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Rule 4901:2-7-01 | Definitions.
As used in this chapter: (A) "Commission" means the
public utilities commission of Ohio. (B) "Days," when used to compute any period of time
prescribed or allowed by these rules, do not include the date of the act or
event from which the designated period of time begins to run. The last day of
the period so computed is included, unless it is a Saturday, Sunday, or legal
holiday, in which event the period runs until the end of the next day which is
not a Saturday, Sunday, or legal holiday. (C) "Director" means the director of the
commission's transportation department or the director's
designee. (D) "Filing" means delivery to the commission's
docketing division in accordance with rule 4901-1-02 of the Administrative
Code. (E) "Hearing" means all proceedings before the
commission involving a violation, commencing with the filing of a request for
administrative hearing and concluding with the issuance of a final order of the
commission. (F) "Parties" means the staff, the respondent, and any
persons permitted to intervene in accordance with rule 4901-1-11 of the
Administrative Code, after commencement of a hearing. (G) "Person" has the same
meaning as in section 1.59 of the Revised Code. (H) "Report of violation" means
the information provided to staff in accordance with rule 4901:2-7-04 of the
Administrative Code, or as a result of an inspection conducted pursuant to rule
4901-2-5-13 of the Administrative Code, including any documentary,
photographic, or other evidence collected regarding the violation. (I) "Respondent" means a person
that the staff has determined may be responsible for a violation. (J) "Staff" means employees of
the transportation department of the commission to whom responsibility has been
delegated for administering the provisions of section 4923.99 of the Revised
Code, as applicable. (K) "Violation" means any
conduct, act, or failure to act, prohibited by Chapters 4921. and 4923. of the
Revised Code, and rules adopted thereunder, or commission order.
Last updated July 27, 2023 at 9:24 AM
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Rule 4901:2-7-02 | Purpose and scope.
(A) This chapter governs all proceedings
of the commission to assess forfeitures and make compliance orders as
authorized by section 4923.99 of the Revised Code. (B) The commission may, upon an
application or a motion filed by a party, waive any requirement of this
chapter, other than a requirement mandated by statute, for good cause
shown.
Last updated July 13, 2023 at 3:03 PM
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Rule 4901:2-7-03 | Service.
(A) General provisions (1) The official address
of the staff is "Public Utilities Commission of Ohio, Transportation
Compliance Division, 180 East Broad Street, Columbus, OH
43215-3793." (2) All documents served
upon the staff via facsimile transmission must be sent to the facsimile machine
in the commission's transportation compliance division at (614)
466-2753. (B) Unless provided otherwise by this
chapter, service upon the staff may be made by ordinary or certified United
States mail, by courier service, by facsimile transmission, by personal
service, or via any electronic means that the staff makes available to a
respondent to achieve service upon the staff. Service is effective upon receipt
except that service by United States mail is complete upon mailing and service
by facsimile transmission or electronic means is complete upon
transmission. (C) Service upon a respondent occurs by ordinary or certified
United States mail, by courier service, by facsimile transmission, by personal
service, or via any electronic means that a respondent has consented to for the
purpose of receiving service. Service is effective upon receipt by any person,
except that service by ordinary or certified United States mail is effective
upon mailing and service by facsimile transmission or electronic mail is
complete upon transmission. Service upon a respondent by ordinary or certified
United States mail occurs at any of the following: (1) If the respondent is
a natural person: (a) The address listed on a report of violation. (b) The address listed on the respondent's driver's
license or in the records of drivers' licenses maintained by a
state. (c) If the respondent has filed a request for conference or
otherwise appeared, itself or through an authorized representative, at the
address indicated in the appearance or other communication. (d) The respondent's place of employment. (e) The last known address of the respondent. (2) If the respondent is
other than a natural person: (a) If the respondent has filed a request for conference or
otherwise appeared, itself or through an authorized representative, at the
address indicated in the appearance or other communication. (b) The address listed on an application form submitted pursuant
to Chapter 4901:2-6, 4901:2-15, or 4901:2-21 of the Administrative Code, or
otherwise designated by the respondent, in writing, with the
staff. (c) The address disclosed on a report of violation. (d) Any business address of the respondent. (e) The address of any agent designated by the respondent to
receive service on its behalf. (D) Once a respondent has served a request for administrative
hearing in pursuant to rule 4901:2-7-13 of the Administrative Code, any further
service occurs in accordance with Chapter 4901-1 of the Administrative
Code.
Last updated July 27, 2023 at 9:24 AM
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Rule 4901:2-7-04 | Investigation and reports of violations.
(A) The commission, any commissioner, the
legal director, the deputy legal director, or an attorney examiner may issue
subpoenas, upon the request of the staff, when the staff has cause to believe
that a violation for which a forfeiture may be assessed has been committed. A
subpoena commands the person to whom it is directed to attend and give
testimony at the time and place specified therein. A subpoena may also command
such person to produce the papers, documents, or other tangible things
described therein. A subpoena issued under this rule shall be served by
personal service or by certified United States mail and is effective upon
receipt. (B) The commission, any commissioner, the
legal director, the deputy legal director, or an attorney examiner may, upon
his or her own motion or upon motion of the person to whom the subpoena is
directed, quash a subpoena if it is unlawful, unreasonable, or
oppressive. (C) Any person having statutory authority
to take enforcement action regarding a violation may transmit a report of
violation to staff on forms prescribed by the director, or otherwise in
writing.
Last updated July 27, 2023 at 9:25 AM
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Rule 4901:2-7-05 | Notice of apparent violation.
When the staff receives a report of violation, or
otherwise discovers a violation, it may serve a "notice of apparent
violation" upon one or more respondents. The notice of apparent violation
contains: (A) An identification of the date of the
violation and person, vehicle, or facility concerning which the violation
occurred. (B) Reference to the statute, rule or
regulation, or order of the commission that was violated. (C) A brief description of the manner in
which the violation is alleged to have occurred. (D) Instructions regarding the manner in
which the respondent may serve a timely request for conference to contest the
violation. (E) A notice that failure to contest the
violation conclusively establishes the occurrence of the
violation.
Last updated July 27, 2023 at 9:25 AM
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Rule 4901:2-7-07 | Notice of intent to assess forfeiture.
(A) Within ninety days of the receipt of
a report of violation, or the discovery of a violation, but no later than one
year following the date the violation occurred, the staff may serve a
"notice of intent to assess forfeiture" for that violation upon one
or more respondents. The notice of intent to assess forfeiture
contains: (1) An identification of
the date of the violation and person, vehicle, or facility concerning which the
violation occurred. (2) Reference to the
statute, rule or regulation, or order of the commission that was
violated. (3) A brief description
of the manner in which the violation is alleged to have occurred. (4) The amount of the
forfeiture intended to be assessed. (5) A statement that
respondent's failure to serve a timely request for conference constitutes
a waiver of respondent's right to further contest liability to the state
for the forfeiture described in the notice. (6) A description of the
manner in which the respondent may make payment of the forfeiture. (7) Instructions
regarding the manner in which the respondent may serve a timely request for
conference to contest the occurrence of the violation or the amount of the
forfeiture. (B) Staff's consideration in
determining the amount of any forfeiture to be assessed, includes: (1) The nature and
circumstances of the violation. (2) The extent and
gravity of the violation. (3) The degree of the
respondent's culpability. (4) The respondent's
history of violations, and any other available information concerning the
respondent's operations.
Last updated July 27, 2023 at 9:30 AM
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Rule 4901:2-7-08 | Notice of intent to make compliance order.
When staff has reason to believe that a person or
entity has committed one or more violations, staff may serve a "notice of
intent to make compliance order" upon one or more respondents that is
reasonably calculated to prevent future violations. The notice of intent to
make compliance order contains: (A) An identification of the date of each
violation and person, vehicle, or facility concerning which the violation
occurred. (B) Reference to the statute, rule or
regulation, or order of the commission that was violated. (C) A brief description of the manner in
which each violation is alleged to have occurred. (D) The language of the compliance order
intended to be made. (E) A statement that respondent's
failure to serve timely a request for conference constitutes a waiver of
respondent's right to further contest the making of the order described in
the notice. (F) Instructions regarding the manner in
which the respondent may serve a timely request for conference to contest the
making of the compliance order.
Last updated July 27, 2023 at 9:30 AM
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Rule 4901:2-7-09 | Combined notices.
Effective:
December 23, 1988
One or more timely notices directed to a single respondent may be combined or merged in any combination.
Last updated July 13, 2023 at 3:03 PM
Supplemental Information
Authorized By:
–
Amplifies:
–
Five Year Review Date:
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Rule 4901:2-7-10 | Request for conference.
(A) A respondent upon whom a notice of
apparent violation, a notice of intent to assess forfeiture, a notice of intent
to make compliance order, or a combined notice has been served may, within
thirty days, serve upon staff a "request for conference." The written
request for conference may be in any legible form which identifies the matter
to be discussed, communicates respondent's desire to have a conference
concerning the matter, and contains the name, address, and telephone number of
the respondent or the respondent's authorized representative. (B) The conference may occur via video
conference, by telephone, or through written communications, and may be held
with the respondent or the respondent's authorized representative. The
respondent may present reasons why the violation did not occur as alleged,
mitigating circumstances regarding the amount of the forfeiture, reasons why
the compliance order may be unjustified, or any other information relevant to
the action proposed to be taken. (C) The staff may notify the respondent
of the date and time of the settlement conference by service of a scheduling
notice, at least fourteen days prior to the date and time established for the
conference, unless otherwise agreed by the staff and the
respondent. (D) Unless contained in or otherwise
provided in a settlement agreement, no statement or conduct occurring in a
settlement conference is admissible in any hearing regarding the
violation.
Last updated July 27, 2023 at 9:30 AM
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Rule 4901:2-7-11 | Settlement agreements.
(A) Should the staff and the respondent
reach agreement regarding the occurrence of a violation, the amount of a
forfeiture to be assessed, or the nature of a compliance order to be made, the
agreement may be reduced to writing in a "settlement agreement."
Where an agreement is signed by the director and by the respondent, it is fully
binding upon the commission and the respondent upon execution, except as
otherwise provided in this rule. (B) A settlement agreement may contain an
agreed forfeiture, an agreed compliance order, another agreed remedy, or
withdrawal of the violation, regardless of the remedy specified in the notice
of apparent violation, notice of intent to assess forfeiture, notice of intent
to make compliance order, or a combined notice. (C) Settlement agreements providing for
the payment of forfeitures of ten thousand dollars or more for any violation
are not effective until approved by and made the order of the
commission. (D) In negotiating a settlement
agreement, staff may consider any matters as justice may require, including,
but not limited to: (1) Mitigating
circumstances relevant to the occurrence of the violation. (2) The respondent's
ability to pay. (3) The effect on the
respondent's ability to continue in business. (4) Imposition of
remedies to assure future compliance other than those specified in the
notice. (E) Notwithstanding paragraph (A) of rule
4901:2-7-11 of the Administrative Code, a respondent is deemed to have accepted
the terms of a settlement agreement, if the settlement agreement only requires
the respondent to pay an agreed forfeiture and the respondent pays that
forfeiture.
Last updated July 27, 2023 at 9:31 AM
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Rule 4901:2-7-12 | Notice of preliminary determination.
Following service of a notice of apparent
violation, a notice of intent to assess forfeiture, a notice of intent to make
compliance order, or a combined notice, the staff may serve a "notice of
preliminary determination" upon the respondent. The signed notice of
preliminary determination contains: (A) An identification of the date of the
violation and person, vehicle, or facility concerning which the violation
occurred. (B) Reference to the statute, rule or
regulation, or order of the commission which was violated. (C) A brief description of the violation,
the amount of the forfeiture intended to be assessed, or the language of the
compliance order intended to be made. (D) Instructions regarding the manner in
which the respondent may serve a timely request for administrative hearing to
contest the alleged violation, the proposed forfeiture, or the making of the
compliance order. (E) A notice that failure to file a
request for administrative hearing conclusively establishes the occurrence of
the violation described in the notice of preliminary determination and
constitutes a waiver of the right of the respondent to contest liability to the
state for the forfeiture proposed in the notice of preliminary determination or
the right of the respondent to contest the making of the compliance order
proposed in the notice of preliminary determination.
Last updated July 27, 2023 at 9:31 AM
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Rule 4901:2-7-13 | Request for administrative hearing.
Within thirty days following service by the staff
of a notice of preliminary determination in accordance with rule 4901:2-7-12 of
the Administrative Code, the respondent may file a "request for
administrative hearing" with the commission's docketing division.
Acceptable written requests for administrative hearing contain the name,
address, and telephone number of the respondent and the case number assigned to
the matter by the staff, are signed by the respondent or its authorized
representative, and attach a copy of the notice of preliminary determination
served by the staff upon the respondent.
Last updated July 27, 2023 at 9:32 AM
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Rule 4901:2-7-14 | Default.
(A) A respondent upon whom a notice of
intent to assess forfeiture has been served who fails within thirty days to pay
the amount of the forfeiture stated in the notice or to serve upon staff a
request for conference is in default. A respondent in default is deemed to have
admitted the occurrence of the violation and waived all further right to
contest liability to the state for the forfeiture described in the notice of
intent to assess forfeiture. (B) A respondent upon whom a notice of
intent to make compliance order has been served who fails to serve upon staff
within thirty days a request for conference is in default. A respondent in
default is deemed to have admitted the occurrence of the violation and waived
all further right to contest the making of the compliance order described in
the notice of intent to make compliance order. (C) A respondent upon whom a notice of
preliminary determination has been served who fails within thirty days to pay
the amount of the forfeiture proposed in the notice of preliminary
determination or to file with the commission's docketing division a
request for administrative hearing is in default. A respondent in default is
deemed to have admitted the occurrence of the violation and waived all further
right to contest liability for the forfeiture proposed in the notice of
preliminary determination or to contest the making of the compliance order
described in the notice of preliminary determination. (D) A respondent who has failed to comply
with the provisions of a settlement agreement for a period exceeding thirty
days is in default. A respondent in default is deemed to have admitted the
occurrence of the violation and waived all further right to contest liability
for the forfeiture proposed in the notice of intent to assess forfeiture or to
contest the making of the compliance order described in the notice of intent to
assess forfeiture. (E) A respondent who has requested an
administrative hearing and fails to appear for the evidentiary hearing is in
default. A respondent in default is deemed to have admitted the occurrence of
the violation and waived all further right to contest liability for the
forfeiture proposed in the notice of preliminary determination or to contest
the making of the compliance order described in the notice of preliminary
determination. (F) If a respondent is in default, the commission may, on its own
motion and without prior notification to respondent, make an order adopting the
remedy set out in the notice with respect to which a default has occurred
pursuant to this rule. A copy of the order is to be served upon any affected
respondent. A respondent that is in default, and has been subjected to an order
of the commission, may file an application for rehearing in accordance with
rule 4901-1-35 of the Administrative Code.
Last updated July 27, 2023 at 9:32 AM
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Rule 4901:2-7-15 | Extensions of time.
(A) Prior to a respondent filing a request for an administrative
hearing pursuant to rule 4901:2-7-13 of the Administrative Code, any time
within which a respondent is required to act under this chapter may be extended
by the director, in writing, for good cause shown. (B) Prior to a respondent filing a request for an administrative
hearing pursuant to rule 4901:2-7-13 of the Administrative Code, any time
within which the staff is required to act under this chapter may be extended by
the written agreement of the staff and the respondent.
Last updated July 13, 2023 at 3:04 PM
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Rule 4901:2-7-16 | Conduct of hearing.
(A) Unless otherwise provided in this
chapter, all hearings occur in accordance with Chapter 4901-1 of the
Administrative Code. (B) Subsequent to a respondent filing a
request for administrative hearing pursuant to rule 4901:2-7-13 of the
Administrative Code, a prehearing conference may be scheduled in accordance
with rule 4901-1-26 of the Administrative Code, unless otherwise ordered by the
commission or agreed by the parties. (C) Discovery can occur in accordance
with rules 4901-1-16 to 4901-1-24 of the Administrative Code except that
depositions are permitted only upon agreement of all parties or motion granted
by the commission, the legal director, the deputy legal director, or the
attorney examiner assigned to the case, which leave can not be unreasonably
withheld. (D) The commission, the legal director, the deputy legal
director, or an attorney examiner assigns the time and place for an evidentiary
hearing. The evidentiary hearing may consist of written stipulations, oral
testimony, or such other evidence that is admitted.
Last updated July 27, 2023 at 9:33 AM
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Rule 4901:2-7-20 | Burden of proof.
(A) During the evidentiary hearing, the
staff must prove the occurrence of a violation by a preponderance of the
evidence. (B) If staff is required to establish a
respondent's history of violations, prior reports of violation relied
upon by staff to meet its burden constitute prima facie evidence of the
occurrence of those violations. Additionally, the staff's reliance on any
of the following conclusively establishes the occurrence of a prior
violation: (1) Any final order
concerning a prior violation rendered by the commission as the result of a
hearing. (2) Any final order
concerning a prior violation rendered by the commission in accordance with
paragraph (F) of rule 4901:2-7-14 of the Administrative Code. (3) Any instance for which staff has
served a notice of apparent violation concerning a prior violation, and no
request for conference has been served by respondent within the time provided
in this chapter, or, for which staff has served a notice of preliminary
determination concerning a prior violation, and no request for administrative
hearing has been filed by respondent within the time provided in this
rule.
Last updated July 27, 2023 at 9:33 AM
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Rule 4901:2-7-21 | Remedy ordered.
If justified by the evidence in any hearing, the
commission may order payment of a forfeiture greater than, less than, or equal
to the forfeiture requested in the notice of intent to assess forfeiture or the
notice of preliminary determination. The commission is not restricted in the
making of any compliance order by the order proposed in the notice of intent to
make compliance order or the notice of preliminary determination, if another
order is justified by the evidence.
Last updated July 13, 2023 at 3:04 PM
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Rule 4901:2-7-22 | Payment of forfeitures.
(A) Forfeitures are to be paid by check,
money order, or by any other means the staff makes available to a respondent. A
check or money order made payable to "Treasurer, State of Ohio," and
may be mailed or delivered to: "Public Utilities Commission of Ohio Transportation Compliance Division Attn: CF Processing 180 East Broad Street Columbus, Ohio 43215-3793" Any instrument of payment should contain the
identifying case number of the violation for which payment is tendered. (B) If the only remedy requested with
respect to a violation is the payment of a forfeiture, and full payment of the
forfeiture demanded in the notice is made prior to the execution of a
settlement agreement or any final commission order, full payment constitutes an
admission of the occurrence of the violation and terminates all further
proceedings under this chapter, and Chapter 4901-1 of the Administrative Code,
regarding that violation. Full payment under these circumstances conclusively
establishes the occurrence of the violation for purposes of consideration of a
respondent's history of violations and for determining the appropriate
remedy for any future violation.
Last updated July 27, 2023 at 9:33 AM
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