(a)If the Enforcement Committee decides to pursue
an administrative penalty, a Notice of Alleged Violation must be issued
to the Respondent. This notice will 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, must:
(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 must 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 must 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. The Board may 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;
(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 must 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.
(f)Following the hearing the administrative law judge
must 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 must 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 must 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)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 must pay the penalty to the Board;
or
(B)the Respondent must 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 adoption and found it to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on April 13, 2015
TRD-201501251 Lisa Hill
Executive Director
Texas State Board of
Plumbing Examiners
Effective date: May 3, 2015
Proposal publication date: February 6, 2015
For further information, please call: (512) 936-5224
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