The purpose and effect of the proposed rule amendment is to modify the language to lower the costs on licensees who are found in violation of applicable statutes, to provide the Department with more discretion when determining aggravating and ...

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Child and Farm Labor Program

RULE NO.:RULE TITLE:
61L-1.012Disciplinary Guidelines
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment is to modify the language to lower the costs on licensees who are found in violation of applicable statutes, to provide the Department with more discretion when determining aggravating and mitigating circumstances, and to remove statutory references that are not applicable.
SUMMARY: The proposed rule modifies the language to lower the costs on licensees who are found in violation of applicable statutes, provides the Department with more discretion when determining aggravating and mitigating circumstances, and removes statutory references that are not applicable.
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 Department conducted an analysis of the proposed rule’s potential economic impact and determined that it did not exceed any of the criteria established in Section 120.541(2)(a), F.S.
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: 450.36, 450.38(3), 455.2273 FS.
LAW IMPLEMENTED: 450.30, 450.31, 450.33, 450.34, 450.35, 450.39, 455.2273 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: R. Kathleen Brown-Blake, Assistant General Counsel, Office of the General Counsel, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

61L-1.012 Disciplinary Guidelines.

(1) Purpose. Pursuant to Sections 450.031, 450.036, and 450.038, F.S., the Department provides within this rule, disciplinary guidelines, which shall be imposed upon any person, firm, association, or corporation that commits a violation of Chapter 450, Part III, F.S., or any rules promulgated pursuant thereto. The purpose of this rule is to notify any person, firm, business entity, association, or corporation of the range of penalties which would routinely be imposed for the most common violations unless the Department finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The lowest range of penalties provided below is based upon a single count violation of each provision listed; multiple counts of the violated provision or a combination of violations may result in a higher penalty than that for a single, isolated violation. Each worker affected constitutes a separate violation and will add another count, increasing the penalty. This list is not intended to be all inclusive of the potential violations that could be found.

(2) Major Violations and Range of Penalties. In imposing discipline upon applicants and registrants, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Department shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. The Ddepartment may shall consider any prior violation when determining the severity of a penalty. Any agreed settlement stipulation or consent order, as provided for in subsection (4) of this rule, is an offense notwithstanding the failure to admit or deny guilt in the prior case. For any fourth or subsequent violation, the penalty is revocation.

RANGE OF PENALTIES

VIOLATION	FIRST OFF.	SECOND OFF.	THIRD OFF.
(a) Acting as a Farm Labor Contractor Without Certificate of Registration (Section 450.30(1), F.S.)
1. Threat of economic or physical harm	$500.00	$1500.00	$2500.00
2. Actual economic or physical harm	$1000.00	$1750.00	$2500.00
(b) Misrepresentation or False Statement in Application for Certificate of Registration (Sections 450.31(2)(b), 450.34(1), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1750.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(c) Misrepresentation Concerning Terms, Conditions or Existence of Employment (Sections 450.31(2)(c), 450.34(2), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1750.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(d) Failure to Pay Wages When Due (Section 450.33(2), F.S.)
Actual economic or physical harm	$1000.00	$1500.00	$2500.00
(e) Failure to Honor Agreement (Section 450.33(3), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1500.00
2. Actual economic or physical harm	$1000.00	$1500.00	$2500.00
(f) Failure to Take Out Policy of Insurance or Obtain Sufficient Amount of Insurance (Section 450.33(5), F.S.)
1. Threat of economic or physical harm	$1000.00	$1250.00	$1500.00
2. Actual economic or physical harm	$1000.00	$1500.00	$2500.00
(g) Failure to Provide Wage Statements (Section 450.33(7), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1500.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(h) Failure to Ensure Vehicle Safety No Vehicle Inspection (Section 450.33(8), F.S.)
1. Threat of economic or physical harm	$1000.00	$2000.00	$2500.00
2. Actual economic or physical harm	$1500.00	$2500.00	$2500.00
(i) Failure to Deduct Proper Amounts From Pay (Sections 450.33(7), 450.31(2)(e), 450.31(2)(g), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1500.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(j) No Valid Driver’s License, Not Proper Class (Section 450.33(9), F.S.; 29 CFR 500.100(a); 29 CFR 500.105(b)(1)(iii)(E))
1. Threat of economic or physical harm	$500.00	$1000.00	$1500.00
2. Actual economic or physical harm	$1000.00	$1500.00	$2500.00
(k) Transporting Workers in Unsafe Vehicles (Section 450.33(9), F.S.; 29 CFR 500.101(a) & (b); 29 CFR 500.102(a) & (b))
1. Threat of economic or physical harm	$1000.00	$2000.00	$2500.00
2. Actual economic or physical harm	$1500.00	$2500.00	$2500.00
(l) Unsafe Transportation of Fuel (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(xiii))
1. Threat of economic or physical harm	$750.00	$1500.00	$1750.00
2. Actual economic or physical harm	$1000.00	$1750.00	$2500.00
(m) Transporting Workers in Overloaded Vehicle (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(vii)(E) & 29 CFR 500.105(b)(3)(vi)(d))
1. Threat of economic or physical harm	$1000.00	$1500.00	$1750.00
2. Actual economic or physical harm	$1500.00	$2000.00	$2500.00
(n) Unsafe Operation of Transportation Vehicle (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(i))
1. Threat of economic or physical harm	$500.00	$1000.00	$1750.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(o) Sexual Harassment (Sections 450.33(9); 760.10 F.S.)
1. Threat of economic or physical harm	$1000.00	$1500.00	$2500.00
2. Actual economic or physical harm	$1500.00	$2000.00	$2500.00
(p) Transportation Unauthorized (Section 450.33(9) F.S.; 29 CFR 500.71)
1. Threat of economic or physical harm	$1000.00	$2000.00	$2500.00
2. Actual economic or physical harm	$1500.00	$2500.00	$2500.00
(q) Driver Unauthorized (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(xiv))
1. Threat of economic or physical harm	$1000.00	$2000.00	$2500.00
2. Actual economic or physical harm	$1500.00	$2500.00	$2500.00
(r) Compliance with Housing Requirements (Section 450.33(9), F.S.; 29 CFR 500.132)
1. Threat of economic or physical harm	$500.00	$1500.00	$1750.00
2. Actual economic or physical harm	$1000.00	$1750.00	$2500.00
(s) No Field Toilet Facilities (Section 450.33(9), F.S.; subsection 64E-14.016(1), F.A.C.; 29 CFR 1928.110(c) (2))
Actual economic or physical harm	$750.00	$1500.00	$2500.00
(t) No Drinking Water (Section 450.33(9), F.S.; subsection 64E-14.016(4), F.A.C.; 29 CFR 1928.110(c)(1))
Actual economic or physical harm	$750.00	$1500.00	$2500.00
(u) Failure to Maintain Daily Field Records (Section 450.33(10), F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1500.00
2. Actual economic or physical harm	$750.00	$1500.00	$2500.00
(v) Unlawful Wage Deductions (Section 450.34(3), F.S.)
Actual economic or physical harm	$1000.00	$1750.00	$2500.00
(w) Retaliation (Section 450.34(4), F.S.)
1. Threat of economic or physical harm	$1000.00	$1500.00	$1750.00
2. Actual economic or physical harm	$1500.00	$1750.00	$2500.00
(x) Utilization of Unregistered Farm Labor Contractor (Sections 450.34(5), 450.35, F.S.)
1. Threat of economic or physical harm	$500.00	$1000.00	$1750.00
2. Actual economic or physical harm	$1000.00	$1750.00	$2500.00
(y) Required Purchase or Unreasonable Cost (Sections 450.39(1), (2), F.S.)
1. Threat of economic or physical harm	$1000.00	$1500.00	$1750.00
2. Actual economic or physical harm	$1500.00	$1750.00	$2500.00
(z) Failure to Maintain a Charged Fire Extinguisher (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(vi))
1. Threat of economic or physical harm	$1000.00	$1250.00	$1500.00
2. Actual economic or physical harm	$1500.00	$2000.00	$2500.00
(aa) Failure to Maintain Payroll Records (Section 450.33(9), F.S.; 29 CFR 500.80)
1. Threat of economic or physical harm	$500.00	$1000.00	$1750.00
2. Actual economic or physical harm	$1000.00	$1750.00	$2500.00

(3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in each individual case, the Department may deviate from the penalties recommended above. The Department shall consider as aggravating or mitigating factors the following;

(a) Exposure of worker(s) to injury, physical or economic: none, minor, major, or death;

(b) Legal status of the certificate of registration at the time of the offense; no restraints, or legal constraints;

(c) The number of counts or separate offenses;

(d) The number of times the same or substantially similar offense or offenses have previously been committed by the registrant or applicant, regardless of the jurisdiction in which the offense was committed;

(e) The disciplinary history of the applicant or registrant in any jurisdiction, including federal, and the length of registration;

(f) Pecuniary benefit or self-gain inuring to the registrant;

(g) Whether the violation was corrected as soon as possible;

(h) Whether the penalty would cause significant financial hardship to the registrant due to a natural disaster;

(i) Whether the registrant and/or the registrant’s employees have completed a continuing education course or instituted a training program relevant to the violations charged; and

(j) Any other relevant mitigating factors.

(4) Stipulations or Settlements. The provisions of this rule are not intended to and shall not be construed to limit the ability of the Department to dispose informally of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(5) Minor Violations and Range of Penalties.

(a) A warning shall be issued for the first minor violation.

(b) Each successive minor violation will be assessed in increments of $250.00 up to $2500.00. A violation committed after the maximum monetary amount of $2500 has been reached shall result in a denial of an application for, or the revocation of, a certificate of registration. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. This list is not intended to be all inclusive of the potential violations that could be found.

1. Failure to carry Certificate of Registration (Section 450.33(1), F.S.),

2. Failure to Display Poster Disclosing the Terms and Conditions of Employment (Section 450.33(4), F.S.),

3. Failure to Carry a Doctor’s Certificate for Every Driver (Section 450.33(9), F.S.; 29 CFR 500.105(b)(1)(ii)(H)),

4. Failure to Display Railroad Crossing Sign on Vehicle (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(xvii)),

5. Failure to Notify of Change of Address (Section 450.33(9), F.S.; 29 CFR 500.54),

6. Failure to Provide Field Hand Washing Units (Section 450.33(9), F.S.; subsections 64E-14.016(1) & (3), F.A.C., 29 CFR 1928.110(c)(2)(iii); 29 CFR 1928.110(c)(3)(iii)),

7. Failure to provide Single Use Drinking Cups (Section 450.33(9), F.S.; subsection 64E-14.016(4), F.A.C.; 29 CFR 1928.110(c)(1)(iii)),

8. Failure to Label Drinking Water (Section 450.33(9), F.S.; subsection 64E-14.016(4), F.A.C.),

9. Failure to Provide Toilet Facilities Within One Quarter (0.25) Mile (Section 450.33(9), F.S.; subsections 64E-14.016(1) & (3), F.A.C.; 29 CFR 1928.110(c)(2)(iii)),

10. Failure to Provide Toilet Paper (Section 450.33(9), F.S.; 29 CFR 1928.110(c)(2)),

11. Failure to Keep Toilet Facilities Clean (Section 450.33(9), F.S.; subsection 64E-14.016(2), F.A.C.; 29 CFR 1928.110(c)(3)(ii)),

12. Failure to Provide Hand Washing Soap (Section 450.33(9), F.S.; subsection 64E-14.016(3), F.A.C.; 29 CFR 1928.110(c)(2)),

13. Failure to Provide Single Use Towels (Section 450.33(9), F.S.; subsection 64E-14.016(3), F.A.C.; 29 CFR 1928.110(c)(2)),

14. Failure to Ensure Operational External Vehicle Lights and Bulbs (Section 450.33(9), F.S.; 29 CFR 500.104(a), 500.105(b)(2)(vi), 500.105(b)(3)(ii)),

15. Ineffective Windshield Wiper Blades (Section 450.33(9), F.S.; 29 CFR 500.104(g), 500.105(b)(3)(vi), 500.105(b)(2), 500.105(b)(5)),

16. Failure to Replace or Repair Cracked Side Window (Section 450.33(9), F.S.; 29 CFR500.104(g), 500.105(b)(3), 500.105(b)(5)),

17. Removable Materials Blocking Vehicle Exit (Section 450.33(9), F.S.; 29 CFR 500.105(b)(3)(vi)(F)),

18. Materials Blocking Vehicle Taillights (Section 450.33(9), F.S.; 29 CFR 500.105(b)(2)(xi)),

19. Vehicle with a Bald Tire (Section 450.33(9), F.S.; 29 CFR 500.104(c), 500.105(b)(3)(v)),

20. Having an In-operable Vehicle Horn (Section 450.33(9), F.S.; 29 CFR 500.104(c), 500.105(b)(2)(vi)),

21. Failure to Properly Maintain Interior and Exterior Vehicle Mirrors (Section 450.33(9), F.S.; 29 CFR 500.104(f), 500.105(b)(2)(vi)),

22. Failure to Properly Maintain Windows and Window Handles (Section 450.33(9), F.S.; 29 CFR 500.105(b)(5)).

(6) Other Action. The provisions of this rule are not intended to and shall not be construed to limit the ability of the Department to recommend or pursue criminal actions when appropriate.

Rulemaking Authority 450.36, 450.38(3), 455.2273 FS. Law Implemented 450.30, 450.31, 450.33, 450.34, 450.35, 450.39, 455.2273 FS. History–New 11-28-85, Formerly 38B-4.12, 38H-4.012, 38H-11.012, Amended 11-22-10,      __________________.

NAME OF PERSON ORIGINATING PROPOSED RULE: R. Kathleen Brown-Blake, Assistant General Counsel, Office of the General Counsel, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, [phone]
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 11, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 29, 2012