These proposed rules are for the purpose of specifying penalties to be assessed for violations of laws, rules and regulations and to ensure uniformity in the application of such penalties.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Standards

RULE NO: RULE TITLE
5F-11.022: Marking of Containers
5F-11.026: Unsafe Container or System
5F-11.047: Connecting or Disconnecting Cylinders, Tanks, or Systems; Notice to Owner; Transportation
5F-11.080: Administrative Penalties and Enforcements - Purpose.
5F-11.081: Aggravating and Mitigating Factors.
5F-11.082: Default Final Orders.
5F-11.083: Repeat Violations.
5F-11.084: Notice of Noncompliance; Failure to Correct.
5F-11.085: Accident Related Violations.
5F-11.086: Hazardous Acts.
5F-11.087: Specific Violations; Enforcement Actions.
5F-11.088: Violations; Enforcement Actions
PURPOSE AND EFFECT: These proposed rules are for the purpose of specifying penalties to be assessed for violations of laws, rules and regulations and to ensure uniformity in the application of such penalties.
SUMMARY: These proposed rules provide guidelines for the application of administrative and civil penalties as provided for in Chapter 527, Florida Statutes. Specific guidance is provided for commonly found violations and for those which constitute a hazard to the public health and welfare.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 527.06 FS.
LAW IMPLEMENTED: 527.06, 527.09, 527.12, 527.13, 527.14 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: March 10, 2008, 9:00 a.m.
PLACE: Eyster Auditorium, 3125 Conner Blvd., Tallahassee, FL 32399
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Vicki O’Neil, Bureau Chief, Bureau of LP Gas Inspection, 3125 Conner Blvd., Suite N, Tallahassee, Florida 32399-1650, telephone: [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Vicki O'Neil, Bureau Chief, Bureau of LP Gas Inspection, 3125 Conner Blvd., Suite N, Tallahassee, Florida 32399-1650, telephone: [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

5F-11.022 Marking of Containers.

(1) All dealer-owned containers, aboveground or underground, installed at consumer locations shall be marked in a legible manner with the name and telephone number of the owner by decal, tag, stencil, or similar marking.

(2) Containers gained through acquisition shall be marked as soon as reasonably possible, but no later than 24 months after acquisition.

(3) Failure to mark all dealer-owned containers in a legible manner with the name and phone number of the owner shall result in the following penalties:

(a) First Offense: Warning letter.

(b) Second Offense: $500 fine.

(c) Subsequent Offenses: $1,000 fine.

Specific Authority 527.06 FS. Law Implemented 527.06 FS. History– New 8-7-80, Formerly 4A-1.16, Formerly 4B-1.12, 4B-1.012, Amended 3-15-94,_________.

 

5F-11.026 Unsafe Container or System.

(1)(a) Any system or container that fails to comply with Chapter 527, F.S., this rule chapter, and any standards incorporated by reference shall be designated unsafe by division staff by means of a “red tag” indicating the inspector’s name and the date of inspection where the violation creates an immediate threat to safety.

(b) Systems identified by the bureau in this manner, i.e. red-tagged, shall not continue in service until all deficiencies have been corrected.

(2) The owner of any container or system red-tagged by the division will be notified immediately by the bureau and furnished a copy of the inspection report indicating the deficiencies found.

(3)(a) A red tag placed on a system or container shall not be removed until all inspection deficiencies have been corrected and the bureau or its representative removes or authorizes removal of the red tag from the system or container. Removal of a redtag without authorization of the department shall result in the following penalties:

1. First Offense, Cylinder Exchange: $1,000 fine.

2. First Offense – all other license categories: $3,000 fine.

3. Second Offense: License suspension or revocation (mitigating and/or aggravating circumstances to be a determinant).

(b) The red tag must be returned to the bureau immediately upon removal.

Specific Authority 527.06 FS. Law Implemented 527.06 FS. History– New 3-15-94, Formerly 4B-1.037, Amended 7-20-95,_________.

 

5F-11.047 Connecting or Disconnecting Cylinders, Tanks, or Systems; Notice to Owner; Transportation.

(1) No person, firm or corporation, other than the owner and those authorized by the owner, shall connect or disconnect any cylinder, tank, or system containing liquefied petroleum gas, except in an out-of-gas situation, unless due and sufficient notice has been given by any person, firm or corporation to the owners of any cylinder or tank, prior to disconnecting or connecting such cylinder, tank, or system. Due and sufficient notice shall be received by the owners at least two (2) working days prior to installing the cylinder, tank, or system of said person, firm, or corporation, and shall be evidenced by a signed receipt. Acceptable evidence of receipt of notification shall be a signed certified mail receipt, signed receipt of hand delivery or facsimile transmission receipt. If after two working days the cylinder, tank or system has not been disconnected by the owner, the said person, firm or corporation, may then disconnect downstream of the system regulator or meter. It shall be mandatory that the person, firm or corporation who so disconnects any such cylinder or tank, whether empty or full, upon the premises of a consumer, does so in a manner that renders the cylinder or tank tight with valves turned off, the cylinder or tank service valve plugged with brass or steel fittings, and all other cylinder, tank or system openings properly plugged. In addition, any cylinder, tank or system disconnected must be done so in a manner that is in compliance with the requirements of NFPA 58.

(2) In an out-of-gas situation and upon receiving authorization from the end user or owner of the cylinder, tank or system, the person, firm or corporation may disconnect the cylinder, tank or system downstream of the system regulator or meter. A person, firm or corporation who disconnects any cylinder, tank or system shall notify the owner of the cylinder, tank or system immediately, but not to exceed 24 hours, followed by written notification within 5 working days after said disconnect. Acceptable evidence of receipt of notification shall be a signed certified mail receipt, signed receipt of hand delivery or facsimile transmission receipt.

(3) The owner of any disconnected cylinder, tank or system must remove the cylinder or tank from the premises of the consumer or end-user within 30 working days after notification. No person, firm or corporation, other than the owner and those authorized to do so, shall transport or carry by any means of conveyance whatsoever, any cylinder or tank containing liquefied petroleum gas, whether in the liquid or vapor state. Failure to remove a disconnected cylinder, tank or system from the premises of the consumer or end-user within 30 working days from the notice of disconenction shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$1,500 administrative fine.

(d) Subsequent Offenses:$3,000 with possible license suspension or revocation

(4) Complaints concerning violations of this section must be filed within 90 days of the occurrence.

(5) Connecting or disconnecting a cylinder, tank or system without proper notification as prescribed in this section will result in the following penalties:

(a) First Offense:$500 fine.

(b) Second Offense:$1,000 fine.

(c) Third Offense:$1,500 fine.

(d) Fourth Offense:$2,000 fine

(e) Fifth Offense:$2,500 fine.

(f) Subsequent Offenses:$3,000 fine with possible license suspension or revocation.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.07 FS. History–New 8-7-80, Formerly 4A-1.11, Amended 7-18-85, Formerly 4B-1.08, Amended 2-6-90, 2-5-91, Formerly 4B-1.008, Amended________.

 

5F-11.080 Purpose.

The purpose of these rules is to ensure uniform enforcement of regulatory requirements by providing penalty guidelines for specific violations not addressed elsewhere in rule or law. It is the policy of the State of Florida that the purpose of regulation is to protect the public by attaining compliance with these laws, rules and regulations. The collection of administrative fines and the imposition of penalties are intended to be secondary to the primary goal of attaining compliance and ensuring the safety of the public.

Specific Authority 527.06 FS. Law Implemented: 527.06, 527.12, 527.13, 527.14, FS. History–New_________.

 

5F-11.081 Penalties; General.

(1) The Department will apply one or more of the following penalties for violations of Chapter 527, Florida Statutes, or Chapter 5F-11, Florida Administrative Code, or codes adopted therein:

(a) Denial of an application for licensure or license renewal and/or qualifier/master qualifier status.

(b) Revocation of license, qualifier card or master qualifier certificate (not to exceed a 2-year period).

(c) Suspension of license, qualifier card or master qualifier certificate (not to exceed a 2-year period).

(d) Administrative fines or civil penalties of up to $3,000 for each offense.

(e) Injunction to temporarily or permanently restrain any person from engaging in business until compliance is achieved.

(f) Cease and Desist Order (may include an administrative fine or civil penalty).

(g) Red tagging of any equipment which has been determined to be unsafe for continued use until violations are corrected or equipment has been removed or otherwise made safe.

(h) Warning letters may be issued for first violations which are minor in nature and do not constitute a threat to the public health, safety or welfare.

(i) If inadequate training is found during an investigation where any violation has occurred, the department shall require remedial training as a part of any administrative action taken.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New _________.

 

5F-11.082 Aggravating and Mitigating Factors; Warning Letters.

(1) When imposing an administrative fine, the Department will consider the degree and extent of harm or potential harm that was, or could have been, caused by the violation, the cost of rectifying the damage, whether the violation was committed willfully, the compliance record of the violator, and the costs to the Department of investigating the violation.

(2) Any department investigation or inspection which reveals minor violations for which the department has reason to believe that the violator was unaware of the law or rule or unclear as to how to comply with it, may result in the issuance of an inspection report, notice of noncompliance or a warning letter as the department's first response to a violation. For the purposes of this section a minor violation includes, but is not limited to, general violations of a non-threatening nature, i.e. housekeeping issues such as a lack of proper signage, painting required, weeds growing around containers, storage of combustibles too close to a container, or failure to file proper paperwork.

(3) The department may deviate from the penalties reference in this rule and impose any penalty authorized under Section 527, F.S., upon a showing of one or more of the following aggravating or mitigating circumstances presented to the finder of fact:

(a) The violation was committed maliciously.

(b) The danger to public safety or welfare.

(c) The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

(d) The length of time the violator engaged in the prohibited activity.

(e) The length of time since the violation occurred.

(f) Previous disciplinary action against the violator in this or any other jurisdiction.

(g) The amount of damage to persons or property caused by the violation.

(h) The deterrent effect of the penalty imposed.

(i) Any efforts by the violator at rehabilitation.

(j) Attempts by the violator to correct violations or the failure to correct violations.

(k) The violator’s prior knowledge of Chapter 527, F.S.

(l) Whether the violation resulted from negligence or an intentional act.

(m) Financial hardship.

(n) The cost of disciplinary proceedings.

(o) The number of other violations proven in the same proceeding.

(p) The violation occurred while on probation.

(q) Any other aggravating or mitigating circumstances.

(6) The provisions of this rule are not intended and shall not be construed to limit the ability of the division to informally dispose of disciplinary actions by stipulation, settlement or consent order pursuant to Section 120.57(3), F.S.

(7) The provisions of this rule are not intended and shall not be construed to limit the ability of the Department to pursue or recommend collateral civil or criminal action when appropriate.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New _________.

 

5F-11.083 Resolution of Violations, Settlement, and Additional Enforcement Remedies.

(1) The Department and the violator may agree to resolve violations prior to administrative hearing, or to enter into settlement pursuant to Section 120.57(4), Florida Statutes. 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. The Department may utilize all available remedies to ensure voluntary compliance including administrative action, civil actions and referrals for criminal prosecution. The willingness of a party to resolve violations prior to initiation of administrative action or to settle shall be considered in determining the appropriate penalty. 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/or as authorized by law.

(2) Failure to respond to an administrative complaint shall result in the entry of a Final Order against the entity imposing administrative fines equal to twice the amount imposed in the original complaint, not to exceed $3,000 per violation. A failure to comply with a Final Order of the department shall result in license revocation and additional penalties as prescribed by law.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New_________.

 

5F-11.084 Repeat Violations.

(1) A repeat violation is one for which the license holder has a previous violation where an administrative sanction was imposed by the Department within the last three years. The three-year period shall be calculated from the date of the violation.

(2) Unless otherwise specified herein, any person, firm or corporation who accumulates more than three administrative fines for violations of Florida’s laws, rules, regulations or codes within a three-year period, shall receive a $3,000 penalty for each subsequent action, and, based on the nature and severity of the cumulative deficiencies, shall be subject to license suspension or revocation, as provided for in Section 521.14, F.S.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New _________.

 

5F-11.085 Notice of Noncompliance; Failure to Correct.

Failure to correct rule or code deficiencies identified in a Notice of Noncompliance within the time period specified by the notice shall result in the following penalties unless otherwise specified herein:

(1) First offense:Administrative fine of $500.

(2) Second offense:Administrative fine of $1,000.

(3) Third offense:Administrative fine of $1,500.

(4) Subsequent offenses:Administrative fine of $3,000.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New_________.

 

5F-11.086 Accident Related Violations.

(1) Violations found during the course of an accident investigation by the Department and that are determined to have contributed to the severity of the accident but were not a direct cause, shall result in the following penalties:

(a) Death, severe personal injury requiring professional medical treatment, or a total loss of property: $1,500 administrative fine per violation.

(b) Minor personal injury not requiring professional medical attention, or property damage over $1,000 that is not a total loss: $1,000 administrative fine per violation.

(c) Property damage of less than $1,000: $500 administrative fine per violation.

(2) Violations found during the course of an accident investigation that are determined to be a direct cause of the accident shall result in the following administrative fines:

(a) Death, severe personal injury requiring professional medical treatment, or a total loss of property: $3,000 administrative fine per violation.

(b) Minor personal injury not requiring professional medical attention, or property damage over $1,000 that is not a total loss: $2,000 administrative fine per violation.

(c) Property damage of less than $1,000: $1,000 administrative fine per violation.

(3) Any company found to be operating without a license and whose unlicensed activities result in an accident, shall receive an administrative fine of $3,000 for each violation found which contributed to the severity of, or is found to be the direct cause of the accident.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New _________.

 

5F-11.087 Hazardous Acts.

Any department investigation or inspection conducted under the authority of Chapter 527, Florida Statutes, which reveals willful or intentional violation of the law, or any acts on the part of a person, firm, corporation, qualifier or master qualifier which are considered dangerous, hazardous or potentially harmful in any way, shall result in the maximum penalties of $3,000 per violation, with the consideration of license, qualifier or master qualifier certificate suspension or revocation. In determining license, qualifier or master qualifier certificate suspension or revocation, the department shall consider the offenders compliance record, good faith efforts in correcting the situation, the degree and extent of harm or potential harm, and other mitigating or aggravating circumstances as determined during investigation.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New________.

 

5F-11.088 Violations; Enforcement Actions.

(1) Conducting LP gas activities without the required insurance coverage in violation of Sections 527.02 and 527.04, Florida Statutes, shall result in the following penalties:

(a) First offense:$500 administrative fine.

(b) Second offense:$1,000 administrative fine.

(c) Subsequent Offenses:$1,500 administrative fine.

(2) Falsification of records relating to application for, or renewal of, qualifier or master qualifier status, including but not limited to misrepresentation of eligibility, of position within the licensed company, or place of full-time employment, shall result in the following penalties:

(a) First Offense:Warning letter.

(b) Second Offense:$1,000 administrative fine.

(c) Subsequent Offenses:              $3,000 administrative fine with possible revocation or suspension of qualification.

(3) Failure to notify the department of a loss of qualifier or master qualifier in violation of Section 527.0201, Florida Statutes, shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$3,000 administrative fine.

(d) Subsequent Offenses: $3,000 administrative fine with possible license suspension or revocation and/or possible suspension or revocation of qualification or denial of qualifier/master qualifier renewal.

(4) Any company found to be operating without a license and whose unlicensed activities result in an accident, shall be fined $3,000 per violation found. Companies found conducting unlicensed activities in the following categories, when such activities are not accident related, shall be penalized as follows:

(a) Categories I, II, IV, and Requalification and Fabrication

1. First offense:$500 administrative fine.

2. Second offense:$1,000 administrative fine.

3. Subsequent Offenses:$1,500 administrative fine.

(b) Installer and Specialty Installer Licenses

1. First offense:$400 administrative fine.

2. Second offense:$800 administrative fine.

3. Subsequent Offenses:$1,200 administrative fine

(c) Category III, V, and Manufacturer of Equipment

1. First offense:$300 administrative fine.

2. Second offense:$600 administrative fine.

3. Subsequent Offenses:$900 administrative fine

(d) Dealer in Appliances and Equipment

1. First offense:$200 administrative fine.

2. Second offense:$400 administrative fine.

3. Subsequent Offenses:$600 administrative fine

(5) Failure to provide documentation of employee training upon request shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$1,500 administrative fine.

(d) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(6) Filling a container without inspection or verification of compliance with codes shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$3,000 administrative fine with possible license suspension or revocation.

(7) Transportation of propane cylinders in violation of the requirements of NFPA 58, shall result in the following penalties:

(a) First Offense:$1,000 administrative fine.

(b) Second Offense:$2,000 administrative fine.

(c) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(8) Failure to install LP gas appliances, piping, equipment in accordance with manufacturers instructions and/or adopted safety codes; or to install, disconnect, and/or store LP gas containers in accordance with rules and adopted safety codes, when such installation causes direct or potential harm to individuals or property, shall result in the following administrative fines:

(a) First Offense:$1,000 administrative fine.

(b) Second Offense:$2,000 administrative fine.

(c) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(9) Failure to follow proper fill procedures, including overfilling of propane containers, shall result in the following penalties:

(a) First Offense:$1,000 administrative fine.

(b) Second Offense:$2,000 administrative fine.

(c) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(10) Failure to perform and/or document periodic testing required on propane cargo vehicles within the time frames prescribed by Title 49, Code of Federal Regulations, as referenced in NFPA 58, shall result in the following penalties for the referenced inspection:

(a) Annual External Visual and Leak Test:

1. First Violation:$500 per vehicle

2. Second Violation:$1,000 per vehicle

3. Subsequent Offenses:$3,000 per vehicle

(b) Five-Year Cargo Vessel Pressure Test

1. First Violation:$500 per vehicle

2. Second Violation:$1,000 per vehicle

3. Subsequent Offenses:$3,000 per vehicle

(c) Monthly Delivery Hose Inspection

1. First Violation:$500 per vehicle

2. Second Violation:$1,000 per vehicle

3. Subsequent Offenses:$3,000 per vehicle

(d) Monthly Emergency Shutoff Valve Test

1. First Violation:$500 per vehicle

2. Second Violation:$1,000 per vehicle

3. Subsequent Offenses:$3,000 per vehicle

(11) The intentional alteration or disabling of any component in an LP gas system, including the container and its appurtenances, which either renders the equipment out of compliance with adopted laws, rules and codes, or which renders the component inoperable, or prevents it from functioning as intended by the equipment manufacturer, shall result in the following penalties:

(a) First Violation:$1,000 administrative fine

(b) Second Violation:$3,000 administrative fine

(c) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(12) Failure to conduct a leak test in a new piping system, or in an out-of-gas or interrupted service situation, as required by NFPA 54 and Rule 5F-11.044, F.A.C., shall result in the following penalties:

(a) First Offense:$1,000 administrative fine.

(b) Second Offense:$2,000 administrative fine.

(c) Subsequent Offenses:$3,000 with possible license suspension or revocation.

(13) Failure to respond to a verifiable leak call within a reasonable time period (non-accident related) or failure to physically respond to an emergency within 2 hours when contacted by an emergency response unit as required by Sections 527.065(4) and 527.065(5)], Florida Statutes, shall result in the following penalties:

(a) First Offense:$1,000 administrative fine.

(b) Second Offense:$3,000 administrative fine.

(c) Third Offense:$3,000 administrative fine with possible license suspension or revocation.

(14) Failure to provide local emergency response personnel with emergency contacts for after-hour emergencies; failure to post emergency numbers on the premises; or failure to relay messages on emergency answering services or machines within time frames as required by Section 527.065(3), Florida Statutes, shall result in the following penalties:

(a) First Offense:Warning letter.

(b) Second Offense:$500 administrative fine.

(c) Third Offense:$1,000 administrative fine.

(d) Subsequent Offenses:$3,000 administrative fine with possible license suspension or revocation.

(15) Failure to notify the department of any accident meeting the criteria of Section 527.065, Florida Statutes, shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 upon second violation.

(c) Third Offense:$3,000 administrative fine.

(16) Selling, filling, refilling, delivering, or using an LP gas container for any gas or compound, or for any other purpose, without permission of the owner, in violation of Section 527.07, Florida Statutes, shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$3,000 administrative fine with possible license suspension or revocation.

(17) Placing a bulk plant or dispensing unit into operation without submitting a site plan and/or calling for a final inspection as required by Section 527.0605, Florida Statutes, shall result in the following penalties:

(a) First Offense:$500 administrative fine.

(b) Second Offense:$1,000 administrative fine.

(c) Third Offense:$3,000 administrative fine with possible license suspension or revocation.

Specific Authority 527.06 FS. Law Implemented 527.06, 527.12, 527.13, 527.14 FS. History–New_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Vicki O’Neil, Bureau Chief, Bureau of LP Gas Inspection, 3125 Conner Blvd., Suite N, Tallahassee, Florida, 32399-1650, telephone: [phone]
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Paul Driggers, Director of Standards
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 3, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 21, 2007