641—22.17 (135) Adverse actions and the appeal process.
	 22.17(1) The department may deny an application for a permit, may order that a tattoo establishment not be operated, may order a tattoo artist to cease engaging in the practice of tattooing, or may refer the case to the office of the county attorney or attorney general for possible criminal penalties when the department finds that an establishment is not operated in accordance with these rules or that a permitted person or a person who is not permitted has committed any of the following acts:
	  a.   	 Any material misstatement in the application or in any supplementary statement.
	  b.   	 Any material misstatement in the renewal application or in any supplementary statement received upon renewal.
	  c.   	 Failure to pay the required renewal fee or late fee.
	  d.   	 Failure to submit a complete, legible, and accurate renewal application form before the end of the renewal period.
	  e.   	 Any condition revealed by an inspection of the applicant, the application, or supplementary statement received upon renewal.
	  f.   	 Falsification of approval records, qualifications, or other information or documentation related to permitting approval.
	  g.   	 Any violation or failure to observe any of the applicable terms or provisions of permitting, public health law, or any other applicable rule, ordinance, regulation, code or order.
	  h.   	 Failure to correct any violation of department rules that was found during an inspection or any violation found on an initial inspection which, as determined by the department, jeopardizes the safety of the public.
	  i.   	 Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of the profession or engaging in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established. Acts which may constitute unethical conduct include, but are not limited to:
	 (1) 	 Verbally or physically abusing a patron.
	 (2) 	 Improper sexual contact with or making suggestive, lewd, lascivious or improper remarks or advances to a patron.
	 (3) 	 Betrayal of a professional confidence.
	 (4) 	 Engaging in a professional conflict of interest.
	 (5) 	 Falsification of records.
	  j.   	 Engaging in any conduct that subverts or attempts to subvert a department investigation.
	  k.   	 Failure to comply with a subpoena issued by the department or failure to cooperate with an investigation of the department.
	  l.   	 Failure to comply with the terms of a department order or the terms of a settlement agreement or consent order.
	  m.   	 Knowingly aiding, assisting or advising a person to unlawfully practice tattooing.
	  n.   	 Representing oneself as a tattoo artist when one’s permit has been denied, suspended or revoked, or when one’s permit is lapsed or has been placed on inactive status.
	  o.   	 Permitting the use of a permit by a nonpermitted person for any purpose.
	  p.   	 Mental or physical inability reasonably related to and adversely affecting the tattoo artist’s ability to practice in a safe and competent manner.
	  q.   	 Being adjudged mentally incompetent by a court of competent jurisdiction.
	  r.   	 Sexually harassing a patron. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
	  s.   	 Habitual intoxication or addiction to drugs.
	 (1) 	 The inability of a tattoo artist to practice with reasonable skill and safety by reason of the excessive use of alcohol on a continuing basis.
	 (2) 	 The excessive use of drugs which may impair a tattoo artist’s ability to practice with reasonable skill or safety.
	 (3) 	 Obtaining, possessing, attempting to obtain or possess, or administering controlled substances without lawful authority.
	  t.   	 Fraud in representation as to skill, ability, or certification.
	  u.   	 Violating a statute of this state, another state, or the United States, without regard to its designation as either a felony or misdemeanor, which relates to the provision of tattooing, including but not limited to a crime involving dishonesty, fraud, theft, embezzlement, controlled substances, substance abuse, assault, sexual abuse, sexual misconduct, or homicide. A copy of the record of conviction or plea of guilty is conclusive evidence of the violation.
	  v.   	 Having certification or permit to practice tattooing suspended or revoked, or having other disciplinary action taken by a licensing, certifying, or permitting authority of this state or another state, territory or country. A copy of the record or order of suspension, revocation or disciplinary action is conclusive or prima facie evidence.
	  w.   	 Acceptance of any fee by fraud or misrepresentation.
	  x.   	 Failure to comply with standard precautions for preventing transmission of infectious diseases as issued by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services.
	  y.   	 Failure to respond within 30 days of receipt, unless otherwise specified, of communication from the department which was sent by registered or certified mail.
	 22.17(2) Notice of issuance of a denial or order to cease operations shall be served by certified mail, return receipt requested, or by personal service.
	 22.17(3) Upon receipt of the order, the aggrieved party may request an appeal. The appeal shall be made in writing to the department within 20 days from the date of the aggrieved party’s receipt of the department’s order. The appeal shall be addressed to Iowa Department of Public Health, Division of Environmental Health, Tattoo Permit Program, Lucas State Office Building, Des Moines, Iowa 50319-0075. If such a request is made within the 20-day time period, the order shall be deemed to be suspended. Prior to or at the hearing, the department may rescind the order upon satisfaction that the reason for the order has been or will be removed. After the hearing, or upon default of the aggrieved party, the administrative law judge shall affirm, modify or set aside the order. If no request for appeal is received within the 20-day time period, the department’s order shall become the department’s final agency action.
	 22.17(4) Upon receipt of an appeal that meets contested case status, the appeal shall be forwarded within five working days to the department of inspections and appeals pursuant to the rules adopted by that agency regarding the transmission of contested cases. The information upon which the adverse action is based and any additional information which may be provided by the aggrieved party shall also be provided to the department of inspections and appeals.
	 22.17(5) The hearing shall be conducted according to the procedural rules of the department of inspections and appeals found in 481—Chapter 10.
	 22.17(6) When the administrative law judge makes a proposed decision and order, it shall be served by certified mail, return receipt requested, or delivered by personal service. That proposed decision and order then becomes the department’s final agency action without further proceedings ten days after it is received by the aggrieved party unless an appeal to the director is taken as provided in subrule 22.17(7).
	 22.17(7) Any appeal to the director for review of the proposed decision and order of the administrative law judge shall be filed in writing and mailed to the director by certified mail, return receipt requested, or delivered by personal service within ten days after the receipt of the administrative law judge’s proposed decision and order by the aggrieved party. A copy of the appeal shall also be mailed to the administrative law judge. Any request for an appeal shall state the reason for appeal.
	 22.17(8) Upon receipt of an appeal request, the administrative law judge shall prepare the record of the hearing for submission to the director. The record shall include the following:
	  a.   	 All pleadings, motions, and rules.
	  b.   	 All evidence received or considered and all other submissions by recording or transcript.
	  c.   	 A statement of all matters officially noticed.
	  d.   	 All questions and offers of proof, objections and rulings thereon.
	  e.   	 All proposed findings and exceptions.
	  f.   	 The proposed decision and order of the administrative law judge.
	 22.17(9) The decision and order of the director becomes the department’s final agency action upon receipt by the aggrieved party and shall be delivered by certified mail, return receipt requested, or by personal service.
	 22.17(10) It is not necessary to file an application for a rehearing to exhaust administrative remedies when appealing to the director or the district court as provided in Iowa Code section 17A.19. The aggrieved party to the final agency action of the department who has exhausted all administrative remedies may petition for judicial review of the action pursuant to Iowa Code chapter 17A.
	 22.17(11) Any petition for judicial review of a decision and order shall be filed in the district court within 30 days after the decision and order becomes final. A copy of the notice of appeal shall be sent to the department by certified mail, return receipt requested, or by personal service. The copy shall be directed to Iowa Department of Public Health, Division of Environmental Health, Tattoo Permit Program, Lucas State Office Building, Des Moines, Iowa 50319-0075.
	 22.17(12) The party who appeals a final agency action to the district court shall pay the cost of the preparation of a transcript of the contested case hearing for the district court.
[ARC 7982B, IAB 7/29/09, effective 1/1/10]