5F-2.016. Guidelines for Imposing Administrative Penalties (Transferred)

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapter 525, F.S. The purpose of the guidelines is to give notice of the range of penalties, which normally 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. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $1,000 per violation for a first-time offender or $5,000 per violation for second-time or subsequent offender, or for a willful violation. 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 525, F.S., and this rule chapter by issuing an administrative complaint, stop sale order, and/or notice of noncompliance for violations of Chapter 525, 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 chapter 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 chapter, 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 Chapter 525, 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 a person or property 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.

4. The length of time the business has been in operation and the violation history over the past three years.

5. The violation existed for more than one month.

6. The violation was repeated within one year.

7. The violator impeded, or otherwise failed to cooperate with, the department’s inspection and/or investigation.

8. Previous disciplinary action against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.

9. Failure to take or initiate affirmative or corrective action within 48 hours after receipt of the stop sale order or within the timeframe specified on a notice of non-compliance for the violation.

10. Whether the violation resulted from negligence or an intentional act.

11. The cost of enforcement action.

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

13. 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. Financial hardship.

4. Acts of God or nature that impairs the ability of the violator to comply with Chapter 525, F.S. or Chapter 5F-2, F.A.C.

5. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare. 

6. The violator expeditiously took affirmative or corrective action after it received written notification of the violation, including costs incurred by the violator for rectifying any damage or harm to consumers vehicles and/or property.

7. The number and seriousness of the counts in the administrative complaint.

8. The disciplinary history of the person committing the violation.

9. If a repeat violation, whether three years has passed since the prior violation.

10. A statement, in writing, provided to the department declaring clear and unequivocal acceptance of responsibility for a first violation within a three-year period.

(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 violations listed in this subsection 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. For the purposes of this rule, the following violations shall result in the issuance of a notice of noncompliance:

1. Violations to subsection 5F-2.014(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 Rule 5F-7.005, F.A.C., pertaining to petroleum products and applications, 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. Misrepresentation of the price of petroleum fuel on a display, a violation of Section 531.44, F.S.

4. Violations of subsection 5F-2.005(2), F.A.C.

5. Violations of subsection 5F-2.014(3) or (4), F.A.C.

6. Violations of subsection 5F-2.001(6), F.A.C.

7. Gasoline blended with ethanol or butanol found to have an ethanol or butanol content of more than one (1.0) percent by volume below the posted ethanol or butanol content displayed on the dispenser or gasoline found to have less than one (1.0) percent by volume ethanol or butanol that is labeled as containing ethanol or butanol.

8. Diesel fuel blended with biodiesel found to have a biodiesel content of more than two (2.0) percent by volume below the posted biodiesel content displayed on the dispenser.

9. A mid-level ethanol blend found to have an ethanol content of more than five (5.0) percent by volume below the posted ethanol content displayed on the dispenser or found to have less than the amount of ethanol permitted under paragraph 5F-2.001(1)(c), F.A.C.

(b) Minor Violations. A violation of Chapter 525, F.S., or this rule chapter is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 12/12, adopted and incorporated by reference in Rule 5F-2.001, F.A.C., or the device removed from service as specified below. If a third violation within a three year period is discovered a $500 penalty shall be issued. An additional penalty of $500 shall be issued for each violation discovered within a three year period thereafter. For the purposes of this rule, the following violations shall be considered minor violations:

1. Gasoline with an octane rating difference of more than one (1.0), but not more than two (2.0) below the octane rating ((R+M)/2) displayed on the dispenser.

2. Gasoline blended with ethanol or butanol found to have an ethanol or butanol content of more than one (1.0) percent by volume, but not more than three (3.0) percent by volume, above the posted ethanol or butanol content displayed on the dispenser.

3. Gasoline found not in compliance because of a silver corrosion rating of two (2) as incorporated through the adopted version of ASTM International Designation D4814, “Standard Specification for Automotive Spark-Ignition Engine Fuel” in paragraph 5F-2.001(10)(a), F.A.C.

4. Gasoline found not in compliance from June 1 through September 15 because of a vapor pressure of up to and including 11.0 psi as incorporated through the adopted version of ASTM International Designation D4814, “Standard Specification for Automotive Spark-Ignition Engine Fuel” in paragraph 5F-2.001(10)(a), F.A.C.

5. Kerosene found not in compliance by reason of color.

6. Diesel fuel oil No. 2-D found not in compliance with the flash point standard, but above 100 °F.

7. Diesel fuel oils No. 1-D and No. 2-D found not in compliance with the ultra-low (S15) sulfur standard, but equal to or below 35 ppm sulfur.

8. A biodiesel blend found to have a biodiesel content of more than two (2.0) percent by volume, but not more than five (5.0) percent by volume, above the posted biodiesel content displayed on the dispenser.

9. A biodiesel blend (with No. 2-D diesel fuel oil) found not in compliance with the flash point standard, but above 100 °F.

10. Biodiesel and biodiesel blends found not in compliance with the ultra-low (S15) sulfur standard, but equal to or below 35 ppm sulfur.

11. Violations of paragraph 5F-2.003(6)(b), F.A.C.

12. The following violations shall result in the removal of affected equipment from service.

a. Indicator inoperable or unreadable.

b. Indicator advancing when the device is activated.

c. Air eliminator missing or inoperable.

d. Inoperative interlock.

e. Indicator movement without nozzle activation.

f. Meter over-registering more than six cubic inches.

g. Incorrect indicator.

h. Operating a meter without an appropriate security seal or improperly sealed.

i. Leaking swivel.

j. Exposed electrical wires.

k. Leaking filter.

l. Leaking impact valves.

m. Leaking vapor pump.

n. Leaking nozzle.

o. Impact valve inoperable.

p. Leaking meter.

q. Incorrect dispenser type for product being dispensed.

r. Leaking dispenser hose.

s. Violations of subsection 5F-2.005(3) or (4), F.A.C.

t. Violations of subsection 5F-2.006(1), F.A.C.

u. Any violations to subsection 5F-2.014(1), F.A.C., where the device and/or equipment is required to be immediately removed from service due to the potential for causing economic or physical harm to a person; due to the potential for adversely affecting the public health, safety, or welfare; or due to the potential to create a significant threat of such harm, if left uncorrected.

v. Any violations to Rule 5F-7.005, F.A.C., pertaining to petroleum products and applications, where the device and/or equipment is required to be immediately removed from service due to the potential for causing economic or physical harm to a person; due to the potential for adversely affecting the public health, safety, or welfare; or due to the potential to create a significant threat of such harm, if left uncorrected.

(c) Major Violations. A violation of a Chapter 525, F.S., or this rule chapter is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare or creates a significant threat of such harm. Major violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the substandard product and imposition of an administrative fine of $500 per violation for first-time offenders of Chapter 525, F.S. and/or Rule Chapter 5F-2, F.A.C., within a three-year period. An additional $500 fine shall be imposed for each subsequent violation within the three-year period, not to exceed the statutory maximum of $5,000 per violation for second-time or repeat offenders of Chapter 525, F.S. and/or Rule Chapter 5F-2, F.A.C., and as outlined in Section 525.16, F.S. Aggravating factors, as defined in paragraph (5)(a) of this section, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b) of this section, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor, but no fine shall exceed the statutory maxima as outlined in Section 525.16(1)(a), F.S. Violations consisting of water, sediment, and/or suspended matter in petroleum fuel shall be issued a $500 penalty for the first and any subsequent violation. For the purposes of this rule, the following violations shall be considered major violations:

1. Failure to meet the volatility requirements for gasoline blended with ethanol as specified in subparagraph 5F-2.001(1)(a)1. or 2., F.A.C.

2. Failure to meet the vapor pressure requirements for gasoline (including gasoline blended with oxygenates); including, if greater than 11.0 psi from the time period June 1, through September 15.

3. Failure to meet the minimum anti-knock index (AKI) or octane rating requirements for gasoline (including gasoline blended with oxygenates); specifically, gasoline found to be more than two (2) less than the posted rating.

4. Violations of paragraph 5F-2.001(1)(c), (d), or (e), F.A.C.

5. Failure to match the posted ethanol or butanol content for gasoline blended with ethanol or butanol; specifically, when the ethanol or butanol content is found to be more than three (3.0) percent by volume above the posted ethanol or butanol content (percentage by volume).

6. Failure to meet the silver corrosion standard for gasoline (including gasoline blended with oxygenates); specifically, when the rating is greater than two (2).

7. Failure to meet the flash point requirements for No. 2 diesel fuels and biodiesel blends (with No. 2 diesel fuels); specifically, when the flash point is found to be less than 100 °F.

8. Failure to meet the sulfur requirements for ultra-low sulfur diesel (ULSD) fuels and biodiesel blends (with ULSD fuels); specifically, when the sulfur content is found to be greater than 35 ppm.

9. Violations of subparagraph 5F-2.001(5)(d)2., F.A.C., pertaining to the maximum biodiesel content allowed in biodiesel blends (with diesel fuels or fuel oils).

10. Failure to match the posted biodiesel content for biodiesel blends (with diesel fuels or fuel oils); specifically, when the biodiesel content is found to be more than five (5.0) percent by volume above the posted biodiesel content (percentage by volume).

11. Any fuel found below standard by reason of containing water, sediment, and/or suspended matter.

12. Failure to meet any other requirements listed in the standards for gasoline (including gasoline blended with oxygenates), as incorporated through the adopted version of ASTM International Designation D4814, “Standard Specification for Automotive Spark-Ignition Engine Fuel” in paragraph 5F-2.001(10)(a), F.A.C., not already listed is this section.

13. Failure to meet any other requirements listed in the standards for kerosene (kerosine), as incorporated through the adopted version of ASTM International Designation D3699, “Standard Specification for Kerosine” in paragraph 5F-2.001(10)(b), F.A.C., not already listed in this section.

14. Failure to meet any other requirements listed in the standards for diesel fuel oils No. 1-D and No. 2-D, as incorporated through the adopted version of ASTM International Designation D975, “Standard Specification for Diesel Fuel Oils” in paragraph 5F-2.001(10)(c), F.A.C., not already listed in this section.

15. Failure to meet any other requirements listed in the standards for fuel oils No. 1 and No. 2, as incorporated through the adopted version of ASTM International Designation D396, “Standard Specification for Fuel Oils” in paragraph 5F-2.001(10)(d), F.A.C., not already listed in this section.

16. Failure to meet any requirements listed in the standards for denatured fuel ethanol, as incorporated through the adopted version of ASTM International Designation D4806, “Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as Automotive Spark-Ignition Engine Fuel” in paragraph 5F-2.001(10)(e), F.A.C.

17. Failure to meet any other requirements listed in the standards for Ethanol Fuel Bends (51 to 83 volume percent ethanol), as incorporated through the adopted version of ASTM International Designation D5798, “Standard Specification for Ethanol Fuel Blends for Flexible-Fuel Automotive Spark-Ignition Engines” in paragraph 5F-2.001(10)(f), F.A.C., not already listed in this section.

18. Failure to meet any other requirements listed in the standards for M85 Fuel Methanol, as incorporated through the adopted version of ASTM International Designation D5797, “Standard Specification for Fuel Methanol (M70-M85) for Automotive Spark-Ignition Engines” in paragraph 5F-2.001(10)(g), F.A.C., not already listed in this section.

19. Failure to meet any requirements listed in the standards for biodiesel fuel blend stock (or biodiesel), as incorporated through the adopted version of ASTM International Designation D6751, “Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels” in paragraph 5F-2.001(10)(h), F.A.C.

20. Failure to meet any other requirements listed in the standards for biodiesel blends (with diesel fuel), as incorporated through the adopted version of ASTM International Designation D7467, “Standard Specification for Diesel Fuel Oil, Biodiesel Blend (B6 to B20)” in paragraph 5F-2.001(10)(i), F.A.C., not already listed in this section.

21. Failure to meet any other requirements listed in the standards for biodiesel blends (with fuel oil), as incorporated through the adopted version of ASTM International Designation D396, “Standard Specification for Fuel Oils” in paragraph 5F-2.001(10)(d), F.A.C., not already listed in this section.

22. Failure to meet any other requirements listed in the standards for mid-level ethanol blends, as incorporated through the adopted version of ASTM International Designation D7794, “Standard Practice for Blending Mid-Level Ethanol Fuel Blends for Flexible-Fuel Vehicles with Automotive Spark-Ignition Engines” in paragraph 5F-2.001(10)(j), F.A.C., not already listed in this section.

23. Failure to match the posted ethanol content for mid-level blends; specifically, when the ethanol content is found to be more than five (5.0) percent by volume above the posted ethanol content (percentage by volume).

24. Violations of paragraph 5F-2.003(6)(a), F.A.C.

25. Violations of subsection 5F-2.003(7), F.A.C.

26. Violations of subsection 5F-2.003(10), F.A.C.

27. Violations of subsection 5F-2.005(5), F.A.C.

28. Violations of subsection 5F-2.014(2), F.A.C.

29. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 44, as adopted in Rule 5F-5.001, F.A.C., or NIST Handbook 130 (pertaining to petroleum measuring devices, as adopted in Rule 5F-7.005, F.A.C.) within the time period specified in a notice of non-compliance. Any device affected by a correction notice 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.

30. Failure to meet any requirements listed in the standards for butanol, as incorporated through the adopted version of ASTM International Designation D7862, “Standard Specification for Butanol for Blending with Gasoline for Use as Automotive Spark-Ignition Engine Fuel” in paragraph 5F-2.001(10)(k), F.A.C.

(d) Willful Violations. Any willful and intentional violation of Chapter 525, 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 $5,000 per violation. Willful violations shall include, but are not limited to, the following:

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

2. The sale or distribution, or offering for sale or distribution, of any petroleum fuel under stop sale order;

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

4. Violations which result from a failure to comply with a Final Order, a notice of non-compliance, a stop sale order, or any condition stipulated on a release of a stop sale order.

(9) Resolution of Violations, Settlement, and Additional Enforcement Remedies.

(a) The department and person 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 Chapter 525, 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 as allowable under Section 525.16(1)(a), F.S.

(c) A failure to comply with either a Final Order or a Default Final Order of the department shall result in any applicable registration revocation and an administrative fine equal to the maximum amount as allowable under Section 525.16(1)(a), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 525.14, 531.41, 570.07(23) FS. Law Implemented 525.16 FS. History–New 2-24-00, Amended 7-30-02, 6-1-06, 5-6-08, 1-3-10, 1-7-15.