| (a) The department may assess an administrative penalty against a person who violates the Act or a rule adopted by the department under the Act as provided by this section. (b) The penalty may not exceed $25,000 for each violation. Each day of a continuing violation constitutes a separate violation. (c) In determining the amount of the administrative penalty, 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) Individual violations may be reduced or increased based on the considerations listed in subsection (c) of this section. (e) A person is subject to double the initial penalty on second finding of violation of any provision of the Act or regulations. Third and subsequent violations of a provision are subject to five times the initial penalty, not to exceed $25,000 per day, per violation. (f) Violations shall be placed in one of the following severity levels: (1) Critical violation. Severity Level III includes the types of violations that are the most significant and present a threat to public health and safety. The base penalty for a first violation will generally not exceed $10,000 per day, per violation. The same violation continuing after written notification by the department constitute separate violations. Examples of Severity Level III violations include but are not limited to: (A) failure to germicidally treat, or properly treat, bedding by a method approved by the department; (B) failure to maintain a business location in a sanitary condition; (C) failure to comply with federal flammability standards for mattresses and mattress pads; (D) failure to remove old covers from renovated mattresses and/or remove filling materials that are filthy, stained, have obnoxious odors, harbor insects or pathogenic organisms, were obtained from alleys, dumps or junkyards or other sources where the materials were exposed to the elements; (E) labeling secondhand (used) bedding and/or bedding that was not properly germicidally treated as new or sanitized bedding; (F) failure to obtain or renew the appropriate permit, or permits, prior to doing business in the state; (G) falsifying required records or submitting false test results on bedding; (H) refusal to recall bedding from commerce when so directed by the commissioner or the department; (I) operating under another person's permit or a permit issued to another location; and (J) using filling materials in bedding that emit irritating or toxic fumes or vapors. (2) Serious violation. Severity Level II includes violations that are significant and which, if not corrected, could threaten public health and safety. The base penalty for a first violation will generally not exceed $2,500 per day, per violation. Examples of Level II violations include, but are not limited to: (A) mixing germicidally treated bedding with untreated bedding; (B) failure to label or accurately label bedding; (C) failure to keep accurate and up-to-date records; (D) selling unlabeled or falsely labeled bedding; (E) selling used bedding that has not been germicidally treated; and (F) concealing the label from the view of consumers. (3) Significant violation. Severity Level I includes violations that are of more than minor significance and, if left uncorrected, could lead to more serious circumstances. The base penalty for Level I violations on first occurrence will generally not exceed $500 per day, per violation. Examples of Level I violations include, but are not limited to: (A) attaching labels to bedding in unauthorized locations; (B) failure to identify multiple filling materials on the label in terms of percentage, by weight, in descending order; (C) failure to notify the department of changes in business location or ownership; and (D) exceeding the 10 percent variance limit when stating the percentage, by weight, for bedding filling materials. (g) All proceedings for the assessment of an administrative penalty are subject to the Administrative Procedure Act, Chapter 2001 of the Texas Government Code, and the department's sections on formal hearings, §§1.21, 1.23, 1.25 and 1.27 of this title (relating to Formal Hearing Procedures). (h) 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 must include: (1) a brief summary of the alleged violation; and (2) a statement of the amount of the proposed penalty based on the factors set forth in subsection (c) of this section; and a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (i) Not later than the 20th day after the date on which the notice is received, the person notified may accept the alleged violation and penalty determined by the department under subsection (c) of this section, or may make a written request for a hearing on that determination. (j) If the person notified of the violation accepts the determination of the department or if the person fails to respond in a timely manner to the notice, the commissioner or the commissioner's designee shall issue an order approving the determination and ordering that the person pay the proposed penalty. (k) If the person notified requests a hearing, the department shall: (1) set a hearing date; (2) give written notice of the hearing to the person; and (3) designate a hearings examiner to conduct the hearing. (l) The hearings examiner shall make findings of fact and conclusions of law and shall promptly issue to the commissioner or the commissioner's designee a proposal for decision as to the occurrence of the violation and a recommendation of the amount of any proposed penalty. (m) Based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the commissioner or the commissioner's designee by order may find that a violation has occurred and may assess a penalty or may find that no violation has occurred. (n) The department shall give notice of the order to the person alleged to have committed the violation. The notice must 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 order under Chapter 2001, Government Code. |
