1. (a) In accordance with Section 351.551 of the Texas Optometry Act, administrative penalties may be assessed for violations of the Act or rule or order of the board. Either the executive director or a subcommittee of the board, to include at least one public member of the board, may assess a penalty for each violation and present a report to the board concerning the facts on which the determination was based and the amount of penalty. The range of penalty is $100 to $2,500.

2. (b) The amount of the penalty shall be based on:

   1. (1) the seriousness of the violation, including nature, circumstances, extent, and gravity of any prohibited act, and hazard or potential hazard created to the health, safety, or economic welfare of the public;
   2. (2) the economic harm to property or the environment caused by the violation;
   3. (3) the history of previous violations;
   4. (4) the amount necessary to deter future violations;
   5. (5) efforts to correct the violation; and
   6. (6) any other matter that justice may require.

3. (c) Penalties imposed by the board pursuant to subsections (a) and (b) of this section may be imposed for each violation subject to the following limitations:

   1. (1) imposition of an administrative penalty not to exceed $2,500 for each violation;
   2. (2) each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

4. (d) Based upon the criteria in subsection (b), the Board may assess a penalty up to the maximum amount listed in each category below for a first violation of the identified prohibited action:

   1. (1) Category 1 Violations: $500 maximum penalty

      1. (A) Failure to report address changes to the Board as required by Sections 351.351 and 351.501(16) of the Texas Optometry Act.
      2. (B) Failure to properly display name visible to the public as required by Sections 351.362 of the Act.
      3. (C) Failure to display public interest information as required by Section 351.203 of the Act, and §273.9 of this title.
      4. (D) Failure to properly release contact lens prescription as required by Section 353.156 of the Contact Lens Prescription Act,
      5. (E) Advertising violations, including misleading advertising as prohibited by Sections 351.155 and 351.403 of the Act, and §279.9 of this title.
      6. (F) Failure to use proper professional identification as required by Section 104.003 of the Texas Occupations Code.
      7. (G) Offering glasses or contact lenses as a prize or inducement as prohibited by Section 351.404 of the Act and §273.3 of this title.

   2. (2) Category 2 Violations: $1,000 maximum penalty

      1. (A) Directing or allowing optical employees or owners to make appointments for a leasing licensee as prohibited by Sections 351.408 and 351.459 of the Act.
      2. (B) Directing or allowing optical employees or owners to advertise for a leasing licensee or include the licensee's office in the advertising as prohibited by Sections 351.408 and 351.459 of the Act.
      3. (C) Directing or allowing optical employees or owners to set the practice hours for a leasing licensee as prohibited by Section 351.408 of the Act.
      4. (D) Practicing in an office not properly separated from a lessor optical as prohibited by Sections 351.363, 351.364, 351.408, and 351.459 of the Act, and §279.12 of this title.
   3. (3) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
   4. (4) The board will use the criteria in subsections (a) and (b) to determine the amount of penalty for repeated violations of the acts identified in this subsection and for violations not listed in this subsection.
5. (e) The provisions of subsections (a) - (d) of this section shall not be construed so as to prohibit other appropriate disciplinary action under the Act, civil or criminal action and remedy and enforcement under other laws.

Source Note:The provisions of this §277.6 adopted to be effective January 7, 1994, 18 TexReg 9934; amended to be effective April 7, 2003, 28 TexReg 2924.