5J-23.003. Guidelines for Imposing Administrative Penalties

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Sections 501.91-501.923, 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 issuance of the stop sale order. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed. The guidelines in this rule 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 Sections 501.91-501.923, F.S., and this rule chapter by issuing a stop sale order and administrative complaint, if applicable, for violations of Sections 501.91-501.923, F.S., and this rule chapter.

(3) Nothing in this rule 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 Sections 501.91-501.923, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors shall include:

1. The violation caused or has the potential to cause harm to a person or property.

2. The violation endangered the public safety or welfare.

3. Previous enforcement actions for the same or a similar offense.

4. The disciplinary history of the violator, including any disciplinary action imposed in this or any other jurisdiction.

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. Failure to take or initiate affirmative or corrective action within 48 hours after receipt of the stop sale order for the violation.

8. The violation resulted from an intentional act.

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

10. 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. Documented financial hardship.

4. Acts of God or nature that impaired the ability of the violator to comply with Sections 501.91-501.923, F.S. or this rule chapter.

5. The violator took or initiated affirmative or corrective action within 48 hours 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.

6. The disciplinary history of the violator.

7. If a repeat violation, three years have passed since the prior violation.

8. A statement, in writing, provided to the department declaring acceptance of responsibility for a violation.

(6) Penalties.

(a) Minor Violations. Minor violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in Rule 5J-22.003, F.A.C. For the purposes of this rule, first time violations of Section 501.918 (5), (6), (7), or (8), F.S., shall be considered minor violations.

(b) Major Violations: Tier I. – A Tier I violation shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in Rule 5J-22.003, F.A.C. If a second Tier I violation is discovered within a three-year period, a $250 penalty shall be imposed. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each Tier I violation discovered thereafter. Aggravating factors, as defined in paragraph (5)(a) of this rule, 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 rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. Violations of Section 501.916, F.S.

2. Violations of Section 501.918(1), F.S.

3. Violations of Rule 5J-23.002, F.A.C. If a complete registration package has been received by the department within 30 calendar days from the date of the stop sale order, the fine shall be mitigated to a warning letter for a first-time violation by a registrant if said registrant has never previously registered products subject to Section 501.913, F.S. Subsequent violations by the same registrant for any brand within a three-year period shall not be mitigated under these provisions.

(c) Major Violations: Tier II. A Tier II violation shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in Rule 5J-22.003, F.A.C., and imposition of an administrative fine of $500 per violation, for first-time offenders of Sections 501.91-501.923, F.S. and/or rule Chapter 5J-23, F.A.C. within a three-year period. An additional penalty of $500 shall be added to the fine amount for the previous violation and imposed for each Tier II violation discovered thereafter. Aggravating factors, as defined in paragraph (5)(a) of this rule 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 rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. For the purposes of this rule, the following violations shall be considered Tier II violations:

1. Violations of Section 501.918(2), (3), (4) or (9), F.S.

2. Repeat violations, within a three-year period, of Section 501.918(5), (6), (7) or (8), F.S.

(7) 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 to enter into settlement pursuant to Section 120.57(4), F.S. The penalties addressed in this rule 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.

(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.

Rulemaking Authority 501.922, 570.07(23) FS. Law Implemented 501.913, 501.918, 501.919, 501.922, 570.971 FS. History–New 6-4-14, Formerly 5F-10.003, Amended 7-10-19.