SECOND REGULAR SESSION
[PERFECTED]
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES SCHAAF (Sponsor) AND HUBBARD (Co-sponsor).
Read 1st time January 25, 2006 and copies ordered printed.
Read 2nd time January 26, 2006 and referred to the Special Committee on Urban Issues February 23, 2006.
Reported from the Special Committee on Urban Issues March 30, 2006 with recommendation the bill Do Pass. Referred to the Committee on Rules pursuant to Rule 25(26)(f).
Reported from the Committee on Rules April 11, 2006 with recommendation the bill Do Pass with no time limit for debate.
Taken up for Perfection April 26, 2006. Bill ordered Perfected and printed as amended.
STEPHEN S. DAVIS, Chief Clerk
4679L.01P
AN ACT
To repeal sections 701.304, 701.317, and 701.337, RSMo, and to enact in lieu thereof three new sections relating to lead abatement and prevention of lead poisoning.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 701.304, 701.317, and 701.337, RSMo, are repealed and three new sections enacted in lieu thereof, to be known as sections 701.304, 701.317, and 701.337, to read as follows:
701.304. 1. A representative of the department, or a representative of a unit of local government or health department licensed by the department for this purpose, may conduct an inspection or a risk assessment at a dwelling or a child-occupied facility for the purpose of ascertaining the existence of a lead hazard under the following conditions:
(1) The department, owner of the dwelling, and an adult occupant of a dwelling which is rented or leased have been notified that an occupant of the dwelling or a child six or fewer years of age who regularly visits the child-occupied facility has been identified as having an elevated blood lead level as defined by rule; and
(2) The inspection or risk assessment occurs at a reasonable time; and
(3) The representative of the department or local government presents appropriate credentials to the owner or occupant; and
(4) Either the dwelling's owner or adult occupant or the child-occupied facility's owner or agent grants consent to enter the premises to conduct an inspection or risk assessment; or
(5) If consent to enter is not granted, the representative of the department, local government, or local health department may petition the circuit court for an order to enter the premises and conduct an inspection or risk assessment after notifying the dwelling's owner or adult occupant in writing of the time and purpose of the inspection or risk assessment at least forty-eight hours in advance. The court shall grant the order upon a showing that an occupant of the dwelling or a child six or fewer years of age who regularly visits the child-occupied facility has been identified as having an elevated blood lead level as defined by rule.
2. In conducting such an inspection or risk assessment, a representative of the department, or representative of a unit of local government or health department licensed by the department for this purpose, may remove samples necessary for laboratory analysis in the determination of the presence of a lead-bearing substance or lead hazard in the designated dwelling or child-occupied facility.
3. The director shall assess fees for licenses and accreditation and impose administrative penalties in accordance with rules promulgated pursuant to sections 701.300 to 701.338. All such fees [and fines] shall be deposited into the state treasury to the credit of the public health services fund established in section 192.900, RSMo.
701.317. 1. In addition to any other remedy provided by law, upon a determination by the director that a provision of sections 701.300 to 701.338, or a standard, limitation, order, rule or regulation promulgated pursuant thereto, or a term or condition of any license has been violated, the director may issue an order assessing an administrative penalty upon the violator under this section. An administrative penalty shall not be imposed until the director has issued a notice of violation pursuant to section 701.311 to the violator regarding the same type of violation within the calendar year. Any order assessing an administrative penalty shall state that an administrative penalty is being assessed under this section and that the person subject to the penalty may appeal as provided by this section. Any such order that fails to state the statute under which the penalty is being sought, the manner of collection or rights of appeal shall result in the state's waiving any right to collection of the penalty.
2. The director shall promulgate rules and regulations for the assessment of administrative penalties. Such rules shall take into consideration the harm or potential harm which the violation causes, or may cause, the violator's previous compliance record, and any other factors which the department may reasonably deem relevant.
3. An administrative penalty shall be paid within sixty days from the date of issuance of the order assessing the penalty. Any person subject to an administrative penalty may appeal to the department within ten days after receipt of the imposition of penalty. Upon receipt of a request for hearing, the department shall schedule the hearing to be held within thirty days. Any appeal will stay the due date of such administrative penalty until the appeal is resolved. Any person who fails to pay an administrative penalty by the final due date shall be liable to the state for a surcharge of fifteen percent of the penalty plus ten percent per annum on any amounts owed. An action may be brought in the appropriate circuit court to collect any unpaid administrative penalty, and for attorney's fees and costs incurred directly in the collection thereof.
4. An administrative penalty shall not be increased in those instances where department action, or failure to act, has caused a continuation of the violation that was a basis for the penalty. Any administrative penalty must be assessed within two years following the department's initial discovery of such alleged violation, or from the date of the department in the exercise of ordinary diligence should have discovered such alleged violation.
5. Any final order imposing an administrative penalty is subject to judicial review on the record upon the filing of a petition pursuant to section 536.100, RSMo, by any person subject to the administrative penalty. The appeal shall be filed in the circuit court of the county where the violation occurred.
6. The director may elect to assess an administrative penalty, or, in lieu thereof, to request that the attorney general or prosecutor file an appropriate legal action seeking a civil penalty in the appropriate circuit court.
7. The penalties collected pursuant to this section shall be [deposited in the Missouri lead abatement loan fund as established in section 701.337] distributed annually to the schools of the several counties. Such penalties shall not be considered charitable contributions for tax purposes.
8. The director is authorized to issue administrative consent orders in the settlement of any proceeding brought under this section.
701.337. 1. The department shall have the authority to develop a plan for implementing a program that provides financial assistance via loans or grants to owners of dwellings or child-occupied facilities for performing lead abatement projects. In developing the plan, the department shall consult with the department of natural resources and the department of economic development.
2. The program shall accept applications from local entities for implementing at the local level of lead abatement projects that conform with the requirements of sections 701.300 to 701.338, and any rules promulgated thereunder. For purposes of this section, "local entities" shall include any municipality or county, any local not-for-profit community or housing organization or any community assistance project agency.
3. There is hereby established in the state treasury the "Missouri Lead Abatement Loan Fund". The state treasurer shall receive and deposit to the credit of the fund moneys from appropriations by the general assembly, [penalties paid because of violations of sections 701.301 to 701.338 and those rules promulgated thereto,] settlement proceeds received by the director pursuant to subsection 8 of section 701.317, RSMo, repayments by applicants of loans made pursuant to this section, including interest on such loans, and gifts, bequests, donations or any other payments made by any public or private entity for use in carrying out the provisions of this section. The state treasurer shall deposit all moneys in the fund in any of the qualified depositories of the state. All such deposits shall be secured in such a manner and shall be made upon such terms and conditions as are now or may hereafter be provided by law relative to state deposits. Interest accrued by the fund shall be credited to the fund. Notwithstanding the provisions of section 33.080, RSMo, to the contrary, moneys in the fund shall not revert to the credit of the general revenue fund at the end of the biennium. The fund shall be used solely for the purposes of this section and for no other purpose.
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