Fla. Admin. Code Ann. R. 5J-9.008 - Enforcement Actions and Administrative Penalties

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under sections 559.926 - 559.939, 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 559.926 - 559.939, F.S., and this rule chapter by issuing an administrative complaint, notice of noncompliance, or through civil litigation for violations of sections 559.926 - 559.939, 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 559.926 - 559.939, 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 $2, 500. 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 or corrective action.

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 559.926 - 559.939, 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 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. In addition, the following statutory violation shall result in the issuance of a Notice of Noncompliance for the first violation only: A violation of section 559.9335(11), F.S.

(b) Minor Violations. Minor violations shall result in imposition of a fine ranging from $1, 000 to $2, 500. The following statutory violations shall be considered minor violations:

1. Failure to comply with sections 559.9295(1)-(16), F.S.

2. Violations of section 559.9335(15), F.S.

3. 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 $5, 000, refusing to register, suspension, or revocation of the license as prescribed in section 559.9355(1)(d), F.S., or any of the penalties as prescribed in sections 559.9355(1)(c), (e)-(f), F.S. The following violations shall be considered major violations:

1. Failure to comply with any provision of section 559.931, F.S.

2. Failure to comply with section 559.932, F.S.

3. Violations of section 559.933, F.S.

4. Violations of section 559.9335(1)-(10), (12)-(14), or (16)-(25), F.S.

5. Any willful violation of sections 559.926 - 559.939, 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 559.926 - 559.939, 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 $5, 000 per violation pursuant to a Class II violation as referenced in sections 559.9355(1)(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 registration denial or revocation pursuant to section 559.9355(1)(d), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Notes

Fla. Admin. Code Ann. R. 5J-9.008

Rulemaking Authority 559.9355(3), 570.07(23) FS. Law Implemented 559.9355, 570.971(4) FS.

Adopted by Florida Register Volume 41, Number 057, March 24, 2015 effective 4/5/2015, Amended by Florida Register Volume 42, Number 091, May 10, 2016 effective 5/25/2016, Amended by Florida Register Volume 43, Number 133, July 11, 2017 effective 7/26/2017.

New 4-5-15, Amended 5-25-16, 7-26-17.