Title 18 . Environmental Conservation

Chapter 52 . Administrative Enforcement

Section 105. Enforcement procedures for violations by certified mechanics or stations

18 AAC 52.105. Enforcement procedures for violations by certified mechanics or stations

(a) If the department or an implementing agency finds, or has cause to believe, that an act or omission of a certified mechanic or an owner, operator, employee, partner, officer, or member of a certified station violates this chapter, the department will, in its discretion, or the implementing agency may investigate the alleged violation and take appropriate compliance action, civil or criminal, against the certified mechanic or certified station based on the nature and severity of the violation and the party's history of noncompliance. The department will, in its discretion, or the implementing agency may use an overt or covert performance review to investigate a certified mechanic or station. The department will, in its discretion, initiate the compliance action, including an overt or covert performance review, or participate in a compliance action taken by an implementing agency.

(b) Violations for which the department or an implementing agency might take action under (a) of this section include the following:

(1) an act or omission by a certified mechanic or an owner, operator, employee, partner, officer, or member of a certified station that causes the mechanic or station to be in violation of any applicable requirement of this chapter or the program manual;

(2) negligently providing incorrect or misleading information to the public regarding the requirements of this chapter or the program manual;

(3) causing or allowing a motorist to sign a work order that does not

(A) include the motorist's name and address;

(B) identify the vehicle by make, model, and model year;

(C) list all I/M-related work authorized by the motorist; or

(D) include the vehicle's odometer reading at the time of repair;

(4) failing or refusing to give a motorist a signed copy of any document requiring the motorist's signature;

(5) engaging in conduct that constitutes fraud, deceit, or gross negligence;

(6) failing to follow the inspection and repair procedures specified by the vehicle manufacturer or required by this chapter or the program manual;

(7) departing from or disregarding accepted trade standards for good and workmanlike repair in a manner that is prejudicial to another without the motorist's consent or the consent of the motorist's authorized representative;

(8) making false promises likely to influence, persuade, or induce a motorist to authorize the repair, service, or maintenance of a motor vehicle;

(9) entering false data into a EIS;

(10) performing or allowing a repair that is represented to the motorist as being required to remedy the cause of an inspection failure or obtain a certificate of inspection when it is not required;

(11) adjusting or modifying a vehicle subject to this chapter in a manner that would cause the vehicle to fail an I/M test; this conduct is prohibited regardless of when the vehicle is scheduled for an I/M test;

(12) charging for performing an I/M test that is represented to the motorist as being required when it is not required;

(13) failing to maintain the confidentiality of a mechanic's access code for the EIS;

(14) allowing I/M-related repair work to be done by someone other than a certified mechanic without the motorist's consent;

(15) performing I/M repairs, or performing an after-repair test on a vehicle described in 18 AAC 52.530(b) on which the certified station has not first performed an initial I/M test;

(16) testing a vehicle that is exempt from the requirements of this chapter under 18 AAC 52.005(f) or that is listed in 18 AAC 52.530(c) ;

(17) performing part of the emissions repairs required when there is an availability of replacement parts or an inability to correct certain emissions defects because of the limitations of a particular station; the only exceptions to this paragraph are

(A) if the referee facility has confirmed an availability of parts problem, or

(B) if the referee facility has confirmed that the vehicle has been repaired to the applicable repair cost minimum;

(18) failing to advise the implementing agency of any change in information provided in the mechanic's or station's application for certification or for renewal of certification;

(19) charging for the repair of defects covered by a warranty without the motorist's written consent;

(20) replacing a modified carburetor with an aftermarket or rebuilt carburetor, unless the replacement is certified by the manufacturer, the BAR, the CARB, or the EPA to meet the same specifications as the original equipment carburetor;

(21) using excessive time to inspect a vehicle during a performance review by the implementing agency; inspection time in excess of 60 minutes is considered excessive for the purposes of this paragraph unless due to circumstances beyond the control of the mechanic or station;

(22) failing to report to the implementing agency any illegal certification or other violation of this chapter;

(23) performing any type of prescreening; and

(24) performing an excessive amount of off-line tests; for purposes of this paragraph, "excessive" means that the number of off-line tests, excluding off-line tests that are a result of problems with either communication lines or the VID, is greater than 10 percent of the total number of on-line tests for any given period.

(c) As part of a compliance action, the department will, in its discretion, or the implementing agency may issue a notice of violation to the certified mechanic or station unless immediate action is warranted. If required by the department or implementing agency in the notice, the certified mechanic or station shall respond to the alleged violations in the time period specified in the notice.

(d) If the department or implementing agency determines that a violation exists and it is in the public interest to do so, the department will or the implementing agency shall modify, suspend, or revoke the certification of a mechanic or station. A compliance action under this section is subject to the following:

(1) if the department or implementing agency modifies, suspends, or revokes the certification of a mechanic or station, the department or implementing agency will send a notice to the mechanic or station stating that, based on the department's or implementing agency's written findings,

(A) the modification, suspension, or revocation is effective 30 days after the date of the notice or, at the discretion of the department or implementing agency, immediately if criminal misconduct is suspected;

(B) the certified mechanic or station may request an informal agency review under (3) of this subsection or a formal hearing under (4) of this subsection within 10 days after receiving the notice and that the certified mechanic or station may also request a stay of the modification, suspension, or revocation under (2) of this subsection within 10 days after receiving the notice; and

(C) a formal hearing, if requested, will be held within 60 days after the department or implementing agency receives a request for a hearing;

(2) if a stay is requested, the department will, in its discretion, or the implementing agency may, for good cause shown and upon reasonable conditions, stay the modification, suspension, or revocation of the certification for a reasonable time;

(3) an informal agency review under this subsection will be before the director of the division of the department that issued the notice, the director's designee, the local I/M administrator, or the local I/M administrator's designee, as applicable; the designee may not be the person who issued the notice; the review will be conducted as follows:

(A) within seven working days after receipt of a request for informal agency review, the person who would conduct the review shall decide if the request merits review;

(B) if the person who would conduct the review decides that the request does not merit review, the director of the division that issued the notice or the local I/M administrator, as applicable, shall inform the mechanic or station in writing of that decision and include the reasons for the decision; the denial shall include a statement that the mechanic or station may seek a formal hearing under (4) of this subsection;

(C) if the review is granted, the person who will conduct the review may request additional information from the mechanic or station; the person who conducts the review shall issue a final decision within 15 days after receipt of the request for review or receipt of additional information requested, whichever is later, and shall also advise the mechanic or station of the right to seek a formal hearing under (4) of this subsection;

(D) a mechanic or station that may seek a formal hearing under this paragraph must submit a hearing request within 15 days after a decision made under (B) or (C) of this paragraph is served on the mechanic or station; if requested, the formal hearing will be held within 60 days after the department or implementing agency receives the request for a hearing;

(4) a formal hearing under this subsection shall

(A) be before the commissioner or a person designated by the commissioner to hear the matter and prepare a recommended decision for the commissioner's review or before the local I/M administrator or a person designated by the administrator to hear the matter and prepare a recommended decision for the administrator's review, as applicable; and

(B) follow the hearing procedures of the Administrative Procedures Act (AS 44.62);

(5) after a formal hearing conducted by commissioner or the local I/M administrator under (4) of this subsection, the commissioner will or the local I/M administrator shall affirm, modify, or set aside the modification, suspension, or revocation of the certification;

(6) after a formal hearing conducted by a person designated by the commissioner or local I/M administrator to hear the matter and prepare a recommended decision under (4) of this subsection, the commissioner will or the local I/M administrator shall review the recommended decision and either affirm, modify, or set aside the modification, suspension, or revocation of the certification or return the recommended decision to the designated person for further proceedings, consideration, or recommendations;

(7) the commissioner will, in the commissioner's discretion, and the local I/M administrator may permanently revoke certification of a mechanic or station if to do so is warranted by the acts or omissions of the mechanic or station; and

(8) the decision of the commissioner or the local I/M administrator under (5), (6), and (7) of this subsection is a final agency decision.

(e) The department will, in its discretion, and an implementing agency may enter into a compliance order by consent with the certified mechanic or station to remedy the alleged violations rather than bring a compliance action or hold a hearing under (d) of this section if the certified mechanic or station agrees to waive its right to a hearing and review. If the department or an implementing agency determines that the mechanic or station has failed to timely implement the terms and conditions of the compliance order, the department will, in its discretion, or the implementing agency may start a compliance action to suspend, modify, or revoke the certification or refuse to renew a certification.

(f) If a certified mechanic or station voluntarily surrenders certification, the department will, in its discretion, or the implementing agency may take further civil or criminal enforcement action as appropriate.

(g) A mechanic or station whose certification is suspended or revoked under this section shall immediately surrender the certificate to the department or the implementing agency, as applicable, surrender all unused certificates of inspection to the implementing agency, and cease doing business as a certified mechanic or station. The implementing agency shall refund the money paid for unused certificates of inspection. The mechanic or station may not advertise that it is certified after its certification is suspended or revoked.

(h) If the owner or operator of a certified station conducts I/M tests at more than one place of business and the acts or omissions of the station warrant it, the commissioner will, in the commissioner's discretion, and the local I/M administrator may apply an action taken under this section to each such place of business in addition to the place of business as to which the action was taken.

(i) Unless the certification was permanently revoked under (c)(7) of this section, a mechanic or station whose certification was modified, suspended, or revoked may apply for recertification at any time. In addition to meeting the applicable requirements of 18 AAC 52.400 - 18 AAC 52.440, the mechanic or station must provide evidence that the mechanic or station has taken adequate corrective action and has taken action necessary to avoid a reoccurrence of the violation. The department will, in its discretion, and the implementing agency may refuse to renew the certification of a mechanic or station that fails either to take adequate corrective action or to take action necessary to avoid a reoccurrence of the violation.

History: Eff. 2/1/94, Register 129; am 6/24/94, Register 130; am 1/1/97, Register 140; am 1/1/98, Register 144; am 1/1/2000, Register 152

Authority: AS 46.03.010

AS 46.03.020

AS 46.14.030

AS 46.14.510