ALJDEC

97A-5261-RAD · Radiation Regulatory Agency · 1998-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |(| | |In the Matter of: |(| | | |(|Docket No.: 97F-5261-RAD | |HIGH COUNTRY CHIROPRACTIC CENTER,|(| | |P.C., |(|Recommended | |Andrew LeGate, P.C. |(|Decision and Order | |1121 West 3rd Street |(| | |Winslow, AZ 86047 |(| | | |(| | | |(| |

HEARING: January 16th, 1998, at 8:30 a.m. Appearances: The State of Arizona was represented by Ms. Jeanne M. Glavin, Assistant Attorney General. The Registrant, High Country Chiropractic Center, P. C., Andrew LeGate, P. C., was neither present nor represented by counsel. Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing on Friday, January 16th, 1998. The State of Arizona, Radiation Regulatory Agency, was present and represented by Ms. Jeanne M. Galvin, Assistant Attorney General. The Registrant, High Country Chiropractic Center, P. C., Andrew LeGate, P.C., although the hearing was not convened until one-half hour after the noticed time, failed to appear or be represented. Testimony was taken and other evidence admitted and, based on the record taken as a whole, the following Recommended Findings of Fact, Conclusions of Law, and Decision and Order are made.

FINDINGS OF FACTS

1. The Registrant herein is High Country Chiropractic Center, P. C., and Andrew LeGate, P. C. Andrew LeGate is a licensed chiropractor in the State of Arizona, and since July 30th, 1993, has been a Registrant with the State of Arizona, Radiation Regulatory Agency (ARRA) for the use of an Ionizing Radiation Machine. Registrant’s registration number is 09-C-5261.

2. The ARRA requires a Registrant such as Dr. LeGate to pay an annual registration and inspection fee. The fee becomes due on January 1st of each year. The unpaid fee, after April 1st of each year, becomes delinquent. The amount of the annual fee in Dr. LeGate’s case is $44.00.

3. The ARRA sent to Dr. LeGate at his Winslow Arizona office, a written Preliminary Finding, on May 8th, 1997, informing Dr. LeGate that, based on ARRA records, he had failed to pay his registration and inspection fee that had become due January 1st of that year. This document continued to inform Dr. LeGate that ARRA was proposing a civil penalty for the non-payment, advised the doctor that the penalty amount for non-payment of the fee is $1,000.00, but that that amount could be increased if the violation was a repeat violation.

4. The Preliminary Finding sent to Dr. LeGate on May 8th, 1997, was subsequent to two successive notices that had been sent to him by ARRA informing him, first, that the fee was becoming due, and later that it was past due.

5. The ARRA sent to the doctor on August 7th, 1997, by Certified Mail, a Notice of Violation - Proposed Civil Penalty & Show Cause. This Notice and Proposal informed Dr. LeGate that he had been determined to be in violation of the requirement to pay the annual registration and inspection fee, and that the civil penalty therefor is $1,000.00. The Notice continued to inform the doctor that since this violation was his third failure to pay the same fee within a five year period, that the civil penalty was to be augmented, and would therefore be in the amount of $2,000.00. The Notice and Proposal continued to note that the ARRA had yet to receive any response from the doctor in regards to this matter.

6. The ARRA attached to the August 7th, 1997 Notice an Initial Order Imposing Civil Penalty & Show Cause Order, signed by Aubrey V. Godwin, Director of the ARRA. The Initial Order imposed a civil penalty in the amount of $2,000.00, based on this violation being the third such within a five-year period of time. The Order was further that Dr. LeGate pay, in addition to the penalty, the $44.00 unpaid fee amount for 1997, and to show cause why his Registration should not be revoked. The Order also noted that as of its date, on or about August 8th, 1997, the ARRA yet had not heard from Dr. LeGate.

7. This failure of Dr. LeGate’s to pay the 1997 fee is the third such failure of his within a five-year period. His annual fee payments lapsed into delinquency in 1994, and again in 1996; in both previous instances after substantially the same repeated notices that were found herein to have been sent in this 1997 case, also had been sent by the ARRA and received by Dr. LeGate.

8. Dr. LeGate sent the ARRA his written Request for Hearing in this matter on September 12th, 1997. This hearing ensued. Dr. LeGate had yet to pay his 1997 Registration and Inspection Fee of $44.00 as of the date of this administrative hearing.

9. The ARRA, on the record of this administrative hearing, stated its position to be that Dr. LeGate should be ordered to pay the $44.00 annual fee and a civil penalty in the amount of $2,000.00.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §30- 655 and A.R.S. §41-1092.

2. The ARRA has the legal authority to require Dr. LeGate to be registered for use of an Ionization Radiation Machine; to require payment of the $44.00 annual fee, and to adopt the rules to implement its legislative mandate which are cited infra. A.R.S. §30-654.

3. Dr. LeGate’s registration is a Division II registration. A.A.C. R12-1- 1215.A.2.

4. This particular violation of Dr. LeGate’s, i.e. delinquent annual fee, is a level III violation. A.A.C. R12-1-1213.C.7.

5. The civil penalty attached to a level III violation by a Division II Registrant is $1,000.00. A.A.C. R12-1-1216.A.3.b.

6. The $1,000.00 civil penalty in this case is properly augmented to reach the total sum of $2,000.00, owing to this delinquent annual fee violation being the third such violation within a five-year period. A.A.C. R12-1-1217.D.

7. Augmentation of a civil penalty such as the one here being sought by the ARRA and recommended by the undersigned, is legally incompatible with a revocation of the same registration. A.A.C. R12-1-1217.D., and R12-1-1219.

Recommended Order

Wherefore, it is hereby recommended that the Registrant be ordered to pay the outstanding Registration and Inspection Fee amount of $44.00, and a civil penalty in the amount of $2,000.

Dated this 21st day of January, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of January, 1998, to:

Aubrey V. Godwin, Director Radiation Regulatory Agency 4814 S. 40th Street Phoenix, AZ 85014

Transmitted by:

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