The proposed rulemaking amends an incorporated department form, a form reference, and penalty section for statutory compliance. This proposed amendment will also amend the penalty section as it relates to price verification violations.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-22.006Weighing and Measuring Device Permits

5J-22.007Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: The proposed rulemaking amends an incorporated department form, a form reference, and penalty section for statutory compliance. This proposed amendment will also amend the penalty section as it relates to price verification violations.

SUMMARY: Taximeters are no longer required to be permitted as measuring devices. This requirement was removed by s. 30, ch. 2017-85, Laws of Florida. The reference to taximeters has been removed and for clarity purposes, the requested information has been rephrased and the device type categories have been modified in the Weighing and Measuring Device Permit Application. The penalty section in the current rule is being updated as it relates to price verification violations.

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 a form incorporated by reference, update a form reference, and amend the penalty section. 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: 531.41(3), 531.66, 570.07(23) FS.

LAW IMPLEMENTED: 531.42, 531.50, (1), 531.60, 531.61, 531.62, 531.63, 531.64, 531.65, 531.66 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: Hal Prince, Chief, Bureau of Standards, Division of Consumer Services, 3125 Conner Blvd., Bldg. #2, Tallahassee, FL 32399 [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-22.006 Weighing and Measuring Device Permits.

(1) No change.

(2) Each permit shall be conspicuously displayed at the location for which it is issued. Permits shall be issued by the department upon receipt of payment in full and approval of a completed form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. 02/18 02/17, identifying the specific number and type of weighing and measuring devices that will be used for commercial purposes. The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-          08546.

(3) through (4) No change.

(5) Fees for Device(s) Placed into Service at a Location with an Existing Commercial Use Permit. The department shall be notified by the owner of any non-replacement weighing or measuring device that is put into service during a permit year at a location and will change the permit fees by submitting form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. 02/18 02/17, which is adopted and incorporated by reference in subsection (2). The fee shall be prorated on a quarterly basis of the annual fee prescribed in subsection (4), for every quarter remaining until the expiration of the existing permit for that location.

(6) through (7) No change.

Rulemaking Authority 531.66, 570.07(23), 531.66 FS. Law Implemented 531.42, 531.50, 531.60, 531.61, 531.62, 531.63, 531.64, 531.65, 531.66 FS. History–New 8-17-17, Amended          .

 

5J-22.007 Guidelines for Imposing Administrative Penalties.

(1) through (7) No change.

(8) Penalties.

(a) Minor Violations. Any department investigation or inspection which reveals violations listed in this paragraph will result in the issuance of a notice of noncompliance as the department’s first response to the violation. For the purposes of this rule, the following violations shall be considered minor and shall result in the issuance of a notice of noncompliance:

1. through 4. No change.

5. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if three (3) percent or greater, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is no more than $5 in favor of the business.:

a. Two (2) percent or less of examined items fail and the net monetary discrepancy total is no more than $5 in favor of the business, or

b. More than two (2) percent of examined items fail and the net monetary discrepancy total is not in favor of the business.

(b) Major Violations: Tier I. Tier I violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, or the device(s) removed from service using FDACS-10988, Stop Use Order, Rev. 02/17, as specified below.  If a second Tier I violation is discovered within a three-year period, a $250 penalty shall be imposed. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each Tier I violation discovered thereafter.  Aggravating factors, as defined in paragraph (5)(a), of this rule, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b), of this rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. The documents referenced in this subsection are adopted and incorporated by reference in subsections 5J-22.002(2) and 5J-22.003(2), of this rule chapter. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. No change.

2. Violations of subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification, shall result in the removal from sale of affected commodities by the department if three (3) percent or greater, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is more than $5 in favor of the business.:

a. More than two (2) percent, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is in favor of the business, or

b. Two (2) percent or less of the examined items fail and the net monetary discrepancy total is $5 or greater in favor of the business.

3. through 4. No change.

(c) Major Violations: Tier II. Tier II violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the affected products, placing any affected equipment out of service and imposition of an administrative fine of $250 per violation, for first-time offenders of Chapter 531, F.S., and/or Rule Chapter 5J-22, F.A.C. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each subsequent violation within the three-year period. Aggravating factors, as defined in paragraph (5)(a), of this rule, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b), of this rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. For the purposes of this rule, the following violations shall be considered Tier II violations:

1. No change.

2. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if more than ten (10) percent of examined items fail and the net monetary discrepancy total is in favor of the business.

3. through 8. No change.

(d) No change.

(9) No change.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.42, 531.50(1), 531.65 FS. History–New 8-17-17, Amended          .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Hal Prince, Chief, Bureau of Standards, 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: March 2, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 23, 2017