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) The Board shall consider the following factors
to determine whether the violation is minor, moderate, or major:
(A) Seriousness of misconduct and efforts to correct
the ground for sanction:
(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.
(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.
(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.
(B) Economic harm:
(i) Minor--there was no apparent economic damage to
property or monetary loss to the project owner or other involved persons
and entities.
(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.
(iii) Major--economic damage to property or economic
injury to other persons or entities exceeded $1,000.
(C) Sanction history:
(i) Minor--the respondent has not previously received
a written warning, advisory notice or been subject to other enforcement
proceedings from the Board.
(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.
(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) After determining whether the violation is minor,
moderate, or major, the Board shall impose an administrative penalty
as follows:
(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.
(B) Moderate violations--if the violation is moderate
in any category described in paragraph (1) of this section, an administrative
penalty of not more than $2,000 shall be imposed.
(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.
(D) Because of the threat to human health, safety and
well-being which necessarily arises from a Nonregistrant representing
himself or herself to be registered as a Registered Interior Designer
the Board possesses a compelling interest in ensuring that only those
persons who are permitted by statute and rule to use the title "registered
interior designer" do so. If the evidence establishes that a person
not registered as a Registered Interior Designer has represented himself
or herself as a registrant, the violation shall be classified as a
major violation and each sheet of Interior Design plans or separate
section of the specifications shall be considered a separate violation
for purposes of calculating and imposing administrative penalties.
(E) The agency is responsible for protecting the public's
health, safety and welfare by interpreting and enforcing the Interior
Designers' Registration Law. In fulfilling this statutory duty the
Board depends upon, and expects, that Registrants, Candidates 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.
(F) A Registered Interior Designer, a Candidate, or
an Applicant who fails, without good cause, to provide information
to the Board under §5.181 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 §5.181 of this subchapter shall be considered
a moderate violation if a complete response is not received within
30 days after the violation. Any further delay constitutes a major
violation. Each 15 day delay thereafter shall be considered a separate
violation of these rules.
(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) 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 §5.187 adopted to be effective July 5, 2004, 29 TexReg 6292; amended to be effective October 18, 2009, 34 TexReg 7080; amended to be effective June 13, 2010, 35 TexReg 4712; amended to be effective March 3, 2013, 38 TexReg 1185 |
