The purpose and effect of the rule development is to adopt disciplinary guidelines to specify the range of penalties applicable for each offense subject to disciplinary action that the Division of Hotels and Restaurants may impose under chapter 399, ...

Notice of Proposed Rule

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Hotels and Restaurants

RULE NO.: RULE TITLE:
61C-5.020: Disciplinary Guidelines
PURPOSE AND EFFECT: The purpose and effect of the rule development is to adopt disciplinary guidelines to specify the range of penalties applicable for each offense subject to disciplinary action that the Division of Hotels and Restaurants may impose under chapter 399, F.S.
SUMMARY: The rule will address disciplinary guidelines for the offenses subject to disciplinary action under chapter 399, F.S.
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: 399.02, 399.10, 455.2273 FS.
LAW IMPLEMENTED: 386.207, 399.049, 399.105, 399.125 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-5.020 Disciplinary Guidelines.

(1) This rule sets out the disciplinary guidelines for imposing penalties upon elevator owners or operators, elevator companies, elevator inspectors, elevator technicians, or certificate of competency holders guilty of violating Chapter 399, F.S. The purpose of this rule is to notify licensees and other persons under the jurisdiction of Chapter 399, F.S., of the standard range of penalties routinely imposed unless the division finds it necessary to deviate from the standard penalties for the reasons stated within this rule.

(2) These disciplinary guidelines are descriptive in nature and do not use the language used to formally allege a violation in a specific case. This rule is not intended to specifically describe all possible violations of law that may be committed by a licensee or certificate holder and that may be subject to penalty imposed by the division.

(3) The division may impose penalties against a licensee or certificate holder for a specific violation not included in the language of this rule. If a specific violation is not included in the language of this rule, the division shall impose a penalty corresponding to the most similar violation listed in this rule.

(4) These disciplinary guidelines do not limit the division’s authority to order a licensee or certificate holder to cease and desist from any unlawful practice or other administrative action authorized by law.

(5) Definitions. For the purpose of this rule, a citation issued under Section 399.16, F.S., and Rule 61C-5.023, F.A.C., constitutes a disciplinary Final Order.

(a) “First offense” means a violation of any law subject to penalty under Chapter 399, F.S., when no disciplinary Final Orders involving the same licensee or certificate holder have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

(b) “Second offense” means a violation of any law subject to penalty under Chapter 399, F.S., after one disciplinary Final Order involving the same law and the same licensee or certificate holder have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

(c) “Third and any subsequent offense” means a violation of any law subject to penalty under Chapter 399, F.S., after two or more disciplinary Final Orders involving the same law and the same licensee or certificate holder have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

(6) Standard penalties. This section specifies the penalties routinely imposed for violations of law subject to a penalty under Chapter 399, F.S. If the same ASME code is cited multiple times on the same elevator during a single inspection, the multiple code violations shall be considered one violation for the purpose of the administrative complaint and penalties.

 

VIOLATION	PENALTY RANGE
	MINIMUM	MAXIMUM
(a) Making a false statement as to a material matter in an application for registration, certification, or any permit or certificate issued under Chapter 399, F.S. (s. 399.049(1)(a), F.S.)
First offense	$250 fine	$500 fine, suspension or revocation
Second offense	$500 fine	$1,000 fine, suspension or revocation
Third and any subsequent offense	$750 fine or suspension	$1,000 fine and suspension or revocation
(b) Fraud, misrepresentation, or bribery in the practice of the profession. (s. 399.049(1)(b), F.S.)
First offense	$250 fine	$500 fine, suspension or revocation
Second offense	$500 fine	$1,000 fine, suspension or revocation
Third and any subsequent offense	$750 fine or suspension	$1,000 fine and suspension or revocation
(c) Failure by a certified elevator inspector to provide the department and the certificate of operation holder with a copy of the inspection report within five days after the date of any inspection performed after the initial certificate of operation is issued. (s. 399.049(1)(c), F.S.)
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine
Third and any subsequent offense	$750 fine or suspension	$1,000 fine and suspension or revocation
(d) Violation of any provision of Chapter 399, F.S., not otherwise identified in this subsection. (s. 399.049(1)(d), F.S.)
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine or suspension
Third and any subsequent offense	$750 fine or suspension	$1,000 fine, suspension, or revocation
(e) Failure by a certified elevator inspector to maintain his or her qualified elevator inspector credential in good standing (s. 399.049(1)(e), F.S.)
First offense	Revocation	Revocation
Second offense	Revocation	Revocation
Third and any subsequent offense	Revocation	Revocation
(f) Having a license to install, inspect, maintain, or repair any vertical conveyance revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or county (s. 399.049(1)(f), F.S.)
First offense	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.
Second offense	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.
Third and any subsequent offense	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.	The usual penalty shall be commensurate with the penalty imposed by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.
(g) Engaging in fraud or deceit, negligence, incompetency, or misconduct in the practice of the profession (s. 399.049(1)(g), F.S.)
First offense	$250 fine	$1,000 fine
Second offense	$500 fine	Suspension or Revocation
Third and any subsequent offense	$1,000 fine or suspension	Revocation
(h) Commencing the installation, relocation, or alteration of any elevator for which a permit is required by Chapter 399, F.S., without having obtained from the department the permit. (s. 399.03(1), F.S.)
First offense	$250 fine	$250 fine
Second offense	$500 fine	$500 fine
Third and any subsequent offense	If violation committed by a license, registration, or certificate holder, $1,000 fine or suspension Otherwise, $1,000 fine	If violation committed by a license, registration, or certificate holder, suspension or revocation Otherwise, $1,000 fine
(i) Allowing the operation of any elevator for which a certificate is required by Chapter 399, F.S., without having obtained from the department the certificate (s. 399.07(5), F.S.)
First offense	$250 fine	$250 fine
Second offense	$500 fine	$500 fine
Third and any subsequent offense	$1,000 fine	$1,000 fine
(j) Allowing the operation of an elevator with an expired certificate of operation (s. 399.07(1), F.S.)
First offense	$250 fine	$250 fine
Second offense	$500 fine	$500 fine
Third and any subsequent offense	$1,000 fine	$1,000 fine
(k) Allowing the temporary operation of an elevator without having obtained from the department a temporary operating permit (s. 399.03(10), F.S.)
First offense	$250 fine	$250 fine
Second offense	$500 fine	$500 fine
Third and any subsequent offense	$1,000 fine	$1,000 fine
(l) Performing or offering to perform the inspection, construction, installation, maintenance, or repair of any elevator unless such person holds an active certification under Chapter 399, F.S., (ss. 399.01(13) or 399.01(14), F.S.)
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine
Third and any subsequent offense	If violation committed by a license, registration, or certificate holder, $1,000 fine or suspension. Otherwise, $1,000 fine	If violation committed by a license, registration, or certificate holder, suspension or revocation. Otherwise, $1,000 fine
(m) Employing persons to construct, install, inspect, maintain, or repair any elevator unless such business holds an active registration under Chapter 399, F.S. (s. 399.01(12), F.S.)
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine
Third and any subsequent offense	$750 fine	$1,000 fine
(n) Violating a provision of s. 399.105, F.S.
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine
Third and any subsequent offense	$750 fine	$1,000 fine
(o) Failing to report any accident occurring in or upon any elevator within 5 working days (s. 399.125, F.S.)
First offense	$250 fine	$500 fine
Second offense	$500 fine	$1,000 fine
Third and any subsequent offense	$750 fine	$1,000 fine

 

(7) Aggravating or mitigating factors.

The division may deviate from the standard penalties in this section, 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. Severity of violations in the current administrative complaint.

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

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

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

(b) Mitigating factors.

1. Violation resulted from a natural disaster, civil disturbance or other emergency situation.

2. Length of time since the violation occurred.

3. Attempts by the licensee to correct the violation.

(8) Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.

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

(10) Notwithstanding subsection (6), license revocation may be recommended for any case or for any violation when the aggravating circumstances and compliance history present a significant threat to public safety.

Rulemaking Authority 399.02, 399.10, 455.2273 FS. Law Implemented 386.207, 399.049, 399.105, 399.125 FS. History–New .

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 29, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 3, 2012