| (a) Under Health and Safety Code, §§251.066 - 251.070, the department may assess an administrative penalty against a person who violates the statute or this chapter. (b) The penalty may not exceed $1,000 for each violation. Each day of a continuing violation constitutes a separate violation. (c) In determining the amount of an administrative penalty assessed under this section, the department shall consider: (1) the seriousness of the violation; (2) the history of previous violations; (3) the amount necessary to deter future violations; (4) efforts made to correct the violation; and (5) any other matters that justice may require. (d) All proceedings for the assessment of an administrative penalty are subject to the Administrative Procedure Act, Government Code, Chapter 2001. (e) If after investigation of a possible violation and the facts surrounding that possible violation, the department determines that a violation has occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice shall include: (1) a brief summary of the alleged violation; (2) a statement of the amount of the proposed penalty, based on the factors listed in subsection (c) of this section; and (3) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (f) Not later than the 20th calendar day after the date the notice is received, the person notified may accept the determination of the department made under this section, including the recommended penalty, or make a written request for a hearing on that determination. (g) If the person notified of the violation accepts the determination of the department, the commissioner shall issue an order approving the determination and ordering that the person pay the recommended penalty. (h) If the person notified fails to respond in a timely manner to the notice or if the person requests a hearing, the commissioner's designee shall: (1) set a hearing; (2) give written notice of the hearing to the person; and (3) designate a hearings examiner to conduct the hearing. The hearings examiner shall make findings of fact and conclusions of law, and shall promptly issue to the commissioner a proposal for decision as to the occurrence of the violation and a recommendation as to the amount of the proposed penalty, if a penalty is determined to be warranted. (i) Based upon the findings of fact and conclusions of law and the recommendation of the hearings examiner, the commissioner by order may find that a violation has occurred and may assess a penalty, or may find that no violation has occurred. The commissioner or the commissioner's designee shall give notice of the commissioner's order to the person notified. The notice shall include: (1) separate statements of the findings of fact and conclusions of law; (2) the amount of any penalty assessed; and (3) a statement of the right of the person to judicial review of the commissioner's order. (j) Not later than the 30th calendar day after the date the decision is final, the person shall: (1) pay the penalty in full; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or (3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. Within the 30-day period, a person who acts under this paragraph may: (A) stay enforcement of the penalty by: (i) paying the amount of the penalty to the court for placement in an escrow account; or (ii) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final; or (B) request the court to stay enforcement of the penalty by: (i) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (ii) giving a copy of the affidavit to the department by certified mail. (k) If the department receives a copy of an affidavit under subsection (j)(3)(B) of this section, the department may file with the court, within five calendar days after the date the copy is received, a contest to the affidavit. |
