DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Hotels and RestaurantsRULE NO.: RULE TITLE:
61C-5.020Disciplinary GuidelinesNOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 38, No. 71, November 14, 2012 issue of the Florida Administrative Register.
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 department 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 department division.
(3) The department 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 department division shall impose a penalty corresponding to the most similar violation listed in this rule.
(4) These disciplinary guidelines do not limit the department’s division authority to order a licensee or certificate holder to cease and desist from any unlawful practice or other administrative action authorized by law.
(5) No change.
(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. Fines shall not exceed $1000.
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. Fines shall not exceed $1000.
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. Fines shall not exceed $1000.
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. Fines shall not exceed $1000.
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. Fines shall not exceed $1000.
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. Fines shall not exceed $1000.
(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 department 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 department 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) through (10) No change.
Rulemaking Authority 399.02, 399.10, 455.2273 FS. Law Implemented 386.207, 399.049, 399.105, 399.125 FS. History–New ________.
