| (a) The commission, through the director of the Lottery
Operations Division, may offer settlements to persons charged with
violating the provisions of the State Lottery Act or rules of the
commission. Settlement of those cases, unless otherwise provided for
elsewhere in this rule, shall be in compliance with the following
standard penalty chart. A settlement will be in the form of an Agreement
and Consent Order of the commission.
(b) A repeat violation by a licensee justifies the
penalty for a second or third violation if it occurs within 12 months
of the first violation. Violations need not be the same or similar
in nature to previous violations to be considered repeat violations.
(c) A penalty for an alleged repeat violation shall
not be assessed unless the alleged violation occurs after the licensee
has been notified, in writing, of the first alleged violation. Notwithstanding
the preceding sentence, if an alleged violation is discovered during
an undercover operation, then no notice of any prior alleged violations
may be necessary to assess a penalty for a repeat violation. The requirement
that written notice be given to a licensee shall not be interpreted
to require that a notice of hearing for the violation be delivered
to the licensee.
(d) The list of violations in the standard penalty
chart is not an exclusive list of violations of the commission or
rules of the commission. The commission is authorized to assess penalties
for any violation of any of the foregoing statutes or rules for which
a penalty is not provided on the chart. Any penalty assessed for a
violation not provided for on the standard penalty chart shall be
approved by the director of the Lottery Operations Division or his/her
designee prior to its assessment.
(e) Any person responsible for assessing a penalty
for a violation may deviate from the standard penalty chart if mitigating
circumstances are involved and consideration will be given to all
the factors listed in subsection (g) of this section. If a recommendation
deviating from the standard penalty chart is made, it must be made
in writing and be filed with the case report. Final approval shall
be made by the director of the Lottery Operations Division or his/her
designee.
(f) The standard penalty chart does not bind an administrative
law judge or the commission as to penalties for any violation determined
to have occurred by the facts presented in an administrative hearing
and the record of that proceeding shall be the determining factor
as to the sufficiency of the penalty assessed.
(g) Based upon consideration of the following factors,
the commission may impose penalties other than the penalties recommended
in §401.158 of this title (relating to Suspension or Revocation
of License) and/or this section:
(1) Severity of the offense;
(2) Danger to the public;
(3) Number of repetition of offenses;
(4) Number of complaints previously found justified
against the licensee;
(5) Length of time the licensee has held a license;
(6) Actual damage, physical or otherwise, caused by
the violations;
(7) Deterrent effect of the penalty imposed;
(8) Attempts by licensee to correct or stop violations
or refusal by licensee to correct or stop violations;
(9) Penalties imposed for related offenses; or
(10) Any other mitigating or aggravating circumstances.
(h) Standard Penalty Chart.
Attached Graphic
|
| Source Note: The provisions of this §401.160 adopted to be effective July 1, 2002, 27 TexReg 5759; amended to be effective September 1, 2014, 39 TexReg 6828; amended to be effective June 18, 2015, 40 TexReg 3645; amended to be effective December 31, 2017, 42 TexReg 7385; amended to be effective August 30, 2020, 45 Texeg 5908 |
