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TITLE 34PUBLIC FINANCE
PART 1COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 3TAX ADMINISTRATION
SUBCHAPTER JJCIGARETTE AND TOBACCO PRODUCTS REGULATION
RULE §3.1204Administrative Remedies for Violations of Health and Safety Code, Chapter 161, Subchapter H or K

(a) Definitions. The following words and terms, when used in this section shall have the following meanings, unless the context clearly indicates otherwise.

  (1) Place of business--Has the meaning assigned by Tax Code, §154.001 and §155.001.

  (2) Permit holder--Has the meaning assigned by Tax Code, §154.001 or §155.001.

  (3) Retailer--Has the meaning assigned by Tax Code, §154.001 or §155.001.

(b) Notice of violations. The comptroller receives notice of a violation of Health and Safety Code, Chapter 161, Subchapter H or K from:

  (1) the Enforcement or Criminal Investigations Divisions of the comptroller's office;

  (2) local law enforcement;

  (3) a municipal court or a justice of the peace court; or

  (4) a complaint reported by a caller on the tobacco hotline.

(c) Disciplinary actions. The comptroller after receiving notice of violation may take the following actions:

  (1) if during the preceding 12 months at the place of business for which a permit is issued, the permit holder has not been found to have violated Health and Safety Code, Chapter 161, Subchapter H or K, the comptroller may require the permit holder to pay a fine in an amount not to exceed $500 per violation;

  (2) if during the preceding 12 months at a place of business for which a permit is issued, the permit holder has been found to have violated Health and Safety Code, Chapter 161, Subchapter H or K, the comptroller may require the permit holder to pay a fine in an amount not to exceed $750 per violation;

  (3) if during the preceding 12 months at a place of business for which a permit is issued, the permit holder has been found to have violated Health and Safety Code, Chapter 161, Subchapter H or K at least twice, the comptroller may require the permit holder to pay a fine in an amount not to exceed $1,000 per violation or suspend the permit for that place of business for not more than three days; or

  (4) if during the preceding 12 months the permit holder has been found to have violated Health and Safety Code, §161.082(b), on four or more previous and separate occasions at the same place of business for which a permit is issued, the comptroller may revoke the permit.

    (A) The revocation of the retailer's permit shall be governed by the provisions in Tax Code, §154.114 and §155.059.

    (B) A retailer whose permit has been revoked under paragraph (4) of this subsection may not apply for a retailer's permit for the same place of business before the expiration of six months after the effective date of the revocation.

(d) The comptroller will send written notice by certified mail to the permit holder informing the permit holder that a violation has occurred. If the comptroller so offers, the permit holder may have the option to waive the right to a hearing and pay a lesser administrative fine or agree to a lesser administrative remedy.

(e) If the permit holder does not respond to the written notice of violation within 15 calendar days, an order finding that a violation has occurred may be entered and the maximum penalty may be imposed. If the permit holder requests a hearing, a hearing will be set. The hearing shall be governed by Chapter 1, Subchapter A, Division 1 of this title (relating to Practice and Procedures).

(f) An oral administrative hearing will be held at the office of the Comptroller of Public Accounts in Austin, Texas. The recourse for a permit holder who does not agree with the administrative decision will be governed by the provisions of Tax Code, Chapter 111; Government Code, Chapter 2001; and Chapter 1, Subchapter A, Division 1 of this title.

(g) The burden of proof in an administrative hearing pursuant to this rule is by a preponderance of the evidence, unless otherwise provided by statute.


Source Note: The provisions of this §3.1204 adopted to be effective January 22, 1998, 23 TexReg 425; amended to be effective March 14, 2000, 25 TexReg 2156; amended to be effective September 6, 2006, 31 TexReg 7134; amended to be effective February 6, 2012, 37 TexReg 500

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