CHAPTER 104
ENFORCEMENT PROCEEDINGS AGAINST NONLICENSEES
645—104.1(156) Civil penalties against nonlicensees. The board may impose civil penalties by order against a person who is not licensed by the board based on the unlawful practices specified in Iowa Code section 156.16. In addition to the procedures set forth in Iowa Code section 156.16, this chapter shall apply.
645—104.2(156) Unlawful practices. Practices by unlicensed persons or establishments which are subject to civil penalties include, but are not limited to:
	1.	Acts or practices by unlicensed persons which require licensure as a funeral director under Iowa Code chapter 156.
	2.	Acts or practices by unlicensed establishments which require licensure as a funeral establishment or cremation establishment under Iowa Code chapter 156.
	3.	Use of the words “funeral director,” “mortician,” or other title in a manner which states or implies that the person is engaged in the practice of mortuary science as defined in Iowa Code chapter 156.
	4.	Use or attempted use of a licensee’s certificate or an expired, suspended, revoked, or nonexistent certificate.
	5.	Falsely impersonating a licensed funeral director.
	6.	Providing false or forged evidence of any kind to the board in obtaining or attempting to obtain a license.
	7.	Other violations of Iowa Code chapter 156.
	8.	Knowingly aiding or abetting an unlicensed person or establishment in any activity identified in this rule.
645—104.3(156) Investigations. The board is authorized by Iowa Code sections 17A.13(1) and 156.16 to conduct such investigations as are needed to determine whether grounds exist to impose civil penalties against a nonlicensee. Such investigations shall conform to the procedures outlined in this chapter. Complaint and investigatory files concerning nonlicensees are not confidential except as may be provided in Iowa Code chapter 22.
645—104.4(156) Subpoenas. Pursuant to Iowa Code sections 17A.13(1) and 156.16, the board is authorized in connection with an investigation of an unlicensed person or establishment to issue subpoenas to compel persons to testify and to compel persons to produce books, papers, records and any other real evidence, whether or not privileged or confidential under law, which the board deems necessary as evidence in connection with the civil penalty proceeding or relevant to the decision of whether to initiate a civil penalty proceeding. Board procedures concerning investigative subpoenas are set forth in 645 IAC 9.5(17A,272C).
645—104.5(156) Notice of intent to impose civil penalties. The notice of the board’s intent to issue an order to require compliance with Iowa Code chapter 156 and to impose a civil penalty shall be served upon the nonlicensee by restricted certified mail, return receipt requested, or personal service in accordance with Iowa R. Civ.	P. 1.305. Alternatively, the nonlicensee may accept service personally or through authorized counsel. The notice shall include the following:
	1.	A statement of the legal authority and jurisdiction under which the proposed civil penalty would be imposed.
	2.	Reference to the particular sections of the statutes and rules involved.
	3.	A short, plain statement of the alleged unlawful practices.
	4.	The dollar amount of the proposed civil penalty and the nature of the intended order to require compliance with Iowa Code chapter 156.
	5.	Notice of the nonlicensee’s right to a hearing and the time frame in which hearing must be requested.
	6.	The address to which written request for hearing must be made.
645—104.6(156) Requests for hearings.
	104.6(1) Nonlicensees must request a hearing within 30 days of the date the notice is received if served through restricted certified mail, or within 30 days of the date of service if service is accepted or made in accordance with Iowa R. Civ.	P. 1.305. A request for hearing must be in writing and is deemed made on the date of the nonmetered United States Postal Service postmark or the date of personal service.
	104.6(2) If a request for hearing is not timely made, the board chairperson or the chairperson’s designee may issue an order imposing the civil penalty and requiring compliance with Iowa Code chapter 156, as described in the notice. The order may be mailed by regular first-class mail or served in the same manner as the notice of intent to impose civil penalty.
	104.6(3) If a request for hearing is timely made, the board shall issue a notice of hearing and conduct a contested case hearing in the same manner as applicable to disciplinary cases against licensees.
	104.6(4) A nonlicensed person who fails to timely request a contested case hearing shall have failed to exhaust “adequate administrative remedies” as that term is used in Iowa Code section 17A.19(1).
	104.6(5) A nonlicensed person who is aggrieved or adversely affected by the board’s final decision following a contested case hearing may seek judicial review as provided in Iowa Code section 17A.19.
	104.6(6) A nonlicensee may waive the right to hearing and all attendant rights and enter into a consent order imposing a civil penalty and requiring compliance with Iowa Code chapter 156 at any stage of the proceeding upon mutual consent of the board.
	104.6(7) The notice of intent to issue an order and the order are public records available for inspection and copying in accordance with Iowa Code chapter 22. Copies may be published as provided in rule 645—11.30(272C). Hearings shall be open to the public.
645—104.7(156) Factors to consider. The board may consider the following when determining the amount of civil penalty to impose, if any:
	1.	Whether the amount imposed will be a substantial economic deterrent to the violation.
	2.	The circumstances leading to the violation.
	3.	The severity of the violation and the risk of harm to the public.
	4.	The economic benefits gained by the violator as a result of noncompliance.
	5.	The interest of the public.
	6.	The time lapsed since the unlawful practice occurred.
	7.	Evidence of reform or remedial actions.
	8.	Whether the violation is a repeat offense following a prior warning letter or other notice of the nature of the infraction.
	9.	Whether the violation involved an element of deception.
	10.	Whether the unlawful practice violated a prior order of the board, court order, cease and desist agreement, consent order, or similar document.
	11.	The clarity of the issue involved.
	12.	Whether the violation was willful and intentional.
	13.	Whether the nonlicensee acted in bad faith.
	14.	Whether the nonlicensee cooperated with the board.
645—104.8(156) Enforcement options. In addition, or as an alternative, to the administrative process described in these rules, the board may seek an injunction in district court, refer the matter for criminal prosecution, or enter into a consent agreement as provided in Iowa Code section 156.16.
These rules are intended to implement Iowa Code chapters 17A, 147, and 156.
[Filed 3/23/05, Notice 2/16/05—published 4/13/05, effective 5/18/05]