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 guide the Board's assessment of an appropriate 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 had demonstrated that he/she was unable 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. A violation of a Board order shall constitute, at a minimum, a moderate violation.
      3. (iii) Major--the conduct demonstrates gross negligence or recklessness or resulted in a threat to the health or safety of the public and the respondent, after being notified of the alleged violation intentionally refused or failed to take prompt and remedial action.

   2. (B) Economic harm:

      1. (i) Minor--there was no apparent economic damage to property or monetary loss to the project owner or other involved persons and entities.
      2. (ii) Moderate--economic damage to property or monetary harm to other persons or entities did not exceed $1,000, or damage exceeding $1,000 was reasonably unforeseeable.
      3. (iii) Major--economic damage to property or economic injury to other persons or entities exceeded $1,000.

   3. (C) Sanction history:

      1. (i) Minor--the respondent has not previously received a written warning, advisory notice or been subject to other enforcement proceedings from the Board.
      2. (ii) Moderate--the respondent was previously subject to an order of the Board or other enforcement proceedings which resulted in a finding of a violation of the laws or rules over which the TBAE has jurisdiction.
      3. (iii) Major--the respondent has received at least two prior written notices or has been subject to two disciplinary actions for violation of the rules and laws over which the TBAE has jurisdiction.

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 paragraph (1) of this section, an administrative penalty of not more than $500 shall be imposed.
   2. (B) Moderate violations--if the violation is moderate in any category described in paragraph (1) of this section, an administrative penalty or not more than $2,000 shall be imposed.
   3. (C) Major violations--if the violation is major in any category described in paragraph (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 more than $5,000 shall be imposed.
   4. (D) Because of the threat to human health, safety and well-being which necessarily arises out of a Nonregistrant preparing and issuing landscape architectural plans and specifications the Board possesses a compelling interest in ensuring that landscape architectural plans and specifications are prepared and issued only by registered landscape architect or by a person who is working under the active and documented Supervision and Control of a registered Landscape Architect when required by law. If the evidence establishes that Landscape Architectural plans and specifications for a project that is not exempt from the Landscape Architects' Practice Act were prepared by a person who is not registered to engage in the Practice of Landscape Architecture and was not working under the active and documented Supervision and Control of a Landscape Architect the violation shall be presumed to be a major violation and each sheet of architectural plans or separate section of the specifications shall be considered a separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
   5. (E) Because of the threat to human health, safety and welfare which necessarily arises from Nonregistrants engaging in the Practice of Landscape Architecture the Board has a compelling interest in ensuring that only those persons who are registered to engage in the Practice of Landscape Architecture or whose work is conducted under the active and documented Supervision and Control of a registered Landscape Architect engage in the Practice of Landscape Architecture. If the evidence establishes that a Landscape Architect has sealed landscape architectural plans and separately numbered section of the specifications without having exercised active and documented Supervision and Control of the Nonregistrants's activities the Board shall presume such conduct by the sealing landscape architect to be a major violation and each sheet of landscape architectural plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
   6. (F) The agency is responsible for protecting the public's health, safety and welfare by interpreting and enforcing the Landscape Architects' Practice Act. In fulfilling this statutory duty the Board depends upon, and expects, that Registrants and Applicants will provide complete, truthful and accurate information to the Board upon request. This prompt and accurate provision of information is essential to protecting the public's health, safety and welfare.
   7. (G) A Landscape Architect, Candidate, or Applicant who fails, without good cause, to provide information to the Board under provision of §3.171 of this subchapter (relating to Responding to Request for Information) is presumed to be interfering with and preventing the Board from fulfilling its responsibilities. For these reasons a violation of §3.171 of this subchapter shall be considered a moderate violation if a complete response is received within 30 days after receipt of the Board's written inquiry. Any further delay constitutes a major violation. Each 15 day delay thereafter shall be considered a separate violation of these rules.
3. (3) In order to determine the appropriate amount in a penalty range described in paragraph (2) of this section, the Board shall consider the factors described in paragraph (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; amended to be effective October 18, 2009, 34 TexReg 7076.