(a) The department may refuse to certify, suspend or revoke a certificate of compliance if the applicant or certificate holder:
  (1) fails to comply with any provision of the statute;
  (2) fails to comply with any provision of this subchapter;
  (3) commits fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to the department or required to be maintained by the facility pursuant to this chapter;
  (4) aids, abets, or permits the commission of an illegal act;
  (5) fails to comply with an order of the commissioner of health or another enforcement procedure under the statute;
  (6) the certificate holder or representative refuses to allow an inspection or otherwise interferes with the authorized department agent in the performance of his or her duties;
  (7) fails to have a HACCP plan, has a HACCP plan unacceptable to the SSD, or fails to comply with a HACCP plan that is acceptable to the SSD;
  (8) fails to provide the required application information;
  (9) has any critical violations identified during the certification inspection; or
  (10) has more than two key deficiencies and 3 other deficiencies identified during the certification inspection.
(b) If the department proposes to refuse to certify, proposes to suspend, or proposes to revoke a certificate of compliance, the department shall notify the applicant or certificate holder of the reasons for the proposed action and offer the person an opportunity for a hearing.
  (1) If the facility chooses to request a hearing, it shall do so within 20 calendar days of receipt of the notice. Receipt of the notice is presumed to occur on the fifth calendar day after the notice is mailed to the last address known to the department unless another receipt date is reflected on a United States Postal Service return receipt.
  (2) The request for a hearing shall be in writing and submitted to the Director, SSD, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199.
  (3) A hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health).
  (4) If the facility does not request a hearing in writing within 20 calendar days of receipt of the notice, the facility is deemed to have waived the opportunity for hearing and the proposed action shall be taken.
  (5) If the person fails to appear or be represented at the scheduled hearing, the person is deemed to have waived the right to a hearing and the proposed action shall be taken.
(c) If the department suspends a certificate, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. An authorized representative of the department shall investigate prior to making a determination during the time of suspension and the suspended certificate holder shall return the certificate of compliance to the department and shall not process molluscan shellfish in Texas.
(d) If the department revokes a certificate, a person may reapply for a certificate after 180 days from the date of signing of the final order of revocation. The department may refuse to issue a certificate if the reason for revocation continues to exist, or the applicant does not meet the requirements for a certificate.
(e) Upon revocation, a certificate holder shall return the certificate of compliance to the department. A dealer whose certificate has been revoked may not be issued a new certificate for 180 days after the date of signing of the final order of revocation, or before the next certification period, whichever is longer.
(f) Pursuant to Health and Safety Code, §§436.034 - 436.037, the department may assess an administrative penalty against a person who violates §436.011 of the statute or an order issued under this chapter.
  (1) The penalty may not exceed $25,000 a day for each violation. Each day of a continuing violation constitutes a separate violation.
  (2) In determining the amount of an administrative penalty assessed under this section, the department shall consider:
    (A) the seriousness of the violation;
    (B) the person's previous violations;
    (C) the hazard to the health and safety of the public;
    (D) the person's demonstrated good faith; and
    (E) any other matters that justice may require.
  (3) All proceedings for the assessment of an administrative penalty are subject to the Administrative Procedure Act, Government Code, Chapter 2001.
  (4) If, after investigation of an alleged violation and the facts surrounding that alleged violation, the department determines that a violation has occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice shall include:
    (A) a brief summary of the alleged violations including the statute and/or rules violated;
    (B) a statement of the amount of the proposed penalty, based on the factors listed in paragraph (2) of this subsection; and
    (C) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
  (5) The seriousness of violations for which administrative penalties are assessed may be categorized by one of the following severity levels.
    (A) Severity Level I covers violations that are most significant and may have a significant negative impact on public health and safety.
    (B) Severity Level II covers violations that are very significant and may have a negative impact on the public health and safety.
    (C) Severity Level III covers violations that are significant, and if not corrected, could threaten public health and safety.
    (D) Severity Level IV covers violations that are of more than minor public health and safety significance, but if left uncorrected could lead to more serious circumstances.
    (E) Severity Level V covers violations that are of minor public health and safety significance.
  (6) Not later than the 20th calendar day after the date the notice is received, the person notified may accept the determination of the department made under this section, including the recommended penalty, or make a written request for a hearing on that determination. Receipt of the notice is presumed to occur on the fifth calendar day after the notice is mailed to the last address known to the department unless another receipt date is reflected on a United States Postal Service return receipt.
  (7) If the person notified of the violation accepts the determination of the department, or fails to request a hearing within 20 calendar days of the receipt of the notice, the department shall issue an order approving the determination that a violation occurred and ordering that person to pay the recommended penalty.
  (8) If a hearing is requested, the department shall refer the matter to the State Office of Administrative Hearings for a hearing.
  (9) The provisions of Health and Safety Code, §§436.035 and 436.036 shall be followed in assessing and paying an administrative penalty.

Source Note: The provisions of this §241.60 adopted to be effective March 20, 2003, 28 TexReg 2346