ENROLLED
H. B. 4142
(By Delegates Morgan, Stephens, Swartzmiller,
Martin, Hartman, Manypenny and Staggers)
[Passed March 13, 2010; in effect ninety days from passage.]
AN ACT to
amend and reenact §30-17-1, §30-17-2, §30-17-3, §30-17-4,
§30-17-5, §30-17-6, §30-17-7, §30-17-8, §30-17-9, §30-17-10,
§30-17-11, §30-17-12, §30-17-13, §30-17-14, §30-17-15 and
§30-17-16
of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto three new sections,
designated §30-17-17, §30-17-18 and §30-17-19, all relating to
the State Board of Sanitarians; prohibiting the practice of
environmental health science and public health sanitation
without a license
, certification or permit; updating
definitions; changing the board composition; clarifying
the
powers and duties of the board; clarifying rule-making
authority; authorizing emergence rules; continuing a special
revenue account; establishing license, permit and certificate
requirements; providing exemptions from licensure; licensing
requirements for persons licensed in another state;
establishing renewal requirements; requiring display of license, certification and permit; setting grounds for
disciplinary actions; establishing specific disciplinary
actions; providing procedures for investigation of complaints,
judicial review, appeals of decisions, hearings, notice and
civil causes of action; providing criminal penalties; and
providing that a single act is evidence of practice.
Be it enacted by the Legislature of West Virginia:
That §30-17-1, §30-17-2, §30-17-3, §30-17-4, §30-17-5,
§30-17-6, §30-17-7, §30-17-8, §30-17-9, §30-17-10, 30-17-11, §30-
17-12, §30-17-13, §30-17-14, §30-17-15
and §30-17-16
of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
said code be amended by adding thereto three new sections,
designated §30-17-17, §30-17-18 and §30-17-19, all to read as
follows:
ARTICLE 17. SANITARIANS.
§30-17-1. Unlawful acts.
It is unlawful for any person to practice or offer to practice
environmental health science and public health sanitation
in this
state without being licensed, certified or permitted under the
provisions of this article, or to advertise or use any title or
description tending to convey the impression that the person is a
registered sanitarian, sanitarian or sanitarian-in-training unless
he or she has been duly authorized under the provisions of this
article, and the license, certification or permit has not expired or been suspended or revoked.
§30-17-2. Applicable law.
The practice of environmental health science and public health
sanitation
, and the board are subject to the provisions of article
one of this chapter, the provisions of this article and any rules
promulgated hereunder.
§30-17-3. Definitions.
As used in this article, the following words and terms have
the following meanings:
(a) "Board" means the State Board of Sanitarians.
(b) "Bureau" means the Bureau for Public Health.
(c) "Certificate holder" means a person holding a
certification
issued
by the board.
(d) "Certificate" means a document issued to a sanitarian
under the provisions of this article.
(e) "Environmental health science" means public health science
that includes, but is not limited to, the following bodies of
knowledge: air quality, food quality and protection, hazardous and
toxic substances, consumer product safety, housing, institutional
health and safety, community noise control, radiation protection,
recreational facilities, solid and liquid waste management, vector
control, drinking water quality, milk sanitation and rabies
control.
(f) "License" means a document issued to a registered
sanitarian under the provisions of this article
.
(g) "License
e" means a person holding a
license
issued
by the
board.
(h) "Permit" means a document issued to a sanitarian-in-
training under the provisions of
this article.
(i) "
Permit
tee" means a person holding a
permit
issued
by the
board.
(j) "Practice of public health sanitation" means the
consultation, instruction, investigation, inspection or evaluation
by an employee of the bureau, or a municipal or county health
department with the primary purpose of improving or conducting
administration of enforcement of state laws and rules.
(k) "Registered sanitarian" means a person who is licensed by
the board and is uniquely qualified by education, specialized
training, experience and examination to assist in the enforcement
of public health sanitation laws and environmental sanitation
regulations, and to effectively plan, organize, manage, evaluate
and execute one or more of the many diverse disciplines comprising
the field of public health sanitation.
(l) "Sanitarian" means a person who is certified by the board
and is uniquely qualified by education in the arts and sciences,
specialized training and credible field experience to assist in the
enforcement of public health sanitation laws and environmental
sanitation regulations, and to effectively plan, organize, manage,
evaluate and execute one or more of the many diverse disciplines
comprising the field of public health sanitation.
(m) "Sanitarian-in-training" means a person who is permitted
by the board and
possesses the necessary educational qualifications
for certificate as a sanitarian, but who has not completed the
experience requirements in the fields of public health sanitation
and environmental health science
as required for certificate.
§30-17-4. State Board of Sanitarians.
(a) The Board of Registration for Sanitarians is continued and
commencing July 1, 2010,
shall be known as the State Board of
Sanitarians. Any member of the board, except one registered
sanitarian, in office on July 1, 2010, may continue to serve until
his or her successor has been appointed and qualified
.
(b) Prior to July 1, 2010, the Governor, by and with the
advice and consent of the Senate, shall appoint one certified
sanitarian
to replace one registered sanitarian
.
(c) Commencing July 1, 2010, the board shall consist of the
following seven voting members with staggered terms and 1 non-
voting member
:
(1) The Commissioner of the Bureau of Public Health, or his or
her designee, who is a nonvoting member;
(2) Four members who are registered sanitarians, who are
voting member
s;
(3) One member who has a certificate as a sanitarian at the
time of the appointment, who is a voting member: Provided, That if
the member becomes a registered sanitarian during his or her
appointment term, then the person may not be reappointed as the certified sanitarian member, but may be reappointed as a registered
sanitarian member
; and
(4) Two citizen members, who are not licensed, certified or
permitted under the provisions of this article, and who do not
perform any services related to the practice of the professions
regulated under the provisions of this article, who are voting
member
s.
(d) Each voting member must be appointed by the Governor, by
and with the advice and consent of the Senate, and must be
a
resident of this state during the appointment term.
(e) The term of each voting board member is five years.
(f) No voting member may serve more than two consecutive full
terms and any voting
member having served two full terms may not be
appointed for one year after completion of his or her second full
term. A voting
member shall continue to serve until his or her
successor has been appointed and qualified.
(g) Each licensed or certified member shall have been engaged
in the practice of environmental health science or public health
sanitation for at least five years immediately preceding the
appointment.
(h) Each licensed or certified member shall maintain an active
license or certificate with the board during his or her term.
(i) The Governor may remove any voting member from the board
for neglect of duty, incompetency or official misconduct.
(j)A licensed or certified
member of the board immediately and automatically forfeits membership to the board if his or her
license or certificate to practice is suspended or revoked.
(k) A voting member of the board immediately and automatically
forfeits membership to the board if
he or she is convicted of a
felony under the laws of any jurisdiction or becomes a nonresident
of this state.
(l) The board shall designate one of its members as
chairperson who serves at the will of the board.
(m) Each voting member of the board is entitled to receive
compensation and expense reimbursement in accordance with section
eleven, article one of this chapter.
(n) A majority of the members of the board shall constitute a
quorum.
(o) The board shall hold at least two annual meetings. Other
meetings may be held at the call of the chairperson, or upon the
written request of two members, at such time and place as
designated in the call or request.
(p) Prior to commencing his or her duties as a voting member
of the board, each voting
member shall take and subscribe to the
oath required by section five, article four of the Constitution of
this state.
§30-17-5. Powers and duties of the board.
The board has all the powers and duties set forth in article
one of this chapter and also the following powers and duties:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Set the requirements for a license, permit and
certificate;
(3) Establish procedures for submitting, approving and
rejecting applications for a license, permit and certificate
;
(4) Determine the qualifications of any applicant for a
license, permit and certificate
;
(5) Prepare, conduct, administer and grade written, oral or
written and oral examinations for a license;
(6) Determine the passing grade for the examinations;
(7) Contract with third parties to administer the examinations
required under the provisions of this article;
(8) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examination and the pass and fail rate;
(9) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees and contracted
employees necessary to enforce the provisions of this article;
(10) Define the fees charged under the provisions of this
article;
(11) Issue, renew, deny, suspend, revoke or reinstate a
license, permit and certificate
;
(12) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(13) Conduct disciplinary hearings of persons regulated by the
board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of
the provisions of this article;
(16) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(18) Establish the continuing education requirements for
licensees, permittees and certificate holders;
(19) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article;
(20) Sue and be sued in its official name as an agency of this
state;
(21) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions; and
(22) Take all other actions necessary and proper to effectuate
the purposes of this article.
§30-17-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for a license, permit or
certificate;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
(4) Educational, experience and training requirements, and the
passing grade on the examination;
(5) Standards for approval of courses;
(6) Procedures for the issuance and renewal of a license,
permit or certificate
;
(7) A fee schedule;
(8) The continuing education requirements;
(9) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee, permittee or
certificate holder;
(10) Requirements for an inactive or revoked license, permit
or certificate
; and
(11) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board is authorized to promulgate emergency rules
pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to set fees for the issuance
and renewal of licenses, certificates and permits for an eighteen
month period commencing July 1, 2010, and ending December 31, 2011.
§30-17-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "Sanitarians
Operating Fund", which fund is continued. The fund shall be used
by the board for the administration of this article. Except as may
be provided in article one of this chapter, the board shall retain
the amounts in the special revenue account from year to year. No
compensation or expense incurred under this article is a charge
against the General Revenue Fund.
(b) Any amounts received as fines imposed, pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-17-8. Qualifications for licensure as a registered sanitarian.
(a) To be eligible to be licensed as a registered sanitarian,
the applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited
college or university;
(3) Successfully complete a sanitarian's training course of a
minimum of three hundred hours, as approved by the board;
(4) Have at least two years of experience in the field of public health sanitation and environmental health science
; and
(5) Pass an examination, as required by the board.
(b) An applicant may substitute a successfully completed
master's or higher degree in public health, environmental science,
sanitary science, community hygiene or other science field, as
approved by the board, for one of the required years of experience.
(c) A registration issued by the board prior to July 1, 2010,
shall for all purposes be considered a license issued under this
article: Provided, That a person holding a registration issued
prior to July 1, 2010, must renew pursuant to the provisions of
this article.
§30-17-9. Qualifications for certificate as a sanitarian.
(a) To be eligible to be certified as a sanitarian, the
applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited
college or university;
(3) Successfully complete a sanitarian's training course of a
minimum of three hundred hours, as approved by the board; and
(4) Have at least two years of experience in the field of
public health sanitation and environmental health science
.
(b) An applicant may substitute a successfully completed
master's or higher degree in public health, environmental science,
sanitary science, community hygiene or other science field as
approved by the board for one of the required years of experience.
(c) A person who is registered as a sanitarian-in-training by
the board
and
on or before July 1, 2010,
has two or more years of
experience in the field of public health sanitation and
environmental health science
, as approved by the board, shall for
all purposes be considered certified under this article: Provided,
That such a person must renew pursuant to the provisions of this
article.
§30-17-10. Qualifications for permit as a sanitarian-in-training.
(a) To be eligible to be permitted as a sanitarian-in-
training, the applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited
college or university; and
(3) Successfully complete a sanitarian's training course of a
minimum of three hundred hours within twelve months of being hired
as a sanitarian-in-training
.
(b) A person may practice as a sanitarian-in-training for a
period not to exceed three years.
(c) The board may waive the requirements of subdivision (3) of
subsection (a) and subsection (b) of this section, for a person who
experiences an undue hardship, as determined by the board.
§30-17-11. Persons exempted from licensure.
The activities and services of qualified members of other
recognized professions practicing environmental health science
consistent with the laws of this state, their training and any code of ethics of their professions so long as such person does not
represent themselves as a registered sanitarian, sanitarian or
sanitarian-in-training as defined by this article.
§30-17-12. License from another state.
The board may issue a license or a certificate to practice
environmental health science or public health sanitation in this
state, without requiring an examination, to an applicant from
another jurisdiction who:
(1) Is of good moral character;
(2) Holds a valid sanitarian license or other authorization to
practice environmental health science or public health sanitation
in another jurisdiction and meets requirements which are
substantially equivalent to the requirements set forth in this
article;
(3) Is not currently being investigated by a disciplinary
authority of this state or another jurisdiction, does not have
charges pending against his or her license or other authorization
to practice environmental health science or public health
sanitation, and has never had a license or other authorization to
practice environmental health science or public health sanitation
revoked;
(4) Has not previously failed an examination for licensure in
this state;
(5) Has paid all the applicable fees;
(6) Completes any additional training as determined by the board; and
(7) Completes such other action as required by the board.
§30-17-13. Renewal requirements.
(a) The board may issue, renew and charge fees for licenses,
certificates and permits for an eighteen month period commencing
July 1, 2010, and ending December 31, 2011.
(b) Commencing January 1,
2012, and annually
or biennially
thereafter, a person regulated by this article shall renew his or
her license, permit or certificate by completing a form prescribed
by the board, paying the applicable fees and submitting any other
information required by the board.
(c) The board shall charge a fee for each renewal of a
license, permit or certificate and may charge a late fee for any
renewal not paid by the due date.
(d) The board shall require as a condition for the renewal of
a license, permit or certificate that each person regulated by this
article complete continuing education.
(e) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a license, permit or certificate.
§30-17-14. Display of license, permit or certificate
.
(a) The board shall prescribe the form for a license, permit
and certificate and may issue a duplicate upon payment of a fee.
(b) Any person, not employed by the bureau or a municipal or
county health department, shall conspicuously display his or her license, permit or certificate at his or her principal place of
practice.
(c) A person regulated by the board shall carry valid
proof of
licensure, permit or certificate on his or her person during the
performance of his or her duties.
§30-17-15. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion and shall upon the
written complaint of any person cause an investigation to be made
to determine whether grounds exist for disciplinary action under
this article.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee, permittee or
certificate holder.
(c) The board may cause an investigation to be made into the
facts and circumstances giving rise to the complaint.
(d) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee, permittee or certificate holder has violated
this article.
(e) Upon a finding that probable cause exists that the
licensee, permittee or certificate holder has violated this
article, the board may enter into a consent decree or hold a
hearing for the suspension or revocation of the license,
certificate or permit or the imposition of sanctions against the licensee, permittee or certificate holder. The hearing shall be
held in accordance with the provisions of this article.
(f) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by this article.
(g) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(h) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license, permit or
certificate of, impose probationary conditions upon or take
disciplinary action against, any licensee, permittee or certificate
holder for any of the following reasons:
(1) Obtaining a license, permit or certificate by fraud,
misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk;
(4) Violating this article or
lawful order of the board that
placed the public at risk
;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization denied by the proper authorities
of another jurisdiction, irrespective of intervening appeals and stays; or
(6) Engaging in any act which has endangered or is likely to
endanger the health, welfare or safety of the public.
(i) For the purposes of subsection (h) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee or certificate holder to
report to the board for periodic interviews for a specified period
of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-17-16. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight,
article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee,
permittee or certificate holder has violated this article, a formal
written decision shall be prepared which contains findings of fact,
conclusions of law and a specific description of the disciplinary
actions imposed.
§30-17-17. Judicial review; appeal to Supreme Court of Appeals.
Any licensee, permittee or certificate holder adversely
affected by a decision of the board entered after a hearing may
obtain judicial review of the decision in accordance with section
four, article five, chapter twenty-nine-a of this code, and may
appeal any ruling resulting from judicial review in accordance with
article six, chapter twenty-nine-a of this code.
§30-17-18. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee,
permittee or certificate holder
has knowingly violated this
article, the board may bring its information to the attention of an
appropriate law-enforcement official who may cause criminal proceedings to be brought.
(b) If a court finds that a person violating this article,
is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $500 nor more than $1,000 or confined in jail
not more than six months, or both fined and confined.
§30-17-19. Single act evidence of practice.
In any action brought or in any proceeding initiated under
this article, evidence of the commission of a single act prohibited
by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general
course of conduct.