The proposed rulemaking amends incorporated forms, updates form references, establishes application procedures and minimum standards for student tour operators, establishes a procedure for certain veterans, the spouses of such veterans, or business ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-9.002Registration, Document Submission

5J-9.0021Student Tour Operator

5J-9.006Security Requirement

5J-9.008Enforcement Actions and Administrative Penalties

PURPOSE AND EFFECT: The proposed rulemaking amends incorporated forms, updates form references, establishes application procedures and minimum standards for student tour operators, establishes a procedure for certain veterans, the spouses of such veterans, or business entities that have a majority ownership held by such veterans or spouses to obtain a waiver of their initial registration fee, and updates statute references.

SUMMARY: The proposed rules update FDACS-10200, Sellers of Travel Registration Application and FDACS-10211, Sellers of Travel Independent Sales Agents Application, they provide guidelines for student tour operators as well as create FDACS-10214, Sellers of Travel Student Tour Operator, and they provide guidance to applicants seeking a military veteran’s waiver of an initial registration fee. These amendments will ensure statutory compliance with ch. 2016-166, Laws of Florida and the Florida Sellers of Travel Act.

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 proposed revisions update department forms, update statute references, and provide guidance to student tour operators and military veterans. There are no increased regulatory costs associated with these revisions. Additionally, no interested party submitted additional information regarding the economic impact.

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: 559.9281(2), 559.929(2), (3), 559.9355(3), 570.07(23) FS.

LAW IMPLEMENTED: 559.928, 559.9281, 559.929, 559.9295(16), 559.935(3), 559.9355, 570.07(23), 570.971(4) 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: Amy Topol, Director, Division of Consumer Services, 2005 Apalachee Parkway, Tallahassee, Florida, 32399-6500, email at “[e-mail]” or by phone [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-9.002 Registration, Document Submission.

(1) Any person who intends to operate as a seller of travel shall submit FDACS-10200, Sellers of Travel Registration Application Package, Rev. 02/17 01/15, hereby incorporated by reference, along with the applicable non-refundable registration fee specified by Section 559.928(2), F.S., to the department at the time of registration. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at:  http://www.flrules.org/Gateway/reference.asp?No=Ref-           05124. Businesses may also apply or renew their license online at www.FreshFromFlorida.com www.800helpfla.com/registeronline.

(2) An honorably discharged veteran, the spouse of such a veteran, or a business entity that has a majority ownership held by such a veteran or spouse requesting a waiver of the intial registration fee pursuant to Section 559.928(2)(c), F.S., shall complete FDACS-10991, Military Veteran Fee Waiver Request, 10/16, incorporated by reference in Rule 5J-26.001, F.A.C.  An applicant requesting a fee waiver shall submit a completed Military Veteran Fee Waiver Request and all required supporting documentation at the time the applicant submits the Sellers of Travel Registration Application referenced in subsection (1).

(3)(2) An independent agent claiming an exemption from registration shall file with the department FDACS-10211, Sellers of Travel Independent Sales Agents Statement of Exemption, Rev. 02/17 07/11, hereby incorporated by reference. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at: http://www.flrules.org/Gateway/reference.asp?No=Ref-         01056.

(4)(3) Each seller of travel which sells or intends to sell vacation certificates shall, prior to the sale of any vacation certificate, file with the dDepartment an annual submission fee of $100 and such documents as required by Section 559.9295, F.S. The seller of travel shall submit an annual submission fee of $100 to the Department at the time such documents are filed with the Department.

Rulemaking Authority 559.9355(3), 570.07(23) FS. Law Implemented 559.928, 559.9295(16), 559.935(3) FS. History–New 10-6-93, Amended 1-3-95, 6-4-95, 12-27-95, 2-11-98, 10-21-03, 3-29-12, 4-5-15,                 .

 

5J-9.0021 Student Tour Operator.

A seller of travel seeking to be an approved student tour operator pursuant to s. 559.9281, F.S., must register or be registered as a seller of travel pursuant to subsection 5J-9.002(1), F.A.C., and must submit FDACS-10214, Sellers of Travel Student Tour Operator, 02/17, hereby incorporated by reference.  Copies of this form may be obtained from the Department of Agriculture  and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel, 2005 Apalachee Parkway, Tallahassee, Florida 32399-6500, or accessed online at:  http://www.flrules.org/Gateway/reference           .

(1) In addition to being registered as a seller of travel, an applicant student tour operator must annually provide proof of the following:

(a) Insurance coverage issued by a company authorized to transact business in this state, in the following amounts:

1. General liability of at least $1,000,000;

2. Professional liability of at least $1,000,000; and

3. Workers compensation coverage of at least $500,000 or proof of exemption for fewer than four (4) employees.

(b) The applicant is current on all state and local business taxes.

(2) A student tour operator and any employee, agent, or independent contractor of the student tour operator whose duties may lead to contact with students must maintain a current Level 2 security clearance with the Florida Department of Education.

(3) Failure to meet the requirements set forth in ss. 559.926-559.939, F.S., and this rule chapter shall result in the denial of an applicant’s request to be an approved student tour operator.

(4) Failure to maintain compliance with the requirements of s. 559.9281, F.S., and this rule shall result in the seller of travel’s removal from the Department’s list of approved student tour operators.

(5) An approved student tour operator shall immediately notify the Department if, at any time during the registration period, the student tour operator falls out of compliance with the requirements of s. 559.9281, F.S., or this rule.

Rulemaking Authority 559.9281(2), 559.9355(3), 570.07(23) FS. Law Implemented 559.9281 FS. History–New                        .

 

5J-9.006 Security Requirement.

(1) Prior to engaging in any activities as a seller of travel, each seller of travel shall file with the department an original performance bond in an amount determined by subsection (2) below. The applicant shall utilize the Surety Bond fForm, included in FDACS-10200 Sellers of Travel Registration Application Package, Rev. 02/17 01/15, incorporated by reference in Rule 5J-9.002, F.A.C. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel Section, 2005 Apalachee Parkway, Terry L. Rhodes Building, Tallahassee, Florida 32399-6500.

(2) The amount of the security for sellers of travel that do not offer vacation certificates shall be $25,000; however, the seller of travel may apply for a reduction by completing a the Security Reduction Request Application and , is included in form DACS 10200 Registration packet, effective 11/20/02 hereby incorporated by reference. The Seller of Travel must providing provide copies of its federal income tax return or an audited financial statement for the immediately preceding fiscal year. A sample Security Reduction Request Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel Section, 2005 Apalachee Parkway, Terry L. Rhodes Building, Tallahassee, Florida 32399-6500 or accessed online at http://www.freshfromflorida.com/Divisions-Offices/Consumer-Services/Business-Services/Travel-Sales. To qualify apply for reduction of the security, the seller of travel must have a satisfactory consumer complaint history. The amount of the security reduction shall be determined by the seller of travel’s dollar amount of gross annual sales, as follows:

(a) through (c) No change.

(3) The amount of the security for a newly established business or a business under new ownership shall be $25,000; however, the seller of travel may apply to reduce its security to $10,000 by submitting a executing the Application for Reduction of Security  Reduction Request included in form DACS 10200 Registration Packet. To be eligible for a reduction in security, a newly established seller of travel must meet the following criteria:

(a) through (b) No change.

(c) None of its owners, directors, officers, or general partners have an unsatisfactory consumer complaint history with the dDepartment or have been affiliated with any seller of travel that has had an unsatisfactory consumer complaint history with the dDepartment.

(4) The dDepartment shall deny or revoke the security reduction if the seller of travel:

(a) through (b) No change.

(c) Has an unsatisfactory consumer complaint history with the dDepartment; or

(d) No change.

(5) If filing a bond pursuant to Section 559.929, F.S., the applicant shall use the form included in FDACS-10200, Sellers of Travel Registration Application Package, Rev. 02/17 01/15, incorporated by reference in Rule 5J-9.002, F.A.C.

(6) Claims against a bond shall be submitted on FDACS-10212, Sellers of Travel Claim Affidavit, Rev. 02/17 01/15, hereby incorporated by reference. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Sellers of Travel, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at: http://www.flrules.org/Gateway/reference.asp?No=Ref-          05125.

Rulemaking Authority 559.929(2), (3), 559.9355(3), 570.07(23) FS. Law Implemented 559.929 FS. History–New 2-8-94, Amended 6-4-95, 11-6-95, 12-27-95, 2-11-98, 10-21-03, 4-5-15,                  .

 

5J-9.008 Enforcement Actions and Administrative Penalties.

(1) through (4) No change.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Sections 559.926-559.939, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation. If a notice of noncompliance is imposed for an initial violation, a second violation within a three-year period shall result in a fine of at least $1,000 not to exceed $2,500. Both aggravating and mitigating factors, if present, shall be applied against each single count of the listed violation regardless of whether the violation is a minor violation or a major violation as described in subsection (8) below.

(a) No change.

(b) Mitigating factors shall include:

1. Any documented efforts by the violator at rehabilitation or corrective action.

2. through 5. No change.

6. The violator took corrective action.

6.7. The disciplinary history of the person committing the violation.

(6) through (7) No change.

(8) Penalties.

(a) Notice of Noncompliance. Any department investigation or inspection which reveals minor violations of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with it will result in the issuance of a Notice of Noncompliance as the department’s first response to the violation. In addition, the following statutory violation shall result in the issuance of a Notice of Noncompliance for the first violation only: A violation of Section 559.9335(11)(12), F.S.

(b) Minor Violations. Minor violations shall result in imposition of a fine ranging from $1,000 to $2,500. The following statutory violations shall be considered minor violations:

1. No change.

2. Violations of Section 559.9335(15)(16), F.S.

3. No change.

(c) Major Violations. Major violations shall result in the imposition of an administrative fine of $1,000 to $5,000, refusing to register, suspension, or revocation of the license as prescribed in Section 559.9355(1)(d), F.S., or any of the penalties as prescribed in Sections 559.9355(1)(c), (e)-(f), F.S. The following violations shall be considered major violations:

1. through 3. No change.

4. Violations of Sections 559.9335(1)-(10), (12)-(14), or (16)-(25)(11), (13)-(15), or (17)-(26), F.S.

5. No change.

(9) through (11) No change.

Rulemaking Authority 559.9355(3), 570.07(23) FS. Law Implemented 559.9355, 570.971(4) FS. History–New 4-5-15, Amended 5-25-16,            .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Amy Topol, Director, Division of Consumer Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 27, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 28, 2016