Fla. Admin. Code Ann. R. 61B-41.002 - Purpose; General Provisions

(1) Purpose. The purpose of this rule chapter is to notify regulated parties of the guidelines and aggravating and mitigating factors that will be utilized by the division to determine penalties for specified violations of chapter 721, F.S., and where applicable, in the context of a violation of chapters 721, 468, 718 and 719, F.S., and the administrative rules promulgated pursuant to those chapters. No aggravating factor will be applied to increase a penalty for a single violation above the statutory maximum of $10, 000. The guidelines in rule 61B-41.003, F.A.C., are based upon a single count violation of each provision listed. Multiple counts of the violated provisions or a combination of the violations will be added together in determining an overall total penalty. The purpose of imposing penalties is to discipline the regulated party for violations of the statutes and to deter the regulated party from future violations; to offer opportunities for rehabilitation when appropriate; and to deter other regulated parties from violating chapters 718, 719, 721, and part VIII, chapter 468, F.S. Nothing in this rule chapter shall limit the authority of the division to informally dispose of administrative actions or complaints by stipulation or settlement agreement, or consent order.

(2) General Provisions.

(a) Violations Not All-Inclusive. Rule 61B-41.003, F.A.C., contains illustrative violations. This rule does not, and is not intended to, encompass all possible violations of statute or division rule that might be committed by regulated parties. 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 any instance where the violation is not listed in this rule, the penalty will be determined by consideration of:

1. The penalty guidelines and aggravating and mitigating factors specified in this rule; and

2. The closest analogous violation, if any, that is listed in this rule chapter.

(b) Violations Included. The rule chapter applies to all violations subject to a penalty authorized by law.

(c) Rule Encourages Settlement. Each penalty guideline listed in rule 61B-41.003, F.A.C., is the amount offered to encourage a regulated party to settle the violation with the division at the investigation stage. In most cases, these amounts have been set well-below the statutory amount of $10, 000 per violation authorized by law and do not constitute the full penalty sought by the division if further investigation and agency action is required. As with any offer of settlement, if the regulated party rejects the division's settlement offer, the division retains the authority to adjust the penalty based upon the factors listed in subsection 61B-41.002(3), F.A.C., arising out of continued prosecution of the case.

(d) Rule Establishes Norm. This rule chapter does not supersede the division's authority to additionally or alternatively suspend or revoke a developer's filing or a timeshare solicitor's license, or to order a regulated party to cease and desist from any unlawful practice, or order other corrective action in which the imposition of administrative penalties is not appropriate. For example, notwithstanding the specification of relatively smaller penalties for particular violations, the division has the authority to suspend the imposition of a penalty and impose other remedies where aggravating and/or mitigating factors warrant it. In no event will the division reduce a penalty below $1, 000, except where otherwise specified in this rule, unless the regulated party substantiates extraordinary mitigating circumstances.

(e) Description of Violations. Although the violations in rule 61B-41.003, F.A.C., include specific references to statutes and administrative rules, the violations are described in general language and are not necessarily stated in the same language that would be used to formally allege a violation in a specific case. If any statutory or rule citation in rule 61B-41.003, F.A.C., is changed, then the use of the previous statutory citation will not invalidate this rule.

(f) Relationship to Other Rules. The provisions of this chapter and any other administrative rule of the division are made applicable to a regulated party by statutory provision. For example, a condominium that is a timeshare plan is subject to chapters 718 and 721, F.S., and the rules promulgated under both of those chapters. Pursuant to section 721.03(3), F.S., where there is a conflict, chapter 721, F.S., and chapters 61B-37-61B-41, F.A.C., shall govern a timeshare condominium. Therefore, the proposed condominium educational and enforcement resolution guidelines in rules 61B-20.004, 61B-20.005, 61B-20.006, 61B-21.001, 61B-21.002, and 61B-21.003, F.A.C., and the proposed cooperative educational and enforcement resolution guidelines in rules 61B-77.001, 61B-77.002, 61B-77.003, 61B-78.001, 61B-78.002, and 61B-78.003, F.A.C., shall not apply to timeshare condominiums or timeshare cooperatives.

(g) Other Regulated Parties. The imposition of a penalty upon any regulated party in accordance with this rule chapter shall in no way be interpreted as barring the imposition of a penalty upon any other regulated party in connection with the same conduct.

(3) Aggravating and Mitigating Factors. The division will consider aggravating and mitigating factors in determining the penalties for violations listed in this rule chapter and impose any penalty authorized under section 721.26(5)(e), F.S., upon consideration of one or more of the following factors. The factors are not necessarily listed in order of importance and shall be considered either aggravating or mitigating for each separate violation, unless otherwise specified. Each factor will increase or decrease the total amount of the penalty guideline as provided in rule 61B-41.003, F.A.C., by an amount ranging between $0 to a $1, 000.

(a) Willfulness and actual knowledge of the violation, which shall be considered solely as an aggravating factor.

(b) Whether the violation was technical or substantive and the degree of harm or potential harm to the prospective purchaser, actual purchaser, or public.

1. The technical nature of a violation shall be viewed solely as a mitigating factor;

2. The substantive nature of a violation shall be viewed solely as an aggravating factor; and

3. The degree of harm or potential harm to the prospective purchaser, actual purchaser, or public shall be viewed solely as an aggravating factor.

(c) Degree to which the violation, if not detected, tends to undermine the timesharing and tourism industries in this state or the division's regulatory authority, which shall be viewed solely as an aggravating factor.

(d) Whether the regulated party should have known the conduct or failure to act was unlawful.

(e) Corrective activities that are initiated after the violation or possibility of violation is formally or informally noted or brought to the attention of the party by the division. The division is not precluded from assessing a penalty for violations for which successful corrective activities were actually and substantially initiated (not just planned) and implemented by the regulated party before the violation was noted by or brought to the attention of the division, and before the regulated party was made aware that the division was investigating the alleged violation, which shall be viewed solely as a mitigating factor.

(f) Whether the regulated party brought the violation to the division's attention and initiated corrective activity without division intervention, which shall be viewed solely as a mitigating factor.

(g) Financial gain or hardship to the regulated party subject to the penalty.

1. Financial gain to the regulated party shall be viewed solely as an aggravating factor; and

2. Financial hardship to the regulated party shall be viewed solely as a mitigating factor.

(h) Financial gain or loss to parties or persons affected by the violation.

1. Financial loss to parties or persons affected by the violation shall be viewed solely as an aggravating factor; and

2. Financial gain to parties or persons affected by the violation shall be viewed solely as a mitigating factor.

(i) Degree of cooperation of the regulated party with the division in remedying the violation including any restitution and payment of damages to affected persons or entities.

(j) The disciplinary history of the regulated party in this or any jurisdiction, including such action resulting in settlement, or pending resolution which shall be viewed solely as an aggravating factor.

(k) If the prior violation is a repeat violation of the same statute or administrative rule, the penalty will generally be increased.

(l) Whether multiple violations are involved. For purposes of this rule and application of the penalties, penalties for such separate violations are cumulative and may be consecutive, to the extent provided in section 721.26(5)(e), F.S., notwithstanding that the violations are of the same statutory provision.

(m) The number of consumer complaints filed, which shall be viewed solely as an aggravating factor.

(n) Whether the violation also constitutes fraud on purchasers, a tort or any other violation of civil law, which shall be viewed solely as an aggravating factor.

(o) Whether the violation also constitutes a violation of a chapter other than chapter 721, F.S., or the administrative rules governing timesharing. For example, a managing entity performing community association management for a timeshare plan must comply with chapter 721 and part VIII of chapter 468, F.S., which shall be viewed solely as an aggravating factor.

(p) Circumstances leading to the initiation of the investigation and the circumstances under which the violation was committed.

(q) Legal status of the regulated party at the time of the offense, and, if applicable, corporate status, licensing status, and any changes in status.

(r) The number of charges or separate violations established, which shall be viewed solely as an aggravating factor.

(s) The length of time since the violation occurred. The duration of the violation. The length of time the regulated party has been involved in the timesharing industry in this or any other jurisdiction. The length of time since a prior violation occurred.

(t) Filing or causing to be filed any materially incorrect affidavit, license application, escrow agreement, financial report, public offering statement, or any other document required to be filed with the division or filed in response to a request or subpoena, which shall be viewed solely as an aggravating factor.

(u) Whether the regulated party is a small business, which shall be viewed solely as a mitigating factor.

(v) Acts of God or nature, which shall be viewed solely as a mitigating factor.

(w) Whether the regulated party is a unit-owner controlled association that directly manages the daily operation of the association without the assistance of a non-unit owner licensed community association manager or managing entity. The provisions of this subsection will be viewed solely as a mitigating factor.

(4) The provisions of this section shall not be construed so as to prohibit or limit any other civil or criminal prosecution that may be brought.

(5) The imposition of a civil penalty does not preclude the division from imposing additional sanctions provided under chapter 721, F.S.

(6) In addition to the penalties established in this rule, the division shall seek to recover the costs of investigation, any other costs, penalties, attorney's fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the division shall seek to recover any costs, penalties, attorney's fees, court costs, service fees, collection costs, and damages imposed by law when a regulated party submits a bad check to the division.

Notes

Fla. Admin. Code Ann. R. 61B-41.002

Rulemaking Authority 721.03(3), 721.26(6) FS. Law Implemented 57.111, 68.065, 86.081, 120.595, 120.69, 721.03(3), 721.20(2)(d), 721.26(5)(e) FS.

New 2-4-98.

New 2-4-98.