(a) The department may assess an administrative penalty against a person who sells an abusable volatile chemical at retail who violates the Act or a rule or order adopted under this Act.
(b) A penalty collected under this subchapter shall be deposited in the state treasury in the general revenue fund.
(c) The amount of the penalty may not exceed $1,000 for each violation, and each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000.
(d) In determining the amount of the administrative penalty, the department shall consider:
  (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;
  (2) the threat to health or safety caused by the violation;
  (3) the history of previous violations;
  (4) the amount necessary to deter a future violation;
  (5) whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and
  (6) any other matter that justice may require.
(e) Violations will be classified in one of three severity levels.
  (1) Critical Violation. Severity Level III includes violations that are most significant and have a direct negative impact on public health and safety. The penalty for a Level III violation on first occurrence is up to $1000 per day, per violation. The same violation continuing for more than one day is a separate violation. Examples of Level III violations include but are not limited to:
    (A) operating without a valid volatile chemical sales permit for the location at which abusable volatile chemicals are sold in violation of §205.54 of this title (relating to Permit Requirements and Conditions);
    (B) operating under a permit issued to another person or for another location, in violation of §205.54 of this title;
    (C) falsifying information required on the volatile chemical sales permit application under §205.56 of this title (relating to Permit Application);
    (D) failing to establish controls to restrict a person under the age of 18 years from access to aerosol paints displayed for retail sale at a business establishment as required under §205.61(a) of this title (relating to Restriction of Access to Aerosol Paint);
    (E) interfering with, denying, or delaying department representatives in conducting an inspection at the location at which abusable volatile chemicals may be sold as required under §205.63 of this title (relating to Compliance Inspections); or
    (F) committing any of the prohibited acts listed under §205.62 of this title (relating to Prohibited Acts).
  (2) Serious violation. Severity Level II includes violations that are significant and which, if not corrected, could threaten public health and safety. The penalty for a Level II violation on first occurrence is up to $750 per day, per violation. The same violation continuing for more than one day constitutes a separate violation. Examples of Level II violations include, but are not limited to:
    (A) failing to have a volatile chemical sales permit available for inspection by the public or department as required under §205.59 of this title (relating to Permit Available for Inspection);
    (B) failing to display a volatile chemical warning sign as required under §205.60(a) of this title (relating to Requirement to Post Sign); or
    (C) failing to ensure that the controls established under §205.61(a) of this title (relating to Restriction of Access to Aerosol Paint) are adequate to restrict a person under the age of 18 from access to aerosol paints.
  (3) Significant violation. Severity Level I includes violations that are of more than minor significance and, if left uncorrected, could lead to more serious circumstances. The penalty for a Level I violation on first occurrence is up to $500 per day, per violation. The same violation continuing for more than one day constitutes a separate violation. Examples of Level I violations include, but are not limited to:
    (A) failing to post a volatile chemical warning sign in a conspicuous and prominent place as required under §205.60(b) of this title; or
    (B) posting a volatile chemical warning sign that does not comply with the requirements under §205.60(c) of this title.

Source Note: The provisions of this §205.64 adopted to be effective August 19, 2002, 27 TexReg 7532