 
  3.2   manner provided by law for the collection of debts. 
  3.3      (b) The attorney general may petition the district court to 
  3.4   file a final administrative penalty order as an order of the 
  3.5   court.  At any court hearing to enforce a final administrative 
  3.6   penalty order, the only issues the parties may contest are 
  3.7   procedural and notice issues.  Once entered, the administrative 
  3.8   penalty order may be enforced in the same manner as a final 
  3.9   judgment of the district court.  This paragraph does not 
  3.10  preclude district court review of the merits of an 
  3.11  administrative penalty order if the order is appealed by the 
  3.12  administrative agent under section 299A.802, subdivision 5. 
  3.13     (c) If an administrative agent fails to pay an 
  3.14  administrative penalty, the attorney general may bring a civil 
  3.15  action in district court seeking payment of the penalty, 
  3.16  injunctive relief, or other appropriate relief including 
  3.17  monetary damages, attorney fees, costs, and interest. 
  3.18     Subd. 7.  [RECOVERY OF LITIGATION COSTS AND EXPENSES.] In 
  3.19  any judicial action brought by the attorney general for civil 
  3.20  penalties, injunctive relief, or an action to compel performance 
  3.21  pursuant to this section, if the state finally prevails, and if 
  3.22  the proven violation was willful, the state, in addition to 
  3.23  other penalties provided by law, may be allowed an amount 
  3.24  determined by the court to be the reasonable value of all or 
  3.25  part of the litigation expenses incurred by the state.  In 
  3.26  determining the amount of the litigation expenses to be allowed, 
  3.27  the court must give consideration to the economic circumstances 
  3.28  of the defendant. 
  3.29     Subd. 8.  [EDUCATION AND COMPLIANCE ACCOUNT; MONEY 
  3.30  ALLOCATED.] An education and compliance account is created for 
  3.31  the deposit of administrative penalty order receipts.  Of the 
  3.32  funds deposited in this account, the commissioner is authorized 
  3.33  to expend up to $5,000 per fiscal year for education and 
  3.34  compliance activities related to the regulated parties affected 
  3.35  by this chapter.  At the end of each biennium, all money not 
  3.36  expended lapses to the general fund. 
  4.1      Subd. 9.  [PLAN FOR USING ADMINISTRATIVE PENALTIES AND 
  4.2   CEASE AND DESIST AUTHORITY.] The commissioner shall prepare a 
  4.3   plan for using the administrative penalty order and cease and 
  4.4   desist authority in this section.  The commissioner shall 
  4.5   provide a 30-day period for public comment on the plan.  The 
  4.6   plan must be finalized by July 1, 2004, and may be modified as 
  4.7   necessary upon subsequent notice and opportunity for comment. 
  4.8      Sec. 2.  [299A.801] [CORRECTIVE ORDERS AND INJUNCTIONS.] 
  4.9      Subdivision 1.  [CORRECTIVE ORDERS.] (a) Before seeking an 
  4.10  administrative penalty order under section 299A.802, the 
  4.11  commissioner must issue a corrective order that requires the 
  4.12  administrative agent to correct the violation of statute, rule, 
  4.13  or other authority.  The corrective order must state the 
  4.14  deficiencies that constitute the violation of the specific 
  4.15  statute, rule, or other authority, and the time by which the 
  4.16  violation must be corrected.  In addition to service by 
  4.17  certified mail on the administrative agent, a copy of the 
  4.18  corrective order must be given to the county auditor in the 
  4.19  county where the administrative agent is located.  
  4.20     (b) The administrative agent to whom the corrective order 
  4.21  was issued shall provide information to the commissioner, by the 
  4.22  due date stated in the corrective order, demonstrating that the 
  4.23  violation has been corrected or that the administrative agent 
  4.24  has developed a corrective plan acceptable to the commissioner.  
  4.25  The commissioner must determine whether the violation has been 
  4.26  corrected and notify the administrative agent subject to the 
  4.27  order of the commissioner's determination. 
  4.28     (c) If the administrative agent believes that the 
  4.29  information contained in the commissioner's corrective order is 
  4.30  in error, the administrative agent may ask the commissioner to 
  4.31  reconsider the parts of the corrective order that are alleged to 
  4.32  be in error.  The request must: 
  4.33     (1) be in writing; 
  4.34     (2) be delivered to the commissioner by certified mail 
  4.35  within seven calendar days after receipt of the corrective 
  4.36  order; 
  5.1      (3) specify which parts of the corrective order are alleged 
  5.2   to be in error and explain why they are in error; and 
  5.3      (4) provide documentation to support the allegation of 
  5.4   error. 
  5.5      (d) The commissioner shall respond to requests made under 
  5.6   paragraph (c) within 15 calendar days after receiving a 
  5.7   request.  A request for reconsideration does not stay the 
  5.8   corrective order; however, after reviewing the request for 
  5.9   reconsideration, the commissioner may provide additional time to 
  5.10  comply with the order if necessary.  The commissioner's 
  5.11  disposition of a request for reconsideration of a corrective 
  5.12  order is final. 
  5.13     Subd. 2.  [CEASE AND DESIST ORDER.] The commissioner, or an 
  5.14  employee of the department designated by the commissioner, may 
  5.15  issue an order to cease an activity otherwise authorized by 
  5.16  statute, rule, or other authority if continuation of the 
  5.17  activity would result in an immediate risk to public safety.  A 
  5.18  cease and desist order issued under this subdivision is 
  5.19  effective for a maximum of 72 hours.  In conjunction with 
  5.20  issuing the cease and desist order, the commissioner may post a 
  5.21  sign to cease an activity until the cease and desist order is 
  5.22  lifted and the sign is removed by the commissioner.  To restrain 
  5.23  activities for a period beyond 72 hours, the commissioner must 
  5.24  seek an injunction or take other administrative action 
  5.25  authorized by law.  The issuance of a cease and desist order 
  5.26  does not preclude the commissioner from pursuing any other 
  5.27  enforcement action available to the commissioner. 
  5.28     Subd. 3.  [ACTION FOR INJUNCTIVE RELIEF.] In addition to 
  5.29  any other remedy provided by law, the commissioner may bring an 
  5.30  action for injunctive relief in the district court in Ramsey 
  5.31  county or, at the commissioner's discretion, in the district 
  5.32  court in the county in which a violation of a statute, rule, or 
  5.33  other authority has occurred to enjoin the violation. 
  5.34     Sec. 3.  [299A.802] [ADMINISTRATIVE PENALTY ORDERS.] 
  5.35     Subdivision 1.  [GENERAL.] The commissioner may issue an 
  5.36  administrative penalty order for a violation of statute, rule, 
  6.1   or other authority if an administrative agent has failed to 
  6.2   comply with a corrective order issued under section 299A.801 
  6.3   related to that violation.  The maximum amount of an 
  6.4   administrative penalty order is $10,000 for each administrative 
  6.5   agent for all violations identified in an inspection or review 
  6.6   of compliance.  In addition to service by certified mail on the 
  6.7   administrative agent, a copy of the administrative penalty order 
  6.8   must be given to the county auditor in the county where the 
  6.9   administrative agent is located.  
  6.10     Subd. 2.  [AMOUNT OF PENALTY; CONSIDERATIONS.] (a) In 
  6.11  determining the amount of a penalty to be assessed under this 
  6.12  section, the commissioner may consider: 
  6.13     (1) the willfulness of the violation; 
  6.14     (2) the gravity of the violation, including damage to 
  6.15  consumers or the state; 
  6.16     (3) the history of past violations; 
  6.17     (4) the number of violations; 
  6.18     (5) the economic benefit gained by the administrative agent 
  6.19  by allowing or committing the violation; and 
  6.20     (6) other factors as justice may require, if the 
  6.21  commissioner specifically identifies the additional factors in 
  6.22  the commissioner's order. 
  6.23     (b) If an administrative agent violates a corrective order 
  6.24  after a violation of a previous corrective order, the 
  6.25  commissioner, in determining the amount of a penalty, must 
  6.26  consider the factors in paragraph (a) and the following factors: 
  6.27     (1) similarity of the most recent previous violation of a 
  6.28  corrective order and the violation to be penalized; 
  6.29     (2) time elapsed since the last violation of a corrective 
  6.30  order; 
  6.31     (3) number of previous violations; and 
  6.32     (4) response of the administrative agent to the most recent 
  6.33  previous violation identified. 
  6.34     Subd. 3.  [CONTENTS OF ORDER.] An administrative penalty 
  6.35  order under this section must include: 
  6.36     (1) a concise statement of the facts alleged to constitute 
  7.1   a violation; 
  7.2      (2) a reference to the portion of the statute, rule, 
  7.3   variance, order, or stipulation agreement or the term or 
  7.4   condition of a permit that has been violated; 
  7.5      (3) a description of the violation of the corrective order 
  7.6   that forms the basis for issuance of the administrative penalty 
  7.7   order; 
  7.8      (4) a statement of the amount of the administrative penalty 
  7.9   to be imposed and the factors upon which the penalty is based; 
  7.10  and 
  7.11     (5) a statement of the administrative agent's right to 
  7.12  review and appeal of the administrative penalty order. 
  7.13     Subd. 4.  [DUE DATE.] (a) Unless the administrative agent 
  7.14  requests review of the administrative penalty order under 
  7.15  subdivision 5 before the penalty is due, the penalty in the 
  7.16  order is due and payable on the 31st day after the 
  7.17  administrative penalty order was received, if the administrative 
  7.18  agent subject to the order fails to provide information to the 
  7.19  commissioner showing that the violation has been corrected or 
  7.20  that appropriate steps have been taken toward correcting the 
  7.21  violation.  These requirements may be waived or extended by the 
  7.22  commissioner.  
  7.23     (b) Interest at the rate established in section 549.09 
  7.24  begins to accrue on penalties under this subdivision on the 31st 
  7.25  day after the order with the penalty was received, unless waived 
  7.26  by the commissioner. 
  7.27     Subd. 5.  [EXPEDITED ADMINISTRATIVE HEARING.] (a) Within 30 
  7.28  days after receiving an administrative penalty order, the 
  7.29  administrative agent subject to an order under this section may 
  7.30  request an expedited hearing, using the procedures of Minnesota 
  7.31  Rules, parts 1400.8510 to 1400.8612, or their successor rules, 
  7.32  to review the commissioner's action.  The hearing request must 
  7.33  specifically state the reasons for seeking review of the 
  7.34  administrative penalty order.  The administrative agent to whom 
  7.35  the administrative penalty order is directed and the 
  7.36  commissioner are the parties to the expedited hearing.  At least 
  8.1   15 days before the hearing, the commissioner shall notify the 
  8.2   administrative agent to whom the administrative penalty order is 
  8.3   directed of the time and place of the hearing.  The expedited 
  8.4   hearing must be held within 30 days after a request for hearing 
  8.5   has been filed with the commissioner unless the parties agree to 
  8.6   a later date. 
  8.7      (b) All written arguments must be submitted within ten days 
  8.8   following the close of the hearing.  The hearing must be 
  8.9   conducted under Minnesota Rules, parts 1400.8510 to 1400.8612, 
  8.10  or their successor rules, as modified by this subdivision.  The 
  8.11  office of administrative hearings, in consultation with the 
  8.12  agency, may adopt rules specifically applicable to cases under 
  8.13  this section. 
  8.14     (c) Within 30 days following the close of the record, the 
  8.15  administrative law judge shall issue a report making 
  8.16  recommendations about the commissioner's action to the 
  8.17  commissioner.  The administrative law judge may not recommend a 
  8.18  change in the amount of the proposed administrative penalty 
  8.19  unless the administrative law judge determines that, based on 
  8.20  the factors in subdivision 1, the amount of the administrative 
  8.21  penalty is unreasonable.  
  8.22     (d) If the administrative law judge makes a finding that 
  8.23  the hearing was requested solely for purposes of delay or that 
  8.24  the hearing request was frivolous, the commissioner may add to 
  8.25  the amount of the administrative penalty the costs charged to 
  8.26  the agency by the office of administrative hearings for the 
  8.27  hearing. 
  8.28     (e) If a hearing has been held, the commissioner may not 
  8.29  issue a final order until at least five days after receipt of 
  8.30  the report of the administrative law judge.  Within those five 
  8.31  days, the administrative agent to whom an administrative penalty 
  8.32  order is issued may comment to the commissioner on the 
  8.33  recommendations and the commissioner shall consider the 
  8.34  comments.  The final administrative penalty order may be 
  8.35  appealed to the district court for a de novo review of the order.
  8.36     (f) If a hearing has been held and a final administrative 
  9.1   penalty order issued by the commissioner, the administrative 
  9.2   penalty must be paid by 30 days after the date the final order 
  9.3   is received unless it is appealed to the district court.  If an 
  9.4   appeal is not taken or the administrative penalty order is 
  9.5   upheld on appeal, the amount due is the administrative penalty, 
  9.6   together with interest accruing from 31 days after the original 
  9.7   order was received, at the rate established in section 549.09. 
  9.8      Subd. 6.  [MEDIATION.] In addition to review under 
  9.9   subdivision 5, the commissioner may enter into mediation 
  9.10  concerning an order issued under this section if the 
  9.11  commissioner and the administrative agent to whom the order is 
  9.12  issued both agree to mediation.