(a)If the Enforcement Committee decides to pursue
an administrative penalty, [under the Administrative
Penalty Schedule adopted by the Board, the Director of Enforcement
shall issue] a Notice of Alleged Violation shall be issued to
the Respondent. This notice will [which must]
include a brief summary of the alleged violation, state the amount
of the administrative penalty pursued, and inform the Respondent
of the Respondent's right to a hearing before the State Office of
Administrative Hearings on the occurrence of the violation or the
amount of the penalty.
(b)Not later than the 20th day after the Notice of
Alleged Violation is received by the Respondent, the Respondent, in
writing, shall:
(1)agree to settle the matter without a formal hearing
before the State Office of Administrative Hearings and accept the
determination and settlement penalty recommended by the Enforcement
Committee; or
(2)make a request for a formal hearing before the
State Office of Administrative Hearings on the occurrence of the violation,
the amount of the penalty, or both.
(c)If the Respondent agrees to settle the matter without
a formal hearing and accepts the determination and amount of penalty
pursued by the Enforcement Committee, the Respondent shall pay the
penalty to the Board according to an agreed schedule, or if there
is no agreed schedule, not later than 60 days following the
date that the Notice of Alleged Violation was issued.
(d)The Enforcement Committee shall [provide a]
report the proposed agreement to the Board stating a summary
of the facts or allegations against the Respondent and the amount
of the recommended administrative penalty [agreed to by the Enforcement
Committee and the Respondent]. The Board may approve[
, by order, shall approve] the proposed agreement and its recommended
penalty by order. If the Respondent subsequently violates
the Board's Order adopting the agreement between the Respondent and
the Enforcement Committee by failing to pay the penalty timely, the
Board may:
(1)refuse to renew the Respondent's license or registration;
[and]
(2)refuse to issue a new license or registration to
the Respondent, under §1310.451 of the Plumbing License Law;[
.]
(3)revoke the Respondent's license
or registration; and
(4)may sue the Respondent to collect
the penalty owed under §1301.712 of the Plumbing License Law.
(e)The Enforcement Committee shall set a formal hearing
on the matter as a contested case before an administrative law judge
at the State Office of Administrative Hearings if:
(1)the Respondent requests a formal hearing not later
than the 20th day after the Notice of Alleged Violation is received
by the Respondent;
(2)the Respondent fails to respond in writing to the
Notice of Alleged Violation not later than the 20th day after the
Notice of Alleged Violation is received by the Respondent; or
(3)the parties do not agree to settle the matter
as stated in subsection (c) of this section, or if the Board declines
to approve the proposed agreement in subsection (d) of this section. [
the Respondent fails to pay the agreed settlement penalty to the Board
not later than 60 days following the date that the Notice of Alleged
Violation was issued.]
(f)Following the hearing the administrative law judge
shall issue a proposal for decision to the Board containing findings
of facts and conclusions of law. While the administrative law
judge may recommend a sanction, findings of fact and conclusions of
law are inappropriate for sanction recommendations, and sanction recommendations
in the form of findings of fact and conclusions of law are an improper
application of applicable law and these rules. Sections 1301.451,
1301.701, and 1301.706 of the Plumbing License Law provide that the
Board shall impose the appropriate sanction. In all cases, the Board
has the discretion to impose the sanction that best accomplishes the
Board's legislatively-assigned enforcement goals. The Board is the
ultimate arbiter of the proper penalty.
(g)The Board may impose an administrative
penalty alone or in addition to other sanctions permitted under the
Plumbing License Law.
(h)In determining the proper administrative
penalty the Board will apply the factors to be considered set forth
in §1301.702(b) of the Plumbing License Law. In particular, these
factors are:
(1)the seriousness of the violation, including:
(A)the nature, circumstance, extent, and gravity of
any prohibited act; and
(B)the hazard or potential hazard created to the health,
safety, or economic welfare of the public;
(2)the economic harm to property or the environment
caused by the violation;
(3)the history of previous violations;
(4)the amount necessary to deter a future violation;
(5)efforts made to correct the violation; and
(6)any other matter that justice may require.
(i)The following table contains guidelines
for the assessment of administrative penalties in disciplinary matters.
This table is for standard violations under normal circumstances and
does not necessarily include every possible violation of the Plumbing
License Law or Board Rules. The table is divided into two classes
of violations. Class A violations are those violations with greater
potential to jeopardize public health, safety, welfare, property,
or environment. Class B violations are those with less immediate potential
to jeopardize public health, safety, welfare, property, or environment.
Attached Graphic
(j)The amounts specified in the table
in subsection (i) of this section are guidelines only. The Board retains
the right to increase or decrease the amount of an administrative
penalty based on the circumstances in each case. In particular, the
Board may increase the amount of administrative penalties when the
Respondent has committed multiple violations (e.g., some combination
of different violations).
(k)Because it is the policy of the
Board to pursue expeditious resolution of complaints when appropriate,
administrative penalties in uncontested cases may be less than the
amounts specified in the table in subsection (i) of this section.
Among other reasons, this may be because the Respondent admits fault,
takes steps to rectify matters, timely responds to Board concerns,
or identifies mitigating circumstances, and because settlements avoid
additional administrative costs to the Board.
(l)Other Costs. The cost of preparing
the transcript of an administrative hearing is not an administrative
penalty. Yet in all cases where the Board has determined that a violation
occurred, the Board assesses the cost of the transcript of the administrative
hearing to the Respondent.
(m)Based on the proposal for decision,
including the findings of fact and conclusions of law, the Board shall
issue an Order stating its decision in the contested case and a notice
to the Respondent of the Respondent's right to judicial review of
the Order.
[(g)Based on the proposal for decision,
including the findings of fact and conclusions of law, the Board shall
issue an Order stating its decision in the contested case and a notice
to the Respondent of the Respondent's right to judicial review of
the Order.]
(n)[(h)] When the Board's Order
includes the imposition of an administrative penalty:
(1)not later than the 30th day after the date that
the Board's Order becomes final:
(A)the Respondent shall pay the penalty to the Board;
or
(B)the Respondent shall file a petition for judicial
review contesting the occurrence of the violation, the amount of the
penalty, or both, in accordance with §1301.707 or §1301.708
of the Plumbing License Law.
(2)after all opportunities for judicial review have
passed and it is determined that the Respondent owes the penalty and
fails to pay the penalty timely:
(A)the Board is authorized to refuse to renew the
Respondent's license or registration and refuse to issue a new license
or registration to the Respondent, under §1301.707 of the Plumbing
License Law; and
(B)the Attorney General may sue the Respondent to
collect the penalty under §1301.712 of the Plumbing License Law.
The agency certifies that legal counsel
has reviewed the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on
January 22, 2015
TRD-201500159 Lisa Hill
Executive Director
Texas State Board of Plumbing Examiners
Earliest possible date of adoption: March 8, 2015
For further information, please call: (512) 936-5224
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