10-144-201 Me. Code R. § 8

Current through 2024-51, December 18, 2024

Section 144-201-8 - ADMINISTRATIVE PENALTIES

A.Scope of administrative penalties: An administrative penalty may be assessed for a violation or a failure to comply with Department requirements, that, at the time it occurred, constituted noncompliance with statutes or rules under the jurisdiction of the Department. Pursuant to 22 MRS §2498(2), the Department establishes the following schedule of penalties within this section for establishments failing to correct violations by the Department's deadline(s).

B.Process: An inspection report or letter of enforcement must be issued by the Department, prior to the Department imposing an administrative penalty.

1. An administrative penalty is assessed via a penalty assessment notice.

2. A penalty assessment notice may be issued, once an establishment fails to complete or maintain corrective action required by the Department in the inspection report or letter of enforcement.

3. Imposing an administrative penalty is not deemed, in any way, to extend any deadline for compliance.

4. Eating, lodging, campground, youth camps and public pool/spa licensees are required to pay the full amount of the penalties owed to the Department, at the time of license renewal, or prior to the Department processing any license application.

C.Risk assessment and analysis: The following factors are considered in the Department's determination of the amount of a penalty assessment:

1. Degree of risk (critical and non-critical violations) - The level of risk to public health and safety;

2. Duration of the violation - The length of time that a violation persists without corrective action; and

3. Repeat violations: Whether there is a recurrence of the same violations.

D.Authority The Department may direct any of its licensed establishments to correct any violations in a manner, and within a time frame, that the Department determines is appropriate to ensure compliance with State rules and/or to protect the public health. Failure to correct violations within the time frames, or failure to maintain compliance, constitutes a separate fineable violation.

E.Penalty schedule for eating establishments, lodging places, recreational camps, youth camps, public pools/public spas or campgrounds operating without a license: Pursuant to 22 MRS §2498(1)(C), the Department is authorized to assess penalties to those establishments operating without a Department license:

1. It is the responsibility of the establishment to be licensed at all times of operation and to notify the Department if there are any questions or concerns regarding proper licensure.

2. New Establishment Operating Without a License: If an establishment has never been licensed but continues to operate without a license after notification by the Department through an initial letter of enforcement, then the Department may assess any or all of the following penalty amounts, according to the following time periods during which the new establishment was unlicensed:

a. Day 1 through day 30: $250.

b. Day 31 through day 44: $500.

c. Day 45 through day 59: $1000.

d. Day 60 through day 89: $2,000.

e. Day 90 through day 119: $3,000.

f. Day 120 through day 149: $4,000.

3. Existing Establishment Operating After License Expiration: If an establishment's license has expired, but the same owner continues to operate before receiving a renewed license, then the Department may assess the following penalty amounts in addition to any late fees assessed in accordance with Section 5 of this rule, according to the following periods of operation:

a. Day 1 through day 29: $500.

b. Day 30 through day 44: $1,000.

b. Day 45 through day 59: $2,000.

c. Day 60 through day 89: $3,000.

d. Day 90: $4,000.

e. Day 91 and beyond: $5,000.

4. If a new owner operates an establishment without receiving a new license from the Department, then the Department is authorized to assess the same penalty amounts listed in Section 8(E)(2) above to the new owner. Factors considered by the Department to determine whether fines will be assessed against the new owner include the following:

a. Evidence that the new owner is cooperating with the Department about meeting new licensing requirements, upon notification, by submitting a new, complete license application, paying the application fee, responding to Department correspondence, or agreeing to an inspection;

b. Promptly reaching compliance with application and licensing standards of this rule.

5. The penalty amounts assessed by the Department for operating without a license are in addition to, not in place of, the license fees owed for the current year that the establishment should have been licensed.

6. Continued unlicensed operation beyond the time periods outlined in Section 8(E)(2) and (3) above, may result in an additional penalty of up to $5,000 per day.

F.Penalty schedule for any other violations not applicable to Section 8(E) above, for eating establishments, lodging places, sporting or recreational camps, youth camps, public pools/public spas and campgrounds:

1. For any establishment with a critical violation, the penalty amount is $200.00 per repeat critical violation or per day out of compliance.

2. For any establishment with a non-critical violation, the penalty amount is $100.00 per repeat non-critical violation, or per day out of compliance.

3. For any establishment with violations not listed as critical or non-critical, the penalty amount is $100.00 per violation or per day out of compliance.

4. For operating in violation of an imminent health hazard requirement imposed pursuant to Section 6(E) of this rule, the penalty amount is $1,000.00 for each violation. Each day of operation may be counted by the Department as a separate offense.

5. For operating during a temporary suspension of license, the penalty amount is $5,000.00. Each day of operation may be counted by the Department as a separate offense, pursuant to 22 MRS §2498(1)(C).

6. For any establishment that does not hire a Food Safety Consultant by the Department's deadline or does not hire a Food Safety Consultant within 15 days of the departure of the prior Food Safety Consultant, the penalty amount is $500.00 per violation, or day out of compliance.

7. Pursuant to 22 MRS §2498(3)(B), all collectible penalties must be paid to the Department prior to the Department's approval of license applications or renewals.

8. Pursuant to 22 MRS §1633, the Department will give 30 days written notice of any public pool/public spa violations, prior to imposing any penalties.

10-144 C.M.R. ch. 201, § 8