| (a) Definitions. The following words and terms, when
used in this section shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Place of business--Has the meaning assigned by
Tax Code, §154.001 and §155.001.
(2) Permit holder--Has the meaning assigned by Tax
Code, §154.001 or §155.001.
(3) Retailer--Has the meaning assigned by Tax Code, §154.001
or §155.001.
(b) Notice of violations. The comptroller receives
notice of a violation of Health and Safety Code, Chapter 161, Subchapter
H or K from:
(1) the Enforcement or Criminal Investigations Divisions
of the comptroller's office;
(2) local law enforcement;
(3) a municipal court or a justice of the peace court;
or
(4) a complaint reported by a caller on the tobacco
hotline.
(c) Disciplinary actions. The comptroller after receiving
notice of violation may take the following actions:
(1) if during the preceding 12 months at the place
of business for which a permit is issued, the permit holder has not
been found to have violated Health and Safety Code, Chapter 161, Subchapter
H or K, the comptroller may require the permit holder to pay a fine
in an amount not to exceed $500 per violation;
(2) if during the preceding 12 months at a place of
business for which a permit is issued, the permit holder has been
found to have violated Health and Safety Code, Chapter 161, Subchapter
H or K, the comptroller may require the permit holder to pay a fine
in an amount not to exceed $750 per violation;
(3) if during the preceding 12 months at a place of
business for which a permit is issued, the permit holder has been
found to have violated Health and Safety Code, Chapter 161, Subchapter
H or K at least twice, the comptroller may require the permit holder
to pay a fine in an amount not to exceed $1,000 per violation or suspend
the permit for that place of business for not more than three days;
or
(4) if during the preceding 12 months the permit holder
has been found to have violated Health and Safety Code, §161.082(b),
on four or more previous and separate occasions at the same place
of business for which a permit is issued, the comptroller may revoke
the permit.
(A) The revocation of the retailer's permit shall be
governed by the provisions in Tax Code, §154.114 and §155.059.
(B) A retailer whose permit has been revoked under
paragraph (4) of this subsection may not apply for a retailer's permit
for the same place of business before the expiration of six months
after the effective date of the revocation.
(d) The comptroller will send written notice by certified
mail to the permit holder informing the permit holder that a violation
has occurred. If the comptroller so offers, the permit holder may
have the option to waive the right to a hearing and pay a lesser administrative
fine or agree to a lesser administrative remedy.
(e) If the permit holder does not respond to the written
notice of violation within 15 calendar days, an order finding that
a violation has occurred may be entered and the maximum penalty may
be imposed. If the permit holder requests a hearing, a hearing will
be set. The hearing shall be governed by Chapter 1, Subchapter A,
Division 1 of this title (relating to Practice and Procedures).
(f) An oral administrative hearing will be held at
the office of the Comptroller of Public Accounts in Austin, Texas.
The recourse for a permit holder who does not agree with the administrative
decision will be governed by the provisions of Tax Code, Chapter 111;
Government Code, Chapter 2001; and Chapter 1, Subchapter A, Division
1 of this title.
(g) The burden of proof in an administrative hearing
pursuant to this rule is by a preponderance of the evidence, unless
otherwise provided by statute.
|
| Source Note: The provisions of this §3.1204 adopted to be effective January 22, 1998, 23 TexReg 425; amended to be effective March 14, 2000, 25 TexReg 2156; amended to be effective September 6, 2006, 31 TexReg 7134; amended to be effective February 6, 2012, 37 TexReg 500 |
