Enforcement Plan
The Texas Commission of Licensing and Regulation (“Commission”) provides this public notice that at their regularly scheduled meeting held February 2, 2006, the Commission adopted the Texas Department of Licensing and Regulation’s (“Department”) revised enforcement plan which was established in compliance with Texas Occupations Code, §51.302(c).
Acts of the 79th Texas Legislature, Senate Bill 411, transferred the functions of the Texas Cosmetology Commission and the Texas State Board of Barber Examiners to the Texas Department of Licensing and Regulation effective September 1, 2005 and abolished both the Texas Cosmetology Commission and the Texas State Board of Barber Examiners. The Department’s revised enforcement plan includes penalty matrices for Barbers and Barbershops, and Barber Schools, and Cosmetologists and Cosmetology Salons, and Cosmetology Schools.
The enforcement plan gives all license holders notice of the specific ranges of penalties and license sanctions that apply to specific alleged violations of the statutes and rules enforced by the Department. The enforcement plan also presents the criteria that are considered by the Department’s Enforcement staff in determining the amount of a proposed administrative penalty or the magnitude of a proposed sanction.
There are four classes of violations for individual barber and cosmetologist licensees which range from less serious Class A violations to more serious Class D violations.
- Class A violations are posting and public information violations, administrative violations, sanitation violations, facility and equipment violations, and violations by students.
- Class B violations include practicing without proper license or inspection, administrative violations, violations by examination proctors, sanitation violations, facility and equipment violations, and violations by independent contractors.
- Class C violations include unlicensed activity, administrative and advertising violations, sanitation and public health violations, and sanitation violations regarding whirlpool foot spas.
- Class D violations include failure to comply with a previous order of the Commission or Executive Director, failure to pay a processing fee for a dishonored check, or engaging in fraud or deceit in obtaining a certificate, license, or permit.
There are five classes of violations for barber and cosmetology schools which range from less serious Class A violations to more serious Class D violations.
- Class A violations are posting and public information violations, violations in operating a school, administrative and sanitation violations, and facility and equipment violations.
- Class B violations include violations in operating a school, administrative and sanitation violations, and facility and equipment violations.
- Class C violations include practicing without proper license or inspection, violations in operating a school, and refund and administrative violations.
- Class D violations include unlicensed activity violations, advertising violations, sanitation and public health violations, and sanitation violations regarding whirlpool foot spas.
- Class E violations include: granting credit for hours accrued while not under the supervision of a licensed instructor; directly or indirectly granting or approving student hours not correctly accrued; engaging in fraud or deceit in obtaining a certificate, license, or permit; failing to comply with a previous order of the Commission or Executive Director; failing to pay a processing fee for a dishonored check. Class E violations also include: failure of a private beauty culture school license holder to require a school term of not less than nine months and not less than 1,500 hours instruction for a complete course in cosmetology or not less than 600 hours instruction for a complete course in manicuring; and increasing, decreasing, or withholding the number of credit hours earned by a barber school student.
A copy of the revised enforcement plan is posted on the Department’s website. You may also contact the Enforcement Division at (512) 463-2906 or by e-mail at enforcement@license.state.tx.us to obtain a copy of the revised plan.
This agency hereby certifies that this notice been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 1, 2006.
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
This enforcement plan is established by the Texas Department of Licensing and Regulation pursuant to the Texas Occupations Code, § 51.302(c). This plan describes the specific ranges of penalties and license sanctions that apply to specific alleged violations of the statutes and rules enforced by the Texas Department of Licensing and Regulation (hereinafter “TDLR” or “the Department”). This plan also presents the criteria that are considered by the Department’s Enforcement staff in determining the amount of an administrative penalty or the magnitude of a sanction to be pursued.
I. Content of the Enforcement Plan
The enforcement plan contains a separate segment for each type of person or entity regulated by TDLR. For example, under the Elevator statute, there are three types of regulated persons/entities: building owners, elevator inspectors, and elevator contractors. Therefore, this plan contains three segments related to the Elevator statute: one for building owners, one for inspectors, and one for contractors.
Each segment of the plan contains a brief description of each individual violation that may be committed by the regulated person or entity, a citation to the statute and rule provision for each violation, and a range of penalties and/or sanctions applicable to each violation. The violations are organized into classes, typically three to five classes, which denote the relative seriousness of the offenses. A range of penalties and sanctions is presented for each class of violation. Specifically, a range is presented for the first, second, and third occurrence of each class of violation. For purposes of this plan, a previous complaint alleging a violation of the statute or rules is counted as a “violation” only if it resulted in a formal disciplinary action by the Department: an Agreed Order, a Final Order, or a Reprimand.
The administrative penalty amounts presented for each class of violation will be pursued on a “per violation” basis. In other words, if a Respondent commits three violations of the same class, he will be subject to a maximum penalty of three times the highest dollar amount specified in the range.
Where both a penalty and a sanction are provided, a connector of “and/or” indicates that the Department has discretion to pursue only a penalty, only a sanction, or both a penalty and a sanction. A connector of “plus” indicates that the Department is expected to pursue both a penalty and a sanction.
Where the sanction of “revocation” is provided, the Department will read this to also authorize denial of an original license application or renewal application, to the extent denial authority exists in the law.
II. Statutes and Rules Referenced in the Enforcement Plan
This enforcement plan conforms with the statutes and rules currently in effect on the date the plan is published. The plan will be revised periodically to reflect changes in statutes and rules. The majority of the violations referenced in the plan will arise from the statute and rules specific to that program. A general citation to the program statute and rules has been provided at the top of the matrix for each individual program. The plan also contains some references to violations arising under TDLR’s enabling statute, Chapter 51 of the Occupations Code, and the rules attendant to that statute, Title 16 Texas Administrative Code, Chapter 60.
While this plan is intended to present a fairly comprehensive list of the violations that may be committed under the current statutes and rules, the plan does not in any way restrict or limit the Department’s authority to pursue violations that may have been omitted from the plan.
III. Applicability of the Enforcement Plan
The purpose of the enforcement plan is to establish a structure within which TDLR’s prosecuting attorneys will make decisions about the relief to be sought in their cases. The plan is not binding upon the Commission and Executive Director when acting as the final decision-makers in contested cases. The Commission and Executive Director are bound only by the limits of the law, specifically, Chapter 51 of the Texas Occupations Code and the individual program statutes administered by TDLR.
TDLR’s prosecuting attorneys are generally expected to seek penalties and sanctions that are within the ranges presented in this plan. Pursuit of a penalty or sanction outside the stated range is permitted only with the express approval of the Department’s Director of Enforcement, when exceptional circumstances warrant a departure from the plan.
IV. Factors to be Considered by the Department
In determining the amount of a proposed administrative penalty or the degree of a proposed sanction to be assessed within the ranges presented, the Department will consider the following factors:
- The severity or seriousness of the violation.
- Whether the violation was willful or intentional.
- Whether the Respondent acted in good faith to avoid or mitigate the violation, or to correct the violation after it became apparent.
- Whether the Respondent has engaged in similar violations in the past.
- The level of penalty or sanction necessary to deter future violations.
- Any other matter that justice may require.
The specific ranges of penalties and license sanctions for each type of person or entity regulated by TDLR are listed below.
Elimination of Architectural Barriers
Industrialized Housing and Buildings
Registered Accessibility Specialist
Rental Agreement Loss Damage Waivers
Temporary Common Worker Employers