Fla. Admin. Code Ann. R. 5J-21.008 - Guidelines for Imposing Administrative Penalties

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapters 525 and 531, F.S. The purpose of the guidelines is to give notice of the range of penalties, which will be imposed for a single violation. 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 administratively enforce compliance with Chapters 525 and 531, F.S., and this rule chapter by issuing an administrative complaint, stop sale order, and/or notice of noncompliance for violations of Chapter 525 or 531, F.S., and this rule chapter.

(3) Nothing in this rule 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 the statutes or department rules that might be committed by any person. The absence of any violation from this rule 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.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Chapters 525 and 531, 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 and the degree or extent of such harm.

2. The violation endangered the public safety or welfare.

3. Previous enforcement actions for the same or a similar offense.

4. The violation history over the past three years.

5. The violation existed for more than one month.

6. The violation was repeated within one year.

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

8. Previous disciplinary action against the violator in this or any other jurisdiction.

9. Failure to take or initiate affirmative or corrective action within 48 hours after receipt of the stop sale order or within the timeframe specified on a notice of non-compliance for the violation.

10. The violation resulted from an intentional act.

11. The need for repeated follow-up inspections without valid evidence of remedial action taken by the violator.

12. The number of other violations proven in the same proceeding.

13. The benefit to the violator.

(b) Mitigating Factors shall include:

1. Any documented efforts by the violator at rehabilitation.

2. The 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 impairs the ability of the violator to comply with Chapter 525 or 531, F.S. or this rule chapter.

5. The violator expeditiously took affirmative or corrective action 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 and with consideration of whether three years have passed since the previous violation.

7. A statement, in writing, provided to the department declaring clear and unequivocal acceptance of responsibility for a first violation within a three-year period.

(6) Penalties.

(a) Notice of Noncompliance. Any department investigation or inspection which reveals violations listed in this subsection of this rule in which the department determines 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. For the purposes of this rule, the following violations shall result in the issuance of a notice of noncompliance:

1. Violations to subsection 5J-21.007(1), F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.

2. Violations to Rule 5J-22.003, F.A.C., pertaining to petroleum products and applications, where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.

3. Misrepresentation of the price of petroleum fuel on a display, a violation of Section 531.44, F.S.

4. Violations of subsection 5J-21.005(2), F.A.C.

5. Violations of subsections 5J-21.007(3) or (4), F.A.C.

6. Violations of subsection 5J-21.001(6), F.A.C.

7. Gasoline blended with ethanol or butanol found to have an ethanol or butanol content of more than one (1.0%) percent by volume below the posted ethanol or butanol content displayed on the dispenser or gasoline found to have less than one (1.0%) percent by volume ethanol or butanol that is labeled as containing ethanol or butanol.

8. Diesel fuel blended with biodiesel found to have a biodiesel content of more than two (2.0%) percent by volume below the posted biodiesel content displayed on the dispenser.

9. A mid-level ethanol blend found to have an ethanol content of more than five (5.0%) percent by volume below the posted ethanol content displayed on the dispenser or found to have less than the amount of ethanol permitted under paragraph 5J-21.001(1)(c), F.A.C.

(b) Tier I Major Violations. A violation of Chapter 525 or 531, F.S., or this rule chapter is a Tier I violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Tier I violations shall result in the issuance of a Stop Sale Order or a Stop Use Order. Discovery of a repeat violation within a three-year period shall result in the imposition of an administrative fine not to exceed the statutory maximum set forth in Section 525.16, F.S. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. Gasoline with an octane rating difference of more than one (1.0), but not more than two (2.0) below the octane rating ((R+M)/2) displayed on the dispenser.

2. Gasoline blended with ethanol up to 10%, by volume, or butanol up at 12.5%, by volume, found to have an ethanol or butanol content of more than one (1.0%) percent by volume, but not more than three (3.0%) percent by volume, above the posted ethanol or butanol content displayed on the dispenser.

3. Gasoline found not in compliance because of a silver corrosion rating of two (2) as incorporated through the adopted version of ASTM International Designation D4814, "Standard Specification for Automotive Spark-Ignition Engine Fuel" in paragraph 5J-21.001(10)(a), F.A.C.

4. Gasoline found not in compliance from June 1 through September 15 because of a vapor pressure of up to and including 11.0 psi as incorporated through the adopted version of ASTM International Designation D4814, "Standard Specification for Automotive Spark-Ignition Engine Fuel" in paragraph 5J-21.001(10)(a), F.A.C.

5. Kerosene found not in compliance by reason of color.

6. Diesel fuel No. 2-D found not in compliance with the flash point standard, but above 100 °F.

7. Diesel fuels No. 1-D and No. 2-D found not in compliance with the ultra-low (S15) sulfur standard, but equal to or below 35 ppm sulfur.

8. A biodiesel blend found to have a biodiesel content of more than two (2.0%) percent by volume, but not more than five (5.0%) percent by volume, above the posted biodiesel content displayed on the dispenser.

9. A biodiesel blend (with No. 2-D diesel fuel) found not in compliance with the flash point standard, but above 100 °F.

10. Biodiesel and biodiesel blends found not in compliance with the ultra-low (S15) sulfur standard, but equal to or below 35 ppm sulfur.

11. Violations of paragraph 5J-21.003(6)(d), F.A.C.

12. The following violations shall result in the removal of affected equipment from service.

a. Indicator inoperable or unreadable.

b. Indicator advancing when the device is activated.

c. Air eliminator missing or inoperable.

d. Inoperative interlock.

e. Indicator movement without nozzle activation.

f. Meter over-registering more than six cubic inches.

g. Incorrect indicator.

h. Operating a meter without an appropriate security seal or improperly sealed.

i. Leaking swivel.

j. Exposed electrical wires.

k. Leaking filter.

l. Leaking impact valves.

m. Leaking vapor pump.

n. Leaking nozzle.

o. Impact valve inoperable.

p. Leaking meter.

q. Incorrect dispenser type for product being dispensed.

r. Leaking dispenser hose.

s. Violations of subsection 5J-21.005(3), F.A.C.

t. Violations of Rule 5J-21.006, F.A.C.

u. Any violations to subsection 5J-21.007(1), F.A.C., where the device and/or equipment is required to be immediately removed from service due to the potential for causing economic or physical harm to a person; due to the potential for adversely affecting the public health, safety, or welfare; or due to the potential to create a significant threat of such harm, if left uncorrected.

v. Any violations to Rules 5J-22.002 and 5J-22.003, F.A.C., pertaining to petroleum products and applications, where the device and/or equipment is required to be immediately removed from service due to the potential for causing economic or physical harm to a person; due to the potential for adversely affecting the public health, safety, or welfare; or due to the potential to create a significant threat of such harm, if left uncorrected.

(c) Tier II Major Violations. A violation of Chapter 525 or 531, F.S., or this rule chapter is a Tier II violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare or creates a significant threat of such harm. Tier II violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the substandard product and imposition of an administrative fine not to exceed the statutory maximum set forth in Section 525.16, F.S. For the purposes of this rule, the following violations shall be considered Tier II violations:

1. Failure to meet the volatility requirements for gasoline blended with ethanol as specified in subparagraphs 5J-21.001(1)(a) 1. or 2., F.A.C.

2. Failure to meet the vapor pressure requirements for gasoline (including gasoline blended with oxygenates); including, if greater than 11.0 psi from the time period June 1, through September 15.

3. Failure to meet the minimum anti-knock index (AKI) or octane rating requirements for gasoline (including gasoline blended with oxygenates); specifically, gasoline found to be more than two (2) less than the posted rating.

4. Violations of paragraphs 5J-21.001(1)(c), (d), or (e), F.A.C.

5. Failure to match the posted ethanol or butanol content for gasoline blended with ethanol up to 10% by volume or butanol up to 12.5% by volume; specifically, when the ethanol or butanol content is found to be more than three (3.0%) percent by volume above the posted ethanol or butanol content (percentage by volume).

6. Failure to meet the silver corrosion standard for gasoline (including gasoline blended with oxygenates); specifically, when the rating is greater than two (2).

7. Failure to meet the flash point requirements for No. 2 diesel fuels and biodiesel blends (with No. 2 diesel fuels); specifically, when the flash point is found to be less than 100 °F.

8. Failure to meet the sulfur requirements for ultra-low sulfur diesel (ULSD) fuels and biodiesel blends (with ULSD fuels); specifically, when the sulfur content is found to be greater than 35 ppm.

9. Violations of subparagraph 5J-21.001(5)(d) 2., F.A.C., pertaining to the maximum biodiesel content allowed in biodiesel blends (with diesel fuels or fuel oils).

10. Failure to match the posted biodiesel content for biodiesel blends (with diesel fuels or fuel oils); specifically, when the biodiesel content is found to be more than five (5.0%) percent by volume above the posted biodiesel content (percentage by volume).

11. Any fuel found below standard by reason of containing water, sediment, and/or suspended matter.

12. Failure to meet any other requirements listed in the standards for gasoline (including gasoline blended with oxygenates), as incorporated through the adopted version of ASTM International Designation D4814, "Standard Specification for Automotive Spark-Ignition Engine Fuel" in paragraph 5J-21.001(10)(a), F.A.C., not already listed is this section.

13. Failure to meet any other requirements listed in the standards for kerosene (kerosine), as incorporated through the adopted version of ASTM International Designation D3699, "Standard Specification for Kerosine" in paragraph 5J-21.001(10)(b), F.A.C., not already listed in this section.

14. Failure to meet any other requirements listed in the standards for diesel fuel No. 1-D and No. 2-D, as incorporated through the adopted version of ASTM International Designation D975, "Standard Specification for Diesel Fuel" in paragraph 5J-21.001(10)(c), F.A.C., not already listed in this section.

15. Failure to meet any other requirements listed in the standards for fuel oils No. 1 and No. 2, as incorporated through the adopted version of ASTM International Designation D396, "Standard Specification for Fuel Oils" in paragraph 5J-21.001(10)(d), F.A.C., not already listed in this section.

16. Failure to meet any requirements listed in the standards for denatured fuel ethanol, as incorporated through the adopted version of ASTM International Designation D4806, "Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as Automotive Spark-Ignition Engine Fuel" in paragraph 5J-21.001(10)(e), F.A.C.

17. Failure to meet any other requirements listed in the standards for Ethanol Fuel Bends (51 to 83 volume percent ethanol), as incorporated through the adopted version of ASTM International Designation D5798, "Standard Specification for Ethanol Fuel Blends for Flexible-Fuel Automotive Spark-Ignition Engines" in paragraph 5J-21.001(10)(f), F.A.C., not already listed in this section.

18. Failure to meet any other requirements listed in the standards for Methanol Fuel Blends (51 to 85 volume percent methanol), as incorporated through the adopted version of ASTM International Designation D5797, "Standard Specification for Methanol Fuel Blends (M51-M85) for Methanol-Capable Automotive Spark-Ignition Engines" in paragraph 5J-21.001(10)(g), F.A.C., not already listed in this section.

19. Failure to meet any requirements listed in the standards for biodiesel fuel blend stock (or biodiesel), as incorporated through the adopted version of ASTM International Designation D6751, "Standard Specification for Biodiesel Fuel Blendstock (B100) for Middle Distillate Fuels" in paragraph 5J-21.001(10)(h), F.A.C.

20. Failure to meet any other requirements listed in the standards for biodiesel blends (with diesel fuel), as incorporated through the adopted version of ASTM International Designation D7467, "Standard Specification for Diesel Fuel Oil, Biodiesel Blend (B6 to B20)" in paragraph 5J-21.001(10)(i), F.A.C., not already listed in this section.

21. Failure to meet any other requirements listed in the standards for biodiesel blends (with fuel oil), as incorporated through the adopted version of ASTM International Designation D396, "Standard Specification for Fuel Oils" in paragraph 5J-21.001(10)(d), F.A.C., not already listed in this section.

22. Failure to meet any other requirements listed in the standards for mid-level ethanol blends, as incorporated through the adopted version of ASTM International Designation D7794, "Standard Practice for Blending Mid-Level Ethanol Fuel Blends for Flexible-Fuel Vehicles with Automotive Spark-Ignition Engines" in paragraph 5J-21.001(10)(j), F.A.C., not already listed in this section.

23. Failure to match the posted ethanol content for mid-level blends; specifically, when the ethanol content is found to be more than five (5.0) percent by volume above the posted ethanol content.

24. Violations of paragraphs 5J-21.003(6)(a), (b), or (c), F.A.C.

25. Violations of subsection 5J-21.003(7), F.A.C.

26. Violations of subsection 5J-21.003(10), F.A.C.

27. Violations of subsection 5J-21.005(4), F.A.C.

28. Violations of subsection 5J-21.007(2), F.A.C.

29. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 44, as incorporated by reference in Rule 5J-22.002, F.A.C., or NIST Handbook 130 (pertaining to petroleum measuring devices, as incorporated by reference in Rule 5J-22.003, F.A.C.) within the time period specified in a notice of non-compliance. Any device affected by a correction notice issued pursuant to this rule that is not corrected within the time period specified shall be removed from service until such time that the deficiency has been corrected.

30. Failure to meet any requirements listed in the standards for butanol, as incorporated through the adopted version of ASTM International Designation D7862, "Standard Specification for Butanol for Blending with Gasoline for Use as Automotive Spark-Ignition Engine Fuel" in paragraph 5J-21.001(10)(k), F.A.C.

(d) Willful Violations. Any willful and intentional violation of Chapter 525 or 531, F.S., or this rule chapter or of any requirement or standard adopted pursuant thereto, shall result in the imposition of an administrative fine of up to $5,000 per violation. Willful violations shall include the following:

1. The unauthorized breaking, cutting, or removal of any seal applied by the department;

2. The sale or distribution, or offering for sale or distribution, of any petroleum fuel under stop sale order;

3. The sale or distribution, or offering for sale or distribution, of any petroleum fuel that was previously placed under a stop sale order and that has not been made to conform to standard; and

4. Violations which result from a failure to comply with a final order, a notice of non-compliance, a stop sale order, or any condition stipulated on a release of a stop sale order.

(7) Resolution of Alleged Violations, Settlement, and Additional Enforcement Remedies.

(a) 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 as allowable under Section 525.16(1)(a), F.S.

(b) A failure to comply with either a final order or a default final order of the department shall result in any applicable registration revocation and an administrative fine equal to the maximum amount as allowable under Section 525.16(1)(a), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Notes

Fla. Admin. Code Ann. R. 5J-21.008

Rulemaking Authority 525.14, 531.41, 570.07(23) FS. Law Implemented 525.16, 531.42, 531.44, 570.971(4) FS.

New 2-24-00, Amended 7-30-02, 6-1-06, 5-6-08, 1-3-10, Amended by Florida Register Volume 40, Number 247, December 23, 2014, effective 1/7/2015, Formerly RSA 5F-2.016, Amended by Florida Register Volume 46, Number 215, November 3, 2020 effective 11/15/2020, Amended by Florida Register Volume 50, Number 163, August 20, 2024 effective 9/2/2024.

New 2-24-00, Amended 7-30-02, 6-1-06, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.016, Amended 11-15-20.