The purpose and effect of the amended rule are to change the title of the rule; to amend an obsolete rulemaking authority reference; to update a statutory reference in the rule; to both adopt and incorporate by reference into the rule, the “Office ...

 

DEPARTMENT OF FINANCIAL SERVICES

Finance

RULE NO.:RULE TITLE:

69V-180.100Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: The purpose and effect of the amended rule are to change the title of the rule; to amend an obsolete rulemaking authority reference; to update a statutory reference in the rule; to both adopt and incorporate by reference into the rule, the “Office of Financial Regulation, Division of Consumer Finance, Disciplinary Guidelines for Consumer Collection Agencies” document; to specify how a copy of the “Office of Financial Regulation, Division of Consumer Finance, Disciplinary Guidelines for Consumer Collection Agencies” document may be obtained from the Office; to amend language in the current rule regarding references to guidelines, violations, and citations numbers; to delete requirements from the current rule; and to clarify the use of the term “citation” in the proposed rule. The proposed rule also clarifies what actions the Office may take against a registrant based upon the “Office of Financial Regulation, Division of Consumer Finance, Disciplinary Guidelines for Consumer Collection Agencies,” and specifies the mitigating and aggravating factors the Office shall consider in determining the appropriate penalty. The proposed rule further clarifies the current ranges for administrative fines to be imposed by the Office as a penalty, and specifies the ranges for suspensions to be imposed by the Office as a penalty.

SUMMARY: Subsection (1) states that there are guidelines applicable to each ground for disciplinary action, and provides the location where the guidelines may be found. Subsection (2) states the authority of the Office to impose penalties. Subsection (3) states the circumstances the Office shall consider in determining the appropriate penalties. Subsection (4) states that the list of violations in the rule is not exclusive. Subsection (5) states the ranges for certain administrative fines. Subsection (6) states the ranges for suspensions. Subsection (7) states defines a previous occurrence as used in this rule.

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: 1) No requirement for a SERC was triggered under Section 120.541(1), F.S.; and 2) The amendments will not exceed any one of the economic analysis criteria in a SERC, as set forth 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: 559.554, 559.730(7) FS.

LAW IMPLEMENTED: 559.5556, 559.565(1), 559.72, 559.725(6), 559.727, 559.730 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: C. Michael Marschall, Division of Consumer Finance, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

69V-180.100 Disciplinary Guidelines for Imposing Administrative Penalties.

(1) Pursuant to Section 559.730(3)(7), F.S., listed below are guidelines applicable to each ground for disciplinary action that may be imposed by the Office against a person for a violation of Part VI, Chapter 559, F.S. are hereby adopted. The disciplinary guidelines are contained in “Office of Financial Regulation, Division of Consumer Finance, Disciplinary Guidelines for Consumer Collection Agencies”, which is hereby incorporated by reference. A copy of the disciplinary guidelines is available on the Office’s website at www.flofr.com, and by mail from the Office of Financial Regulation, 200 East Gaines Street, Tallahassee, Florida 32399-0376. In determining an appropriate penalty within the range of penalties prescribed in this rule the guidelines for each occurrence violation as based upon the violation citation number, the Office shall consider the circumstances set forth in subsection (25) (2) and (3). The third column of the guidelines provides a summary of the statutory violations solely for the purpose of ease of reference. Persons subject to the rule should review the full text of the Florida Statute cited in the second column of the guidelines for the complete description of the violation. For the purpose of this rule and the guidelines, the term “citation” means any written notice provided to and received by the registrant that specifies a violation of Chapter 559, F.S., or any rule promulgated under that chapter.

	Statute	Violation Description Summary	1st Occurrence	2nd Occurrence	3rd & Subsequent Occurrences
(1)	559.565(1)	An out-of-state consumer debt collector who collects or attempts to collect consumer debts in this state without first registering in accordance with this part.	Fine: B Cease and Desist	Fine: C Cease and Desist
(2)	559.72(1)	Simulate in any manner a law enforcement officer or a representative of any governmental agency.	Fine: A	Fine: B	Fine: C Revocation
(3)	559.72(2)	Use or threaten force or violence.	Fine: B	Fine: C Revocation
(4)	559.72(3)	Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed.	Fine: A	Fine: B	Fine: C Revocation
(5)	559.72(4)	Communicate or threaten to communicate with a debtor’s employer before obtaining final judgment against the debtor.	Fine: A	Fine: B	Fine: C Revocation
(6)	559.72(5)	Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.	Fine: A	Fine: B	Fine: C Revocation
(7)	559.72(6)	Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact or failed to notify within 30 days the details of the dispute to each person to whom disclosure was made.	Fine: A	Fine: B	Fine: C Revocation
(8)	559.72(7)	Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.	Fine: A	Fine: B	Fine: C Revocation
(9)	559.72(8)	Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family.	Fine: A	Fine: B	Fine: C Revocation
(10)	559.72(9)	Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist.	Fine: B	Fine: C Revocation
(11)	559.72(10)	Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not.	Fine: A	Fine: B	Fine: C Revocation
(12)	559.72(11)	Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.	Fine: B	Fine: C	Fine: C Revocation
(13)	559.72(12)	Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney.	Fine: A	Fine: B	Fine: C Revocation
(14)	559.72(13)	Advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor.	Fine: B	Fine: C Revocation
(15)	559.72(13)	Threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor.	Fine: A	Fine: B	Fine: C Revocation
(16)	559.72(14)	Publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.	Fine: B	Fine: C Revocation
(17)	559.72(14)	Threaten to publish or post before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.	Fine: A	Fine: B	Fine: C Revocation
(18)	559.72(15)	Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt.	Fine: A	Fine: B	Fine: C Revocation
(19)	559.72(16)	Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor.	Fine: B	Fine: C	Fine: C Revocation
(20)	559.72(17)	Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.	Fine: A	Fine: B	Fine: C Revocation
(21)	559.72(18)	Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt.	Fine: A	Fine: B	Fine: C Revocation
(22)	559.72(19)	Cause a debtor to be charged for communications by concealing the true purpose of the communication.	Fine: A	Fine: B	Fine: C Revocation
(23)	559.725(6)	Failure to provide a written response to a consumer complaint within 45 days of written request.	$150 per day	$200 per day	$250 per day

(24) In accordance with this rule:

(a) Depending on the severity and repetition of specific violations, the Office may impose an administrative fine, suspension of a person, or revocation of a person or any combination thereof;

(b) The Office may impose a cease and desist order, a suspension, or both in conjunction with and in addition to any of the designated sanctions set forth in this rule when appropriate under the circumstances; and

(c) The Office will consider the person’s disciplinary history for the past 10 five years in determining an appropriate penalty, and may impose a more severe penalty when the disciplinary history includes past violations.

(2) Consistent with the guidelines contained in Office of Financial Regulation, Division of Consumer Finance, Disciplinary Guidelines for Consumer Collection Agencies, the Office may issue orders to revoke or suspend a registration; orders to impose an administrative fine; orders of prohibition including ceasing and desisting, and injunction; orders of appointment; orders of removal; orders denying applications; and/or Notices of Non-compliance. Also consistent with the guidelines, to determine penalties, the Office may consider the combined effect of violations.

(3)(25) In accordance with Section 559.730, F.S., the Office shall consider the following circumstances in determining an appropriate penalty within the range of penalties prescribed in this rule the guidelines for each violation. The Office also shall consider these circumstances when determining whether a deviation from the range of sanctions prescribed in the disciplinary guidelines is warranted:

(a) The following circumstances are considered mitigating factors:

1. If the violation rate is less than 5% when compared to the overall sample size reviewed;

2 No prior administrative actions by the Office against the registrant or control person within the past 10 years;

3. If the registrant detected and voluntarily instituted corrective responses or measures to avoid the recurrence of a violation prior to detection and intervention by the Office;

4. If the violation is attributable to an single control person or employee, and if the registrant removed or otherwise disciplined the individual prior to detection or intervention by the Office;

5. If the registrant provided substantial assistance to the Office in its examination or investigation of the underlying misconduct; or

6. Other relevant, case-specific circumstances.

(b) The following circumstances are considered aggravating factors:

1. If the violation rate is more than 95% when compared to the overall sample size reviewed (sample size must be equal to or greater than 25 transactions and cover a date range of more at least 6 months; 

2. The potential for harm to the customers or the public is significant;

3. Prior administrative action by the Office against the registrant or an affiliated party of the registrant within the past 5 years;

4. If the registrant’s violation was the result of willful misconduct or recklessness;

5. The registrant attempted to conceal the violation or mislead or deceive the Office; or

6. Other relevant, case-specific circumstances.

(a) The degree of harm to the public;

(b) The disciplinary history of the person;

(c) Whether the person detected and voluntarily instituted corrective responses or measures to avoid the recurrence of a violation prior to detection and intervention by the Office;

(d) Whether the person’s violation was the result of willful misconduct or recklessness;

(e) Whether at the time of the violation, the person had developed and implemented reasonable supervisory, operational or technical procedures, or controls to avoid the violation;

(f) Whether the person attempted to conceal the violation or mislead or deceive the Office;

(g) The length of time over which the person engaged in the violations; and

(h) Other control, case-specific circumstances.

(4)(26) The list of violations cited in this rule the guidelines is intended to be comprehensive, but the omission of a violation from the list does not preclude the Office from taking any action authorized by Section 559.730, F.S.

(5)(27) The ranges for administrative fines imposed by this rule the guidelines are $1,000 to $3,500 for an “A” level fine; $3,500 to $7,500 for a “B” level fine; and $7,500 to $10,000 for a “C” level fine.

(6) The ranges for suspensions imposed by the guidelines are 3 to 10 days for an “A” level suspension; 10 to 20 days for a “B” level suspension; 20 to 30 days for a “C” level suspension; and up to 90 days for a “D” level suspension. A “D” level suspension may be terminated early if registrant cures the violation to the Office’s satisfaction.

(7)(28) A previous “occurrence” is the same or similar misconduct which was the subject of a Final Order entered by the Office prior to the acts or omissions which are the subject of the current action by the Office.

Rulemaking Authority 17.29, 559.554, 559.727, 559.730(7), 559.730(3) FS. Law Implemented 559.5556, 559.565(1), 559.72, 559.725(6), 559.727, 559.730 FS. History–New 10-25-11, Amended ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Gregory C. Oaks, Director, Division of Consumer Finance

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Financial Services Commission

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 13, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 17, 2014