SUBJECT: Guenther strike everything amendment to SB 1167

Purpose

Increases the maximum penalties for the violation of county sanitary regulations. Includes food service establishments, taverns and hotels in sanitary regulation enforcement statutes.

Background

In addition to the Arizona Department of Health Services, counties are required to establish sanitary regulations to address nuisances, sources of filth and causes of sickness. Except for food service establishments, hotels and taverns, current statute authorizes counties to issue a notice of violation if the county health inspector has reasonable cause to believe a person is violating sanitary laws or regulations. Counties may also establish their own civil penalties for violations of sanitary regulations, up to the maximum fine for a class 3 misdemeanor. The penalty for a class 3 misdemeanor is a fine of up to $500 for a person and up to $2,000 for an enterprise.

The strike everything amendment allows the director of a county health or environmental department or a public health services department (director) to issue binding compliance orders, as well as notices of violations, and establishes new civil and criminal penalties for sanitary violations. The amendment also allows the director to proceed directly to superior court for a temporary restraining order, injunction or other relief for violations of sanitary statutes or regulations.

There is no known fiscal impact on the state general fund relating to the provisions of this bill.

Provisions

1. Includes food service establishments, hotels and taverns in all sanitary statutes and county regulations.

2. Expands enforcement options for pursuing persons who violate sanitary statutes or regulations by allowing a compliance order to be issued, or an action in superior court to be filed. Currently, the director can only issue a notice of violation.

Penalties

3. Increases the penalty for violating a county compliance order or regulation or maintaining premises in an unsanitary condition from a class 3 misdemeanor to a class 2 misdemeanor, if the violator does not hold a valid permit under the Arizona health and safety titles. Retains the class 3 misdemeanor classification for persons who hold a permit issued by the local health department.

4. Stipulates that the misdemeanor penalties may not be imposed for the same acts for which a civil penalty has already been imposed, and that lack of criminal intent does not constitute a defense to a violation.

5. Directs that all civil penalties collected for violations of local health department regulations be deposited in the county general fund.

6. Requires the superior court or director to consider all of the following in determining the amount of the civil penalty for a sanitary regulation violation:

a) The history, duration and seriousness of the violation.

b) Good faith efforts to comply with the applicable requirements.

c) The economic impact of the penalty on the violator.

d) Any economic benefits as an aggravating factor.

e) Payment by the violator of previous penalties.

f) Other factors the director or court deems relevant.

Superior Court Actions

7. Allows the director to file an action in superior court to compel compliance with a sanitary regulation, seek payment of a civil penalty or seek a temporary restraining order, a preliminary or permanent injunction or other relief.

8. Allows the director to seek civil penalties in superior court of up to $1000 per day, but not more than $10,000 for each violation.

9. Allows the director to settle any court action by submitting a consent decree signed by all parties for approval by the court.

Notices of Violation and Compliance Orders

10. Preserves the ability of county health inspectors to issue and serve a notice of violation and demand for compliance, which must state the nature of the violation and the deadline for compliance.

11. Allows the director to issue a compliance order if the person named in the notice of violation does not comply with the deadline for compliance or request a hearing within 15 days.

12. Preserves the ability of the county to use hearing officers for compliance order appeals. Requires hearing officers to issue or deny compliance orders, and make a finding regarding civil penalty.

13. Declares a compliance order to be final and enforceable in superior court, unless the person named in the order files an appeal to the director within 15 days after receiving the order.

14. Allows the director to affirm, modify or vacate the hearing officer’s decision.

15. Limits civil penalties levied by compliance orders to $750 per violation for an individual and $5,000 per violation for enterprises.

16. Clarifies that the issuance of a compliance order or notice of violation does not limit the right of a county to take other actions authorized by law.

Nuisances on Private Property

17. Allows, rather than requires, county boards of health and local health departments to impose a civil penalty for nuisances on private property. Expands the authority to impose a civil penalty for nuisances on private property to the directors of local environmental departments and public health districts.

18. Expands the civil penalty for nuisances on private property from a fine of not more than $500, to a fine of not more than $750 for each violation by an individual and $5,000 for an enterprise.

Miscellaneous

19. Makes technical, clarifying and conforming changes.

20. Provides for a general effective date.

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