48-3643. Inspections; applicability

A. A district inspector or regulator who enters any premises of a regulated person for the purpose of conducting an inspection shall:

1. Present photo identification on entry of the premises.

2. On initiation of the inspection, state the purpose of the inspection and the legal authority for conducting the inspection.

3. Disclose any applicable inspection fees.

4. Afford an opportunity to have an authorized on-site representative of the regulated person accompany the district inspector or regulator on the premises, except during confidential interviews.

5. Provide notice of the right to have:

(a) Copies of any original documents taken from the premises by the district during the inspection if the district is permitted by law to take original documents.

(b) A split or duplicate of any samples taken during the inspection if the split or duplication of any samples, if appropriate, would not prohibit an analysis from being conducted or render an analysis inconclusive.

(c) Copies of any analysis performed on samples taken during the inspection.

6. Inform each person whose conversation with the district inspector or regulator during the inspection is tape recorded that the conversation is being tape recorded.

7. Inform each person interviewed during the inspection that statements made by the person may be included in the inspection report.

B. On initiation of, or two working days before, an inspection of any premises of a regulated person, a district inspector or regulator shall provide the following in writing or electronically:

1. The rights described in subsection A of this section.

2. The name and telephone number of a district contact person available to answer questions regarding the inspection.

3. The due process rights relating to an appeal of a final decision of a district based on the results of the inspection, including the name and telephone number of a person to contact within the district and any appropriate municipality, county, district or state government ombudsman.

C. A district inspector or regulator shall obtain the signature of the regulated person or on-site representative of the regulated person on the writing prescribed in subsection B of this section indicating that the regulated person or on-site representative of the regulated person has read the writing and is notified of the regulated person's or on-site representative of the regulated person's inspection and due process rights. The district shall maintain a copy of this signature with the inspection report. Unless the regulated person, at the time of the inspection, is informed how the report can be located electronically, the district shall leave a copy with the regulated person or on-site representative of the regulated person. If a regulated person or on-site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section, the district inspector or regulator shall note that fact on the writing.

D. A district that conducts an inspection pursuant to this section, shall give a copy of, or provide electronic access to, the inspection report to the regulated person or on-site representative of the regulated person either:

1. At the time of the inspection.

2. Notwithstanding any other state law, within thirty working days after the inspection.

3. As otherwise required by federal law.

E. The inspection report shall contain deficiencies identified during an inspection. Unless otherwise provided by law, the district may provide the regulated person an opportunity to correct the deficiencies unless the district determines that the deficiencies are:

1. Committed intentionally.

2. Not correctable within a reasonable period of time as determined by the district.

3. Evidence of a pattern of noncompliance.

4. A risk to any person, the public health, safety or welfare or the environment.

F. If the district allows the regulated person an opportunity to correct the deficiencies pursuant to subsection E of this section, the regulated person shall notify the district when the deficiencies have been corrected. Within thirty working days after receipt of notification from the regulated person that the deficiencies have been corrected, the district shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance, unless it is not possible due to conditions of normal operations at the premises. If the regulated person fails to correct the deficiencies or the district determines the deficiencies have not been corrected within a reasonable period of time, the district may take any enforcement action authorized by law for the deficiencies.

G. A district decision pursuant to subsection E or F of this section is not an appealable district action.

H. At least once every month after the commencement of the inspection a district shall provide a regulated person with an update, in writing or electronically, on the status of any district action resulting from an inspection of the regulated person. A district is not required to provide an update after the regulated person is notified that no district action will result from the district's inspection or after the completion of district action resulting from the district's inspection.

I. This section does not authorize an inspection or any other act that is not otherwise authorized by law.

J. This section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure requirements. This section does not apply:

1. To criminal investigations and undercover investigations that are generally or specifically authorized by law.

2. If the district inspector or regulator has reasonable suspicion to believe that the regulated person may be or has been engaged in criminal activity.

3. If the district inspector or regulator reasonably believes that an emergency exists.

4. To inspections conducted pursuant to section 48-3609, subsection L of persons not licensed by the district or which are not necessary for the issuance of a license.

K. If a district inspector or regulator gathers evidence in violation of this section, the violation shall not be a basis to exclude the evidence in a civil or administrative proceeding, if the penalty sought is the denial, suspension or revocation of the regulated person's license or a civil penalty of more than one thousand dollars.

L. Failure of a district employee to comply with this section:

1. Constitutes cause for disciplinary action or dismissal pursuant to adopted district personnel policy.

2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or civil penalty.

M. A district may adopt rules or ordinances to implement this section.

N. This section:

1. Shall not be used to exclude evidence in a criminal proceeding.

2. Does not apply to district inspections that are requested and scheduled by the regulated person.