Section 701.311

Title XLI CODES AND STANDARDS

Chapter 701

Effective - 28 Aug 2005   

  701.311.  Compliance inspections — warrant — notice of violation — hearing — enforcement manual to be posted on website, contents. — 1.  Any authorized representative of the department who presents appropriate credentials may, at all reasonable times, enter public or private property to conduct compliance inspections of lead abatement contractors as may be necessary to implement the provisions of sections 701.300 to 701.338 and any rules promulgated pursuant to sections 701.300 to 701.338.

  2.  It is unlawful for any person to refuse entry or access requested for inspecting or determining compliance with sections 701.300 to 701.338.  A suitably restricted search warrant, upon a showing of probable cause in writing and upon oath, shall be issued by any circuit or associate circuit judge having jurisdiction for the purpose of enabling such inspections.

  3.  Whenever the director determines through a compliance inspection that there are reasonable grounds to believe that there has been a violation of any provision of sections 701.300 to 701.338 or the rules promulgated pursuant to sections 701.300 to 701.338, the director may give notice of such alleged violation to the owner or person responsible, as provided in this section.  The notice shall:

  (1)  Be in writing;

  (2)  Include a statement of the reasons for the issuance of the notice;

  (3)  Allow reasonable time as determined by the director for the performance of any act the notice requires;

  (4)  Be served upon the property owner or person responsible as the case may require, provided that such notice shall be deemed to have been properly served upon such person when a copy of such notice has been sent by registered or certified mail to the person's last known address as listed in the local property tax records concerning such property, or when such person has been served with such notice by any other method authorized by law;

  (5)  Contain an outline of corrective action which is required to effect compliance with sections 701.300 to 701.338 and the rules promulgated pursuant to sections 701.300 to 701.338.

  4.  If an owner or person files a written request for a hearing within ten days of the date of receipt of a notice, a hearing shall be held within thirty days from the date of receipt of the notice before the director or the director's designee to review the appropriateness of the corrective action.  The director shall issue a written decision within thirty days of the date of the hearing.  Any final decision of the director may be appealed to the administrative hearing commission as provided in chapter 621.  Any decision of the administrative hearing commission may be appealed as provided in sections 536.100 to 536.140.

  5.  The attorney general or the prosecuting attorney of the county in which any violation of sections 701.300 to 701.338 or the rules promulgated pursuant to sections 701.300 to 701.338 occurred shall, at the request of the city, county or department, institute appropriate proceedings for correction.

  6.  When the department determines that an emergency exists which requires immediate action to protect the health and welfare of the public, the department is authorized to seek a temporary restraining order and injunction.  Such action shall be brought at the request of the director by the local prosecuting attorney or the attorney general.  For the purposes of this subsection, an "emergency" means any set of circumstances that constitutes an imminent health hazard or the threat of an imminent health hazard.

  7.  Nothing in sections 701.300 to 701.338 or rules promulgated pursuant to sections 701.300 to 701.338 shall be construed as requiring the department of health and senior services to issue a notice of violation pursuant to subsection 3 of this section whenever the department of health and senior services believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

  8.  The department shall develop, publish, and post on its website an enforcement manual that:

  (1)  Delineates the categories of violations for which the department shall issue a notice of violation under subsection 3 of this section; and

  (2)  Delineates the categories of violations for which the department may either issue a notice of violation under subsection 3 of this section or issue a suitable written notice or warning.

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(L. 1998 H.B. 977 & 1608, A.L. 2005 S.B. 95)