After determining that a respondent has committed a violation as described in subpart B of this part that subjects the respondent to liability under this part, the officials designated in subpart B of this part shall consider the following factors to determine the amount of penalty to seek against a respondent, if any:

1. (a) The gravity of the offense;
2. (b) Any history of prior offenses;
3. (c) The ability to pay the penalty, which ability shall be presumed unless specifically raised as an affirmative defense or mitigating factor by the respondent;
4. (d) The injury to the public;
5. (e) Any benefits received by the violator;
6. (f) The extent of potential benefit to other persons;
7. (g) Deterrence of future violations;
8. (h) The degree of the violator's culpability;
9. (i) With respect to Urban Homestead violations under § 30.30, the expenditures made by the violator in connection with any gross profit derived; and
10. (j) Such other matters as justice may require.

11. (k) In addition to the above factors, with respect to violations under §§ 30.45, 30.55, 30.60, and 30.68, the Assistant Secretary for Housing - Federal Housing Commissioner, or his or her designee, or the Assistant Secretary for Public and Indian Housing, or his or her designee, shall also consider:

    1. (1) Any injury to tenants; and/or
    2. (2) Any injury to lot owners.
12. (l) HUD may consider the factors listed in paragraphs (a) through (k) of this section to determine the appropriateness of imposing a penalty under § 30.35(c)(2); however, HUD cannot change the amount of the penalty under § 30.35(c)(2).

[74 FR 2751, Jan. 15, 2009]