Current through Reg. 49, No. 52; December 27, 2024
(a) The department may refuse to certify,
suspend or revoke a certificate of compliance if the applicant or certificate
holder:
(1) fails to comply with any
provision of the statute;
(2) fails
to comply with any provision of this subchapter;
(3) commits fraud, misrepresentation, or
concealment of a material fact on any documents required to be submitted to the
department or required to be maintained by the facility pursuant to this
chapter;
(4) aids, abets, or
permits the commission of an illegal act;
(5) fails to comply with an order of the
commissioner of health or another enforcement procedure under the
statute;
(6) the certificate holder
or representative refuses to allow an inspection or otherwise interferes with
the authorized department agent in the performance of his or her
duties;
(7) fails to have a HACCP
plan, has a HACCP plan unacceptable to the SSD, or fails to comply with a HACCP
plan that is acceptable to the SSD;
(8) fails to provide the required application
information;
(9) has any critical
violations identified during the certification inspection; or
(10) has more than two key deficiencies and 3
other deficiencies identified during the certification inspection.
(b) If the department proposes to
refuse to certify, proposes to suspend, or proposes to revoke a certificate of
compliance, the department shall notify the applicant or certificate holder of
the reasons for the proposed action and offer the person an opportunity for a
hearing.
(1) If the facility chooses to
request a hearing, it shall do so within 20 calendar days of receipt of the
notice. Receipt of the notice is presumed to occur on the fifth calendar day
after the notice is mailed to the last address known to the department unless
another receipt date is reflected on a United States Postal Service return
receipt.
(2) The request for a
hearing shall be in writing and submitted to the Director, SSD, Texas
Department of Health, 1100 West 49th Street, Austin, Texas
78756-3199.
(3) A hearing shall be
conducted pursuant to the Administrative Procedure Act, Texas Government Code,
Chapter 2001, and the department's formal hearing procedures in Chapter 1 of
this title (relating to Texas Board of Health).
(4) If the facility does not request a
hearing in writing within 20 calendar days of receipt of the notice, the
facility is deemed to have waived the opportunity for hearing and the proposed
action shall be taken.
(5) If the
person fails to appear or be represented at the scheduled hearing, the person
is deemed to have waived the right to a hearing and the proposed action shall
be taken.
(c) If the
department suspends a certificate, the suspension shall remain in effect until
the department determines that the reason for suspension no longer exists. An
authorized representative of the department shall investigate prior to making a
determination during the time of suspension and the suspended certificate
holder shall return the certificate of compliance to the department and shall
not process molluscan shellfish in Texas.
(d) If the department revokes a certificate,
a person may reapply for a certificate after 180 days from the date of signing
of the final order of revocation. The department may refuse to issue a
certificate if the reason for revocation continues to exist, or the applicant
does not meet the requirements for a certificate.
(e) Upon revocation, a certificate holder
shall return the certificate of compliance to the department. A dealer whose
certificate has been revoked may not be issued a new certificate for 180 days
after the date of signing of the final order of revocation, or before the next
certification period, whichever is longer.
(f) Pursuant to Health and Safety Code,
§§
436.034 -
436.037,
the department may assess an administrative penalty against a person who
violates §436.011 of the statute or an order issued under this chapter.
(1) The penalty may not exceed $25,000 a day
for each violation. Each day of a continuing violation constitutes a separate
violation.
(2) In determining the
amount of an administrative penalty assessed under this section, the department
shall consider:
(A) the seriousness of the
violation;
(B) the person's
previous violations;
(C) the hazard
to the health and safety of the public;
(D) the person's demonstrated good faith;
and
(E) any other matters that
justice may require.
(3)
All proceedings for the assessment of an administrative penalty are subject to
the Administrative Procedure Act, Government Code, Chapter 2001.
(4) If, after investigation of an alleged
violation and the facts surrounding that alleged violation, the department
determines that a violation has occurred, the department shall give written
notice of the violation to the person alleged to have committed the violation.
The notice shall include:
(A) a brief summary
of the alleged violations including the statute and/or rules
violated;
(B) a statement of the
amount of the proposed penalty, based on the factors listed in paragraph (2) of
this subsection; and
(C) a
statement of the person's right to a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(5) The seriousness of violations for which
administrative penalties are assessed may be categorized by one of the
following severity levels.
(A) Severity Level
I covers violations that are most significant and may have a significant
negative impact on public health and safety.
(B) Severity Level II covers violations that
are very significant and may have a negative impact on the public health and
safety.
(C) Severity Level III
covers violations that are significant, and if not corrected, could threaten
public health and safety.
(D)
Severity Level IV covers violations that are of more than minor public health
and safety significance, but if left uncorrected could lead to more serious
circumstances.
(E) Severity Level V
covers violations that are of minor public health and safety
significance.
(6) Not
later than the 20th calendar day after the date the notice is received, the
person notified may accept the determination of the department made under this
section, including the recommended penalty, or make a written request for a
hearing on that determination. Receipt of the notice is presumed to occur on
the fifth calendar day after the notice is mailed to the last address known to
the department unless another receipt date is reflected on a United States
Postal Service return receipt.
(7)
If the person notified of the violation accepts the determination of the
department, or fails to request a hearing within 20 calendar days of the
receipt of the notice, the department shall issue an order approving the
determination that a violation occurred and ordering that person to pay the
recommended penalty.
(8) If a
hearing is requested, the department shall refer the matter to the State Office
of Administrative Hearings for a hearing.
(9) The provisions of Health and Safety Code,
§§
436.035
and
436.036
shall be followed in assessing and paying an administrative penalty.
