31-7-12.1. Owning or operating an unlicensed personal care home; enforcement; penalty.

A facility shall be deemed to be an “unlicensed personal care home” if it is unlicensed and not exempt from licensure and:#

1. (1)

   The facility is providing personal services and is operating as a personal care home as those terms are defined in Code Section 31-7-12;#

2. (2)

   The facility is held out as or represented as providing personal services and operating as a personal care home as those terms are defined in Code Section 31-7-12; or#

3. (3)

   The facility represents itself as a licensed personal care home.#

Any unlicensed personal care home shall be assessed by the department, after opportunity for hearing in accordance with the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” a civil penalty in the amount of $100.00 per bed per day for each day of violation of subsection (b) of Code Section 31-7-12. The department shall send a notice by certified mail or statutory overnight delivery stating that licensure is required and the department’s intent to impose a civil penalty. Such notice shall be deemed to be constructively received on the date of the first attempt to deliver such notice by the United States Postal Service. The department shall take no action to collect such civil penalty until after opportunity for a hearing.#

In addition to other remedies available to the department, the civil penalty authorized by subsection (b) of this Code section shall be doubled if the owner or operator continues to operate the unlicensed personal care home, after receipt of notice pursuant to subsection (b) of this Code section.#

The owner or operator of a personal care home who is assessed a civil penalty in accordance with this Code section may have review of such civil penalty by appeal to the superior court in the county in which the action arose or to the Superior Court of Fulton County in accordance with the provisions of Code Section 31-5-3.#

In addition to the sanctions authorized herein, an unlicensed personal care home shall be deemed to be negligent per se in the event of any claim for personal injury or wrongful death of a resident.#

It is declared that the owning or operating of an unlicensed personal care home in this state constitutes a nuisance dangerous to the public health, safety, and welfare. The commissioner or the district attorney of the judicial circuit in which such unlicensed personal care home is located may file a petition to abate such nuisance as provided in Chapter 2 of Title 41.#

Upon the designation by the department and with the consent of any local or state law enforcement agency, and subject to a written memorandum of understanding between the department and such agencies, Georgia Peace Officer Standards and Training certified investigators of such law enforcement agencies may act as agents of the department in conducting inspections of unlicensed personal care homes required to be licensed under this chapter. Such investigations shall be limited to instances where a law enforcement agency is performing law enforcement duties and has consent or a warrant to enter the home. Law enforcement agencies shall not be authorized to recoup any of the costs of inspections performed pursuant to this subsection from the department.#

Any person who owns or operates a personal care home in violation of subsection (b) of Code Section 31-7-12 shall be guilty of a misdemeanor for a first violation, unless such violation is in conjunction with a violation of Article 8 of Chapter 5 of Title 16, in which case such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years. Upon conviction for a second or subsequent such violation, such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than ten years.#