201 C.M.R. 18.03 – Enforcement Procedures

(1) Initiation of Enforcement Action. The director may initiate enforcement action in the following circumstances:
1. (a) Notification from the Fund Administrator that registrant failed to repay the fund or any payment from the fund to an owner because of the conduct of said registrant;
2. (b) The attorney general, district attorney, or local consumer groups as defined in 201 CMR 18.02(2) advises the director of orders resulting from arbitration, court action, or other complaint activity against individual registrants or contractors required to be registered;
3. (c) Acts prohibited under 201 CMR 18.04(5)(c) or M.G.L. c. 142A; or
4. (d) A complaint or complaints of violations causing substantial harm to an owner.
5. (e) Nothing in 201 CMR 18.03(1) shall preclude the director from initiating enforcement action on his or her initiative.
(2) Consideration of Factors. The director, upon initiating an enforcement action under 201 CMR 18.03(1) shall consider the pertinent factors in the particular situation, and decide what enforcement action in accordance with 201 CMR 18.04, if any, shall be taken against the registrant or contractor required to be registered considering, among any other pertinent factors, the severity of the violation(s), the history of violations, the harm to the complainant or the general public, the impact upon the registrant or contractor required to be registered, and any good faith on the part of the contractor or subcontractor.
(3) Letter of Reprimand. The director, on the director's own initiative, may send a letter of reprimand to the registrant containing the facts of the situation, which may include that the incident has been noted on the registrant's official records, and the possibility of more severe disciplinary action in the event of repetitive violations.
(4) Suspension, Revocation, Administrative Penalty. The director may suspend or revoke a registrant's certificate of registration, or assess an administrative penalty against a registrant or contractor required to be registered, subject to the hearing provisions in 201 CMR 18.03(5).
(5) Hearing Procedure.
1. (a) Notice of Hearing. The director shall give at least 14 days notice of a scheduled hearing to the registrant or contractor required to be registered, and to all parties to the hearing. Notice to the registrant or contractor required to be registered will be deemed sufficient if it is mailed in compliance with 201 CMR 18.03(7).
2. (b) The notice of the hearing shall contain, at a minimum:
  1. 1. The nature of the alleged violation;
  2. 2. The date, time and place for the hearing;
  3. 3. Notice that the registrant or contractor required to be registered may be represented by an attorney;
  4. 4. Advisory that the complete investigation file is available upon request; and
  5. 5. Notice that the registrant or contractor required to be registered may present written and oral testimony and evidence to contest the alleged violation or establish mitigating circumstances the director should consider.
3. (c) The hearing will be conducted by the director or a hearing officer appointed by the director.
4. (d) Rescheduling of Hearing. The director may delay and reschedule the date for such hearing at the director's discretion or upon written request of the registrant or contractor required to be registered, the attorney general, a district attorney, or the involved local consumer group, and notice is provided to the registrant or contractor required to be registered within ten days of the hearing.
5. (e) Unmanageable Hearings. After a warning, the hearing officer may terminate any hearing that becomes unmanageable due to the behavior of any participants and enter an order by default against the party whose behavior made the hearing unmanageable.
6. (f) Decision. Following the close of the hearing, the director shall issue a written decision on the violation within 30 business days. A copy of the decision shall be sent to the registrant or contractor required to be registered, the director, the attorney general, the involved district attorney and local consumer group.
7. (g) Appeal. Any party to the hearing who is aggrieved by the decision may appeal under the applicable provisions of the Massachusetts Administrative Procedures Act, M.G.L. c. 30A.
(6) Registered and Unregistered Home Improvement Contractor Complaint Form. The director shall make a complaint form available to homeowners and other prospective complainants.
(7) Notification of Contractor. After OCABR receives a timely complaint form complete with at least one allegation of a violation of M.G.L. c. 142A or 201 CMR 18.00, OCABR will mail or email a copy of that complaint form to the registrant or contractor required to be registered at the most recent address of record in the director's file, or in the case of an unregistered contractor, the address provided by the complainant. The mailing or emailing of the copy of the complaint form will constitute sufficient notice of the issues involved in the hearing. The notice of the issues involved in the hearing shall be deemed sufficient if the complaint form is mailed or emailed to the most recent address of record in the director's file.
(8) Purpose of the Complaint Process and Enforcement Hearing. The purpose of the complaint process and hearing is to adjudicate whether the contractor committed violations of M.G.L. c. 142A and 201 CMR 18.00 and, if so, whether any administrative penalties, suspension, or revocation should be issued against the contractor or the contractor's certificate of registration. The final agency decision arising from the submission of a complaint form will not result in any award, monetary or otherwise, to the complainant, even if the allegations in the complaint are proven with substantial evidence.
(9) Status of the Complainant as a Non-party. For the purposes of the complaint process and the enforcement hearing, the complainant shall not be considered a party to the hearing. The complainant shall be deemed a witness only and shall not have the right of direct and cross-examination of witnesses, the right to object to evidence, or the right to appeal any final agency decision.
(10) Injunctions, Restitution. The director, on their own initiative, may seek court action in accordance with 201 CMR 18.04(4), to obtain a permanent or temporary injunction or an order requiring restitution or completion of a home improvement contractor's contract with an owner.
(11) Fines and Criminal Penalties. The attorney general or a district attorney may initiate court action on their own initiative in accordance with 201 CMR 18.04(3).