Current through 2024-38, September 18, 2024
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.
