(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. There
is a rebuttable presumption that the notice is received three (3)
days after it was mailed.
(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, within twenty (20) days of
receipt, the Respondent fails to respond to the Notice of Alleged
Violation and either accept the Enforcement Committee's determination
and recommended administrative penalty, sanction, or both, or make
a written request for a hearing on the determination, the Enforcement
Committee may propose entry of a default order against the Respondent
unless otherwise provided by applicable law.
(d)Where the Respondent fails to
answer to the Notice of Alleged Violation, the Enforcement Committee
may present to the Board a proposed Default Order containing findings
of fact and conclusions of law. The Board may grant the relief recommended
in the proposed Default Order, or such other relief as may be justified
by the evidence presented by the Enforcement Committee.
(e)[(c)] If the Respondent agrees
to settle the matter without a formal hearing and accepts the determination
and amount of penalty recommended [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 sixty (60) [60] days
following the date that the Notice of Alleged Violation was issued.
(f)[(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.
(g)[(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 as
required by subsection (b)(2) of this section; [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]
(2)[(3)] the parties do not
agree to settle the matter as stated in subsection (e) [(c)
] of this section; [section, or if]
(3)the Board declines to approve the proposed
agreement in subsection (f) [(d)] of this section;
or [section.]
(4)the Respondent attends at the
time and place prescribed in the notice required by subsection (d)
of this section.
(h)[(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.
(i)[(g)] The Board may impose
an administrative penalty alone or in addition to other sanctions
permitted under the Plumbing License Law.
(j) [(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.]
(k)[(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
[Figure: 22 TAC §367.10(i)]
(l)[(j)] The amounts specified
in the table in subsection (k) [(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).
(m)[(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 (k) [(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.
(n)[(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.
(o)[(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.
(p)[(n)] When the Default
Order adopted under subsection (d) of this section or the [Board's
] Order adopted under subsection (o) of this section includes
the imposition of an administrative penalty:
(1)not later than the 30th day after the date that
the Default Order or [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 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 July 12, 2017
TRD-201702629 Lisa G. Hill
Executive Director
Texas State Board of Plumbing Examiners
Earliest possible date of adoption: August 27, 2017
For further information, please call: (512) 936-5239
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