If the Board determines that an administrative penalty is the appropriate sanction for a violation of any of the statutory provisions or rules enforced by the Board, the following guidelines shall be applied to determine the amount of the administrative penalty:

1. (1) The Board shall consider the following factors to determine whether the violation is minor, moderate, or major:

   1. (A) Seriousness of misconduct and efforts to correct the ground for sanction:

      1. (i) Minor--the respondent has demonstrated that he/she was unaware that his/her conduct was prohibited and unaware that the conduct was reasonably likely to cause the harm that resulted from the conduct or the respondent has demonstrated that there were significant extenuating circumstances or intervening causes for the violation; and the respondent has demonstrated that he/she provided a satisfactory remedy that alleviated or eliminated any harm or threat to the health or safety of the public.
      2. (ii) Moderate--the violation shows that the respondent knowingly disregarded a standard or practice normally followed by a reasonably prudent person under the same or similar circumstances.
      3. (iii) Major--this is a violation of an order of the Board or a violation that demonstrates gross negligence or recklessness; or the conduct posed a serious threat to the health or safety of the public; or, after being notified of the alleged violation and the harm or threat to the health or safety of the public, the respondent intentionally refused or failed to provide an available remedy to alleviate or eliminate the harm or threat to the health or safety of the public.

   2. (B) Economic damage to property:

      1. (i) Minor--there was no apparent economic damage to property.
      2. (ii) Moderate--economic damage to property did not exceed $1,000, or damage exceeding $1,000 was reasonably unforeseeable.
      3. (iii) Major--economic damage to property exceeded $1,000.

   3. (C) Sanction history:

      1. (i) Minor--this is the first time an administrative penalty or other sanction has been imposed against the respondent, and the respondent has not previously received a written warning or advisory notice from the Board regarding the law's restrictions which was directed to the respondent.
      2. (ii) Moderate--this is the second time an administrative penalty or other sanction has been imposed against the respondent; or the respondent previously was subject to an order of the Board through which the Board could have imposed an administrative penalty; or the respondent previously received a written warning or advisory notice from the Board regarding the law's restrictions which was directed to the respondent.
      3. (iii) Major--this is at least the third time an administrative penalty or other sanction has been imposed against the respondent or the respondent has been subject to an order of the Board through which the Board could have imposed an administrative penalty.

2. (2) After determining whether the violation is minor, moderate, or major, the Board shall impose an administrative penalty as follows:

   1. (A) Minor violations--if the violation is minor in every category described in subsection (1) of this section, an administrative penalty of $350 shall be imposed.
   2. (B) Moderate violations--if the violation is moderate in any category described in subsection (1) of this section, an administrative penalty of not less than $351 and not more than $1,200 shall be imposed.
   3. (C) Major violations--if the violation is major in any category described in subsection (1) of this section or if the Board determines that the facts of the case indicate a higher penalty is necessary in order to deter similar misconduct in the future, an administrative penalty of not less than $1,201 and not more than $5,000 shall be imposed.
3. (3) In order to determine the appropriate amount in a penalty range described in subsection (2) of this section, the Board shall consider the factors described in subsection (1) of this section.
4. (4) If the facts of a case are unique or unusual, the Board may suspend the guidelines described in this section.

Source Note:The provisions of this §3.177 adopted to be effective July 5, 2004, 29 TexReg 6286.