| (a) Imposition of penalty. The department may impose
an administrative penalty on a person licensed under this chapter
who violates the Act, this chapter, or order adopted under this chapter.
(b) Deposit of penalty. A penalty collected under this
section shall be deposited in the state treasury in the general revenue
fund.
(c) Contested case. A proceeding to impose the penalty
is considered to be a contested case under Government Code, Chapter
2001.
(d) Amount of penalty.
(1) The amount of the penalty may not exceed $1,000
for each violation, except for violations of §125.31(b)(6) of
this title (pertaining to General Functions), which are limited to
$500. Each day a violation continues or occurs is a separate violation
for purposes of imposing a penalty. The total amount of the penalty
assessed for a violation continuing or occurring on separate days
under this paragraph may not exceed $5,000.
(2) In determining the amount of an administrative
penalty assessed under this section, the department shall consider:
(A) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(B) the threat to health or safety caused by the violation;
(C) the history of previous violations;
(D) the amount necessary to deter a future violation;
(E) whether the violator demonstrated good faith,
including when applicable whether the violator made good faith efforts
to correct the violation; and
(F) any other matter that justice may require.
(e) Report and notice of violation and penalty.
(1) If the department initially determines that a violation
occurred, the department will give written notice of the report by
mail to the person alleged to have committed the violation.
(2) The notice must include:
(A) a brief summary of the alleged violation;
(B) a statement of the amount of the recommended penalty
based on the factors listed in subsection (d)(2) of this section;
and
(C) a statement of the person's right to a hearing
on the occurrence of the violation, the amount of the penalty, or
both.
(f) Penalty to be paid or hearing requested.
(1) Within 20 days after the date the person receives
the notice sent under subsection (e) of this section, the person in
writing may:
(A) accept the determination and recommended penalty
of the department; or
(B) make a request for a hearing on the occurrence
of the violation, the amount of the penalty, or both.
(2) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the commissioner
of public health (commissioner) or the commissioner's designee by
order shall approve the determination and impose the recommended penalty.
(g) Hearing.
(1) If the person requests a hearing, the commissioner
or the commissioner's designee shall refer the matter to the State
Office of Administrative Hearings (SOAH).
(2) As mandated by Health and Safety Code, §248.105(a),
the SOAH shall promptly set a hearing date and give written notice
of the time and place of the hearing to the person.
(A) An administrative law judge of the SOAH shall conduct
the hearing.
(B) The administrative law judge shall make findings
of fact and conclusions of law and promptly issue to the commissioner
a proposal for a decision about the occurrence of the violation and
the amount of a proposed penalty.
(h) Decision by commissioner.
(1) Based on the findings of fact, conclusions of law,
and proposal for a decision made by the administrative law judge under
subsection (g)(2) of this section, the commissioner or the commissioner's
designee by order may find that a violation has occurred and may impose
a penalty or may find that no violation has occurred.
(2) The commissioner or the commissioner's designee
shall give notice of the commissioner's order under paragraph (1)
of this subsection to the person alleged to have committed the violation
in accordance with Government Code, Chapter 2001. The notice must
include:
(A) a statement of the right of the person to judicial
review of the order;
(B) separate statements of the findings of fact and
conclusions of law; and
(C) the amount of any penalty assessed.
(i) Options following decision. Within 30 days after
the date the order of the commissioner under subsection (h) of this
section that imposes an administrative penalty becomes final, the
person shall:
(1) pay the penalty; or
(2) appeal the penalty by filing a petition for judicial
review of the commissioner's order contesting the occurrence of the
violation, the amount of the penalty, or both.
(j) Stay of enforcement of penalty.
(1) Within the 30-day period prescribed by subsection
(i) of this section, a person who files a petition for judicial review
in accordance with subsection (i)(2) of this section may:
(A) stay enforcement of the penalty by:
(i) paying 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 penalty
and is financially unable to give the supersedeas bond; and
(ii) sending a copy of the affidavit to the commissioner
by mail.
(2) If the commissioner receives a copy of an affidavit
under paragraph (1)(B) of this subsection, the commissioner may file
with the court, within five days after the date the copy is received,
a contest to the affidavit. In accordance with Health and Safety Code
(HSC), §248.108(b), the court shall hold a hearing on the facts
alleged in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are true.
The person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty or to give a supersedeas
bond.
(k) Collection of penalty.
(1) If the person does not pay the penalty and the
enforcement of the penalty is not stayed, the department may refer
the matter to the attorney general for collection of the penalty.
(2) As provided by HSC, §248.109(b), the attorney
general may sue to collect the penalty.
(l) Decision by court. A decision by the court is governed
by HSC, §248.110, and provides the following.
(1) If the court sustains the finding that a violation
occurred, the court may uphold or reduce the amount of the penalty
and order the person to pay the full or reduced amount of the penalty.
(2) If the court does not sustain the finding that
a violation occurred, the court shall order that no penalty is owed.
(m) Remittance of penalty and interest and release
of supersedeas bond. The remittance of penalty and interest is governed
by HSC, §248.111, and provides the following.
(1) If the person paid the penalty and if the amount
of the penalty is reduced or the penalty is not upheld by the court,
the court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the person
within 30 days after the date that the judgment of the court becomes
final.
(2) The interest accrues at the rate charged on loans
to depository institutions by the New York Federal Reserve Bank.
(3) The interest shall be paid for the period beginning
on the date the penalty is paid and ending on the date the penalty
is remitted.
(n) Release of bond. The release of supersedeas bond
is governed by HSC, §248.112, and provides the following.
(1) If the person gave a supersedeas bond and the penalty
is not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(2) If the person gave a supersedeas bond and the amount
of the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
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