Fla. Admin. Code Ann. R. 5J-6.016 - Enforcement Actions and Administrative Penalties
(1) This rule sets forth the guidelines the
department will follow in imposing the penalties authorized under Sections
501.601 -
501.626, 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 the penalties to be imposed
against the violator by the department. 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 a total penalty and will be grounds for enhancement
of penalties.
(2) The department
will enforce compliance with Sections
501.601 -
501.626, F.S., and this rule
chapter by issuing an administrative complaint, notice of noncompliance, or
through civil litigation for violations of Sections
501.601 -
501.626, F.S., and this rule
chapter.
(3) Nothing in this
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 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, the penalty will be determined by consideration of:
(a) The closest analogous violation, if any,
that is listed in this rule; 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 Sections
501.601 -
501.626, F.S., and this rule
chapter. The factors shall be applied against each single count of the listed
violation. If a Notice of Noncompliance is imposed for an initial violation, a
second violation within a three-year period shall result in a fine of at least
$1, 000 not to exceed $10, 000. 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 minor violation or a major violation
as described in subsection (8) below.
(a)
Aggravating factors shall include:
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.
Previous violations within the preceding three years for the same or a similar
offense that resulted in imposition of administrative penalties, issuance of a
Notice of Noncompliance, or suspension or revocation of license.
4. The violator impeded, or otherwise failed
to cooperate with, the department's inspection or investigation.
5. The violation resulted from an intentional
act.
6. The cost of the enforcement
action.
7. The number of other
violations proven in the same proceeding.
8. 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. Substantiated financial
hardship.
4. Acts of God or nature
that impair the ability of the violator to comply with Sections
501.601 -
501.626, F.S., or this rule
chapter.
5. The violation has a low
risk of, or did not result in, harm to the public health, safety, or
welfare.
6. The violator took
corrective action.
7. The
disciplinary history of the person committing the
violation.
(6)
The provisions of this rule chapter shall not be construed so as to prohibit or
limit any other civil action or criminal prosecution that may be
brought.
(7) In addition to the
penalties established in this rule, the department reserves the right to seek
to recover any other costs, penalties, attorney's fees, court costs, service
fees, collection costs, and damages allowed by law. Additionally, the
department reserves the right to seek to recover any costs, penalties,
attorney's fees, court costs, service fees, collection costs, and costs
resulting from a payment that is returned for insufficient funds to the
department.
(8) Penalties.
(a) Notice of Noncompliance. Any department
investigation or inspection which reveals minor violations of this rule chapter
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. A Notice of
Noncompliance will be issued for a violation of Section
501.616(3),
F.S.
(b) Minor Violations. Minor
violations shall result in imposition of a fine ranging from $1, 000 to $5,
000. The following statutory violations shall be considered minor violations:
1. A violation of Section
501.613(1),
F.S.
2. A violation of Section
501.614, F.S.
3. A violation of any provision of Section
501.616(6),
F.S.
4. A subsequent occurrence of
any of the violations enumerated in paragraph (8)(a),
above.
(c) Major
Violations. Major violations shall result in the imposition of an
administrative fine of $1, 000 to $10, 000, suspension or revocation of the
license as prescribed in Section
501.612(2)(d),
F.S., or any of the penalties as prescribed in sections
501.612(2)(b)-(e),
F.S. The following violations shall be considered major violations:
1. A violation of Section
501.605(1),
F.S.
2. Failure to comply with any
requirement enumerated in Sections
501.605(2)-(5),
F.S.
3. A violation of Section
501.605(7),
F.S.
4. Failure to comply with any
requirement enumerated in Section
501.606(1),
F.S.
5. Failure to comply with
Sections 501.606(2)-(3),
F.S.
6. Failure to comply with
Sections 501.607(1), or
(4), F.S.
7. Failure to comply with Sections
501.608(1)(b), or
(2) F.S.
8. Failure to comply with Sections
501.609(1), or
(3)-(4), F.S.
9. Failure to comply with Section
501.611, F.S.
10. A violation of any provision of Sections
501.612(1)(a)-(k),
F.S.
11. Failure to comply with
Section 501.613(2),
F.S.
12. Failure to comply with
Sections 501.615(1)-(8),
F.S.
13. A violation of Sections
501.616(1)-(2), (4), or
(7) F.S.
14. Failure to comply with Section
501.6175, F.S.
15. Any violation of Sections
501.601 -
501.626, F.S., that occurred
while the violator was concurrently operating in violation of a registration or
exemption filing requirement pursuant to the Solicitation of Contributions Act,
Chapter 496, F.S.
16. Any violation
of Sections 501.601 -
501.626, F.S., that occurred
while the violator was concurrently operating in violation of the Florida No
Sales Solicitation Act, Section
501.059, F.S.
17. Any willful violation of Sections
501.601 -
501.626,
F.S.
(9)
Nothing in this rule chapter shall prohibit the department and person charged
with a violation from resolving violations prior to administrative hearing, or
from entering into settlement pursuant to Section
120.57(4), F.S.
The department is authorized to utilize all available remedies to ensure
compliance including administrative action, civil actions, and referrals for
criminal prosecution. The department shall enforce a failure to comply with an
agreement to resolve violations or a settlement agreement with the penalties
and remedies provided in the agreement and as authorized by Chapter 120 or
Sections 501.601 -
501.626, F.S.
(10) 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
the maximum administrative fine amount of $10, 000 per violation pursuant to a
Class III violation as referenced in Sections
501.612(2)(b)
and 570.971, F.S., for a default
Final Order.
(11) A violator's
failure to comply with a Final Order shall result in a license denial or
revocation pursuant to Section
501.612(2)(d),
F.S. Additional penalties shall be sought through the enforcement of the order
in circuit court.
Notes
Rulemaking Authority 501.626, 570.07(23) FS. Law Implemented 501.612(1), (2), 501.6175, 570.971(4) FS.
New 4-16-15, Amended 7-13-16, 7-11-19.
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