The purpose of the proposed rule is to codify guidelines for determining penalties in disciplinary actions against the division’s public food service and lodging licensees. The effect of the proposed rule will be to provide licensees with ...

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Hotels and Restaurants

RULE NO: RULE TITLE
61C-1.005: Disciplinary Guidelines
PURPOSE AND EFFECT: The purpose of the proposed rule is to codify guidelines for determining penalties in disciplinary actions against the division’s public food service and lodging licensees. The effect of the proposed rule will be to provide licensees with standardized penalties that will be imposed on public food service and lodging establishments licensed by the division for failing to comply with the law. The proposed rule implements the requirement in Section 455.2273, Florida Statutes, for the division to adopt rules addressing disciplinary guidelines.
SUMMARY: The proposed rule codifies guidelines and standard penalties assessed in disciplinary actions taken against the division’s public food service and public lodging licensees.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 455.2273, 509.032 FS.
LAW IMPLEMENTED: 386.207, 509.032, 509.261, 509.281, 509.292 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
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 32399-1012; telephone: [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

61C-1.005 Disciplinary Guidelines.

(1) This rule sets out the disciplinary guidelines for imposing penalties upon public lodging establishments and public food service establishments under the jurisdiction of the Division of Hotels and Restaurants (division) in administrative actions. The purpose of this rule is to notify licensees 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 public lodging establishment or public food service establishment and that may be subject to penalty imposed by the division.

(3) The division may impose penalties against a public lodging establishment or public food service establishment 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 public lodging establishment or public food service establishment to cease and desist from any unlawful practice, or other action authorized by law.

(5) Definitions.

(a) “Critical violation” means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR-5022-014 Lodging Inspection Report or DBPR Form HR-5022-015 Food Service Inspection Report Lodging Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.

(b) “Non-critical violation” means a violation not meeting the definition of critical violation and not otherwise identified in this rule.

(c) “First offense” means a violation of any law subject to penalty under Chapter 509, F.S., when no disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

(d) “Second offense,” and “second and any subsequent offense” means a violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order involving the same licensee has been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

(e) “Third and any subsequent offense” means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

(6) Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.

(a) Non-critical violation. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program.

1. 1st offense – Administrative fine of $150 to $300.

2. 2nd offense – Administrative fine of $250 to $500.

3. 3rd and any subsequent offense – Administrative fine of $350 to $1000, license suspension, or both.

(b) Critical violation. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $250 to $500.

2. 2nd offense – Administrative fine of $500 to $1,000.

3. 3rd and any subsequent offense – Administrative fine of $750 to $1,000, license suspension, or both.

(c) Misrepresenting food or food product. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 or license suspension.

2. 2nd offense – Administrative fine of $1,000, license suspension, or both.

3. 3rd and any subsequent offense – Administrative fine of $1,000, license suspension, or license revocation or any combination thereof.

(d) Obstruction of division personnel. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 or license suspension.

2. 2nd offense – Administrative fine of $1,000, license suspension, or both.

3. 3rd and any subsequent offense – Administrative fine of $1,000, license revocation, or both.

(e) Operating a public lodging establishment or public food service establishment without a license or with a license expired for more than 60 days. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $250 to $500.

2. 2nd offense – Administrative fine of $500 to $1,000 or an order to close.

3. 3rd and any subsequent offense – Administrative fine of $750 to $1,000 or an administrative fine of $750 to $1000 and an order to close.

(f) Operating a public lodging establishment or public food service establishment without a license after an order to close has been issued by the division. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

1. 1st offense – Administrative fine of $500 to $1,000.

2. 2nd and any subsequent offense – Administrative fine of $1,000.

(g) Operating a public lodging establishment or public food service establishment in violation of an Emergency Order of Suspension, Emergency Order of Closure, administrative suspension, order to close, or other administrative action which prohibits operation of the establishment. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program. Fines shall be imposed for each day or portion of a day that an establishment operates in violation of the order or administrative action.

1. 1st offense – Administrative fine of $500 to $1,000.

2. 2nd and any subsequent offense – Administrative fine of $1,000.

(h) Failure to comply with the requirements of a Final Order.

1. 1st offense – Administrative fine of $500 and license suspension.

2. 2nd offense – Administrative fine of $1000 and license suspension.

3. 3rd offense – License revocation.

(i) Violation of the Florida Clean Indoor Air Act, Chapter 386, F.S.

1. 1st offense – Administrative fine of $250 to $750.

2. 2nd and any subsequent offense – Administrative fine of $500 to $2,000.

(7) Aggravating or mitigating factors.

The division may deviate from the standard penalties in paragraphs (a) through (h) of subsection (6) above, 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. Length of time since the violation occurred.

3. Number of violations in the current administrative complaint.

4. Severity of violations in the current administrative complaint.

5. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

6. Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.

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

8. The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, FS., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.

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

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

(b) Mitigating factors.

1. Violation resulted from an act of God or nature.

2. Length of time since the violation occurred.

3. Length of time the licensee has been in operation.

4. Effect of the penalty upon the licensee’s livelihood.

5. Attempts by the licensee to correct the violation.

6. Number of previous inspections without violations of Chapter 509, F.S., and the rules adopted pursuant thereto.

7. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

8. Any other mitigating factors, as relevant under the circumstances.

(8) The following critical violations are considered non-critical violations for the purpose of determining the administrative penalty:

(a) The license is current, but not properly posted.

(b) The waste receptacle in the restroom for women is lacking a cover.

(9) Absent any mitigating circumstances, a license may be suspended for no less than two days. Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.

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

(11) License revocation may be recommended in any case or for any violation when the aggravating circumstances, licensee’s compliance history, and conditions of the public lodging establishment or public food service establishment present a significant threat to the public health, safety, and welfare.

Rulemaking Authority 455.2273, 509.032 FS. Law Implemented 386.207, 509.032, 509.261, 509.281, 509.292 FS. History– New________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Bill L. Veach, Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charles W. Drago, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 26, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 21, 2007