To amend the penalty structure to ensure consistency in the application of administrative fines for statutory violations of the Florida Telemarketing Act.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NO.:RULE TITLE:

5J-6.016Enforcement Actions and Administrative Penalties

PURPOSE AND EFFECT: To amend the penalty structure to ensure consistency in the application of administrative fines for statutory violations of the Florida Telemarketing Act.

SUMMARY: The proposed rule amends the fines to be imposed for violations and amends the mitigating factors that will be applied to determine penalties for violation of the Florida Telemarketing 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 rule amends the penalty guidelines for violators. There are no regulatory costs associated with this rule. 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: 501.626, 570.07(23) FS.

LAW IMPLEMENTED: 501.612(1), (2)(d), 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-6.016 Enforcement Actions and Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Sections 501.601-501.626, F.S. The purpose of the guidelines is to give notice of the range of penalties which will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase the penalties to be imposed against the violator by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $10,000 pursuant to the Class III category as provided in Sections 501.612(2)(b) and 570.971, F.S. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine a total penalty and will be grounds for enhancement of penalties.

(2) through (4) No change.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Sections 501.601-501.626, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation. In no event shall a fine for a single violation exceed the statutory maximum of $10,000 pursuant to the Class III category as provided in Sections 501.612(2)(b) and 570.971, F.S. 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 $10,000. 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) Aggravating factors shall include:

1. through 8. No change.

(b) Mitigating factors shall include:

1. through 5. No change.

6. The violator took corrective action within twenty-four (24) hours of receiving written notification of the violation.

7. No change.

(6) through (7) No change.

(8) Penalties.

(a) No change.

(b) Minor Violations. A violation of Sections 501.601-501.626, F.S., is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in imposition of a fine ranging from $1,000 to $5,000 $10,000. The following statutory violations shall be considered minor violations:

1. through 4. No change.

(c) Major Violations. A violation of Sections 501.601-501.626, F.S., or this rule chapter is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare, or creates a significant threat of such harm. Major violations shall result in the imposition of an administrative fine of $1,000 $5,000 to $10,000, suspension or revocation of the license as prescribed in Section 501.612(2)(d), F.S., or any of the penalties as prescribed in Sections 501.612(2)(b)-(e), F.S. The following violations shall be considered major violations:

1. through 16. No change.

(9) through (11) No change.

Rulemaking Authority 501.626, 570.07(23) FS. Law Implemented 501.612(1), (2)(d), 570.971(4) FS. History–New 4-16-15, Amended             .

 

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: April 25, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 29, 2016