Fla. Admin. Code Ann. R. 5J-20.080 - Enforcement Actions and Administrative Penalties

(1) This rule sets forth the guidelines the department will follow in imposing the penalties and enforcement actions authorized under Sections 527.13 and 527.14, F.S. The purpose of the guidelines is to give notice of the range of penalties which will be imposed for a single violation within a three (3) year period. The three-year period shall be based on the date of the last enforcement action or administrative penalty imposed for the same violation. 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 527, F.S., and this rule chapter by issuing an administrative complaint, notice of noncompliance, a stop use order, and/or a cease and desist order.

(3) Stop Use Orders. The department shall issue a FDACS-10988, Stop Use Order, Rev. 02/17, as incorporated by reference in Rule 5J-22.002, F.A.C., whenever necessary to effectuate the statutory duties of the department in the interests of public health, safety, and welfare and to promote public safety where the installation, operation, maintenance, or condition of a liquefied petroleum gas container or system, including a cylinder storage unit, fails to comply with the codes adopted in Rule 5J-20.002, F.A.C., or with any provision of Chapter 527, F.S., or this rule chapter.

(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 chapter; 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 Chapter 527, F.S., and this rule chapter. Aggravating factors, as defined in paragraph (5)(a) of this rule, shall warrant the adjustment of the fine upward from $500 to $1, 000 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 $500 to $1, 000 per violation per mitigating factor. Both aggravating and mitigating factors, if present, shall be applied against each single count of the listed violation regardless of whether the violation is a Tier I violation or a Tier II violation as described in paragraphs 5J-20.080(7)(a) and (b), F.A.C.

(a) Aggravating Factors:

1. The violation caused, or has the potential to cause, serious injury to a person.

2. The violation endangered the public safety or welfare.

3. The violation occurred for more than 24 hours with the violator's knowledge.

4. The violator impeded, or otherwise failed to cooperate with, the department's inspection or investigation.

5. Previous disciplinary actions within the preceding three years against the violator involving any violation of Chapter 527, F.S. or rule Chapter 5J-20, F.A.C.

6. The violator's prior knowledge of Chapter 527, F.S., and rule Chapter 5J-20, F.A.C.

7. The violation resulted from an intentional act.

8. The cost of the enforcement action.

9. The benefit to the violator.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation, including, but not limited to, successful completion of training courses directly related to the offense committed.

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 527, F.S. or rule Chapter 5J-20, F.A.C.

5. The violator took affirmative or corrective action within twenty-four hours.

6. The disciplinary history contains no violations within the prior three years.

(6) Notice of noncompliance. Any department investigation or inspection that reveals minor violations of this rule chapter for which the department has reason to believe that the violator was unaware of the rule or unclear as to how to comply with it, will result in the issuance of a notice of noncompliance as the department's first response to the violation. The following shall be considered minor violations for which a notice of noncompliance shall be issued for the first occurrence only:

(a) Lack of proper signage;

(b) Propane containers in need of paint;

(c) Minor corrosion issues; or

(d) Accumulation or storage of combustibles too close to a container.

(e) Conducting LP gas activities as defined in Section 527.01, F.S., under the Category IV, or Category VI, licensure categories, without a license, including while any licensure application is pending, where the unlicensed activity did not contribute to or cause an LP-gas related accident.

(f) Failure to mark dealer-owned containers in service in a legible manner with the name and phone number of the owner.

(g) Failure to maintain or make immediately available to the department upon request employee training records.

(7) Violations. For the purposes of imposing the penalties and enforcement actions provided for in Sections 527.13 and 527.14, F.S., violations shall be designated as either Tier I or Tier II.

(a) Tier I Violations. Tier I violations shall result in imposition of a fine of up to $1, 000. The following violations shall be considered Tier I violations:

1. A subsequent violation of any of the violations enumerated in subsection (6), above, within a three-year period.

2. Failure to timely notify the department of a loss of Qualifier or Master Qualifier in violation of Section 527.0201, F.S.

3. Connecting or disconnecting a container or system without due and sufficient notice as required under Rule 5J-20.047, F.A.C.

4. Failure to timely remove or lawfully abandon a disconnected container or system from the premises of the consumer or end-user in accordance with Rule 5J-20.047, F.A.C.

5. Except as otherwise stated in paragraph (6)(e), above, conducting LP gas activities as defined in section 527.01, F.S., without a license, including while any licensure application is pending, or while the license is inoperative because of failure to renew, or conducting LP gas activities after the qualification status of the duly-designated Qualifier or Master Qualifier has expired, where the unlicensed activity did not contribute to or cause an LP-gas related accident.

6. Any violation involving LP gas found during a department accident investigation that contributed to the accident, but was not a direct cause of the accident, and resulted in the following:

a. Personal injury not requiring professional medical treatment; or

b. Property damage of $25, 000 or less.

7. Conducting LP gas activities without insurance as required in Sections 527.02 and 527.04, F.S., including conducting LP gas activities after insurance coverage has expired or has been cancelled.

8. Failure to correct non-hazardous law, rule, or code deficiencies identified in a Notice of Non-Compliance, within the time period specified.

9. Falsification of records relating to application for, or renewal of, Qualifier or Master Qualifier status, including but not limited to misrepresentation of eligibility, of position within the licensed company, or place of full-time employment.

10. Failure to perform and/or document the following periodic testing required on propane cargo vehicles within the time frames as referenced in NFPA 58, as incorporated by reference in Rule 5J-20.002, F.A.C.:

a. Annual external visual and leak test;

b. Cargo pressure test;

c. Monthly delivery hose inspection; or

d. Monthly emergency shut-off valve test.

11. Failure to provide local emergency response personnel with emergency contacts for after-hour emergencies, failure to post emergency numbers on the premises, or failure to relay messages on emergency answering services or machines within time frames as required by Section 527.065(3), F.S.

12. Failure to timely notify the department of any accident meeting the criteria of Section 527.065, F.S.

13. Selling, filling, refilling, delivering, or using an LP gas container for any gas or compound, or for any other purpose, without permission of the owner, in violation of Section 527.07, F.S.

14. Filling a cylinder with an expired requalification date, filling a "non-refillable" cylinder, filling a cylinder without conducting an appropriate visual inspection, or filling a cylinder that fails one or more of the visual inspection criteria in NFPA 58, as incorporated by reference in Rule 5J-20.002, F.A.C.

15. Continuing a cylinder in service with an expired requalification date or that fails to meet any visual inspection criterion or any other provision regarding in-service use, including provisions governing transporting of cylinders, contained in NFPA 58, as incorporated by reference in Rule 5J-20.002, F.A.C.

16. Conducting metered sales of LP gas without an active temperature compensating device as required by NIST Handbook 130, as incorporated by reference in Rule 5J-22.003, F.A.C.

17. Failure to document any procedure or activity required to be documented by NFPA 58, as incorporated by reference in Rule 5J-20.002, F.A.C., or this rule chapter.

18. Failure to notify the department of the completion of corrections issued in a Notice of Noncompliance.

19. Falsification of records related to corrections ordered by the department on a Notice of Noncompliance.

(b) Tier II Violations. Tier II violations shall result in the imposition of an administrative fine of $1, 000 up to $3, 000, suspension or revocation of the license as prescribed in section 527.14, F.S., or any of the foregoing, as prescribed in Section 527.13, F.S. The following violations shall be considered Tier II violations:

1. Any violation involving LP gas found during a department accident investigation that contributed to the accident and resulted in property damage exceeding $25, 000.

2. Any violation involving LP gas found during a department accident investigation, regardless of whether the violation was or was not a direct cause of the accident, that contributed to the accident and resulted in the following:

a. Loss of human life; or

b. Personal injury requiring professional medical treatment.

3. Any violation involving LP gas found during a department accident investigation that contributed to and was a direct cause of the accident, and that resulted in property damage exceeding $3, 000.

4. Transportation of propane cylinders in violation of the requirements of NFPA 58, as incorporated by reference in Rule 5J-20.002, F.A.C.

5. Conducting LP gas activities without a license following issuance of written notice from the department regarding the lack of licensure, including licensure that has expired due to nonrenewal.

6. Conducting LP gas activities without insurance coverage following issuance of written notice from the department regarding the lack of insurance.

7. Failure to conduct a leak test in a new piping system, or in an out-of-gas or interrupted service situation, as required by NFPA 54, as incorporated by reference in Rule 5J-20.002, F.A.C.

8. Intentional alteration, modification, or disabling of any component in an LP gas system, including the container and its appurtenances, that renders the equipment out of compliance with Chapter 527, F.S., this rule chapter, or any applicable code adopted in Rule 5J-20.002, F.A.C., or renders it inoperable, or otherwise prevents it from functioning as intended by the equipment manufacturer.

9. Failure to install LP gas appliances, piping, or equipment in accordance with manufacturer's instructions or applicable safety codes.

10. Failure to install, disconnect, and/or store LP gas containers in accordance with applicable rules and safety codes.

11. Failure to follow proper fill procedures, other than visual inspection requirements, including overfilling of propane containers.

12. Failure to respond to a verifiable leak call within twenty-four hours or failure to physically respond to an emergency within two (2) hours when contacted by an emergency response unit, as required by Sections 527.065(4) and 527.065(5), F.S.

13. Use or operation of equipment or systems, including transport vehicles.

14. Failing to correct within designated timeframe, any hazardous law, rule, or code deficiencies identified in a Notice of Noncompliance.

15. Operating LP gas equipment, including equipment transporting an LP gas container containing product, in a reckless manner.

Notes

Fla. Admin. Code Ann. R. 5J-20.080

Rulemaking Authority 120.695, 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS.

Adopted by Florida Register Volume 40, Number 136, July 15, 2014 effective 7/28/2014, Formerly RSA 5F-11.080, Amended by Florida Register Volume 44, Number 114, June 12, 2018 effective 6/27/2018, Amended by Florida Register Volume 45, Number 152, August 6, 2019 effective 8/20/2019.

New 7-28-14, Formerly 5F-11.080, Amended 6-27-18, 8-20-19.