Current through Reg. 49, No. 38; September 20, 2024
(a) Proposals for assessment of
administrative penalties. The department shall propose to assess administrative
penalties in accordance with the requirements of the Texas Health and Safety
Code, Chapter 146 concerning Tattoo and Certain Body Piercing Studios; Chapter
431 concerning Texas Food, Drug, and Cosmetic Act; Chapter 432 concerning Texas
Food, Drug, Device, and Cosmetic Salvage Act; and Chapter 437 concerning
Regulation of Food Service Establishments, Retail Food Stores, Mobile Food
Units, and Roadside Food Vendors .
(b) Assessment of administrative penalties
and conduct of hearings. The department shall assess administrative penalties
and conduct hearings pursuant to those administrative penalties in accordance
with the appropriate statute in subsection (a) of this section and rules
adopted under it; the Administrative Procedure Act, Texas Government Code,
Chapter 2001 ; and the department's formal hearing procedures in §§
1.21,
1.23,
1.25, and
1.27 of
this title (relating to Formal Hearing Procedures).
(c) Criteria for the assessment of
administrative penalties. The department shall assess administrative penalties
based upon one or more of the following criteria:
(1) history of previous violations;
(2) seriousness of the violation;
(3) hazard to the health and safety of the
public;
(4) demonstrated good faith
efforts to correct;
(5) economic
harm to property or the environment;
(6) amounts necessary to deter future
violations;
(7) enforcement costs
relating to the violation; and
(8)
any other matter justice may require.
(d) Severity levels. The violations shall be
categorized by one of the following severity levels.
(1) Severity Level I covers violations that
are most significant and may have a significant negative impact on the public
health and safety.
(2) Severity
Level II covers violations that are very significant and may have a negative
impact on the public health and safety.
(3) Severity Level III covers violations that
are significant and, if not corrected, could threaten the public health and
safety.
(4) Severity Level IV
covers violations that are of more than minor significance, but if left
uncorrected, could lead to more serious circumstances.
(5) Severity Level V covers violations that
are of minor health or safety significance.
(e) Levels of penalties. Except as provided
for in subsection (f) of this section relating to retail food establishments
and subsection (g) of this section relating to tattoo studios, the department
will impose different levels of penalties per day, per violation, for the
following severity level violations:
(1) Level
I--Up to $25,000 ;
(2) Level II--Up
to $15,000 ;
(3) Level III--Up to
$10,000 ;
(4) Level IV--Up to
$5,000 ; and
(5) Level V--Up to
$2,500 .
(f) Levels of
penalties for retail food establishments. As to retail food establishments
permitted under Texas Health and Safety Code, Chapter 437, the department will
impose different levels of penalties per day, per violation, for the following
severity level violations:
(1) Level I--Up to
$10,000 ;
(2) Level II--Up to
$7,500 ;
(3) Level III--Up to
$5,000 ;
(4) Level IV--Up to $2,500
; and
(5) Level V--Up to $1,250
.
(g) Levels of
penalties for tattoo and body-piercing studios. As to certain tattoo and
body-piercing studios licensed under Texas Health and Safety Code, Chapter 146,
the department will impose different levels of penalties per day, per
violation, for the following severity level violations:
(1) Level I--Up to $5,000 ;
(2) Level II--Up to $4,000 ;
(3) Level III--Up to $3,000 ;
(4) Level IV--Up to $2,000 ; and
(5) Level V--Up to $1,000 .
(h) Adjustments to penalties. The
department may adjust the penalties listed in subsections (e), (f), or (g) of
this section for any one of the following factors.
(1) Previous violations. The department may
consider previous violations. The penalty may be reduced or increased for past
performance. Past performance involves the consideration of the following
factors:
(A) whether the previous violation
was identical or similar to the current violation;
(B) how recent was the previous violation
;
(C) the number of previous
violations; and
(D) the violator's
response to previous violations in regard to correction of the
problem.
(2)
Demonstrated good faith. The department may consider good faith efforts of the
violator to correct the violations and demonstrate compliance with the
department's rules and regulations as a basis to reduce the proposed penalty.
The penalty may be reduced if good faith efforts to correct a violation have
been, or are being made. Good faith effort is determined by the department on a
case-by-case basis. All good faith efforts to comply with the department's
rules and regulations must be fully documented by the violator to merit
consideration from the department as to whether to reduce the proposed
penalty.
(3) Hazard to the health
and safety of the public. The department may consider the hazard to the health
and safety of the public. The penalty may be increased when a direct hazard to
the health and safety of the public is involved. The department shall take into
account, but need not be limited to, the following factors:
(A) whether any deaths, diseases , or
injuries have occurred from the violation;
(B) whether any existing conditions
contribute to a situation that could expose humans to a health
hazard;
(C) the impact that the
hazard has on various segments of the population such as children, surgical
patients, and the elderly; and
(D)
whether the consequences would be of an immediate or long-range
hazard.
