STATE BOARDS AND COMMISSIONS; FINES; CONSUMER PROTECTION;

CONSUMER PROTECTION; BOARDS AND COMMISSIONS;

You asked for (1) a summary of the penalties that the boards and commissions within the Department of Consumer Protection may impose, (2) if the boards and commissions are required to hold an administrative hearing before imposing a penalty, and (3) the standard of proof used before imposing a penalty.

SUMMARY

All boards and commissions in the Department of Consumer Protection (DCP) can revoke or suspend a professional’s or tradesperson’s credential, issue a reprimand, place an individual or probation, or require additional education. Twelve of the 16 boards or commissions can also impose a civil fine. The maximum amount of the fine depends on the on the board or commission and ranges from $ 1,000 (Commission of Pharmacy) to $ 5,000 (Home Inspection Licensing Board).

There is no explicit standard of proof in statute or regulation specifically applying to boards and commissions in DCP. The DCP boards use the standard of proof in the Uniform Administrative Procedure Act, “the reliable, probative, and substantial evidence on the whole record. ”

RECEIVING COMPLAINTS

DCP receives complaints, screens them, and dismisses those with allegations that, if true, would not violate the law. It must investigate all complaints that it does not dismiss. DCP can dismiss a complaint after an investigation if it lacks probable cause. If DCP finds probable cause to believe that an alleged offense was committed, it can bring the complaint to the board or commission for a formal hearing.

DCP can authorize a settlement if the person who made the complaint, the person who is the subject of the complaint, and the relevant board or commission all agree (CGS § 21a-7 et seq. ).

PENALTY POWERS OF ALL DCP BOARDS AND COMMISSIONS

All DCP boards and commissions can (1) revoke or suspend a license, registration, or certificate; (2) issue a reprimand; (3) place a person on probation and require regular reporting; (4) limit a person’s practice to prescribed areas, or (5) require continued or renewed education, for the following reasons:

1. engaging in fraud or material deception to obtain a license, registration, or certificate or to aid in doing so;

2. working beyond the scope of a license, registration, or certificate;

3. illegally using or transferring a license, registration, or certificate;

4. performing incompetent or negligent work;

5. making false, misleading, or deceptive representations to the public;

6. having been disciplined in a similar action by a professional agency of another state or a foreign jurisdiction; or

7. violating a statute or regulation relating to his profession or occupation (CGS §§ 21a-7(7) & 21a-9(c)).

ADMINISTRATIVE PROCESS

DCP regulations establish a uniform procedure for all boards and commissions within DCP. The procedure requires them to give someone an opportunity to show compliance with the law and an opportunity for a hearing before any adverse action is taken.

Opportunity to Show Compliance

Before taking any disciplinary action, a board or commission must provide (1) notice of the facts and conduct that warrant the action and (2) an opportunity to show compliance with all lawful requirements. The notice of the opportunity to show compliance must include (1) the time, date, and method of responding; (2) a reference to the statute or regulation allegedly violated; (3) a clear and concise factual statement sufficient to inform each person of the acts or practices alleged to be violations (This requirement can be met by including a copy of the investigation report); and (4) a statement that the respondent may be represented by counsel.

The board or commission may ask the respondent to attend an informal compliance meeting.

If the public health, safety, or welfare requires emergency action, the board or commission can suspend a license, certificate, or registration pending other proceedings.

Contested Cases

A “contested case” is a proceeding in which a person’s legal rights, duties, or privileges are required by statute to be determined by an agency after a hearing or an opportunity for a hearing. When a board or commission has reason to believe there has been a violation of a statute or regulation, it must issue a complaint. The notice in contested cases must include (1) a statement of statutory authority for instituting the proceeding; (2) a reference to the specific statute or regulation allegedly violated; (3) a short and plain statement of the matter that is sufficient to inform the person of the acts or practices that are allegedly in violation of the law; (4) notice of the time, date, place, and nature of the hearing; and (5) a statement that the respondent may be represented by an attorney.

Contested case hearings must be presided over by the board or commission, a designated hearing panel, or a hearing officer. The presiding authority has the power to: (1) regulate the course of the hearing and the conduct of the parties, (2) insure that testimony is given under oath, (3) rule on offers of proof and receive evidence, (4) consider and rule on motions, and (5) require any additional written or oral argument.

Unless prohibited by law, a contested case can be informally resolved by stipulation, settlement, consent order, or default. The agreement must include a consent order with certain requirements

The final decision must be rendered after due consideration of the entire record. A final decision or order that is adverse to a party must be written or stated orally on the record (Conn. Regulations § 21a-9-1 to 21a-9-9).

POWERS OF PARTICULAR BOARDS

In addition to the powers conferred on all boards, the statutes authorize certain boards to impose civil monetary penalties. Table 1 displays all the boards and commissions in the department, states whether or not they have the power to impose a civil penalty, and, if so, its amount.

Table 1: Board or Commission Civil Penalty Powers

STANDARD OF PROOF

We did not find any law specifically applying to DCP boards or commissions establishing a standard of proof to be used when deciding whether to impose a penalty. Other Connecticut administrative agencies, such as the Department of Environmental Protection, employ the following standard in contested cases “Each factual issue in controversy shall be determined upon a preponderance of the evidence” (Conn. Regulations, § 22a-3a-6(f)). According to Ana Ficeto, DCP Managing Attorney, the boards and commissions are guided by the standard in the Uniform Administrative Procedure Act for judicial review of board decisions. The act prohibits a court from substituting its judgment for that of the administrative agency unless the decision violates several standards, one of which is “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record” (CGS Sec. 4-183(j)(5)). According to Michael Eisner, a member of the Connecticut Bar Association’s Administrative Law Section, DCP’s practice is standard for administrative agencies.

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