815 KAR 6:090. Procedures for complaints and administrative hearings

      Section 1. Complaint Screening Committee. (1) The committee shall consist of three (3) board members, appointed by the chair of the board to:

      (a) Review complaints and investigative reports;

      (b) Participate in informal proceedings to resolve formal complaints; and

      (c) Make recommendations for disposition of complaints to the full board.

      (2) The committee may be assisted by the board staff and counsel to the board.

 

      Section 2. Complaint Process and Disciplinary Action Against a Licensee. (1) The board shall investigate complaints related to violations of this administrative regulation and may:

      (a) Deny issuance of a license;

      (b) Refuse to renew a license;

      (c) Refuse to reinstate a license;

      (d) Establish probation of a license;

      (e) Suspend a license;

      (f) Revoke a license;

      (g) Issue a public or private written reprimand; or

      (h) Subject the license to a combination of one (1) or more penalties established in paragraphs (a) through (g) of this subsection.

      (2) A complaint may be initiated by the board, an individual, an entity, or any governmental agency. It shall be completed on a Complaint Form, KBHI-7, and shall:

      (a) State the basis of the complaint fully and concisely, including the name of the person who the complaint is against;

      (b) Include any documentation in support of the complaint; and

      (c) If the complaint is initiated by the public, be notarized by a notary public.

      (3) A copy of the initiating complaint shall be mailed to the licensee to his or her last known address on file with the board. The licensee shall file a written response to the initiating complaint with the board within twenty-one (21) days of the date on which the initiating complaint was mailed. The written response shall:

      (a) Identify the respondent;

      (b) State his or her response to the complaint;

      (c) Include any documentation in dispute of the complaint;

      (d) If applicable, state if he or she proposes to inspect the residence that is the subject of the claim and to complete the inspection within twenty-one (21) calendar days of the date on which the initiating complaint was mailed. Any proposal shall include the statement that the home inspector shall, based on the inspection, offer to remedy the defect, compromise by payment, or dispute the claim; offer to compromise and settle the claim by monetary payment without inspection; or state that the home inspector disputes the claim; and

      (e) Be notarized by a notary public.

      (4) Once the written response is received, the complaint screening committee shall review the case. The committee shall report the committee's findings and recommendations to the board. The board shall:

      (a) Dismiss the complaint and notify the person making the complaint and the licensee that no further action shall be taken at the present time;

      (b) Find an investigation is warranted; or

      (c) Find a violation of a provision of KRS 198B.700 to 198B.738 or 815 KAR Chapter 6 and issue notice of disciplinary action to the licensee.

      (5)(a) The board may appoint any of its members or any agent or representative of the board to conduct an investigation of the complaint.

      (b) Upon the completion of the investigation, the person or persons making that investigation shall submit a written report to the board containing a succinct statement of the facts disclosed by the investigation.

      (c) Based on consideration of the complaint and the investigative report, if any, the board shall find if there has been a prima facie violation of a provision of KRS 198B.700 to 198B.738 or 815 KAR Chapter 6.

      (d) If the investigator is a member of the board, he or she shall not vote.

      (e) If it is found that the facts alleged in the initiating complaint or investigative report do not constitute a prima facie violation of KRS 198B.700 to 198B.738 or 815 KAR Chapter 6, the board shall notify the person making the complaint and the licensee that no further action shall be taken at the present time.

      (6) If it is found that there is a prima facie violation of a provision of KRS 198B.700 to 198B.738 or 815 KAR Chapter 6, the board shall issue written notice of disciplinary action sent to the licensee’s address on file with the board and inform the licensee:

      (a) Of the specific reason for the board’s action, including:

      1. The statutory or regulatory violation; and

      2. The factual basis on which the disciplinary action is based;

      (b) Of the penalty imposed; and

      (c) That the licensee may request an administrative hearing of the penalty to the board within twenty (20) calendar days of the date of the board’s notice.

      (7) A written request for an administrative hearing shall be filed with the board within twenty (20) calendar days of the date of the board's notice. The request shall identify the specific issues in dispute and the legal basis on which the board's decision on each issue is believed to be erroneous.

      (8) If the request for an administrative hearing is not timely filed, the notice of disciplinary action shall be effective upon the expiration of the time for the licensee to request an administrative hearing.

      (9) A complaint initiated by the public shall be filed within one (1) year of the date the complainant knew or should have known of a violation of a provision of KRS 198B.700 to 198B.738 or a provision of 815 KAR Chapter 6 by the licensee.

      (10) The complainant may withdraw a complaint, and thereby render the complaint null, void, and without effect, if:

      (a) An answer has not been filed in accordance with this section;

      (b) The withdrawal is made within twenty (20) days of the date the complaint was filed; or

      (c) The withdrawal would not result in harm to the public.

      (11) A complaint that has been withdrawn shall not be refiled or reheard.

 

      Section 3. Settlement by Informal Proceedings. (1) The board, through counsel and the complaint screening committee, may, at any time during the complaint process established in Section 2 of this administrative regulation, enter into informal proceedings with the licensee who is the subject of the complaint for the purpose of appropriately dispensing with the matter.

      (2) An agreed order or settlement reached through this process shall be approved by the board and signed by the individual who is the subject of the complaint and the chair.

      (3) The board may employ mediation as a method of resolving the matter informally.

 

      Section 4. Disciplinary Action Against a Prelicensing Provider or Continuing Educational Provider. (1) The board may deny, suspend, probate, or revoke the registration of any prelicensing course provider or continuing educational provider for:

      (a) Obtaining or attempting to obtain registration or approval through fraud, deceit, false statements, or misrepresentation;

      (b) Failing to provide complete and accurate information in the initial registration or in any notification of change in information;

      (c) Failing to timely notify the board of a change in the information required for registration of the provider;

      (d) Falsifying of any records regarding the courses conducted by the provider or the persons who attended the courses offered;

      (e) Failing to maintain any required records regarding course offerings conducted by the provider or the persons who attended the course;

      (f) Failing to adequately train the staff responsible for taking attendance at any approved course;

      (g) Failing to provide the board with copies of any document or other information required to be maintained by the provider pursuant to this administrative regulation;

      (h) Advertising that a provider has been approved by the board prior to the date the approval is granted;

      (i) Failing to include provider and course numbers in advertisements;

      (j) Failing to maintain a record of instructors;

      (k) Failing to resolve attendance reporting problems; or

      (l) Failing to comply with any other duty established for providers in 815 KAR 6:040 or 815 KAR 6:080.

      (2) The board shall issue written notice of disciplinary action sent to the prelicensing course or continuing educational provider’s address on file with the board and inform the provider:

      (a) Of the specific reason for the board’s action, including:

      1. The statutory or regulatory violation; and

      2. The factual basis on which the disciplinary action is based;

      (b) Of the disciplinary action being taken by the board; and

      (c) That the provider may request an administrative hearing of the disciplinary action to the board within ten (10) calendar days of the date of the board’s notice.

      (3) A written request for an administrative hearing shall be postmarked to the board within ten (10) calendar days of the date of the board's notice.

      (4) If the request for an administrative hearing is not timely filed, the notice of disciplinary action shall be effective upon the expiration of the time for the licensee to request an administrative hearing.

      (5) A provider whose registration has been revoked shall not reapply for registration for two (2) years from the date of revocation.

 

      Section 5. Right of Administrative Hearingfrom a Denial of or Refusal to Renew or Reinstate a License. (1) The board shall issue written notice of the denial informing the applicant:

      (a) Of the specific reason for the board’s action, including:

      1. The statutory or regulatory violation; and

      2. The factual basis on which the denial is based; and

      (b) That the applicant may request an administrative hearing of the pending denial to the board within twenty (20) calendar days after receipt of this notification, excluding the day he or she receives notice.

      (2) A written request for an administrative hearing shall be filed with the board within twenty (20) calendar days of the date of the board's notice. The request shall identify the specific issues in dispute and the legal basis on which the board's decision on each issue is believed to be erroneous.

      (3) If the request for an administrative hearing is not timely filed, the notice of denial shall be effective upon the expiration of the time for the certificate holder to request an administrative hearing.

 

      Section 6. Revocation of Probation. (1) If the board moves to revoke probation, the board shall issue written notice of the revocation and inform the probationee:

      (a) Of the factual basis on which the revocation is based;

      (b) Of each probation term violated; and

      (c) That the probationee may request an administrative hearing of the revocation to the board within twenty (20) calendar days of the date of notification of revocation. The notification shall be sent to the last known address on file with the board for the certificate holder.

      (2) A written request for an administrative hearing shall be filed with the board within twenty (20) calendar days of the date of the board's notice. The request shall identify the specific issues in dispute and the legal basis on which the board's decision on each issue is believed to be erroneous.

      (3) If the request for an administrative hearing is not timely filed, the notice of revocation shall be effective upon the expiration of the time for the certificate holder to request an administrative hearing.

 

      Section 7. Summary Suspension. The board may summarily suspend a license for up to ninety (90) days before a final adjudication or during the administrative hearing of the board's determination if the board finds that the licensee would represent a clear and immediate danger to the public's health, safety, or property if allowed to perform home inspections. The summary suspension may be renewed upon a hearing before the board for up to ninety (90) days.

 

      Section 8. Unauthorized Practice and Claims. (1) On the written complaint submitted to the board that requires notarized statements sworn under the penalties of perjury, as set out in Section 1 of this administrative regulation, the board shall investigate the actions of any person who acts, or is believed to have acted, in the capacity of a licensee or who engages in activities for which a home inspector license is required, as set forth in KRS 198B.712, or who is believed to have engaged in prohibited activities specified in KRS 198B.732, if the complaint, together with any evidence presented in connection with it, alleges a case that a prima facie violation of KRS 198B.712 or 198B.732 has been committed.

      (2)(a) If the board determines that an individual is not licensed under KRS 198B.700 to 198B.738 and is engaged in or believed to be engaged in activities for which a license is required under KRS 198B.700 to 198B.738, the board shall issue an order to that individual requiring the individual to show cause why the individual should not be ordered to cease and desist from the activities. The show cause order shall set forth a date, time, and place for a hearing at which the individual shall appear and show cause why the individual should not be subject to inspector licensing under KRS 198B.700 to 198B.738.

      (b) If the board, after a hearing, determines that the activities in which the individual is engaged are subject to licensing under KRS 198B.700 to 198B.738, the board may issue a cease and desist order that identifies the individual and describes activities that are the subject of the order.

 

      Section 9. Cease and Desist Orders. A cease and desist order issued under this section shall be enforceable in the circuit court of the county where the board's office is located, the circuit court of the county where the violation occurred, or any other circuit court of the commonwealth.

 

      Section 10. Any request for an administrative hearing shall be sent to the Board of Home Inspectors by mail to P.O. Box 1360, Frankfort, Kentucky 40602 or by delivery to 911 Leawood Drive, Frankfort, Kentucky 40601.

 

      Section 11. Each administrative hearing shall be governed in accordance with KRS Chapter 13B.

 

      Section 12. Each administrative hearing shall be limited to the specific issues in dispute identified in the request for an administrative hearing.

 

      Section 13. Incorporation by Reference. (1) "Complaint Form", Form KBHI-7, 7/2014, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Board of Home Inspectors, 911 Leawood Drive, Frankfort, Kentucky, phone [phone], Monday through Friday, 8:30 a.m. to 5 p.m. (41 Ky.R. 686; Am. 1376; 1555; eff. 2-6-2015; 42 Ky.R. 2272, 2600, 2895; eff. 7-1-2016.)

Notation

      RELATES TO: KRS 198B.706(3), (4), (12), 198B.712, 198B.722, 198B.728, 198B.730

      STATUTORY AUTHORITY: KRS 198B.706(1), (3), (12), (15)

      NECESSITY, FUNCTION AND CONFORMITY: KRS 198B.706(4) requires the board to investigate complaints concerning licensees, or persons the board has reason to believe should be licensees, including complaints concerning failure to comply with KRS 198B.700 to 198B.738 or administrative regulations promulgated under KRS 198B.700 to 198B.738, and, if appropriate, take action in accordance with KRS 198B.728 and 198B.730. KRS 198B.730(1) requires the board to schedule and conduct an administrative hearing in accordance with the provisions of KRS Chapter 13B. KRS 411.272(2) requires KRS 411.270 to 411.282 to prevail over any conflicting law otherwise applicable to any action, claim or cause of action against a home inspector, with specified exceptions. KRS 198B.728 requires the board to take disciplinary actions against or impose sanctions on a licensee for failing to comply with any provision of KRS 198B.700 to 198B.738 or administrative regulations promulgated under KRS 198B.700 to 198B.738. KRS 198B.706(1) requires the board to find the requirements for and prescribe the form of documents that are required by KRS 198B.700 to 198B.738. KRS 198B.706(15) requires the board to promulgate administrative regulations to carry out the requirements of KRS 198B.700 to 198B.738. This administrative regulation establishes supplemental administrative hearing procedures for matters before the commission and the required forms for a complaint or answer.