| (B) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both. (7) If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner or the commissioner's designee by order shall approve the determination and impose the recommended penalty. (8) If the person requests a hearing, the commissioner shall refer the matter to the State Office of Administrative Hearings (SOAH). The hearing shall be conducted in accordance with Government Code, Chapter 2001, and all applicable SOAH and department rules. (9) Based on the proposal for decision made by the administrative law judge under paragraph (8) of this subsection, the commissioner by order may find that a violation occurred and impose a penalty, or may find that a violation did not occur. The commissioner or the commissioner's designee shall give notice of the commissioner's order under paragraph (7) of this subsection to the person alleged to have committed the violation in accordance with Government Code, Chapter 2001. The notice shall 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. (10) Within 30 days after the date an order of the commissioner under paragraph (7) of this subsection that imposes an administrative penalty becomes final, the person shall: (A) pay the penalty; or (B) 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. (11) Within the 30-day period prescribed by paragraph (10) of this subsection, a person who files a petition for judicial review may: (A) stay enforcement of the penalty by: (i) paying the penalty to the court for placement in an escrow account; or (ii) giving 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 certified mail. (C) If the commissioner receives a copy of an affidavit under subparagraph (B) of this paragraph, 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, §243.016(c), 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. (12) 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. As provided by the Health and Safety Code, §243.016(d), the attorney general may sue to collect the penalty. (13) A decision by the court is governed by Health and Safety Code, §243.016(e) and (f), and provides the following. (A) 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. (B) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed. (14) The remittance of penalty and interest is governed by Health and Safety Code, §243.016(g) and provides the following. (A) 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. (B) The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. (C) 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. (15) The release of supersedeas bond is governed by Health and Safety Code, §243.016(h), and provides the following. (A) If the person gave a supersedeas bond and the court does not uphold the penalty, the court shall order, when the court's judgment becomes final, the release of the bond. (B) 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. |
