Title 18 . Environmental Conservation

Chapter 23 . Administrative Enforcement

Section 910. Certificate suspension, notice to stop operating, and school or shop closure

18 AAC 23.910. Certificate suspension, notice to stop operating, and school or shop closure

(a) The department may, without prior warning, notice, or hearing, suspend a certificate of sanitary standards and require that the shop immediately stop operating if

(1) an imminent health hazard exists;

(2) multiple or repeated critical violations are noted during

(A) an inspection under 18 AAC 23.905(a) ;

(B) a reinspection required under 18 AAC 23.905(e) ; or

(C) a second inspection of the shop during a 12-month period; or

(3) the owner or operator or an employee of the shop interferes with a department employee or agent in the performance of official duties.

(b) The department may, without prior warning, notice, or hearing, issue a notice to stop operating to a school, shop, or facility subject to this chapter and require that the school, shop, or facility immediately stop operating if

(1) an imminent health hazard exists;

(2) the owner or operator of a shop fails to submit an application for a certificate of sanitary standards as required by 18 AAC 23.310; or

(3) the owner or operator of a shop applied for but was not granted a certificate of sanitary standards under 18 AAC 23.310.

(c) In a suspension issued under (a) of this section and a notice to stop operating issued under (b) of this section, the department will include

(1) the department's written findings;

(2) a description of the procedures under (f) of this section for the owner or operator to request a reinspection or a statement that the department entered into a compliance agreement with the owner or operator; and

(3) a description of the procedures under (g) of this section for the owner or operator to request that the department schedule a hearing.

(d) The department may issue a notice of closure to a school or shop if

(1) the owner or operator fails to submit plans as required by 18 AAC 23.020, or an inspection form indicates that construction or renovation at the school or shop is not in substantial compliance with this chapter; or

(2) multiple or repeated serious violations of any requirement of this chapter occur.

(e) In a notice of closure issued under (d) of this section, the department will include

(1) the department's written findings;

(2) a statement that the notice of closure is effective 30 days after the date of the notice;

(3) a statement that the owner or operator may not continue to operate after the effective date of the notice;

(4) a description of the procedures under (f) of this section for the owner or operator to request a reinspection or a statement that the department entered into a compliance agreement with the owner or operator; and

(5) a description of the procedures under (g) of this section for the owner or operator to request the department schedule a hearing.

(f) If an owner or operator is required to stop operating under this section, the owner or operator may not resume operating until a reinspection shows that the violations that caused the suspension, closure, or stoppage no longer exist, or until the owner or operator enters into a compliance agreement with the department regarding those violations. The owner or operator may

(1) request a reinspection concurrent with a request for a hearing under (g) of this section; or

(2) offer to enter into a compliance agreement with the department concurrent with a request for a hearing under (g) of this section; the department will, if public health is protected and the purposes of this chapter are otherwise satisfied, accept a compliance agreement with the owner or operator that

(A) establishes a schedule for correcting any violations; and

(B) schedules a reinspection to confirm correction.

(g) After suspending a certificate of sanitary standards under (a) of this section, issuing a notice to stop operating under (b) of this section, or issuing a notice of closure under (d) of this section, the department will provide an opportunity for a hearing as follows:

(1) the owner or operator may request, in writing, a hearing under this subsection within 10 days after receiving a notice of suspension, notice to stop operating, or notice of closure;

(2) if the department receives a timely request for a hearing under (1) of this subsection, the department will hold the hearing within 14 days after receipt of the request;

(3) a hearing under this subsection will be conducted before

(A) the commissioner; or

(B) an individual designated by the commissioner under 18 AAC 15.235 to hear the matter and prepare a recommended decision for the commissioner's review;

(4) in conducting the hearing under this subsection, the department will follow the procedures for an adjudicatory hearing in 18 AAC 15.240 - 18 AAC 15.340; in addition,

(A) the burden of proof and of going forward with the evidence is upon the department;

(B) the commissioner or commissioner's designee will set the timelines for the procedures in 18 AAC 15.240 - 18 AAC 15.340 to ensure a timely hearing under (2) of this subsection; and

(5) after a hearing under this subsection, the commissioner or designee will affirm, modify, or set aside the suspension, notice to stop operating, or notice of closure.

(h) The department will notify the board of any actions taken under this section.

(i) This section does not affect a person's right to a hearing under AS 44.62 (Administrative Procedure Act).

History: Eff. 12/1/2002, Register 164

Authority: AS 08.13.030

AS 08.13.120

AS 08.13.210

AS 44.46.020