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REFERENCE TITLE: right to cure; regulatory authorities |
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State of Arizona House of Representatives Fifty-third Legislature First Regular Session 2017
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HCR 2028 |
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Introduced by Representative Rivero
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A CONCURRENT RESOLUTION
enacting and ordering the submission to the people of a measure relating to regulatory authority.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring:
1. Under the power of the referendum, as vested in the Legislature, the following measure, relating to regulatory authority, is enacted to become valid as a law if approved by the voters and on proclamation of the Governor:
AN ACT
Amending sections 9-833, 11-1603 and 41-1009, Arizona Revised Statutes; relating to regulatory authority.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 9-833, Arizona Revised Statutes, is amended to read:
9-833. Inspections; applicability
A. A municipal inspector or regulator who enters any premises of a regulated person for the purpose of conducting an inspection shall:
1. Present photo identification on entry of the premises.
2. On initiation of the inspection, state the purpose of the inspection and the legal authority for conducting the inspection.
3. Disclose any applicable inspection fees.
4. Except for a fire and life safety inspection of areas that are accessible to the general public or a food and swimming pool inspection, afford an opportunity to have an authorized on-site representative of the regulated person accompany the municipal inspector or regulator on the premises, except during confidential interviews.
5. Provide notice of the right to have:
(a) Copies of any original documents taken from the premises by the municipality during the inspection if the municipality is permitted by law to take original documents.
(b) A split or duplicate of any samples taken during the inspection if the split or duplicate of any samples, if appropriate, would not prohibit an analysis from being conducted or render an analysis inconclusive.
(c) Copies of any analysis performed on samples taken during the inspection.
6. Inform each person whose conversation with the municipal inspector or regulator during the inspection is tape recorded that the conversation is being tape recorded.
7. Inform each person interviewed during the inspection that statements made by the person may be included in the inspection report.
B. On initiation of, or two working days before, an inspection of any premises of a regulated person, except for a fire and life safety inspection of areas that are accessible to the general public or a food and swimming pool inspection that has up to one working day after an inspection, a municipal inspector or regulator shall provide the following in writing or electronically:
1. The rights described in subsection A of this section.
2. The name and telephone number of a municipal contact person available to answer questions regarding the inspection.
3. The due process rights relating to an appeal of a final decision of a municipality based on the results of the inspection, including the name and telephone number of a person to contact within the municipality and any appropriate municipality, county or state government ombudsman.
C. A municipal inspector or regulator shall obtain the signature of the regulated person or on-site representative of the regulated person on the writing prescribed in subsection B of this section indicating that the regulated person or on‑site representative of the regulated person has read the writing and is notified of the regulated person's or on-site representative of the regulated person's inspection and due process rights. The municipality shall maintain a copy of this signature with the inspection report. Unless the regulated person at the time of the inspection is informed how the report can be located electronically, the municipality shall leave a copy with the regulated person or on-site representative of the regulated person. If a regulated person or on-site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section, the municipal inspector or regulator shall note that fact on the writing.
D. A municipality that conducts an inspection shall give a copy of, or provide electronic access to, the inspection report to the regulated person or on-site representative of the regulated person either:
1. At the time of the inspection.
2. Notwithstanding any other state law, within thirty working days after the inspection.
3. As otherwise required by federal law.
E. The inspection report shall contain deficiencies identified during an inspection. Unless otherwise provided by law, the municipality may provide the regulated person an opportunity to correct the deficiencies unless the municipality determines that the deficiencies are:
1. Committed intentionally.
2. Not correctable within a reasonable period of time as determined by the municipality.
3. Evidence of a pattern of noncompliance.
4. A risk to any person, the public health, safety or welfare or the environment.
F. If the municipality allows the regulated person an opportunity to correct the deficiencies pursuant to subsection E of this section, the regulated person shall notify the municipality when the deficiencies have been corrected. Within thirty working days of after receipt of notification from the regulated person that the deficiencies have been corrected, the municipality shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance, unless the determination is not possible due to conditions of normal operations at the premises. If the regulated person fails to correct the deficiencies or the municipality determines the deficiencies have not been corrected within a reasonable period of time sixty days, the municipality may take any enforcement action authorized by law for the deficiencies.
G. A municipality's decision pursuant to subsection E or F of this section is not an appealable municipal action.
H. At least once every month after the commencement of the inspection, a municipality shall provide the regulated person with an update, in writing or electronically, on the status of any municipal action resulting from an inspection of the regulated person. A municipality is not required to provide an update after the regulated person is notified that no municipal action will result from the municipality's inspection or after the completion of municipal action resulting from the municipality's inspection.
I. This section does not authorize an inspection or any other act that is not otherwise authorized by law.
J. This section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure requirements. This section does not apply:
1. To criminal investigations and undercover investigations that are generally or specifically authorized by law.
2. If the municipal inspector or regulator has reasonable suspicion to believe that the regulated person may be or has been engaged in criminal activity.
3. To inspections by a county board of health or a local health department pursuant to section 36‑603.
K. If a municipal inspector or regulator gathers evidence in violation of this section, the violation shall not be a basis to exclude the evidence in a civil or administrative proceeding, if the penalty sought is the denial, suspension or revocation of the regulated person's license or is a civil penalty of more than one thousand dollars.
L. Failure of a municipal employee to comply with this section:
1. Constitutes cause for disciplinary action or dismissal pursuant to adopted municipal personnel policy.
2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or civil penalty.
M. A municipality may adopt rules or ordinances to implement this section.
N. This section:
1. Shall not be used to exclude evidence in a criminal proceeding.
2. Does not apply to a municipal inspection that is requested and scheduled by the regulated person.
Sec. 2. Section 11-1603, Arizona Revised Statutes, is amended to read:
11-1603. Inspections; applicability
A. A county inspector or regulator who enters any premises of a regulated person for the purpose of conducting an inspection shall:
1. Present photo identification on entry of the premises.
2. On initiation of the inspection, state the purpose of the inspection and the legal authority for conducting the inspection.
3. Disclose any applicable inspection fees.
4. Except for a fire and life safety inspection of areas that are accessible to the general public or a food and swimming pool inspection, afford an opportunity to have an authorized on-site representative of the regulated person accompany the county inspector or regulator on the premises, except during confidential interviews.
5. Provide notice of the right to have:
(a) Copies of any original documents taken from the premises by the county during the inspection if the county is permitted by law to take original documents.
(b) A split or duplicate of any samples taken during the inspection if the split or duplicate of any samples, if appropriate, would not prohibit an analysis from being conducted or render an analysis inconclusive.
(c) Copies of any analysis performed on samples taken during the inspection.
6. Inform each person whose conversation with the county inspector or regulator during the inspection is tape recorded that the conversation is being tape recorded.
7. Inform each person interviewed during the inspection that statements made by the person may be included in the inspection report.
B. On initiation of, or two working days before, an inspection of any premises of a regulated person, except for a fire and life safety inspection of areas that are accessible to the general public or a food and swimming pool inspection that has up to one working day after an inspection, a county inspector or regulator shall provide the following in writing or electronically:
1. The rights described in subsection A of this section.
2. The name and telephone number of a county contact person available to answer questions regarding the inspection.
3. The due process rights relating to an appeal of a final decision of a county based on the results of the inspection, including the name and telephone number of a person to contact within the county and any appropriate municipality, county or state government ombudsman.
C. A county inspector or regulator shall obtain the signature of the regulated person or on-site representative of the regulated person on the writing prescribed in subsection B of this section indicating that the regulated person or on‑site representative of the regulated person has read the writing and is notified of the regulated person's or on-site representative of the regulated person's inspection and due process rights. The county shall maintain a copy of this signature with the inspection report. Unless the regulated person at the time of the inspection is informed how the report can be located electronically, the county shall leave a copy with the regulated person or on‑site representative of the regulated person. If a regulated person or on‑site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section, the county inspector or regulator shall note that fact on the writing.
D. A county that conducts an inspection shall give a copy of, or provide electronic access to, the inspection report to the regulated person or on-site representative of the regulated person either:
1. At the time of the inspection.
2. Notwithstanding any other state law, within thirty working days after the inspection.
3. As otherwise required by federal law.
E. The inspection report shall contain deficiencies identified during an inspection. Unless otherwise provided by law, the county may provide the regulated person an opportunity to correct the deficiencies unless the county determines that the deficiencies are:
1. Committed intentionally.
2. Not correctable within a reasonable period of time as determined by the county.
3. Evidence of a pattern of noncompliance.
4. A risk to any person, the public health, safety or welfare or the environment.
F. If the county allows the regulated person an opportunity to correct the deficiencies pursuant to subsection E of this section, the regulated person shall notify the county when the deficiencies have been corrected. Within thirty working days of after receipt of notification from the regulated person that the deficiencies have been corrected, the county shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance, unless the determination is not possible due to conditions of normal operations at the premises. If the regulated person fails to correct the deficiencies or the county determines the deficiencies have not been corrected within a reasonable period of time sixty days, the county may take any enforcement action authorized by law for the deficiencies.
G. A county decision pursuant to subsection E or F of this section is not an appealable county action.
H. At least once every month after the commencement of the inspection a county shall provide the regulated person with an update, in writing or electronically, on the status of any county action resulting from an inspection of the regulated person. A county is not required to provide an update after the regulated person is notified that no county action will result from the county's inspection or after the completion of county action resulting from the county's inspection.
I. This section does not authorize an inspection or any other act that is not otherwise authorized by law.
J. This section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure requirements. This section does not apply:
1. To criminal investigations and undercover investigations that are generally or specifically authorized by law.
2. If the county inspector or regulator has reasonable suspicion to believe that the regulated person may be or has been engaged in criminal activity.
3. To inspections by a county board of health or a local health department pursuant to section 36‑603.
K. If a county inspector or regulator gathers evidence in violation of this section, the violation shall not be a basis to exclude the evidence in a civil or administrative proceeding, if the penalty sought is the denial, suspension or revocation of the regulated person's license or is a civil penalty of more than one thousand dollars.
L. Failure of a county employee to comply with this section:
1. Constitutes cause for disciplinary action or dismissal pursuant to chapter 2, article 10 of this title.
2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or civil penalty.
M. A county may adopt rules or ordinances to implement this section.
N. This section:
1. Shall not be used to exclude evidence in a criminal proceeding.
2. Does not apply to a county inspection that is requested and scheduled by the regulated person.
Sec. 3. Section 41-1009, Arizona Revised Statutes, is amended to read:
41-1009. Inspections and audits; applicability; exceptions
A. An agency inspector, auditor or regulator who enters any premises of a regulated person for the purpose of conducting an inspection or audit shall, unless otherwise provided by law:
1. Present photo identification on entry of the premises.
2. On initiation of the inspection or audit, state the purpose of the inspection or audit and the legal authority for conducting the inspection or audit.
3. Disclose any applicable inspection or audit fees.
4. Afford an opportunity to have an authorized on‑site representative of the regulated person accompany the agency inspector, auditor or regulator on the premises, except during confidential interviews.
5. Provide notice of the right to have on request:
(a) Copies of any original documents taken by the agency during the inspection or audit if the agency is permitted by law to take original documents.
(b) A split of any samples taken during the inspection if the split of any samples would not prohibit an analysis from being conducted or render an analysis inconclusive.
(c) Copies of any analysis performed on samples taken during the inspection.
(d) Copies of any documents to be relied on to determine compliance with licensure or regulatory requirements if the agency is otherwise permitted by law to do so.
6. Inform each person whose conversation with the agency inspector, auditor or regulator during the inspection or audit is tape recorded that the conversation is being tape recorded.
7. Inform each person who is interviewed during the inspection or audit that:
(a) Statements made by the person may be included in the inspection or audit report.
(b) Participation in an interview is voluntary, unless the person is legally compelled to participate in the interview.
(c) The person is allowed at least twenty‑four hours to review and revise any written witness statement that is drafted by the agency inspector, auditor or regulator and on which the agency inspector, auditor or regulator requests the person's signature.
(d) The agency inspector, auditor or regulator may not prohibit the regulated person from having an attorney or any other experts in their field present during the interview to represent or advise the regulated person.
B. On initiation of an audit or an inspection of any premises of a regulated person, an agency inspector, auditor or regulator shall provide the following in writing:
1. The rights described in subsection A of this section and section 41‑1001.01, subsection C.
2. The name and telephone number of a contact person who is available to answer questions regarding the inspection or audit.
3. The due process rights relating to an appeal of a final decision of an agency based on the results of the inspection or audit, including the name and telephone number of a person to contact within the agency and any appropriate state government ombudsman.
4. A statement that the agency inspector, auditor or regulator may not take any adverse action, treat the regulated person less favorably or draw any inference as a result of the regulated person's decision to be represented by an attorney or advised by any other experts in their field.
5. A notice that if the information and documents provided to the agency inspector, auditor or regulator become a public record, the regulated person may redact trade secrets and proprietary and confidential information unless the information and documents are confidential pursuant to statute.
6. The time limit or statute of limitations applicable to the right of the agency inspector, auditor or regulator to file a compliance action against the regulated person arising from the inspection or audit, which applies to both new and amended compliance actions.
C. An agency inspector, auditor or regulator shall obtain the signature of the regulated person or on‑site representative of the regulated person on the writing prescribed in subsection B of this section and section 41‑1001.01, subsection C, if applicable, indicating that the regulated person or on‑site representative of the regulated person has read the writing prescribed in subsection B of this section and section 41‑1001.01, subsection C, if applicable, and is notified of the regulated person's or on‑site representative of the regulated person's inspection or audit and due process rights. The agency inspector, auditor or regulator may provide an electronic document of the writing prescribed in subsection B of this section and section 41‑1001.01, subsection C and, at the request of the regulated person or on‑site representative, obtain a receipt in the form of an electronic signature. The agency shall maintain a copy of this signature with the inspection or audit report and shall leave a copy with the regulated person or on‑site representative of the regulated person. If a regulated person or on‑site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section and section 41‑1001.01, subsection C, if applicable, the agency inspector, auditor or regulator shall note that fact on the writing prescribed in subsection B of this section and section 41‑1001.01, subsection C, if applicable.
D. An agency that conducts an inspection shall give a copy of the inspection report to the regulated person or on‑site representative of the regulated person either:
1. At the time of the inspection.
2. Notwithstanding any other state law, within thirty working days after the inspection.
3. As otherwise required by federal law.
E. The inspection report shall contain deficiencies identified during an inspection. Unless otherwise provided by state or federal law, the agency shall provide the regulated person an opportunity to correct the deficiencies unless the agency documents in writing as part of the inspection report that the deficiencies are:
1. Committed intentionally.
2. Not correctable within a reasonable period of time as determined by the agency.
3. Evidence of a pattern of noncompliance.
4. A risk to any person, the public health, safety or welfare or the environment.
F. If the agency is unsure whether a regulated person meets the exemptions in subsection E of this section, the agency shall provide the regulated person with an opportunity to correct the deficiencies.
G. If the agency allows the regulated person an opportunity to correct the deficiencies pursuant to subsection E of this section, the regulated person shall notify the agency when the deficiencies have been corrected. Within thirty days after receipt of notification from the regulated person that the deficiencies have been corrected, the agency shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance. If the regulated person fails to correct the deficiencies or the agency determines the deficiencies have not been corrected within a reasonable period of time sixty days, the agency may take any enforcement action authorized by law for the deficiencies.
H. If the agency does not allow the regulated person an opportunity to correct deficiencies pursuant to subsection E of this section, on the request of the regulated person, the agency shall provide a detailed written explanation of the reason that an opportunity to correct was not allowed.
I. An agency decision pursuant to subsection E or G of this section is not an appealable agency action.
J. At least once every month after the commencement of the inspection, an agency shall provide a regulated person with an update on the status of any agency action resulting from an inspection of the regulated person. An agency is not required to provide an update after the regulated person is notified that no agency action will result from the agency inspection or after the completion of agency action resulting from the agency inspection.
K. For agencies with authority under title 49, if, as a result of an inspection or any other investigation, an agency alleges that a regulated person is not in compliance with licensure or other applicable regulatory requirements, the agency shall provide written notice of that allegation to the regulated person. The notice shall contain the following information:
1. A citation to the statute, regulation, license or permit condition on which the allegation of noncompliance is based, including the specific provisions in the statute, regulation, license or permit condition that are alleged to be violated.
2. Identification of any documents relied on as a basis for the allegation of noncompliance.
3. An explanation stated with reasonable specificity of the regulatory and factual basis for the allegation of noncompliance.
4. Instructions for obtaining a timely opportunity to discuss the alleged violation with the agency.
L. Subsection K of this section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure or other regulatory requirements. Subsection K of this section does not apply to an action taken pursuant to section 11‑871, 11‑876, 11‑877, 49‑457.01, 49‑457.03 or 49‑474.01. Issuance of a notice under subsection K of this section is not a prerequisite to otherwise lawful agency actions seeking an injunction or issuing an order if the agency determines that the action is necessary on an expedited basis to abate an imminent and substantial endangerment to public health or the environment and documents the basis for that determination in the documents initiating the action.
M. This section does not authorize an inspection or any other act that is not otherwise authorized by law.
N. Except as otherwise provided in subsection L of this section, this section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure or other regulatory requirements applicable to a licensee and audits pursuant to enforcement of title 23, chapters 2 and 4. This section does not apply:
1. To criminal investigations, investigations under tribal state gaming compacts and undercover investigations that are generally or specifically authorized by law.
2. If the agency inspector, auditor or regulator has reasonable suspicion to believe that the regulated person may be engaged in criminal activity.
3. To the Arizona peace officer standards and training board established by section 41‑1821.
4. To certificates of convenience and necessity that are issued by the corporation commission pursuant to title 40, chapter 2.
O. If an agency inspector, auditor or regulator gathers evidence in violation of this section, the violation may be a basis to exclude the evidence in a civil or administrative proceeding.
P. Failure of an agency, board or commission employee to comply with this section:
1. May subject the employee to disciplinary action or dismissal.
2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or civil penalty.
Q. An agency may make rules to implement subsection A, paragraph 5 of this section.
R. Nothing in this section shall be used to exclude evidence in a criminal proceeding.
S. Subsection A, paragraph 7, subdivision (c) and subsection E of this section do not apply to the department of health services for the purposes of title 36, chapters 4 and 7.1.
T. Subsection B, paragraph 5 and subsection E of this section do not apply to the corporation commission for the purposes of title 44, chapters 12 and 13.
2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article IV, part 1, section 1, Constitution of Arizona.