Fla. Admin. Code Ann. R. 5J-22.007 - Guidelines for Imposing Administrative Penalties

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapter 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 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 administratively enforce compliance with Chapter 531, F.S., and this rule chapter by issuing an administrative complaint, stop sale order, stop use order, and/or notice of noncompliance for violations of Chapter 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 is not subject to a penalty. In an instance where the violation is not listed in this rule, it will be penalized in accordance with paragraph (8)(b) of this rule.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 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 existed for more than one month.

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

8. Failure to take or initiate affirmative or corrective action within 48 hours after receipt of the stop sale and/or stop use order or within the timeframe specified on a notice of noncompliance for the violation.

9. The violation resulted from an intentional act.

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

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

12. The benefit to the violator.

(b) Mitigating Factors shall include:

1. The compliance record of the violator.

2. Any documented efforts by the violator to repair any damages, economic or otherwise, resulting from the violation.

3. Length of time operating location while out of compliance.

4. Reliance on written professional or expert counsel or advice.

5. The intentional actions of another party prevented the violator from complying with the applicable laws or rules.

6. Documented financial hardship.

7. Acts of God or nature that impair the ability of the violator to comply with Chapter 531, F.S., or this rule chapter.

8. The violator expeditiously took or initiated affirmative or corrective action within 48 hours after receipt of the stop sale and/or stop use order or within the timeframe specified on a notice of noncompliance for the violation.

9. If a repeat violator, two years have passed since the last violation.

(6) Penalties.

(a) Minor Violations. Any department investigation or inspection which reveals violations listed in this paragraph 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 be considered minor and shall result in the issuance of a notice of noncompliance:

1. Use of an unpermitted weighing or measuring device for commercial purposes without a valid Commercial Use Permit if the person has never previously held such a permit and has not been notified by the department that such a permit is required.

2. Violations of the standards adopted in subsection 5J-22.002(1), F.A.C., other than devices found to be out of tolerance in favor of the device owner.

3. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Packaging and Labeling Regulation, other than packages found to have missing or inaccurate:

a. Declaration of Quantity; or

b. Declaration of Identity; or

c. Declaration of Responsibility.

4. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Regulation for the Method of Sale of Commodities.

5. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if three (3) percent or greater, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is no more than $5 in favor of the business.

(b) Major Violations: Tier I. Tier I violations shall result in the issuance of a Stop Sale Order or the device(s) removed from service using a Stop Use Order as specified below. 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 531.50(1)(b), F.S. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. Violations of subsection 5J-22.003(1), F.A.C., Uniform Packaging and Labeling Regulation, shall result in the removal from sale of affected commodities by the department when found to have missing or inaccurate:

a. Declaration of Quantity; or

b. Declaration of Identity; or

c. Declaration of Responsibility.

2. Violations of subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification, shall result in the removal from sale of affected commodities by the department if three (3) percent or greater, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is more than $5 in favor of the business.

3. Violations of the standards adopted in subsection 5J-22.002(1), F.A.C., shall result in the removal of affected equipment from service by the department for devices found to be out of tolerance in favor of the device owner.

4. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Regulation for National Type Evaluation, shall result in the removal of affected equipment from service by the department.

(c) Major Violations: Tier II. Tier II violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the affected products, placing any affected equipment out of service and imposition of an administrative fine not to exceed the statutory maximum set forth in Section 531.50(1)(b), F.S., for each violation of Chapter 531, F.S., and/or rule Chapter 5J-22, F.A.C. For the purposes of this rule, the following violations shall be considered Tier II violations:

1. Violations of the standards adopted in Rule 5J-22.003, F.A.C., Uniform Regulation for the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices by:

a. Failing to comply with the provisions of Section 531.41(16), F.S., for service agencies or personnel registered with the department pursuant to Rule 5J-22.003, F.A.C.; or

b. Failing to report a weighing and measuring device placed in service for commercial purposes.

2. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if more than ten (10) percent of examined items fail.

3. Violations of the standards adopted in Rule 5J-22.004, F.A.C.

4. Violations of Rule 5J-22.006, F.A.C.

5. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 44, as adopted in Rule 5J-22.002, F.A.C., within the time period specified in a notice of noncompliance. Any device affected by a notice of noncompliance issued pursuant to this rule chapter that is not corrected within the time period specified shall be removed from service until such time that the deficiency has been corrected.

6. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 130, as adopted in Rule 5J-22.003, F.A.C., within the time period specified in a notice of noncompliance. Any device affected by a notice of noncompliance issued pursuant to this rule chapter that is not corrected within the time period specified shall be removed from service until such time that the deficiency has been corrected. Any commodities affected by a notice of noncompliance issued pursuant to this rule chapter that are not corrected within the time period specified shall be removed from sale until such time that the deficiency has been corrected.

7. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 133, as adopted in Rule 5J-22.004, F.A.C., within the time period specified in a notice of noncompliance. Any commodities affected by a notice of noncompliance issued pursuant to this rule chapter that are not corrected within the time period specified shall be removed from sale until such time that the deficiency has been corrected.

8. Impeding, obstructing, or hindering a department employee during duties associated with enforcement of provisions of this rule.

(d) Willful Violations. Any willful and intentional violation of Chapter 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 the maximum amount allowable under Section 531.50(1)(b), F.S., per violation. Willful violations shall include the following:

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

2. Using a weighing or measuring device for commercial purposes after notifying the department the device is not used commercially;

3. Using a device for commercial purposes that has been ordered out of service by the department prior to its being placed back into service in accordance with this rule chapter;

4. The sale or distribution, or offering for sale or distribution, of any commodity under stop sale order;

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

6. Violations which result from a failure to comply with a final order, a notice of noncompliance, 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) The department and any person charged with a violation may agree to resolve alleged 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 alleged violations prior to or after initiation of any administrative action or to settle with any party. The department shall utilize all available remedies to ensure voluntary compliance including administrative action, civil actions, and referrals for criminal prosecution. The department shall enforce a failure to comply with an agreement to resolve alleged violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Chapter 120 or 531, F.S.

(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 up to the maximum amount allowable under Section 531.50(1)(b), F.S.

(c) A failure to comply with a final order of the department shall result in additional enforcement actions as authorized by law.

(d) Nothing in this rule shall prohibit the department from exercising the special police powers granted the department under Section 531.42, F.S.

Notes

Fla. Admin. Code Ann. R. 5J-22.007

Rulemaking Authority 531.41(3) FS. Law Implemented 531.42, 531.50(1), 531.65 FS.

Adopted by Florida Register Volume 43, Number 148, August 1, 2017 effective 8/17/2017, Amended by Florida Register Volume 44, Number 090, May 8, 2018 effective 5/24/2018, Amended by Florida Register Volume 47, Number 016, January 26, 2021 effective 2/8/2021.

New 8-17-17, Amended 5-24-18, 2-8-21.