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
526.51(3),
526.53 and
526.55, 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 chapter 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 Chapter 526, Part II, F.S., and this
rule chapter by issuing a stop sale order and administrative complaint, if
applicable, for violations of Chapter 526, Part II, 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:
1. The closest analogous
violation, if any, that is listed in this rule; and,
2. 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 Chapter 526,
Part II, 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 violation, 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 Chapter 526, Part II,
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, the following violations shall be considered minor
violations:
1. Violations of Section
526.52(3)(a),
F.S.
2. Violations of Section
526.52(3)(b),
F.S.
3. Violations of Section
526.53(5),
F.S.
(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 subsection
5J-24.002(1),
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 this
subsection in this state. Subsequent violations by same registrant for any
brand/formula combination within a three-year period shall not be mitigated
under these provisions.
2.
Violations of subsection
5J-24.002(3),
F.A.C.
(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 Chapter 526, Part II, F.S. and/or rule Chapter 5J-24, 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 subsection
5J-24.001(1),
F.A.C.
2. Violations of Section
526.52(2),
F.S.
3. Violations of Section
526.52(3)(c),
F.S.
4. Any violation of a stop
sale order or the conditions stipulated on a
release.
(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 526.53(4), 570.07(23) FS. Law
Implemented 526.55, 570.971 FS.
New 2-26-14, Formerly
5F-6.003, Amended
7-10-19.
