68-11-1617 - Violations Penalties.
68-11-1617. Violations Penalties.
(a) The agency has the power and authority, after notice and an opportunity for a hearing, to impose a civil monetary penalty against any person who performs, offers to perform, or holds such person out as performing any activity for which a certificate of need is required, without first obtaining a valid certificate of need.
(b) A civil penalty proceeding shall be initiated by the executive director of the agency with the filing of a petition with the agency. The proceeding shall be conducted as a contested case hearing in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
(c) The civil penalty shall be in an amount not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per day of continued activity or operation. Once a civil penalty has been imposed, the violator shall have the burden of submitting verifiable evidence satisfactory to the agency that the violator has discontinued the activity for which the civil penalty was imposed. The penalty shall begin to accrue on the date the agency notified the violator of such violation or violations, and shall continue to accrue until such evidence of discontinuance is received at the agency office.
(d) Any appeal of a final order imposing a civil penalty shall be conducted in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
(e) In determining whether to impose a civil penalty and the amount of the penalty, the agency may consider the following factors:
(1) The economic benefits gained from the activities in question. The agency does not have to show that the violator would not have been granted a certificate of need had one been sought;
(2) Whether the civil penalty and the amount of the penalty, will be a substantial economic deterrent to the violator and others;
(3) The circumstances leading to the violation, and whether the violator had notice that the activity was in violation of the certificate of need laws or agency regulations; and
(4) The financial resources of the violator, and the violator's ability to pay the penalty.
[Acts 2002, ch. 780, § 4; 2004, ch. 942, § 13.]