Fla. Admin. Code Ann. R. 5K-4.035 - Guidelines for Imposing Administrative Penalties
(1) This rule sets forth guidelines the
Department will follow in imposing the penalties authorized under Chapter 500,
and section 581.217, F.S. The purpose of the
guidelines is to give notice of the range of penalties that will be imposed for
a single violation within a three-year period. The three-year period shall be
based on the date of the last administrative enforcement action imposed against
the violator. These guidelines list aggravating and mitigating factors that, if
present, will reduce or increase penalties to be imposed. No aggravating
factors will be applied to increase a fine imposed for a single violation above
the statutory maximum for a Class II category of $5, 000 for each violation as
provided in Section 570.971, F.S., except for
violations of Section
500.165, F.S., which have a
statutory maximum for a Class III category of $10, 000 as provided in Section
570.971, F.S. 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 500, section
581.217(7),
F.S., and this rule chapter by issuing an administrative complaint, a stop-sale
order, or stop-use order, notice of non-compliance, permit suspension or
revocation, or an immediate final order for violations of Chapter 500, section
581.217(7),
F.S. and this rule chapter.
(3)
Stop-Sale, or Stop-Use Orders. The Department shall issue a Stop-Sale, or
Stop-Use Order FDACS-14215, (Rev. 04/19), as provided in Section
500.172, F.S., whenever
necessary to effectuate the statutory duties of the Department in the interest
of public health, safety, and welfare and as necessary to promote the safety of
any food product, food-processing equipment, or areas within an entity
operating as a Food Establishment in Florida. A Stop-Sale, or Stop-Use Order
14215, (Rev. 04/19), will be used to give notice that such a product,
processing equipment or area is, or is suspected of, failing to comply with the
requirements of Chapter 500, section
581.217(7),
F.S., or this rule chapter, and shall prohibit the removal, use, or disposal of
such item. The Stop-Sale, or Stop-Use Order FDACS-14215, (Rev. 04/19), is
incorporated by reference and avilable online at
http://www.flrules.org/Gateway/reference.asp?No=Ref-11722.
(4) 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.
(5) 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.
(6)
Aggravating and Mitigating Factors. The Department will consider aggravating
and mitigating factors in determining penalties for violations of Chapter 500,
section 581.217(7),
F.S. and this rule chapter. The factors shall be applied against each single
count of the listed violation.
(a)
Aggravating Factors:
1. The violation caused,
or has the potential to cause, harm to the public and the degree or extent of
such harm.
2. The violation
endangered the public safety or welfare.
3. Previous violations for the same or a
similar offense that resulted in enforcement action, defined as follows:
a. First Offense. A violation of any law
subject to penalty under Chapter 500, or section
581.217(7),
F.S., when no disciplinary administrative complaints involving the same
permitholder have been filed with the Agency Clerk within the three years
preceding the date the current administrative complaint is issued.
b. Second Offense. A violation of any law
subject to penalty under Chapter 500, or section
581.217(7),
F.S., after one disciplinary administrative complaint involving the same
permitholder has been filed with the Agency Clerk within the three years
preceding the date the current administrative complaint is issued, even if the
current violation is not the same as the previous violation.
c. Third and Any Subsequent Offense. A
violation of any law subject to penalty under Chapter 500, or section
581.217(7),
F.S., after two disciplinary administrative complaint involving the same
permitholder has been filed with the Agency Clerk within the three years
preceding the date the current administrative complaint is issued, even if the
current violation is not the same as the previous
violation.
4. The
violation history over the past three years.
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. Whether the
violation resulted from negligence or an intentional act.
8. The cost of enforcement action.
9. The number of other violations proven in
the same proceeding.
10. The
benefit to the violator.
(b) Mitigating Factors:
1. Any documented efforts by the violator at
rehabilitation.
2. Whether
intentional actions of another party prevented the violator from complying with
the applicable laws or rules.
3.
Acts of God or nature that impaired the ability of the violator to comply with
Chapter 500, section 581.217(7),
F.S., or this rule chapter.
4. The
violation has a low risk of, or did not result in, harm to the public health,
safety, or welfare.
5. The
disciplinary history of the violator.
6. The violator expeditiously took
affirmative or corrective action after it received written notification of the
violation to rectify any financial damage or harm to the public.
7. If a repeat violation, whether three years
has passed since the prior violation.
(7) 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.
(8) 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.
(9) Penalties.
(a) Minor Violation. Any Department
investigation or inspection which reveals 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
Non-Compliance 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. Violations to subsection
5K-4.002(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
subsection 5K-4.002(2),
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.
3. Violations to
subsection 5K-4.002(3),
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.
4. Violations to
subsection 5K-4.002(4),
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.
5. Violations to Rule
5K-4.004, 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.
6. Violations to subsection Rule
5K-4.0041, 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.
7. Violations to Rule
5K-4.0050, 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.
8. Violations to Rule
5K-4.023, 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.
(b) Major Violations. Any violation of
Chapter 500, section 581.217(7),
F.S., or this rule chapter that may result in economic or physical harm to a
person or may adversely affect the public health, safety, or welfare or creates
a significant threat of such harm shall be considered a major violation. Major
violations shall result in the issuance of a stop-sale or stop-use order and an
administrative fine of $500 up to the statutory maximum, or any combination
thereof. Aggravating factors, as defined in paragraph (6)(a) of this rule shall
warrant the adjustment of the fine upward per violation per aggravating factor
and mitigating factors, as defined in paragraph (6)(b) of this rule, shall
warrant the adjustment of the fine downward per violation per mitigating
factor, but no fine shall exceed the statutory maximum as outlined in section
570.971, F.S., as applicable.
If, three years after the day of the last violation under Chapter 500, section
581.217(7),
F.S., or this rule chapter, no new violation has occurred, all previous fines
shall be disregarded when administering a fine for the next violation. For the
purposes of this rule, the following violations shall be considered major
violations:
1. Operating a Food Establishment
with no hot water available.
2.
Operating a Food Establishment while hot water is available, but the source is
turned off.
3. Failure to provide
copies of required microbiological and/or chemical analysis for
review.
4. Operating a Food
Establishment without the required service sink or curbed cleaning
facility.
5. Failure to have an
adequate or accurately maintained process control system including Hazards
Analysis and Critical Control Points (HACCP), scheduled process, food safety
plan, or any such other requirement in provided in by Rule
5K-4.002, F.A.C.
6. Failure to follow process control system
such as, but not limited to, Hazards Analysis and Critical Control Points
(HACCP), scheduled process, food safety plan, or any such other requirement
provided in Rule 5K-4.002, F.A.C.
7. The manufacture, sale or delivery, holding
or offering for sale any food that is deemed adulterated, as outlined in
Section 500.10, F.S.
8. The manufacture, sale or delivery, holding
or offering for sale any food that is misbranded as provided in Section
500.11, F.S., or in 21 CFR Part
101 as incorporated in Rule
5K-4.002, F.A.C.
9. Transporting food under conditions which
may render the food to be deemed adulterated, as provided in Section
500.10, F.S.
10. Transporting food in a vessel
contaminated by any substance that may pose a threat to human health as
provided in Section 500.165, F.S.
11. Packaged ice found in violation of
subsection 5K-4.023(5),
F.A.C.
12. Vended water or ice
sample found positive for coliforms or E. coli.
13. The presence of a pathogenic Escherichia
Coli, Salmonella Enterica, or Listeria Monocytogenes found in the environment
of a Food Establishment in a location where contamination of food is likely to
occur from the presence of the organism(s). In case of such violation, a
stop-use order(s) shall be issued and shall not be released by the Department
until the Food Establishment has cleaned and/or repaired the affected areas and
all test results following environmental sampling are observed by the
Department and reported as "negative" from an ISO (International Organizaiton
of Standardization) 17025 based accrediated laboratory certified to conduct
testing for the microorganism of concern. Any and all cleaning, repairs,
environmental sampling and testing shall be at the expense of the
facility.
14. Violation of 21 CFR
Part 117.20, as incorporated in Rule
5K-4.002, F.A.C. Sewage is not
conveyed to the point of disposal through an approved sanitary sewage system or
another system constructed, maintained, and operated according to law, which
may result in a way that a public health hazard or nuisance is
created.
15. Violation of 21 CFR
Part 117.20, as incorporated in Rule
5K-4.002, F.A.C. Premises are
not maintained free of roaches and rodents.
16. Violations that result in a second and
any subsequent minor violation within a three-year period.
17. The receipt of two or more consecutive
inspection reports not meeting requirements.
18. The receipt of an inspection report not
meeting inspection requirements, followed by an inspection report meeting
inspection requirements, followed by an inspection report not meeting
inspection requirements, within a three-year period.
19. The person-in-charge does not exclude or
restrict a food employee from an establishment as required in section 2-201.12
of the Food Code incorporated by reference in Rule
5K-4.002, F.A.C.
20. The misbranding of species
identification.
21. Refusal to
permit entry or inspection during operating hours as required by Section
500.147, F.S.
22. Operating as a Food Establishment without
a valid food permit as provided in Section
500.12, F.S.
23. Failing to notify the Department within
30 days after closure or dissolution of the business in violation of subsection
5K-4.020(7),
F.A.C.
24. Any violation requiring
an Immediate Final Order, as authorized by Chapter 500,
F.S.
(10)
Willful Violations. Willful violations shall result in the imposition of an
administrative fine of $5, 000 per violation, permit suspension, or permit
revocation or any combination thereof. The following shall constitute a willful
violation:
(a) The unauthorized breaking,
cutting, or removal of any seal or tag applied by the Department.
(b) The sale or distribution, or offering for
sale or distribution, of any commodity under stop sale order unless done so
within the parameters of a conditional release.
(c) The use of any equipment under stop-use
order unless done so within the parameters of a conditional release.
(d) Failure to comply with conditions
stipulated in a release of a stop-sale, and/or stop-use order.
(e) The introduction of adulterated or
misbranded products into commerce.
(f) The failure to comply with either a Final
Order, Immediate Final Order, or a Default Final Order of the
Department.
(g) Operating a Food
Establishment that has been deemed an imminent threat to the public health,
safety, and welfare by the Department for failure to comply with Chapter 500,
F.S., this rule, and/or Rule Chapter 5K-4, F.A.C.
(h) The falsification of any records required
under Chapter 500, F.S. this rule, and/or Chapter 5K-4,
F.A.C.
(11) Resolution Of
Violations, Settlement, And Additional Enforcement Remedies.
(a) The Department and person(s) charged with
a violation may agree to resolve violations prior to an administrative hearing
or enter into settlement pursuant to Section
120.57(4), F.S.
The penalties addressed in this rule chapter shall not be construed to limit
the authority of the Department to resolve 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 compliance including
administrative action, civil actions, settlements, 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 500,
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 equal to the maximum
amount possible, not to exceed $5, 000 per violation.
(c) A violator's failure to comply with
either a Final Order or a Default Final Order of the Department shall result in
additional enforcement actions as authorized by law.
(d) Fines resulting from multiple violations
or Final Orders shall be assessed cumulatively.
Notes
Rulemaking Authority 500.09, 500.12, 570.07(23), 581.217(12) FS. Law Implemented 500.04, 500.09, 500.121, 500.171, 500.172, 500.173, 500.174, 500.177, 581.217(7), FS.
New 3-16-20, Amended 11-20-23.
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