Definitions, Content of Dealers Records, Guidelines for Imposing Administrataive Penalties, Documents Incorporated by Reference

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Marketing and Development

RULE NO.: RULE TITLE:
5H-1.006: Definitions
5H-1.007: Content of Dealers Records
5H-1.008: Guidelines for Imposing Administrataive Penalties
5H-1.009: Documents Incorporated by Reference

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 37 No. 10, March 11, 2011 issue of the Florida Administrative Weekly.

5H-1.006 Definitions.

For the purpose of this chapter, the definitions in Section 604.15, Florida Statutes, and the following shall apply.

Tropical Foliage means any kind of herbaceous plant plants originally from tropical climates, that is are grown and sold as potted plants, cut foliage, or interiorscapes, interiorscape primarily for their indoor the decorative value of their leaves. Excluded from this definition are woody temperate zone plants, such as trees, shrubs or woody vines.

Rulemaking Authority 604.27 FS. Law Implemented 604.15, 604.27 FS. History–New________.

 

5H-1.007 Content of Dealers Records.

In accordance with Section 604.22, Florida Statutes, each licensed dealer shall preserve for at least twelve (12) months eighteen (18) months a record of each transaction involving agricultural products. The preserved record may take the form of an invoice, bill of sale, manifest, or other written document showing the date of sale, the name and address of the seller, and the kind or common name and quantity of each agricultural product included in the transaction.

Rulemaking Authority 604.27 FS. Law Implemented 604.22, 604.27 FS. History–New________.

 

5H-1.008 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the Department will follow in imposing the penalties authorized under Section 604.30 Chapter 604, F.S. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $2,500 per violation. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine an overall total penalty and will be grounds for enhancement of penalties.

(2) The Department will enforce compliance with Sections 604.15-604.34 Chapter 604, F.S., and this rule chapter by issuing an Administrative Complaint for violations.

(3) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining the penalty to be imposed for violations of Sections 604.15-604.34 Chapter 604, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

1. Whether a complaint(s) has have been filed against the Respondent by a producer (or their agent) of agricultural products in Florida.

2. The violation caused or has the potential to cause harm to a Florida agricultural producer and the degree or extent of such harm.

3. Previous violations for the same or a similar offense that resulted in enforcement action.

4. The length of time the business has been in operation and the violation history over the past three years.

5. The violation existed for a period of six (6) months or more an extended period of time.

6. The violation was repeated within three years a short period of time.

7. The violator impeded, or otherwise failed to cooperate with, the Department’s inspection and/or investigation.

8. Previous disciplinary action within the past three (3) years against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.

9. Failure to initiate, complete, or take affirmative or corrective action within twenty-one (21) days of Undue delay in initiating or completing, or failure to take, affirmative or corrective action after receipt of the Administrative Complaint.

10. Whether the violation resulted from negligence or an intentional act.

11. The cost of enforcement action.

12. The number of other violations proven in the same proceeding.

13. The economic benefit to the violator.

(b) Mitigating Factors:

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

2. Whether intentional actions of another party prevented the violator from complying with the applicable laws or rules.

3. Financial hardship.

4. Acts of God or nature that impairs the ability of the violator to comply with Sections 604.15-604.34 Chapter 604, F.S., and this rule chapter.

5. The violation has a low risk of, or did not result in, harm to a Florida agricultural producer.

6. The violator expeditiously took affirmative or corrective action after it received written notification of the violation.

7. If there are no more than three (3) months of subject purchases in the violation period requiring the minimum surety bond or certificate of deposit. The number and seriousness of the counts in the Administrative Complaint.

8. If a repeat violation, whether three years has passed since the prior violation.

(4) Penalties.

(a) Minor Violations. A violation of Sections 604.15-604.34 Chapter 604, F.S., or this rule chapter is a minor violation if it does not result in economic or physical harm to a Florida producer or create a significant threat of such harm. Minor violations shall result in the issuance of an Administrative Complaint and imposition of an administrative fine of $500.00 per violation, for first time offenders. Aggravating factors, as defined in paragraph (3)(a) of this rule, shall warrant the adjustment of the fine upward, but no fine shall exceed the statutory maximum as outlined in Section 604.30(3)(a), F.S. Mitigating factors, as defined in paragraph (3)(b) of this rule, shall warrant the adjustment of the fine downward. For the purposes of this rule, the following violations shall be considered minor violations:

1. Failure to have a license pursuant to Section 604.17, F.S., where the surety bond or certificate of deposit required under Section 604.20(1), F.S., is less than $15,000.

2. Failure to provide delivery tickets after delivery of grain, Section 604.32, F.S.

3. Failure to submit monthly grain dealer reports by the 15th of each month, Section 604.33, F.S.

(b) Major Violations. A violation of a Sections 604.15-604.34 Chapter 604, F.S., or this rule chapter is a major violation if it results in economic or physical harm to a Florida producer or creates a significant threat of such harm. Major violations shall result in the issuance of an Administrative Complaint and imposition of an administrative fine of $1,000.00 per violation, for first time offenders, and $2,500 per violation, for second-time or repeat offenders. Aggravating factors, as defined in paragraph (3)(a) of this rule, shall warrant the adjustment of the fine upward, but no fine shall be greater than $2,500.00 per violation as provided by exceed the statutory maxima as outlined in Section 604.30(3)(a), F.S. Mitigating factors, as defined in paragraph (3)(b) of this rule, shall warrant the adjustment of the fine downward, but no fine shall be less than $100.00. For the purposes of this rule, the following violations shall be considered major violations:

1. Failure to have a license pursuant to Section 604.17, F.S., where the surety bond or certificate of deposit required under Section 604.20(1), F.S., is equal to or greater than $15,000.

2. Failure to have a license pursuant to Section 604.17, F.S., when a Florida producer has filed a claim against the Respondent under Section 604.21, F.S.

3. Failure to increase the amount of surety bond or certificate of deposit after receiving notice that such increase is required under Section 604.20(2), F.S.

4. Failure to produce records upon request pursuant to Sections 604.22 and 604.23, F.S.

5. Failure to maintain security requirements pursuant to Section 604.33, F.S.

6. Any violation of Sections 604.15-604.34 Chapter 604, F.S., or this rule chapter occurring within three years of the issuance of an Administrative Complaint or Final Order, or the date of entry of a settlement agreement or Satisfaction of Final Order.

(c) Willful Violations.

1. Any willful and intentional violation of Sections 604.15-604.34 Chapter 604, F.S., this rule chapter, a Final Order, or the conditions stipulated in a settlement agreement shall result in the imposition of an administrative fine of $2,500 per violation.

(5) A violator who fails to pay an administrative fine imposed by a Final Order for violations of Sections 604.15-604.34 Chapter 604, F.S., or this rule chapter within 15 days of the order’s entry by the Department shall be subject to suspension or revocation of the dealer’s license and an additional fine of not to exceed $100.00 per day while in violation of such order.

(6) In addition to the penalties established in this rule, the Department reserves the right to seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the Department reserves the right to seek to recover any costs, penalties, attorney’s fees, court costs, service fees, collection costs, and costs resulting from a payment that is returned for insufficient funds to the Department.

(7) Resolution of Violations, Settlement, and Additional Enforcement Remedies.

(a) Nothing in this rule shall limit the ability of the Department to informally dispose of administrative actions by settlement agreement, consent order, or other lawful means.

(b) The Department and person charged with a violation may agree to resolve violations prior to an administrative hearing, or enter into settlement pursuant to Section 120.57(4), F.S. The penalties addressed in this rule shall not be construed to limit the authority of the Department to resolve violations prior to or after initiation of any administrative action or to settle with any party. The Department shall utilize all available remedies to ensure compliance including administrative action, civil actions, settlements, and referrals for criminal prosecution. The Department shall enforce a failure to comply with an agreement to resolve violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Section 120.69, F.S., or Sections 604.15-604.34 Chapter 604, F.S.

(c) Failure to respond to an Administrative Complaint shall result in the entry of a Final Order against the violator or entity responsible for the violation imposing an administrative fines of $2,500.00, not to exceed the statutory maximum allowable under Section 604.30(3)(a), F.S.

(d) A failure to comply with a Final Order of the Department shall result in any applicable license revocation and an administrative fine equal to the maximum amount as allowable under Section 604.30(3), F.S.

(e) The provisions of this rule shall not be construed so as to prohibit or limit any other civil action for enforcement of additional penalties or criminal prosecution that may be brought.

Rulemaking Authority 604.27 FS. Law Implemented 604.27, 604.30 FS History–New________.

 

5H-1.009 Documents Incorporated By Reference.

The following documents are hereby incorporated by reference. Copies of these documents may be obtained from the Division of Marketing, Bureau of Agricultural Dealer’s Licenses at 407 South Calhoun, M-38, Tallahassee, Florida 32399 or online as indicated.

(1) Assignment of Certificate of Deposit, DACS-06300 (Rev. 03/11 10/10), http://www.flrules.org/Gateway/reference.

(2) Statement Affidavit of Exemption, DACS-06301 (Rev. 04/11 10/10), http://www.flrules.org/Gateway/reference.

(3) Application for Agricultural Products Dealer License, DACS-06302 (Rev. 04/11 10/10), http://www.flrules.org/Gateway/reference.

(4) Agricultural Products Dealer Bond, DACS-06303 (Rev. 03/11 10/10), http://www.flrules.org/Gateway/reference.

(5) Public Sale of Thoroughbred Horses Bond, DACS-06304 (Rev. 10/10), http://www.flrules.org/Gateway/reference.

(6) Application for Livestock Market License, DACS-06305 (Rev. 10/10), http://www.flrules.org/Gateway/reference.

(5)(7) Grain Dealers Monthly Report, DACS-06306 (Rev. 10/10), http://www.flrules.org/Gateway/reference.

(6)(8) Answer of Respondent, DACS-06314 (Rev. 06/11 10/10), http://www.flrules.org/Gateway/reference.

(7)(9) Request For Accounting, DACS-06325 (Rev. 04/11 10/10), http://www.flrules.org/Gateway/reference.

(10) Public Sale of Thoroughbred Horses Application, DACS-06326 (Rev. 10/10), http://www.flrules.org/Gateway/reference.

(8)(11) Agricultural Products Dealer Claim Packet, DACS-06329 (Rev. 04/11 10/10), http://www.flrules.org/Gateway/reference.

Rulemaking Authority 534.48, 535.02, 604.27 FS. Law Implemented 534.48, 535.01, 604.16, 604.18, 604.20, 604.21, 604.23, 604.33 FS. History–New________.