Current through Reg. 50, No. 187; September 24, 2024
(1) This rule sets forth the guidelines the
department will follow in imposing the penalties authorized under Sections
501.91 -
501.923, F.S. The purpose of the
guidelines is to give notice of the range of penalties that will be imposed for
a single violation within a three-year period. The three-year period shall be
based on the date of issuance of the stop sale order. These guidelines list
aggravating and mitigating factors that, if present, will reduce or increase
penalties to be imposed. The guidelines in this rule are based upon a single
count violation of each provision listed. Multiple counts of the violated
provision or a combination of the listed violations will be added together to
determine an overall total penalty and will be grounds for enhancement of
penalties.
(2) The department will
enforce compliance with Sections
501.91 -
501.923, F.S., and this rule
chapter by issuing a stop sale order and administrative complaint, if
applicable, for violations of Sections
501.91 -
501.923, F.S., and this rule
chapter.
(3) Nothing in this rule
chapter shall limit the ability of the department to informally dispose of
administrative actions by settlement agreement, consent order, or other lawful
means.
(4) Rule Not All-Inclusive.
This rule contains illustrative violations. It does not and is not intended to
encompass all possible violations of statute or department rule that might be
committed by any person. The absence of any violation from this rule chapter
shall in no way be construed to indicate that the violation does not cause harm
to the public or is not subject to a penalty. In any instance where the
violation is not listed in this rule chapter, the penalty will be determined by
consideration of:
(a) The closest analogous
violation, if any, that is listed in this rule; and,
(b) The mitigating or aggravating factors
listed in this rule.
(5)
Aggravating and Mitigating Factors. The department will consider aggravating
and mitigating factors in determining penalties for violations of Sections
501.91 -
501.923, F.S., and this rule
chapter. The factors shall be applied against each single count of the listed
violation.
(a) Aggravating Factors shall
include:
1. The violation caused or has the
potential to cause harm to a person or property.
2. The violation endangered the public safety
or welfare.
3. Previous enforcement
actions for the same or a similar offense.
4. The disciplinary history of the violator,
including any disciplinary action imposed in this or any other
jurisdiction.
5. The violation was
repeated within one year.
6. The
violator impeded, or otherwise failed to cooperate with, the department's
inspection and/or investigation.
7.
Failure to take or initiate affirmative or corrective action within 48 hours
after receipt of the stop sale order for the violation.
8. The violation resulted from an intentional
act.
9. The number of other
violations proven in the same proceeding.
10. The benefit to the
violator.
(b) Mitigating
Factors shall include:
1. Any documented
efforts by the violator at rehabilitation.
2. Intentional actions of another party
prevented the violator from complying with the applicable laws or
rules.
3. Documented financial
hardship.
4. Acts of God or nature
that impaired the ability of the violator to comply with Sections
501.91 -
501.923, F.S. or this rule
chapter.
5. The violator took or
initiated affirmative or corrective action within 48 hours after it received
written notification of the violation, including costs incurred by the violator
for rectifying any damage or harm to consumers' vehicles and/or
property.
6. The disciplinary
history of the violator.
7. If a
repeat violation, three years have passed since the prior violation.
8. A statement, in writing, provided to the
department declaring acceptance of responsibility for a
violation.
(6)
Penalties.
(a) Minor Violations. Minor
violations shall result in the issuance of a stop sale order using FDACS-03206,
Stop Sale Order, Rev. 02/17, as incorporated by reference in Rule
5J-22.003, F.A.C. For the
purposes of this rule, first time violations of Section
501.918(5), (6), (7), or
(8), F.S., shall be considered minor
violations.
(b) Major Violations:
Tier I. - A Tier I violation shall result in the issuance of a stop sale order
using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in
Rule 5J-22.003, F.A.C. If a second
Tier I violation is discovered within a three-year period, a $250 penalty shall
be imposed. An additional penalty of $250 shall be added to the fine amount for
the previous violation and imposed for each Tier I violation discovered
thereafter. Aggravating factors, as defined in paragraph (5)(a) of this rule,
shall warrant the adjustment of the fine upward from $250 to $2, 500 per
violation per aggravating factor and mitigating factors, as defined in
paragraph (5)(b) of this rule, shall warrant the adjustment of the fine
downward from $250 to $2, 500 per violation per mitigating factor. For the
purposes of this rule, the following violations shall be considered Tier I
violations:
1. Violations of Section
501.916, F.S.
2. Violations of Section
501.918(1),
F.S.
3. Violations of Rule
5J-23.002, F.A.C. If a complete
registration package has been received by the department within 30 calendar
days from the date of the stop sale order, the fine shall be mitigated to a
warning letter for a first-time violation by a registrant if said registrant
has never previously registered products subject to Section
501.913, F.S. Subsequent
violations by the same registrant for any brand within a three-year period
shall not be mitigated under these provisions.
(c) Major Violations: Tier II. A Tier II
violation shall result in the issuance of a stop sale order using FDACS-03206,
Stop Sale Order, Rev. 02/17, as incorporated by reference in Rule
5J-22.003, F.A.C., and
imposition of an administrative fine of $500 per violation, for first-time
offenders of Sections
501.91 -
501.923, F.S. and/or rule
Chapter 5J-23, F.A.C. within a three-year period. An additional penalty of $500
shall be added to the fine amount for the previous violation and imposed for
each Tier II violation discovered thereafter. Aggravating factors, as defined
in paragraph (5)(a) of this rule shall warrant the adjustment of the fine
upward from $250 to $2, 500 per violation per aggravating factor and mitigating
factors, as defined in paragraph (5)(b) of this rule, shall warrant the
adjustment of the fine downward from $250 to $2, 500 per violation per
mitigating factor. For the purposes of this rule, the following violations
shall be considered Tier II violations:
1.
Violations of Section
501.918(2), (3), (4) or
(9), F.S.
2. Repeat violations, within a three-year
period, of Section 501.918(5), (6), (7) or
(8), F.S.
(7) Resolution of Violations, Settlement, and
Additional Enforcement Remedies.
(a) The
department and person(s) charged with a violation may agree to resolve
violations prior to an administrative hearing or to enter into settlement
pursuant to Section 120.57(4), F.S.
The penalties addressed in this rule shall not be construed to limit the
authority of the department to resolve violations prior to or after initiation
of any administrative action or to settle with any party.
(b) Failure to respond to an administrative
complaint shall result in the entry of a default Final Order against the
violator or entity responsible for the violation. The department shall impose
administrative fines in a default Final Order equal to the maximum amount
possible, not to exceed $5, 000 per violation.
Rulemaking Authority 501.922, 570.07(23) FS. Law
Implemented 501.913, 501.918, 501.919, 501.922, 570.971
FS.
New 6-4-14, Formerly
5F-10.003, Amended
7-10-19.
