701.317. Additional remedies--rulemaking authority--administrative penalties, requirements--deposit of penalty moneys in lead abatement loan fund. - Missouri Statutes

Additional remedies--rulemaking authority--administrativepenalties, requirements--deposit of penalty moneys in lead abatementloan fund.

701.317. 1. In addition to any other remedy provided by law, upon adetermination by the director that a provision of sections 701.300 to701.338, or a standard, limitation, order, rule or regulation promulgatedpursuant thereto, or a term or condition of any license has been violated,the director may issue an order assessing an administrative penalty uponthe violator under this section. An administrative penalty shall not beimposed until the director has issued a notice of violation pursuant tosection 701.311 to the violator regarding the same type of violation withinthe calendar year. Any order assessing an administrative penalty shallstate that an administrative penalty is being assessed under this sectionand that the person subject to the penalty may appeal as provided by thissection. Any such order that fails to state the statute under which thepenalty is being sought, the manner of collection or rights of appeal shallresult in the state's waiving any right to collection of the penalty.

2. The director shall promulgate rules and regulations for theassessment of administrative penalties. Such rules shall take intoconsideration the harm or potential harm which the violation causes, or maycause, the violator's previous compliance record, and any other factorswhich the department may reasonably deem relevant.

3. An administrative penalty shall be paid within sixty days from thedate of issuance of the order assessing the penalty. Any person subject toan administrative penalty may appeal to the department within ten daysafter receipt of the imposition of penalty. Upon receipt of a request forhearing, the department shall schedule the hearing to be held within thirtydays. Any appeal will stay the due date of such administrative penaltyuntil the appeal is resolved. Any person who fails to pay anadministrative penalty by the final due date shall be liable to the statefor a surcharge of fifteen percent of the penalty plus ten percent perannum on any amounts owed. An action may be brought in the appropriatecircuit court to collect any unpaid administrative penalty, and forattorney's fees and costs incurred directly in the collection thereof.

4. An administrative penalty shall not be increased in thoseinstances where department action, or failure to act, has caused acontinuation of the violation that was a basis for the penalty. Anyadministrative penalty must be assessed within two years following thedepartment's initial discovery of such alleged violation, or from the dateof the department in the exercise of ordinary diligence should havediscovered such alleged violation.

5. Any final order imposing an administrative penalty is subject tojudicial review on the record upon the filing of a petition pursuant tosection 536.100, RSMo, by any person subject to the administrative penalty.The appeal shall be filed in the circuit court of the county where theviolation occurred.

6. The director may elect to assess an administrative penalty, or, inlieu thereof, to request that the attorney general or prosecutor file anappropriate legal action seeking a civil penalty in the appropriate circuitcourt.

7. The penalties collected pursuant to this section shall bedeposited in the Missouri lead abatement loan fund as established insection 701.337. Such penalties shall not be considered charitablecontributions for tax purposes.

(L. 2005 S.B. 95)