(1) Any
aggrieved party may file a complaint with the division on a form prescribed by the
division alleging a violation of the act, this part 11, or a rule, regardless of whether
the provision allegedly violated contains a specific reference to this section.
(2) After receiving a complaint under this part 11, the division shall
investigate the alleged violations at the division's discretion. The division may, if
appropriate, facilitate negotiations between the complainant and the respondent.
The division may, on its own initiative, investigate potential violations of the act, this
part 11, or a rule when it receives evidence of a potential violation from a source
other than a filed complaint and may make determinations and take enforcement
actions pursuant to this section following such an investigation.
(3) (a) Complainants and respondents shall cooperate with the division in the
course of an investigation by responding to subpoenas issued by the division. The
subpoenas may compel testimony, take evidence, or seek access to papers or other
documents and provide site access to the mobile home parks relevant to the
investigation. Complainants and respondents must respond to the division's
subpoenas within fourteen days of the division sending the subpoenas by certified
mail.
(b) Failure to cooperate with the division in the course of an investigation is a
violation of this part 11.
(c) If a complainant or respondent fails to respond to a subpoena within the
time required by subsection (3)(a) of this section, the division may impose a penalty
of up to five thousand dollars per violation per day for each day the complainant or
respondent fails to respond. The division may delay or dismiss the imposition of the
penalty if the complainant or respondent makes a good-faith effort to comply
within seven days.
(4) (a) If, after an investigation, the division determines that the parties are
unable to come to an agreement or that facilitating negotiations between the
parties is not appropriate to resolve the alleged violation, the division shall make a
written determination on whether a violation of the act, this part 11, or a rule has
occurred.
(b) If the division finds by a written determination that a violation of the act,
this part 11, or a rule has occurred, the division shall deliver a written notice of
violation by certified mail to both the complainant and the respondent. The notice of
violation must specify the basis for the division's determination; the violation; the
action required to cure the violation; the time within which that action must be
taken; the penalties that will be imposed if that action is not taken within the
specified time period; and the process for contesting the determination, required
action, and penalties by means of an administrative hearing.
(c) If the division finds by a written determination that a violation of the act,
this part 11, or a rule has not occurred, the division shall deliver a written notice of
nonviolation to both the complainant and the respondent by certified mail. The
notice of nonviolation must include the basis for the division's determination and
the process for contesting the determination included in the notice of nonviolation
by means of an administrative hearing.
(5) The respondent must comply with the requirements of a notice of
violation from the division within seven days of the notice of violation becoming a
final agency order under either subsection (7)(b) or (9)(b) of this section, except as
required otherwise by the division, unless the respondent has submitted a timely
request for an administrative hearing to contest the notice under subsection (7) of
this section. If a respondent fails to comply with the requirements of a notice of
violation within the required time period and the division has not received a timely
request for an administrative hearing, the division may impose a penalty, up to a
maximum of five thousand dollars per violation per day, for each day that a violation
remains uncorrected. When determining the amount of the penalty to impose on a
respondent, the division shall consider the severity and duration of the violation and
the impact of the violation on other community residents. If the respondent shows,
upon timely application to the division, that a good faith effort to comply with the
requirements of the notice of violation has been made and that the respondent has
not complied because of mitigating factors beyond the respondent's control, the
division may delay or dismiss the imposition of a penalty.
(6) The division may issue an order requiring the respondent to cease and
desist from an unlawful practice. The division may also issue an order requiring the
respondent to take actions that in the judgment of the division will carry out the
purposes of this part 11. The actions may include, but are not limited to:
(a) Refunds of rent increases, improper fees, and charges collected in
violation of this part 11;
(b) Filing documents that correct a statutory or rule violation; and
(c) Taking action necessary to correct a statutory or rule violation.
(6.5) (a) Whenever the division has reasonable cause to believe that a
violation of the act, this part 11, or a rule has occurred or will soon occur and that
immediate enforcement is necessary, the division may immediately issue a cease-and-desist order. A written determination and notice of violation is not required
when the division issues a cease-and-desist order pursuant to this subsection (6.5).
The order must set forth the provisions alleged to have been violated, the facts
alleged to have constituted the violation, and the requirement that all actions
immediately cease.
(b) Within fifteen business days after service of the order, the person
receiving the order may request an administrative hearing pursuant to subsection
(7)(a) of this section to determine whether or not the alleged violation has occurred.
(c) If a person who is the subject of an order to cease and desist fails to
comply with the order within forty-eight hours, the division may bring an action in
civil court for a temporary restraining order and for injunctive relief to prevent
further or continued violation of the act, this part 11, or a rule. A court shall not stay
an order to cease and desist until after holding a hearing involving both parties on
the matter.
(7) (a) A complainant or respondent may request an administrative hearing
before an administrative law judge to contest:
(I) A notice of violation issued under subsection (4)(b) of this section or a
notice of nonviolation issued under subsection (4)(c) of this section;
(II) A penalty imposed under subsection (3) or (5) of this section; or
(III) An order to cease and desist or an order to take actions under subsection
(6) or (6.5) of this section.
(b) If the complainant or respondent requests an administrative hearing
pursuant to subsection (7)(a) of this section, the complainant or respondent must
file the request within fifteen business days after service of a notice of violation,
notice of nonviolation penalty, order, or action. If an administrative hearing is not
requested within this time period, the notice of violation, notice of nonviolation, or
cease-and-desist order constitutes a final agency order of the division and is not
subject to review by any court or agency.
(8) Hearings before the office of administrative courts must be conducted in
accordance with article 4 of title 24, unless otherwise specified in this section.
(9) (a) An appointed administrative law judge shall:
(I) Hear and receive pertinent evidence and testimony;
(II) Decide whether the evidence supports the division's finding by a
preponderance of the evidence; and
(III) Enter an appropriate order within thirty days after the completion of the
hearing and immediately send copies of the order to the affected parties.
(b) An order entered by an administrative law judge constitutes the final
agency order of the division and is subject to judicial review pursuant to article 4 of
title 24. An order entered by an administrative law judge may be appealed by the
respondent and the division.
(10) When the division imposes any penalty against a respondent landlord
under this part 11, the respondent may not seek any recovery or reimbursement of
the penalty from a complainant or from any other home owner or resident.
(11) All money collected from the imposition of any penalties imposed under
this section other than any portion of the penalties required to be paid to a
complainant must be deposited in the fund.
(12) This section does not provide an exclusive remedy and does not limit the
right of landlords, home owners, or residents to take legal action against another
party as provided in the act or otherwise. Exhaustion of the administrative remedy
provided in this section is not required before a landlord, home owner, or resident
may bring a legal action.
(13) A landlord shall not take any retaliatory actions against a home owner or
resident for filing a complaint and shall not harass or intimidate a home owner or
resident in violation of section 38-12-212.5 (4.5). If the division determines that a
landlord has retaliated against a home owner or resident or violated section 38-12-212.5 (4.5), the division may impose a fine of up to ten thousand dollars on the
landlord.
(14) Any penalty levied against a landlord under this part 11 shall be a lien
against the landlord's mobile home park until the landlord pays the penalty.
(15) The division shall take all reasonable steps to avoid disclosing the
complainant's identity to the landlord during or after the investigation without the
complainant's permission if a complaint alleges a violation that is of a general
nature affecting multiple home owners or residents, including but not limited to a
complaint alleging that a landlord's rules or rule enforcement practices violate the
act, this part 11, or a rule and the division can adequately investigate the complaint
without revealing the complainant's identity. A person shall not obtain access to the
record through subpoena, discovery, or under any statutory authority. This
subsection (15) does not prohibit the division from requiring or knowing the identity
of a complainant.