Iowa Admin. Code r. 641-26.8 - Denial, probation, suspension or revocation
This rule pertains to denial, probation, suspension or revocation of registration; denial or revocation of training course approval; and denial or revocation of approval as a third-party certification agency.
(1) The department may deny an
application for registration or renewal, may place a registration on probation,
may suspend or revoke a registration, or may order a registered tester not to
test or repair backflow prevention assemblies when the department finds that
the applicant or registered tester has committed any of the following acts:
a. Negligence or incompetence in the testing
of a backflow prevention assembly, including failure to report improper
application or installation of a backflow prevention assembly to the facility
owner and the administrative authority.
b. Knowingly submitting a false report of a
test of a backflow prevention assembly to the owner of the facility, the local
administrative authority, or the department.
c. Fraud in obtaining registration or renewal
including, but not limited to:
(1)
Intentionally submitting false information on an application for registration
or renewal;
(2) Submitting a false
or forged certificate or other record of training or certification.
d. Falsification of the assembly
records required by subrule 26.6(2).
e. Failure to comply with these rules and
with the ordinances of an administrative authority in whose jurisdiction the
registered tester tests a backflow prevention assembly.
f. Failure to pay a required registration,
renewal or late fee.
g. Habitual
intoxication or addiction to drugs.
h. Violating a statute of this state, another
state, or the United States, without regard to its designation as either a
felony or misdemeanor, which relates to backflow prevention assembly testing,
including but not limited to crimes involving dishonesty, fraud, theft,
controlled substances, substance abuse, assault, sexual abuse, sexual
misconduct, or homicide. A copy of the record of conviction or plea of guilty
is conclusive evidence of the violation.
i. Having the authorization to test backflow
prevention assemblies suspended or revoked or having other disciplinary action
taken by a licensing or certifying authority of another state, territory or
country. A copy of the record or order of suspension, revocation or
disciplinary action is conclusive evidence.
j. Knowingly making misleading, deceptive,
untrue, or fraudulent representations regarding the testing of backflow
prevention assemblies, or engaging in unethical conduct or practice harmful or
detrimental to the public. Proof of actual injury need not be established. Acts
which may constitute unethical conduct include, but are not be limited to:
(1) Verbally or physically abusing a client
or coworker.
(2) Improper sexual
contact with or making suggestive, lewd, lascivious, or improper remarks or
advances to a client or coworker.
k. Engaging in any conduct that subverts or
attempts to subvert a department investigation.
l. Failure to comply with a subpoena issued
by the department or failure to cooperate with an investigation of the
department.
m. Failure to comply
with the terms of a department order or the terms of a settlement agreement or
consent order.
n. Knowingly aiding,
assisting or advising a person to unlawfully practice as a backflow prevention
assembly tester.
o. Representing
oneself as a registered backflow prevention assembly tester when one's
registration has been suspended or revoked or when one's registration is lapsed
or has been placed on inactive status.
p. Permitting the use of a registration by a
nonregistered person for any purpose.
q. Acceptance of any fee by fraud or
misrepresentation.
r. Failure to
respond within 30 days of receipt, unless otherwise specified, of communication
from the department which was sent by registered or certified mail.
(2) The department may deny or
revoke the approval for a training course or a continuing education course when
it finds:
a. The lead instructor for a
training course is not qualified in accordance with paragraph
26.4(1)7"
b. The training course
did not comply with paragraph 26.4(1)"e. "
c. That the training course testing
laboratory did not comply with paragraph 26.4(1)"g. "
d. The organization or person
applying for approval of a training or continuing education course
intentionally submitted false information to the department in support of such
approval.
e. The organization or
person conducting or sponsoring training has falsified training or continuing
education records, including issuance of a certificate or other record of
training to a person who did not successfully complete a training course or who
did not attend continuing education training.
f. The organization or person responsible for
a training or continuing education course has permitted physical or verbal
abuse or sexual harassment of a student or instructor. Sexual harassment
includes sexual advances, sexual solicitation, requests for sexual favors, and
other verbal or physical conduct of a sexual nature.
g. The organization or person responsible for
training courses and continuing education courses consistently fails to notify
the department of such courses in a timely fashion as required by
26.4(1)"d" and 26.4(2)"a" or fails to pay the
required fee.
h. Failure to comply
with these rules.
(3)
The department may deny or revoke the approval for a third-party certification
agency when it finds:
a. The application for
approval contains material misinformation regarding the conduct and standards
of the certification program or its acceptance in other
jurisdictions.
b. Failure to adhere
to the standards and procedures stated in the application for approval in the
process of certifying or renewing the certification of testers.
c. Violations of paragraph
26.4(3)"b."
d.
Failure to comply with these rules.
(4) Complaints. Complaints regarding a
registered tester, an approved training course or a third-party certification
agency shall be made in writing and sent to the department at Iowa Department
of Public Health, Division of Acute Disease Prevention, Emergency Response and
Environmental Health, 321 East 12th Street, Des Moines, Iowa 50319-0075. The
complainant shall provide:
a. The name of the
registered tester, the person or organization sponsoring an approved course, or
the third-party certification agency, as applicable; and
b. The specific details of the action(s) by
the registered tester that did not comply with the rules; or
c. The specific way(s) that an approved
course did not comply with the rules, including the date(s) and location(s) of
the alleged violation(s); or
d. The
specific way(s) that a third-party certification agency or its representative
failed to comply with the rules, including date(s) and location(s) of the
alleged failure to comply.
(5) Appeals.
a. Notice of denial, probation, suspension or
revocation of registration; denial, probation or revocation of course approval;
or denial, probation or revocation of third-party certification agency approval
shall be sent to the affected individual or organization by restricted
certified mail, return receipt requested, or by personal service. The affected
individual or organization shall have a right to appeal the denial, probation,
suspension or revocation.
b. An
appeal of a denial, probation, suspension or revocation shall be submitted by
certified mail, return receipt requested, within 30 days of receipt of the
department's notice. The appeal shall be sent to Iowa Department of Public
Health, Division of Acute Disease Prevention, Emergency Response and
Environmental Health, Lucas State Office Building, 321 East 12th Street, Des
Moines, Iowa 50319-0075. If such a request is made within the 30-day time
period, the notice of denial, probation, suspension or revocation shall be
deemed to be suspended. Prior to or at the hearing, the department may rescind
the notice upon satisfaction that the reason for the denial, probation,
suspension or revocation has been or will be removed. After the hearing, or
upon default of the applicant or alleged violator, the administrative law judge
shall affirm, modify or set aside the denial, probation, suspension or
revocation. If no appeal is submitted within 30 days, the denial, probation,
suspension or revocation shall become the department's final agency
action.
c. Upon receipt of an
appeal that meets contested case status, the appeal shall be transmitted to the
department of inspections and appeals within five working days of receipt
pursuant to the rules adopted by that agency regarding the transmission of
contested cases. The information upon which the denial, suspension or
revocation is based shall be provided to the department of inspections and
appeals.
d. The hearing shall be
conducted in accordance with 481-Chapter 10.
e. When the administrative law judge makes a
proposed decision and order, it shall be served by restricted certified mail,
return receipt requested, or delivered by personal service. The proposed
decision and order then becomes the department's final agency action without
further proceedings ten days after it is received by the aggrieved party unless
an appeal to the director is taken as provided in paragraph
26.8(5)"f."
f.
Any appeal to the director of the department for review of the proposed
decision and order of the administrative law judge shall be filed in writing
and mailed to the director by certified mail, return receipt requested, or
delivered by personal service within ten days after the receipt of the
administrative law judge's proposed decision and order by the aggrieved party.
A copy of the appeal shall also be mailed to the administrative law judge. Any
request for appeal shall state the reason for appeal.
g. Upon receipt of an appeal request, the
administrative law judge shall prepare the record of the hearing for submission
to the director. The record shall include the following:
(1) All pleadings, motions and
rules.
(2) All evidence received or
considered and all other submissions by recording or transcript.
(3) A statement of all matters officially
noticed.
(4) All questions and
offers of proof, objections, and rulings thereon.
(5) All proposed findings and
exceptions.
(6) The proposed
findings and order of the administrative law judge.
h. The decision and order of the director
becomes the department's final agency action upon receipt by the aggrieved
party and shall be delivered by restricted certified mail, return receipt
requested.
i. It is not necessary
to file an application for a rehearing to exhaust administrative remedies when
appealing to the director or the district court as provided in Iowa Code
section
17A.19. The
aggrieved party to the final agency action of the department who has exhausted
all administrative remedies may petition for judicial review of that action
pursuant to Iowa Code chapter 17A.
j. Any petition for judicial review of a
decision and order shall be filed in the district court within 30 days after
the decision and order becomes final. A copy of the notice of appeal shall be
sent by certified mail, return receipt requested, or by personal service to the
department at Iowa Department of Public Health, Division of Acute Disease
Prevention, Emergency Response and Environmental Health, 321 East 12th Street,
Des Moines, Iowa 50319-0075.
k. The
party who appeals a final agency action to the district court shall pay the
cost of the preparation of a transcript of the contested case hearing for the
district court.
Notes
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