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Key: (1) language to be deleted (2) new language

                            CHAPTER 165-H.F.No. 1037 
                  An act relating to health; providing rulemaking 
                  authority; modifying enforcement and fee provisions; 
                  modifying the hearing instrument dispenser trainee 
                  period; providing penalties; amending Minnesota 
                  Statutes 1994, sections 144.414, subdivision 3; 
                  144.417, subdivision 1; 144.98, subdivision 3; 144.99, 
                  subdivisions 1, 4, 6, 8, and 10; 144.991, subdivision 
                  5; 326.71, subdivision 4; 326.75, subdivision 3a; and 
                  326.78, subdivisions 2 and 9; proposing coding for new 
                  law in Minnesota Statutes, chapters 144; and 157; 
                  repealing Minnesota Statutes 1994, sections 144.877, 
                  subdivision 5; and 144.8781, subdivision 4; Laws 1993, 
                  chapter 286, section 11; Minnesota Rules, part 
                  4620.1500. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  [144.1222] [PUBLIC POOLS; ENCLOSED SPORTS 
        ARENAS.] 
           Subdivision 1.  [PUBLIC POOLS.] The commissioner of health 
        shall be responsible for the adoption of rules and enforcement 
        of applicable laws and rules relating to the operation, 
        maintenance, design, installation, and construction of public 
        pools and facilities related to them.  The commissioner shall 
        adopt rules governing the collection of fees under section 
        144.122 to cover the cost of pool construction plan review, 
        monitoring, and inspections. 
           Subd. 2.  [POOLS USED FOR TREATMENT OR THERAPY.] A pool 
        used by a medical or rehabilitation facility to facilitate 
        treatment or therapy, to which only authorized access is allowed 
        and which is not open for any other public use, is exempt from 
        the requirements of Minnesota Rules, part 4717.1050, regarding 
        warning signs, and Minnesota Rules, part 4717.1650, subpart 1, 
        regarding placards. 
           Subd. 3.  [ENCLOSED SPORTS ARENAS.] The commissioner of 
        health shall be responsible for the adoption of rules and 
        enforcement of applicable laws and rules relating to indoor air 
        quality in the operation and maintenance of enclosed sports 
        arenas. 
           Sec. 2.  Minnesota Statutes 1994, section 144.414, 
        subdivision 3, is amended to read: 
           Subd. 3.  [HEALTH CARE FACILITIES AND CLINICS.] (a) Smoking 
        is prohibited in any area of a hospital, health care clinic, 
        doctor's office, or other health care-related facility, other 
        than a nursing home, boarding care facility, or licensed 
        residential facility, except as allowed in this subdivision.  
           (b) Smoking by patients in a chemical dependency treatment 
        program or mental health program may be allowed in a separated 
        well-ventilated area pursuant to a policy established by the 
        administrator of the program that identifies circumstances in 
        which prohibiting smoking would interfere with the treatment of 
        persons recovering from chemical dependency or mental illness.  
           (c) Smoking by participants in peer reviewed scientific 
        studies related to the health effects of smoking may be allowed 
        in a separated room ventilated at a rate of 60 cubic feet per 
        minute per person pursuant to a policy that is approved by the 
        commissioner and is established by the administrator of the 
        program to minimize exposure of nonsmokers to smoke. 
           Sec. 3.  Minnesota Statutes 1994, section 144.417, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [RULES.] The state commissioner of health 
        shall adopt rules necessary and reasonable to implement the 
        provisions of sections 144.411 to 144.417, except as provided 
        for in section 144.414. 
           The state commissioner of health may, upon request, waive 
        the provisions of sections 144.411 to 144.417 if the 
        commissioner determines there are compelling reasons to do so 
        and a waiver will not significantly affect the health and 
        comfort of nonsmokers. 
           Sec. 4.  Minnesota Statutes 1994, section 144.98, 
        subdivision 3, is amended to read: 
           Subd. 3.  [FEES.] (a) An application for certification 
        under subdivision 1 must be accompanied by the annual biennial 
        fee specified in this subdivision.  The fees are for: 
           (1) base certification fee, $250 $500; and 
           (2) test category certification fees: 
        Test Category                                  Certification Fee
        Bacteriology                                         $100 $200
        Inorganic chemistry, fewer than four constituents    $ 50 $100
        Inorganic chemistry, four or more constituents       $150 $300
        Chemistry metals, fewer than four constituents       $100 $200
        Chemistry metals, four or more constituents          $250 $500
        Volatile organic compounds                           $300 $600
        Other organic compounds                              $300 $600
           (b) The total annual biennial certification fee is the base 
        fee plus the applicable test category fees.  The annual biennial 
        certification fee for a contract laboratory is 1.5 times the 
        total certification fee. 
           (c) Laboratories located outside of this state that require 
        an on-site survey will be assessed an additional $1,200 fee. 
           (d) The commissioner of health may adjust fees under 
        section 16A.128, subdivision 2.  Fees must be set so that the 
        total fees support the laboratory certification program.  Direct 
        costs of the certification service include program 
        administration, inspections, the agency's general support costs, 
        and attorney general costs attributable to the fee function. 
           Sec. 5.  Minnesota Statutes 1994, section 144.99, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [REMEDIES AVAILABLE.] The provisions of 
        chapters 103I and 157 and sections 115.71 to 115.82; 144.12, 
        subdivision 1, paragraphs (1), (2), (5), (6), (10), (12), (13), 
        (14), and (15); 144.121; 144.1222; 144.35; 144.381 to 144.385; 
        144.411 to 144.417; 144.491; 144.495; 144.71 to 144.74; 144.871 
        to 144.878 144.879; 144.992; 326.37 to 326.45; 326.57 to 
        326.785; 327.10 to 327.131; and 327.14 to 327.28 and all rules, 
        orders, stipulation agreements, settlements, compliance 
        agreements, licenses, registrations, certificates, and permits 
        adopted or issued by the department or under any other law now 
        in force or later enacted for the preservation of public health 
        may, in addition to provisions in other statutes, be enforced 
        under this section. 
           Sec. 6.  Minnesota Statutes 1994, section 144.99, 
        subdivision 4, is amended to read: 
           Subd. 4.  [ADMINISTRATIVE PENALTY ORDERS.] The commissioner 
        may issue an order requiring violations to be corrected and 
        administratively assessing monetary penalties for violations of 
        the statutes, rules, and other actions listed in subdivision 1.  
        The procedures in section 144.991 must be followed when issuing 
        administrative penalty orders.  Except in the case of repeated 
        or serious violations, the penalty assessed in the order must be 
        forgiven if the person who is subject to the order demonstrates 
        in writing to the commissioner before the 31st day after 
        receiving the order that the person has corrected the violation 
        or has developed a corrective plan acceptable to the 
        commissioner.  The maximum amount of an administrative penalty 
        orders order is $10,000 for each violator for all violations by 
        that violator identified in an inspection or review of 
        compliance. 
           Sec. 7.  Minnesota Statutes 1994, section 144.99, 
        subdivision 6, is amended to read: 
           Subd. 6.  [CEASE AND DESIST.] The commissioner, or an 
        employee of the department designated by the commissioner, may 
        issue an order to cease an activity covered by subdivision 1 if 
        continuation of the activity would result in an immediate risk 
        to public health.  An order issued under this paragraph is 
        effective for a maximum of 72 hours.  In conjunction with the 
        issuance of the cease and desist order, the commissioner may 
        post a sign to cease an activity until the cease and desist 
        order is lifted and the sign is removed by the commissioner.  
        The commissioner must seek an injunction or take other 
        administrative action authorized by law to restrain activities 
        for a period beyond 72 hours.  The issuance of a cease and 
        desist order does not preclude the commissioner from pursuing 
        any other enforcement action available to the commissioner. 
           Sec. 8.  Minnesota Statutes 1994, section 144.99, 
        subdivision 8, is amended to read: 
           Subd. 8.  [DENIAL OR REFUSAL TO REISSUE PERMITS, LICENSES, 
        REGISTRATIONS, OR CERTIFICATES.] (a) The commissioner may deny 
        or refuse to renew an application for a permit, license, 
        registration, or certificate required under the statutes or 
        rules cited in subdivision 1, if the applicant does not meet or 
        fails to maintain the minimum qualifications for holding a 
        permit, license, registration, or certificate or has any 
        unresolved violations related to the activity for which the 
        permit, license, registration, or certificate was issued. 
           (b) The commissioner may also deny or refuse to renew a 
        permit, license, registration, or certificate required under the 
        statutes or rules cited in subdivision 1 if the applicant has a 
        persistent pattern of violations related to the permit, license, 
        registration, or certificate, or if the applicant submitted 
        false material information to the department in connection with 
        the application. 
           (c) The commissioner may condition the grant or renewal of 
        a permit, license, registration, or certificate on a 
        demonstration by the applicant that actions needed to ensure 
        compliance with the requirements of the statutes listed in 
        subdivision 1 have been taken, or may place conditions on or 
        issue a limited permit, license, registration, or certificate as 
        a result of previous violations by the applicant. 
           Sec. 9.  Minnesota Statutes 1994, section 144.99, 
        subdivision 10, is amended to read: 
           Subd. 10.  [HEARINGS RELATED TO DENIAL, REFUSAL TO RENEW, 
        SUSPENSION, OR REVOCATION OF A PERMIT, LICENSE, REGISTRATION, OR 
        CERTIFICATE.] If the commissioner proposes to deny, refuses to 
        renew, suspends, or revokes a permit, license, registration, or 
        certificate under subdivision 8 or 9, the commissioner must 
        first notify, in writing, the person against whom the action is 
        proposed to be taken and provide the person an opportunity to 
        request a hearing under the contested case provisions of chapter 
        14.  If the person does not request a hearing by notifying the 
        commissioner within 20 days after receipt of the notice of 
        proposed action, the commissioner may proceed with the action 
        without a hearing. 
           Sec. 10.  Minnesota Statutes 1994, section 144.991, 
        subdivision 5, is amended to read: 
           Subd. 5.  [EXPEDITED ADMINISTRATIVE HEARING.] (a) Within 30 
        days after receiving an order or within 20 days after receiving 
        notice that the commissioner has determined that a violation has 
        not been corrected or appropriate steps have not been taken, the 
        person subject to an order under this section may request an 
        expedited hearing, utilizing using the procedures of Minnesota 
        Rules, parts 1400.8510 to 1400.8612, to review the 
        commissioner's action.  The hearing request must specifically 
        state the reasons for seeking review of the order.  The person 
        to whom the order is directed and the commissioner are the 
        parties to the expedited hearing.  The commissioner must notify 
        the person to whom the order is directed of the time and place 
        of the hearing at least 20 15 days before the hearing.  The 
        expedited hearing must be held within 30 days after a request 
        for hearing has been filed with the commissioner unless the 
        parties agree to a later date. 
           (b) All written arguments must be submitted within ten days 
        following the close of the hearing.  The hearing shall be 
        conducted under Minnesota Rules, parts 1400.8510 to 1400.8612, 
        as modified by this subdivision.  The office of administrative 
        hearings may, in consultation with the agency, adopt rules 
        specifically applicable to cases under this section.  
           (c) The administrative law judge shall issue a report 
        making recommendations about the commissioner's action to the 
        commissioner within 30 days following the close of the record.  
        The administrative law judge may not recommend a change in the 
        amount of the proposed penalty unless the administrative law 
        judge determines that, based on the factors in subdivision 2 1, 
        the amount of the penalty is unreasonable. 
           (d) If the administrative law judge makes a finding that 
        the hearing was requested solely for purposes of delay or that 
        the hearing request was frivolous, the commissioner may add to 
        the amount of the penalty the costs charged to the agency by the 
        office of administrative hearings for the hearing. 
           (e) If a hearing has been held, the commissioner may not 
        issue a final order until at least five days after receipt of 
        the report of the administrative law judge.  The person to whom 
        an order is issued may, within those five days, comment to the 
        commissioner on the recommendations and the commissioner will 
        consider the comments.  The final order may be appealed in the 
        manner provided in sections 14.63 to 14.69. 
           (f) If a hearing has been held and a final order issued by 
        the commissioner, the penalty shall be paid by 30 days after the 
        date the final order is received unless review of the final 
        order is requested under sections 14.63 to 14.69.  If review is 
        not requested or the order is reviewed and upheld, the amount 
        due is the penalty, together with interest accruing from 31 days 
        after the original order was received at the rate established in 
        section 549.09. 
           Sec. 11.  [157.011] [RULES.] 
           Subdivision 1.  [ESTABLISHMENTS.] The commissioner shall 
        adopt rules establishing standards for food, beverage, and 
        lodging establishments. 
           Subd. 2.  [CERTIFICATION OF FOOD SERVICE MANAGERS.] The 
        commissioner shall: 
           (1) adopt rules for certification requirements for managers 
        of food service operations; and 
           (2) establish in rule, criteria for training and 
        certification. 
           Sec. 12.  Minnesota Statutes 1994, section 326.71, 
        subdivision 4, is amended to read: 
           Subd. 4.  [ASBESTOS-RELATED WORK.] "Asbestos-related work" 
        means the enclosure, removal, or encapsulation of 
        asbestos-containing material in a quantity that meets or exceeds 
        260 lineal feet of friable asbestos-containing material on 
        pipes, 160 square feet of friable asbestos-containing material 
        on other facility components, or, if linear feet or square feet 
        cannot be measured, a total of 35 cubic feet of friable 
        asbestos-containing material on or off all facility components 
        in one facility.  In the case of single or multifamily 
        residences, "asbestos-related work" also means the enclosure, 
        removal, or encapsulation of greater than ten but less than 260 
        lineal feet of friable asbestos-containing material on pipes or 
        ducts or greater than six but less than 160 square feet of 
        friable asbestos-containing material on other facility 
        components.  This provision excludes asbestos-containing floor 
        tiles and sheeting, roofing materials, siding, and all ceilings 
        with asbestos-containing material in single family residences 
        and buildings with no more than four dwelling units.  
        Asbestos-related work includes asbestos abatement area 
        preparation; enclosure, removal, encapsulation, or repair 
        operations; and an air quality monitoring specified in rule to 
        assure that the abatement and adjacent areas are not 
        contaminated with asbestos fibers during the project and after 
        completion. 
           For purposes of this subdivision, the quantity of asbestos 
        containing material applies separately for every project permit 
        fee paid under section 326.75, subdivision 3. 
           Sec. 13.  Minnesota Statutes 1994, section 326.75, 
        subdivision 3a, is amended to read: 
           Subd. 3a.  [ASBESTOS-RELATED TRAINING COURSE PERMIT FEE.] 
        The commissioner shall establish by rule a permit fee to be paid 
        by a training course provider upon on application for approval 
        or renewal of approval a training course permit or renewal of a 
        permit of each asbestos-related training course required for 
        certification or registration. 
           Sec. 14.  Minnesota Statutes 1994, section 326.78, 
        subdivision 2, is amended to read: 
           Subd. 2.  [ISSUANCE OF LICENSES AND CERTIFICATES.] The 
        commissioner may issue licenses to persons and certificates to 
        individuals who meet the criteria in sections 326.70 to 326.82 
        and the commissioner's rules.  Licenses and certificates shall 
        be valid for at least 12 months, except that the initial 
        certificate will be issued to expire one year.  Certificates 
        shall be valid for 12 months after the completion date on the 
        approved training course diploma. 
           Sec. 15.  Minnesota Statutes 1994, section 326.78, 
        subdivision 9, is amended to read: 
           Subd. 9.  [PENALTIES.] (a) A person who violates any of the 
        requirements of sections 326.70 to 326.81 or any requirement, 
        rule, or order issued under those sections is subject to a civil 
        penalty of not more than $10,000 per day of violation.  
        Penalties may be recovered in a civil action in the name of the 
        state brought by the attorney general. 
           (b) The commissioner may issue an order assessing a penalty 
        of not more than $10,000 per violation to any person who 
        violates any of the requirements of sections 326.70 to 326.81 or 
        any requirement, rule, or order issued under those sections.  A 
        person subject to an administrative penalty order may request a 
        contested case hearing under chapter 14 within 20 days from date 
        of receipt of the penalty order.  If the penalty order is not 
        contested within 20 days of receipt, it becomes final and may 
        not be contested. 
           (c) The amount of the penalty shall be based on the past 
        history of same or similar violations, the severity of 
        violation, the culpability of the person, and other relevant 
        factors.  The history of past violations shall include previous 
        violations received by the person licensed as a different entity.
           (d) Penalties assessed under sections 326.70 to 326.81 
        shall be paid to the commissioner for deposit in the state 
        government special revenue fund.  Unpaid penalties shall be 
        increased to 125 percent of the original assessed amount if not 
        paid within 60 days after the penalty order becomes final.  
        After 60 days, interest shall accrue on the unpaid penalty 
        balance at the rate established in section 549.09. 
           Sec. 16.  [EXTENSION OF HEARING INSTRUMENT DISPENSER 
        TRAINEE PERIOD.] 
           Notwithstanding Minnesota Statutes, section 153A.14, 
        subdivision 4a, paragraph (a), a person approved by the 
        commissioner of health as a hearing instrument dispenser trainee 
        after July 1, 1994, and before December 1, 1994, may continue to 
        dispense hearing instruments as a trainee until November 1, 1995.
           Sec. 17.  [REPEALER.] 
           Minnesota Statutes 1994, sections 144.877, subdivision 5; 
        and 144.8781, subdivision 4, are repealed.  Laws 1993, chapter 
        286, section 11, is repealed.  Minnesota Rules, part 4620.1500, 
        is repealed. 
           Sec. 18.  [EFFECTIVE DATE.] 
           Section 16 is effective the day following final enactment. 
           Presented to the governor May 12, 1995 
           Signed by the governor May 15, 1995, 10:06 a.m.