Current through Reg. 50, No. 249, December 24, 2024
(1) This rule
sets out the disciplinary guidelines for imposing penalties upon public lodging
establishments and public food service establishments under the jurisdiction of
the Division of Hotels and Restaurants (division) in administrative actions.
The purpose of this rule is to notify licensees of the standard range of
penalties routinely imposed unless the division finds it necessary to deviate
from the standard penalties for the reasons stated within this rule.
(2) These disciplinary guidelines are
descriptive in nature and do not use the language used to formally allege a
violation in a specific case. This rule is not intended to specifically
describe all possible violations of law that may be committed by a public
lodging establishment or public food service establishment and that may be
subject to penalty imposed by the division.
(3) The division may impose penalties against
a public lodging establishment or public food service establishment for a
specific violation not included in the language of this rule. If a specific
violation is not included in the language of this rule, the division shall
impose a penalty corresponding to the most similar violation listed in this
rule.
(4) These disciplinary
guidelines do not limit the division's authority to order a public lodging
establishment or public food service establishment to cease and desist from any
unlawful practice, or other action authorized by law.
(5) Definitions.
(a) "High priority violation" means a
violation of a high priority item, as defined in Rule
61C-1.001, F.A.C., or a
violation of Chapter 509, F.S. or Chapter 61C, F.A.C., determined by the
division to pose a direct or significant threat to the public health, safety,
or welfare and is not otherwise identified in subsection (6) of this
rule.
(b) "Intermediate violation"
means a violation of an intermediate item, as defined in Rule
61C-1.001, F.A.C., or a
violation of Chapter 509, F.S. or Chapter 61C, F.A.C., which relates to
specific actions, equipment or procedures that contribute to the occurrence of
a high priority violation, but does not meet the definition of high priority
violation or basic violation and is not otherwise identified in subsection (6)
of this rule.
(c) "Basic violation"
means a violation of a basic item, as defined in Rule
61C-1.001, F.A.C., or a
violation of Chapter 509, F.S. or Chapter 61C, F.A.C., which relates to general
sanitation, operational controls, standard operating procedures, facilities or
structures, equipment design, or general maintenance and not meeting the
definition of high priority violation or intermediate violation and is not
otherwise identified in subsection (6) of this rule.
(d) "First offense" means a violation of any
law subject to penalty under Chapter 509, F.S., when no disciplinary Final
Orders involving the same licensee have been filed with the Agency Clerk within
the 24 months preceding the date the current administrative complaint is
issued.
(e) "Second offense, " and
"second and any subsequent offense" mean a violation of any law subject to
penalty under Chapter 509, F.S., after one disciplinary Final Order involving
the same licensee has been filed with the Agency Clerk within the 24 months
preceding the date the current administrative complaint is issued, even if the
current violation is not the same as the previous violation.
(f) "Third and any subsequent offense" means
a violation of any law subject to penalty under Chapter 509, F.S., after two or
more disciplinary Final Orders involving the same licensee have been filed with
the Agency Clerk within the 24 months preceding the date the current
administrative complaint is issued, even if the current violation is not the
same as the previous violation.
(6) Standard penalties. This section
specifies the penalties routinely imposed against licensees and applies to all
violations of law subject to a penalty under Chapter 509, F.S.
(a) Basic violation.
1. 1st offense - Administrative fine of $150
to $300.
2. 2nd offense -
Administrative fine of $250 to $500.
3. 3rd and any subsequent offense -
Administrative fine of $350 to $1000, license suspension, or
both.
(b) Intermediate
violation.
1. 1st offense - Administrative
fine of $200 to $400.
2. 2nd
offense - Administrative fine of $375 to $750.
3. 3rd and any subsequent offense -
Administrative fine of $550 to $1, 000, license suspension, or
both.
(c) High priority
violation.
1. 1st offense - Administrative
fine of $250 to $500.
2. 2nd
offense - Administrative fine of $500 to $1, 000, license suspension, or
both.
3. 3rd and any subsequent
offense - Administrative fine of $750 to $1, 000, license suspension, or
both.
(d) Misrepresenting
food or food product.
1. 1st offense -
Administrative fine of $500 or license suspension.
2. 2nd offense - Administrative fine of $1,
000, license suspension, or both.
3. 3rd and any subsequent offense -
Administrative fine of $1, 000, license suspension, or license revocation or
any combination thereof.
(e) Obstruction of division personnel.
1. 1st offense - Administrative fine of $500
or license suspension.
2. 2nd
offense - Administrative fine of $1, 000, license suspension, or
both.
3. 3rd and any subsequent
offense - Administrative fine of $1, 000, license revocation, or
both.
(f) Operating a
public lodging establishment or public food service establishment without a
license or with a license expired for more than 60 days.
1. 1st offense - Administrative fine of $250
to $500.
2. 2nd offense -
Administrative fine of $500 to $1, 000.
3. 3rd and any subsequent offense -
Administrative fine of $750 to $1, 000.
(g) Operating a public lodging establishment
or public food service establishment without a license resulting in an
Administration Determination and Order of Closure.
1. 1st offense - Administrative fine of
$500.
2. 2nd and any subsequent
offense - Administrative fine of $1, 000.
(h) Operating a public lodging establishment
or public food service establishment in violation of an Order of Emergency
Suspension of License and Closure, Emergency Order of Closure, or other
emergency administrative action that prohibits operation of the establishment.
1. 1st offense - Administrative fine of $500
to $1, 000.
2. 2nd and any
subsequent offense - Administrative fine of $1, 000.
(i) Failure to comply with the requirements
of a disciplinary Final Order.
1. 1st offense
- Administrative fine of $500 and license suspension.
2. 2nd offense - Administrative fine of $1,
000 and license suspension.
3. 3rd
and any subsequent offense - License revocation.
(j) Finding by the Florida Commission on
Human Relations resulting in a violation of Section
509.092, F.S.
1. 1st offense - Administrative fine of $200
to $400.
2. 2nd offense -
Administrative fine of $375 to $750 and license suspension.
3. 3rd and any subsequent offense - License
revocation.
(k) Finding
by the State Fire Marshal resulting in a violation of Section
509.215(5),
F.S.
1. 1st offense - Administrative fine of
$1, 000, license suspension, or license revocation or any combination
thereof.
2. 2nd offense and any
subsequent offense - Administrative fine of $1, 000, license suspension, or
license revocation or any combination thereof.
(l) Finding of an agency having jurisdiction
resulting in a violation of Section
509.261(5)(b),
F.S.
1. 1st offense - Administrative fine of
$200 to $400.
2. 2nd offense -
Administrative fine of $375 to $750 and license suspension.
3. 3rd and any subsequent offense - License
revocation.
(m) Being
adjudicated guilty of or having forfeited a bond when charged with any of the
items listed in Section
509.261(6)(a),
F.S.
1. 1st offense - Administrative fine of
$200 to $400.
2. 2nd offense -
Administrative fine of $375 to $750 and license suspension.
3. 3rd and any subsequent offense - License
revocation.
(n) Operating
a public lodging establishment or public food service establishment that has
been deemed an imminent danger to the public health and safety by the division
or local health authority for failure to meet sanitation standards or the
premises have been determined by the division or local authority to be unsafe
or unfit for human occupancy.
1. 1st offense
- Administrative fine of $200 to $400.
2. 2nd offense - Administrative fine of $375
to $750 and license suspension.
3.
3rd and any subsequent offense - License revocation.
(o) Any violation requiring an Order of
Emergency Suspension of License and Closure, as authorized by Chapter 509, F.S.
1. 1st offense - Administrative fine of
$500.
2. 2nd offense -
Administrative fine of $1, 000, license suspension, or both.
3. 3rd and any subsequent offense -
Administrative fine of $1, 000, license suspension, or license revocation or
any combination thereof.
(p) Failure to satisfy a tax warrant that has
existed for more than three consecutive months (Section
213.50(3)(a),
F.S.).
1. 1st offense - License
suspension.
2. 2nd and any
subsequent offense - License suspension.
(q) Violation of the Florida Clean Indoor Air
Act, Chapter 386, Part II, F.S., shall be assessed a civil penalty in
accordance with Section
386.207(3),
F.S.
(r) Conviction of an owner or
employee of a public lodging establishment or public food service establishment
by another authority having jurisdiction for a violation of Section
500.451, F.S.
1. 1st offense - License
suspension.
2. 2nd and any
subsequent offense - License suspension.
(7) Aggravating or mitigating factors. The
division may deviate from the standard penalties in paragraphs (a) through (n)
of subsection (6) above, based upon the consideration of aggravating or
mitigating factors present in a specific case. The division may deviate from
the standard penalties in paragraph (o) of subsection (6) above, based upon the
consideration of aggravating factors present in a specific case. The division
shall consider the following aggravating and mitigating factors in determining
the appropriate disciplinary action to be imposed and in deviating from the
standard penalties:
(a) Aggravating factors.
1. Possible danger to the public.
2. The current administrative complaint
alleges six or more violations.
3.
The current administrative complaint alleges three or more violations of any
high priority item.
4. Number of
Emergency Orders of Suspension or Closure against the same licensee filed with
the Agency Clerk by the division within the 12 months preceding the date the
current administrative complaint was issued.
5. Actual physical damage or bodily harm
caused to persons or property by the violation.
6. The current administrative complaint
alleges a violation for which the licensee was previously disciplined in a
Final Order filed with the Agency Clerk by the division within the 24 months
preceding the date the current administrative complaint was issued.
7. Any other aggravating factors, as relevant
under the circumstances.
(b) Mitigating factors.
1. Violation resulted from a natural or
manmade disaster, civil disturbance or other emergency out of the operators'
control and no corrective action was possible.
2. Effect of the penalty upon the licensee's
livelihood.
3. Attempts by the
licensee to correct the violation.
4. Any other mitigating factors, as relevant
under the circumstances.
(8) Absent any mitigating factors, a license
may be suspended for no less than two days. Absent any aggravating factors, a
license may be suspended for no more than ten days. Terms of license
suspensions resulting from multiple violations or Final Orders shall be applied
consecutively, not concurrently.
(9) Fines resulting from multiple violations
or Final Orders shall be assessed cumulatively.
(10) Notwithstanding subsection (6), license
revocation may be recommended in any case or for any violation when the
aggravating circumstances, licensee's compliance history, and conditions of the
public lodging establishment or public food service establishment present a
significant threat to the public health, safety, and
welfare.
Rulemaking Authority
455.2273,
509.032 FS. Law Implemented
213.50(3),
386.207,
500.451,
509.032,
509.092,
509.215(5),
509.261,
509.281,
509.292
FS.
New 6-28-09, Amended 12-28-09, 1-1-13, 5-31-15,
2-9-17.
