To amend the disciplinary guidelines for imposing penalties on public food service establishments and public lodging establishments in administrative actions.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Hotels and Restaurants

RULE NO.: RULE TITLE:
61C-1.005: Disciplinary Guidelines
PURPOSE AND EFFECT: To amend the disciplinary guidelines for imposing penalties on public food service establishments and public lodging establishments in administrative actions.
SUMMARY: The proposed rule defines violation categories, provides penalty ranges for violation categories and individually identified violations, strikes unnecessary language for violation assessment and penalty determinations, strikes and further defines certain aggravating and mitigating factors.
OTHER RULES INCORPORATING THIS RULE: None.
EFFECT ON THOSE OTHER RULES: N/A
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the economic review conducted by the agency.
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.
RULEMAKING AUTHORITY: 455.2273, 509.032 FS.
LAW IMPLEMENTED: 386.207, 509.032, 509.261, 509.281, 509.292 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Michelle Comingore, Operations Review Specialist, Division of Hotels and Restaurants, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399; 850-488-1133; [e-mail].

THE FULL TEXT OF THE PROPOSED RULE IS:

61C-1.005 Disciplinary Guidelines.

(1) through (4) No change.

(5) Definitions.

(a)  “High priority Critical violation” means a violation of a high priority item, as defined in 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR 5022-014, Lodging Inspection Report or DBPR Form HR 5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and is not otherwise identified in subsection (6) of this rule.

(b) “Intermediate violation” means a violation of an intermediate item, as defined in 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to specific actions, equipment or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of this rule.

(c)(b) “Basic Non-critical violation” means a violation of a basic item, as defined in 61C-1.001, F.A.C., or a violation of Chapter 509, F.S, or Chapter 61C, F.A.C., which relates to general sanitation, operational controls, standard operating procedures, facilities or structures, equipment design, or general maintenance and not meeting the definition of high priority violation or intermediate critical violation and is not otherwise identified in subsection (6) of this rule.

(d)(c) “First offense” means a violation of any law subject to penalty under Chapter 509, F.S., when no disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

(e)(d) “Second offense,” and “second and any subsequent offense” mean a violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order involving the same licensee has been filed with the Agency Clerk within 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

(f)(e) “Third and any subsequent offense” means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

(6) Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.

(a) Basic Non-critical violation.

1. 1st offense – Administrative fine of $150 to $300.

2. 2nd offense – Administrative fine of $250 to $500.

3. 3rd and any subsequent offense – Administrative fine of $350 to $1000, license suspension, or both.

(b) Intermediate violation.

1. 1st offense – Administrative fine of $200 to $400.

2. 2nd offense – Administrative fine of $375 to $750.

3. 3rd offense – Administrative fine of $550 to $1000, license suspension, or both.

(c)(b) High priority Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $250 to $500.

2. 2nd offense – Administrative fine of $500 to $1,000, license suspension, or both.

3. 3rd and any subsequent offense – Administrative fine of $750 to $1,000, license suspension, or both.

(d)(c) Misrepresenting food or food product. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 or license suspension.

2. 2nd offense – Administrative fine of $1,000, license suspension, or both.

3. 3rd and any subsequent offense – Administrative fine of $1,000, license suspension, or license revocation or any combination thereof.

(e)(d) Obstruction of division personnel. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 or license suspension.

2. 2nd offense – Administrative fine of $1,000, license suspension, or both.

3. 3rd and any subsequent offense – Administrative fine of $1,000, license revocation, or both.

(f)(e) Operating a public lodging establishment or public food service establishment without a license or with a license expired for more than 60 days. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $250 to $500.

2. 2nd offense – Administrative fine of $500 to $1,000 or an order to close.

3. 3rd and any subsequent offense – Administrative fine of $750 to $1,000 or an administrative fine of $750 to $1000 and an order to close.

(g)(f) Operating a public lodging establishment or public food service establishment without a license when after an Order of Closure order to close has been issued by the division. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 to $1,000.

2. 2nd and any subsequent offense – Administrative fine of $1,000.

(h)(g) Operating a public lodging establishment or public food service establishment in violation of an Emergency Order of Suspension, Emergency Order of Closure, administrative suspension, Order of Closure order to close, or other administrative action that which prohibits operation of the establishment. Fines shall be imposed for each day or portion of a day that an establishment operates in violation of the order or administrative action.

1. 1st offense – Administrative fine of $500 to $1,000.

2. 2nd and any subsequent offense – Administrative fine of $1,000.

(i)(h) Failure to comply with the requirements of a Final Order.

1. 1st offense – Administrative fine of $500 and license suspension.

2. 2nd offense – Administrative fine of $1000 and license suspension.

3. 3rd offense – License revocation.

(j) Finding by the Florida Commission on Human Relations resulting in a violation of Section 509.092, F.S.

1. 1st offense – Administrative fine of $200 to $400.

2. 2nd offense – Administrative fine of $375 to $750 and license suspension.

3. 3rd offense – License revocation.

(k) Finding by the State Fire Marshal resulting in a violation of Section 509.215(5) F.S.

1. 1st offense – Administrative fine of $1,000, license suspension, or license revocation or any combination thereof.

2. 2nd offense and any subsequent offense – Administrative fine of $1,000, license suspension, or license revocation or any combination thereof.

(l) Finding of an agency having jurisdiction resulting in a violation of Section 509.261(5)(b), F.S.

1. 1st offense – Administrative fine of $200 to $400.

2. 2nd offense – Administrative fine of $375 to $750 and license suspension.

3. 3rd offense – License revocation.

(m) Being adjudicated guilty of or having forfeited a bond when charged with any of the items listed in Section 509.261(6)(a), F.S.

1. 1st offense – Administrative fine of $200 to $400.

2. 2nd offense – Administrative fine of $375 to $750 and license suspension.

3. 3rd offense – License revocation.

(n) Operating a public lodging establishment or public food service establishment that has been deemed an imminent danger to the public health and safety by the division or local health authority for failure to meet sanitation standards or the premises have been determined by the division or local authority to be unsafe or unfit for human occupancy.

1. 1st offense – Administrative fine of $200 to $400.

2. 2nd offense – Administrative fine of $375 to $750 and license suspension.

3. 3rd offense – License revocation.

(o) Any violation requiring an Emergency Order of Suspension or Emergency Order of Closure, as authorized by Chapter 509, F.S.

1. 1st offense – Administrative fine of $500.

2. 2nd offense – Administrative fine of $1,000, license suspension, or both.

3. 3rd offense – Administrative fine of $1,000, license suspension, or license revocation or any combination thereof.

(p) Failure to satisfy a tax warrant that has existed for more than three consecutive months (Section 213.50(3)(a), F.S.).

1. 1st offense – License suspension.

2. 2nd and any subsequent offense – License suspension.

(q)(i) Violation of the Florida Clean Indoor Air Act, Chapter 386, Part II, F.S.

1. 1st offense – Administrative fine of $250 to $750.

2. 2nd and any subsequent offense – Administrative fine of $500 to $2,000.

(r) Conviction of an owner or employee of a public lodging establishment or public food service establishment by another authority having jurisdiction for a violation of Section 500.451, F.S.

1. 1st offense – License suspension.

2. 2nd and any subsequent offense – License suspension.

(7) Aggravating or mitigating factors.  The division may deviate from the standard penalties in paragraphs (a) through (n)(h) of subsection (6) above, based upon the consideration of aggravating or mitigating factors present in a specific case. The division shall consider the following aggravating and mitigating factors in determining the appropriate disciplinary action to be imposed and in deviating from the standard penalties:

(a) Aggravating factors.

1. Possible danger to the public.

2. Length of time since the violation occurred.

2. 3. Number of violations in Tthe current administrative complaint alleges six or more violations.

3.4. Severity of violations in Tthe current administrative complaint alleges three or more violations of any high priority item.

5. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

4.6. Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.

7. The current administrative complaint alleges a violation for obstruction of division personnel.

8. The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, F.S., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.

5.9. Actual physical damage or bodily harm caused to persons or property by the violation.

6.10. Any other aggravating factors, as relevant under the circumstances.

(b) Mitigating factors.

1. Violation resulted from a natural or manmade disaster, civil disturbance or other emergency out of the operators’ control and no corrective action was possible an act of God or nature.

2. Length of time since the violation occurred.

2.3. Length of time the current licensee has held the license been in operation.

3.4. Effect of the penalty upon the licensee’s livelihood.

4.5. Attempts by the licensee to correct the violation.

6. Number of previous inspections without violations of Chapter 509, F.S., and the rules adopted pursuant thereto.

7. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

5.8. Any other mitigating factors, as relevant under the circumstances.

(8) The following critical violations are considered non-critical violations for the purpose of determining the administrative penalty:

(a) The license is current, but not properly posted.

(b) The waste receptacle in the restroom for women is lacking a cover.

(8)(9) Absent any mitigating factors circumstances, a license may be suspended for no less than two days.  Absent any aggravating factors, a license may be suspended for no more than ten days.  Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.

(9)(10) Fines resulting from multiple violations or Final Orders shall be assessed cumulatively.

(10)(11) Notwithstanding subsection (6), lLicense revocation may be recommended in any case or for any violation when the aggravating circumstances, licensee’s compliance history, and conditions of the public lodging establishment or public food service establishment present a significant threat to the public health, safety, and welfare.

PROPOSED EFFECTIVE DATE: January 1, 2013

Rulemaking Authority 455.2273, 509.032 FS. Law Implemented 386.207, 509.032, 509.261, 509.281, 509.292 FS. History–New 6-28-09, Amended 12-28.09,_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Bill Veach, Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation.
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 17, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 16, 2010