Current through Register Vol. 54, No. 38, September 21, 2024
If the plans for a construction or remodeling project
subject to the act or this chapter are not submitted and approved by the
Department and the construction or remodeling project is nevertheless
commenced, or if a construction or remodeling project subject to the act or
this chapter is not performed or completed in conformance with the act or this
chapter, the Department will take the following action:
(1)
Notice of violation and order to
correct.
(i) A written notice of
violations will be served upon the government agency or the owner, or owner's
agent, describing the violations.
(ii) An order requiring the submission and
approval of plans or requiring the correction of violations within a reasonable
period as will be determined by the Department will be served simultaneously
with the notice required in this paragraph. The order shall also advise the
government agency, owner or the owner's agent of the appeal rights under the
act.
(iii) If the government agency
or owner, or the owner's agent, failed to obtain the Department's approval of
plans for a construction or remodeling project subject to the act and this
chapter, the Department may also order the government agency or owner to cease
work on the project immediately. If the Department issues this order, a notice
will be placed at the building prohibiting the continuation of work being
performed until approval is given by the Department.
(2)
Determination of compliance or
noncompliance.
(i) At the end of the
period provided in the order to correct, the Department will inspect the
building and determine whether compliance has been effected.
(ii) If compliance has been effected, the
order will be closed by the Department.
(iii) If compliance has not been effected,
the Department may issue to the government agency or owner, an order to show
cause why the Department should not take further enforcement action against the
government agency or owner.
(3)
Answer to order to show
cause.
(i) An answer to the order to
show cause shall be filed with the Secretary, in accordance with 1 Pa. Code
§35.37 (relating to answers to
orders to show cause), and may include a request for a variance or an extension
of time, or both. The answer shall be filed within 30 days of the date of the
issuance of the order to show cause.
(ii) If a request for variance or an
extension of time, or both, has already been filed with the Secretary and is
still pending, consideration of the request will be merged with the answer and
considered simultaneously with the answer.
(iii) If a request for a variance or an
extension of time, or both, has already been filed and is still pending, and no
answer is filed, the request for a variance or an extension of time, or both,
shall be deemed the answer.
(4)
Appeals to the
Secretary.
(i) The government agency
or owner, or owner's agent, may file an appeal with the Secretary within 30
days of the date of notice of violation and orders to correct and may request
variances or extensions of time, or both. An appeal may not be filed with the
Secretary after the expiration of these periods, except at the discretion of
the Secretary upon good cause shown.
(ii) An appeal shall be filed with the
Secretary, Labor and Industry Building, Harrisburg, Pennsylvania 17120, and
will be deemed filed the date of the mailing, as indicated by the postmark date
or the date of personal delivery.
(iii) An appeal to the Secretary may include
a request for an extension of time within which to comply, a variance, or both,
or other relief which is appropriate.
(iv) The Secretary will refer the appeal to
the Board, which shall make recommendations to the Secretary.
(v) The government agency or owner, or the
owner's agent, may request a hearing before the Board. If a hearing is
requested, the Board will schedule a hearing and notify the government agency
or owner, or owner's agent, and the Department of the date, time and place of
the hearing.
(vi) The Board may
consider the following factors in making its recommendation with respect to a
request for an extension of time, a variance, or other relief which is
requested:
(A) The reasonableness of the
Department's regulations as applied in the specific case.
(B) The extent to which an extension of time
or a variance will impede access by persons with a physical
disability.
(C) The availability of
professional or technical personnel needed to come into compliance.
(D) The availability of materials and
equipment needed to come into compliance.
(E) The efforts being made to come into
compliance as quickly as possible.
(F) Compensatory features which the
government agency or owner has incorporated which will provide an equivalent
degree of accessibility to persons with physical disabilities.
(vii) The Board, after
consideration of a request for an extension of time or a variance or other
relief, may recommend that the Secretary:
(A)
Deny the request.
(B) Grant the
request.
(C) Grant the request upon
certain conditions being satisfied.
(D) Grant other relief which is
appropriate.
(5)
Adjudication of the Secretary.
After giving consideration to the guidelines and recommendations of
the Board, the Secretary will issue an adjudication in accordance with
2
Pa.C.S. §§ 501-508 and
701-704 (relating to the
Administrative Agency Law).
(6)
Enforcement of orders.
(i)
Courts of common pleas. The Department may secure enforcement
of its orders or seek other appropriate relief through the appropriate court of
common pleas.
(ii)
Summary
for criminal proceedings. The Department may institute summary
criminal proceedings against a government agency or owner who violates the act
or this chapter and who fails or refuses to observe orders issued by the
Department for enforcement of the act or this chapter. The government agency or
owner, or owner's agent, shall be subject to a fine of not more than $300 for
each day that the violation continues.
(7)
Judicial review. An
individual, partnership, agency, association or corporation aggrieved by a
final determination of the Department may file a petition for review within 30
days of the final determination in the Commonwealth Court, under
42 Pa.C.S. §
763(a) (relating to direct
appeals from government agencies).
