Penalties; notice

(a) Any person who violates the provisions of Code Section 20-1A-10 or who hinders, obstructs, or otherwise interferes with any representative of the department in the discharge of that person’s official duties in making inspections or in investigating complaints as provided in such Code section shall be guilty of a misdemeanor. (b)(1) Any person, license holder, commission holder, or permit holder who: (A) Violates any licensing, commissioning, or permitting provision of this chapter or any rule, regulation, or order issued under this chapter or any term, condition, or limitation of any license, commission, or permit issued under this chapter thereby subjecting a child in care to injury or a life-threatening situation; or (B) Commits any violation for which a license, commission, or permit may be revoked under rules or regulations issued pursuant to this chapter 42 20-1A-11 may be subject to a civil penalty, to be imposed by the department, not to exceed $500.00. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. (2) Whenever the department proposes to subject a person, license holder, commission holder, or permit holder to the imposition of a civil penalty under this subsection, it shall notify such person, license holder, commission holder, or permit holder in writing: (A) Setting forth the date, facts, and nature of each act or omission with which the person, license holder, commission holder, or permit holder is charged; (B) Specifically identifying the particular provision or provisions of the Code section, rule, regulation, order, or license, commission, or permit requirement involved in the violation; and (C) Advising of each penalty which the department proposes to impose and its amount. Such written notice shall be sent by registered or certified mail or statutory overnight delivery by the department to the last known address of such person, license holder, commission holder, or permit holder. The person, license holder, commission holder, or permit holder so notified shall be granted an opportunity to show in writing, within such reasonable period as the department shall by rule or regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person, license holder, commission holder, or permit holder that, upon failure to pay the civil penalty subsequently determined by the department, if any, the penalty may be collected by civil action. Any person, license holder, commission holder, or permit holder upon whom a civil penalty is imposed may appeal such action pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” (3) A civil penalty finally determined under this Code section may be collected by civil action in the event that such penalty is not paid as required. On the request of the department, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this subsection. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to the Attorney General for collection. (4) All moneys collected from civil penalties shall be paid to the state for deposit in the general fund. History. Code 1981, § 20-1A-11, enacted by Ga. L. 2004, p. 645, § 1; Ga. L. 2012, p. 775, § 20/HB 942; Ga. L. 2015, p. 965, § 1/HB 401. 43 20-1A-12 20-1A-12. Application; “license” defined; actions authorized by department in event of violations; investigations; governmental immunity. (a) This Code section shall be applicable to any early care and education program which is subject to regulation by the department in accordance with this chapter. For purposes of this Code section, the term “license” shall be used to refer to any license, commission, or permit issued by the department pursuant to the provisions of this chapter and the term “licensing requirements” shall be used to refer to any conditions related to the issuance and retention of any license, commission, or permit pursuant to the provisions of this chapter. (b) The department shall have the authority to take any of the actions enumerated in subsection (c) of this Code section upon a finding that the applicant or holder of a license or registration has: (1) Knowingly made any false statement of material information in connection with the application for a license or registration, or in statements made or on documents submitted to the department as part of an inspection, survey, or investigation, or in the alteration or falsification of records maintained by the early care and education program; (2) Failed or refused to provide the department with access to the premises subject to regulation or information pertinent to the initial or continued licensing of the program; (3) Failed to comply with the licensing requirements or registration requirements of this state; (4) Failed to pay the annual fee required by subsection (k) of Code Section 20-1A-10; or (5) Failed to comply with any provisions of this chapter. (c) When the department finds that any applicant or holder of a license or registration has violated any provision of subsection (b) of this Code section or laws, rules, regulations, or formal orders related to the initial or continued licensing of the program, the department, subject to notice and opportunity for hearing, may take any of the following actions: (1) Refuse to grant a license or registration; provided, however, that the department may refuse to grant a license or registration without holding a hearing prior to taking such action. The early care and education program shall have the right to appeal the denial in accordance with subsection (o) of Code Section 20-1A-10; provided, however, that the program shall remain closed until the appeal decision is issued; 44 20-1A-12 (2) Administer a public reprimand; (3) Suspend any license or registration for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license or registration; (4) Prohibit any applicant or holder of a license or registration from allowing a person who previously was involved in the management or control, as defined by rule, of any program which has had its license or registration revoked or denied within the past 12 months to be involved in the management or control of such program; (5) Revoke any license or registration; (6) Impose a fine, not to exceed a total of $25,000.00, of up to $500.00 per day for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing requirement of any program; (7) Impose a late fee of up to $250.00 for failure of an early care and education program to pay the annual fee required by subsection (k) of Code Section 20-1A-10 within 30 days of the due date as established by the department; or (8) Limit or restrict any license as the department deems necessary for the protection of the public or enforcement of any law, rule, regulation, or formal order related to the licensing requirements of any program, including, but not limited to, restricting some or all services of or admissions into a program for a time certain. In taking any of the actions enumerated in this subsection, the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public. (d) The department shall deny a license or registration or otherwise restrict a license or registration for any applicant who has had a license or registration denied, revoked, or suspended within one year of the date of an application or who has transferred ownership or governing authority of a program subject to regulation by the department within one year of the date of a new application when such transfer was made in order to avert denial, revocation, or suspension of such license or registration. (e) With regard to any contested case instituted by the department pursuant to this Code section or other provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose of the action so instituted by settlement. In such cases, all parties, successors, and assigns to any settlement agreement shall be bound by the terms specified in such 45 20-1A-12 agreement and violation of such agreement thereof by any applicant or holder of a license shall constitute grounds for any action enumerated in subsection (c) of this Code section. (f) The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether the provisions of this Code section or any other law, rule, regulation, or formal order relating to any licensing requirement of a program has been violated. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to subsection (c) of this Code section. (g) For the purpose of conducting any investigation, inspection, or survey, the department shall have the authority to require the production of any books, records, papers, or other information related to any licensing requirement of any program. (h) Pursuant to the investigation, inspection, and enforcement powers given to the department by this Code section and other applicable laws, the department may assess against a program reasonable and necessary expenses incurred by the department pursuant to any administrative or legal action required by the failure of the program to fully comply with the provisions of any law, rule, regulation, or formal order related to the initial or continued licensing. Assessments shall not include attorney’s fees and expenses of litigation, shall not exceed other actual expenses, and shall only be assessed if such investigations, inspections, or enforcement actions result in adverse findings, as finally determined by the department, pursuant to administrative or legal action. (i) For any action taken or any proceeding held under this Code section or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune. (j) In an administrative or legal proceeding under this Code section, a person or entity claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception. (k) This Code section and all actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” (l) The provisions of this Code section shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where 46 20-1A-13 those other provisions of law so authorize other disciplinary grounds and actions, but this Code section limits such grounds or actions, those other provisions shall apply. (m) The board is authorized to promulgate rules and regulations to implement the provisions of this Code section. History. Code 1981, § 20-1A-12, enacted by Ga. L. 2004, p. 645, § 1; Ga. L. 2010, p. 9, § 1-46.1/HB 1055; Ga. L. 2011, p. 752, § 20/HB 142; Ga. L. 2015, p. 965, § 1/HB 401. 20-1A-13. Emergency placement of monitors; emergency closure upon minor’s death; requirements and procedures. (a) As used in this Code section, the term: (1) “Emergency order” or “order” means a written directive by the commissioner or the commissioner’s designee placing a monitor in a program or providing notice of intended emergency closure of a program. (2) “Monitor” means a person designated by the department to remain on site in a program as an agent of the department, observing conditions. (3) “Preliminary hearing” means a hearing held by the Office of State Administrative Hearings as soon as possible after the order is entered at the request of a program which has been affected by an emergency order placing a monitor in the program or upon notice of intended emergency closure of a program in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” (4) “Program” means a child care learning center or a family child care learning home. (b)(1) The commissioner or his or her designee may order the emergency placement of a monitor or monitors in a program upon a finding that rules and regulations of the department are being violated which threaten the health, safety, or welfare of children in the care of the program and when one or more of the following conditions are present: (A) The program is operating without a license, commission, or permit; (B) The department has denied application for license, commission, or permit or has initiated action to revoke the existing license, commission, or permit of the program; or (C) Children are suspected of being subjected to injury or life47 20-1A-13 threatening situations or the health or safety of a child or children is in danger. (2) A monitor may be placed in a program for no more than ten consecutive calendar days, during which time the monitor shall observe conditions and regulatory compliance with any recommended remedial action of the department. Upon expiration of the ten-day period, should the conditions warrant, the initial ten-day period may be extended for an additional ten-day period. The monitor shall report to the department. The monitor shall not assume any administrative or child-caring responsibility within the program, nor shall the monitor be liable for any actions of the program. The salary and related costs and travel and subsistence allowance as defined by department policy of placing a monitor in a program shall be reimbursed to the department by the program, unless the order placing the monitor is determined to be invalid in a contested case or by final adjudication by a court of competent jurisdiction, in which event the cost shall be paid by the department. (c)(1) The commissioner or his or her designee may issue an order providing notice of intended emergency closure of a program: (A) Upon the death of a minor at such program, unless such death was medically anticipated or no serious rule violations related to the death by the program were determined by the department; or (B) Where a child’s safety or welfare is in imminent danger. (2) If a preliminary hearing is not requested pursuant to subsection (f) of this Code section, the commissioner shall immediately close such program for a period of not more than 21 days. If a preliminary hearing is requested pursuant to subsection (f) of this Code section, the commissioner may place a monitor in the program until the Office of State Administrative Hearings issues a decision, which shall be considered the final decision of the agency, on the emergency closure. If the Office of State Administrative Hearings finds that the emergency closure is warranted, the commissioner shall immediately close such program for a period of not more than 21 days. If the Office of State Administrative Hearings finds that the emergency closure is not warranted, the commissioner shall not order the emergency closure of the program, but may continue investigating the incident and may place a monitor in the program in accordance with this Code section. (3) Upon a closure, the program shall be required to immediately notify the parent or guardian of each child enrolled in the program. Upon a closure, the commissioner or his or her designee shall immediately conduct a review into the circumstances of the minor’s 48 20-1A-13 death or the circumstances where a child’s safety or welfare is in imminent danger. If the commissioner determines that the program where such minor’s death occurred or where imminent danger exists fails to meet the specifications and requirements of this chapter, the commissioner shall immediately revoke such program’s license, commission, or permit. The program shall have the right to appeal the revocation in accordance with subsection (o) of Code Section 20-1A10; provided, however, that the program shall remain closed until the appeal decision is issued. If the commissioner determines that the administration or conditions of the program were not the cause of the minor’s death or that a child’s safety and welfare is not in imminent danger or if the department has not issued a revocation notice within the initial closure period, the commissioner shall immediately reopen the program for its continued operation. (d) An emergency order shall contain the following: (1) The scope of the order; (2) The reasons for the issuance of the order; (3) The effective date of the order if other than the date the order is issued; (4) The person to whom questions regarding the order are to be addressed; and (5) Notice of the right to a preliminary hearing. (e) Unless otherwise provided in the order, an emergency order shall become effective upon its service. Service of an emergency order may be made upon the owner of the facility, the director of the facility, or any other agent, employee, or person in charge of the facility at the time of the service of the order. (f) A request for a preliminary hearing shall be made in writing within 48 hours from the time of service, excepting weekends. The request shall be made to the representative of the department designated in the order and may be made in person, by facsimile, by e-mail, or by any other means designated in the order. (g) Upon receipt of a request for a preliminary hearing, the department shall immediately forward the request to the Office of State Administrative Hearings, which shall set and give notice of the date, time, and location of the preliminary hearing. The preliminary hearing shall be held as soon as possible after a request therefor but in no event later than 48 hours after such request, provided that a program may request that such hearing be held earlier and that in no event shall a hearing be held on a weekend or holiday. (h) If a hearing is requested, the preliminary hearing shall consist of a review of all oral and written evidence introduced at the hearing and 49 20-1A-14 any arguments made. Hearsay shall be admissible in a preliminary hearing in determining the issues relevant to emergency closure of a program or the emergency placement of a monitor or monitors. A recording shall be made of the hearing. (i) The Office of State Administrative Hearings shall, where practicable, issue an immediate oral order and shall, in all instances, issue a written order within two business days after the close of the hearing. (j) Pending final appeal of the validity of any emergency order issued as provided in this Code section, such emergency order shall remain in full effect until vacated or rescinded by the commissioner or the commissioner’s designee. (k) The department is not precluded from other actions permitted by other laws or regulations during the time an emergency order is in force. History. Code 1981, § 20-1A-13, enacted by Ga. L. 2004, p. 645, § 1; Ga. L. 2005, p. 60, § 20/HB 95; Ga. L. 2011, p. 579, § 1/SB 185; Ga. L. 2015, p. 965, § 1/HB 401; Ga. L. 2018, p. 1101, § 1/HB 494.