Ga. Comp. R. & Regs. R. 120-3-25-.11 - Notice of Hearing and Penalties

(1) Cessation Order.

(a) The Office may issue a written order for the cessation of operation of elevators, escalators, moving walks and all other equipment covered by these regulations when it has been determined to be hazardous, unsafe, or the failure to comply with any of the provisions of these rules or the safety act. Operation shall not resume until such violations are corrected to the satisfaction of the Commissioner or the Commissioner's authorized representative.

(b) In the event a person knowingly commits a violation or allows a violation to be committed after being issued a cessation order, or warning the Commissioner or the Commissioner's authorized representative may initiate a Citation as stated below.

(2) Issuance of Citation or Notice of Administrative Proceeding:

(a) If upon inspection by an inspector or deputy inspector;

1. An elevator, escalator, dumbwaiter, manlift, or moving walk, platform lifts and stairway chairlifts, is deemed to be in an unsafe condition,

2. The owner, operator, user, contractor, or installer has not complied with the Elevator Law or Rules, or

3. When a written warning or citation has been issued and the violation continues, then the deputy inspector shall issue the violator a citation stating the date, time and place of the violation, the specific violation, the recommended penalty, and shall offer the respondent the opportunity for a hearing as set forth in this section.

(b) If upon receiving information from any source, the Chief Inspector determines that there is a reasonable belief that:

1. An elevator, escalator, manlift, dumbwaiter, or moving walk platform lifts and stairway chairlifts, may be in an unsafe condition,

2. The owner, operator, user, contractor, or installer has not complied with the Elevator Law or these Rules, or

3. When a warning has been issued, and the violation is a continuing violation, the Chief Inspector or the Director, Safety Engineering, on behalf of the Office, may issue Notice of Administrative Proceeding stating the date, time, and place of the violation, the specific violation, the recommended penalty, and shall offer the respondent the opportunity for a hearing as set forth in this section.

(c) The Director, Safety Engineering, upon review of a citation issued under subsection (a) above, may, in his sole discretion, dismiss the citation and substitute therefore a Notice of Administrative Proceeding pursuant to subsection (b) above on the same, similar, or different violation, as required by the evidence.

(d) The Commissioner, upon review of a Citation or Notice of Administrative Proceeding, in his sole discretion, may refer the matter to the appropriate prosecuting official for criminal or injunctive relief as permitted under law. In such event, the Commissioner may, in his sole discretion, elect to dismiss, suspend, or continue with the civil penalty proceeding.

(3) Hearing Procedure:

(a) If request for a hearing is not received from the respondent within the allotted time, the Director, Safety Engineering, on behalf of the Commissioner, may without further process impose a civil penalty not greater than the total of civil penalties set forth on the citation or in the Notice of Administrative Proceeding. An administrative order under the authority of the Commissioner may be issued to collect the civil penalty assessed.

(b) If a hearing request is received in response to a Citation or Notice of Administrative Proceeding, further actions or proceedings shall be governed by the Georgia Administrative Procedure Act, O.C.G.A. Chapter 50-13, O.C.G.A. 25-2-29, and applicable Rules and Regulations of the Commissioner.

(c) All hearings, whether before the Commissioner or an appointed adjudicator, shall be conducted in accordance with the statutes and regulations cited in the preceding sub-paragraph, including the applicable Rules and Regulations of the Commissioner.

(d) The decision of an appointed adjudicator made after a hearing shall be an initial agency decision within the meaning of O.C.G.A.§ 50-13-41(d) and shall be subject to review by the Commissioner, Insurance and Safety Fire, as set forth in O.C.G.A. §50-1341(e). A hearing before the Commissioner shall be the final agency decision in the matter and shall be subject to judicial review as set forth in O.C.G.A. § 50-13-19.

(4) Guidelines for Imposition of Civil Penalties:

(a) Any person, firm, partnership, corporation or other business entity, which violates this part, shall be subject to the imposition of civil penalties. Each day on which a violation occurs shall constitute a separate offense. Repeat offenders, whom a violation occurs, shall constitute a separate offense. Repeat offenders, including those who refuse to adhere to orders of the inspectors, exceed the limitations of operating permits, or refuse to adhere to the requirements of these rules and regulations, may be referred to appropriate prosecuting official for criminal (misdemeanor) or injunction relief as permitted under law. Serious violations, including those causing serious bodily injury or death, or which exhibit gross negligence or serious disregard for public safety, may also be referred appropriate prosecuting official for criminal (misdemeanor) or injunctive relief as permitted under law.

(b) Notwithstanding the recommended minimum penalties set forth below, a serious violation, including those causing serious bodily injury or death, or which exhibit gross negligence or serious disregard for public safety, may receive the maximum penalty of $5,000.00 for each violation including a first offense. The imposition of a penalty for a violation of this part shall not excuse the violation or permit it to continue.

(c) The deputy inspector issuing a Citation shall, at the time of issuance, specify a recommended civil penalty amount for each specific violation in accordance with these Rules and Regulations. The Director is charged with the responsibility to insure that recommended penalties for violations are graduated with the more serious violations receiving the heavier penalty and with assuring uniformity of recommended penalties such that offenders in similar circumstances with similar violations receive similar penalty recommendation. In this regard, the Director may dismiss a Citation and issue a Notice of Administrative Proceeding solely for the purpose of making an appropriate penalty recommendation.

(d) The recommended civil penalty set forth in the Citation or Notice of Administrative Proceeding shall be given great deference by the appointed adjudicator. The minimum recommended penalties set forth below is normally for the first offense with only one violation being cited. The appointed adjudicator shall, after hearing the case, consider factors in mitigation of the violation as well as those in aggravation. The appointed adjudicator shall impose a penalty less than the recommended minimum penalty only upon finding unusually significant mitigating factors, and shall set forth those factors in the order. The appointed adjudicator may impose a penalty substantially greater than the Office recommended penalty upon finding significant aggravating factors associated with violations, and shall set forth those factors in the order. The appointed adjudicator shall consider the provision of these Rules and Regulations guiding the assessment of penalties. In particular, the appointed adjudicator shall, in cases involving structural damage, bodily injury, or death; or continued operation after an unsafe condition is detected or after the equipment is taken out of service by an inspector or deputy inspector, consider the imposition of separate penalties for each day of violation. No penalty exceeding $5,000.00 for each violation and each day of violation shall be assessed.

(e) The appointed adjudicator may, in addition to a civil penalty, recommend in the order that the Commissioner suspend for a period of time or indefinitely, operating certificate, permits to install, or certificates for contractors.

(5) Minimum recommended penalties.

(a) Specific violations:

1. Operating equipment without an operating certificate. (O.C.G.A. § 8-2-103)

First offense ...................................... $250.00

Second offense .................................. $500.00

2. Operating equipment in an unsafe condition. (O.C.G.A. § 8-2-101)

First offense ....................................... $500.00

Second offense ................................. $1000.00

3. Failure to permit access for the purpose of inspecting or investigating equipment. (O.C.G.A. § 8-2-102)

First offense ........................................ $500.00

Second offense .................................. $1000.00

4. Failing to notify the Chief Inspector of any accidents involving structural damage or injury as defined in the definition section. (O.C.G.A. § 8-2-106)

First offense ......................................... $500.00

Second offense .................................. $1000.00

5. Failing to notify the Chief Inspector of an accident which involved death. (O.C.G.A. § 8-2-106).............................................. $5000.00

6. Placing unit back in service, which has been Red Tagged and placed out of service by a deputy inspector, without first having the unit inspected. (O.C.G.A. § 8-2-102)

First offense ....................................... $1000.00

Second offense .................................. $2500.00

7. Placing a unit which has been involved in an accident back in service prior to having the unit inspected or otherwise cleared. (O.C.G.A. § 8-2-106, Rule 120-3-25-.07)

First offense ....................................... $1000.00

Second offense ................................... $2500.00

8. Turning equipment over for use without a final acceptance inspection. (O.C.G.A. § 8-2-101)

First offense ........................................ $500.00

Second offense .................................. $1000.00

9. Installing equipment without a permit. (Rules 120-3-25-.08 &.22)

First offense ....................................... Double Permit Fee

Second offense.................................... Triple Permit Fee

10. Inspecting without qualifications. (120-3-25-.22)

First offense ........................................ $500.00

Second offense .................................. $1000.00

11. Using construction elevators or personnel hoist without first obtaining a permit or receiving an inspection. (Rule 120-3-25-.21)

First offense ...................................... Double permit fee

Second offense .................................. Triple permit fee

(b) General Violations:

1. Violating adopted Codes, Standards, Rules, Regulations or Order. (Rule 120-3-25)

First offense ...................................... $250.00

Second offense ................................. $500.00

2. Certified company performing an activity, which violates the law or regulations.

Any Offense ................................... $2500.00 and Suspension of Certificate

3. Any third repeated offense might subject the violator to the maximum civil penalty permitted under the Act.... $5000.00

Notes

Ga. Comp. R. & Regs. R. 120-3-25-.11

O.C.G.A. §§ 8-2-102, 8-2-103, 8-2-104.

Original Rule entitled "Discontinuance of Operation" adopted. F. Sep. 4, 2013; eff. Sept. 24, 2013. Repealed: New Rule of same title adopted. F. Dec. 12, 2014; eff. Jan. 1, 2015. Repealed: New Rule entitled "Notice of Hearing and Penalties" adopted. F. Dec. 4, 2020; eff. Dec. 29, 2020, as specified by the Agency.