To create and administer a program to permit commercially operated weighing and measuring devices in the State of Florida, in accordance with the mandates of Sections 531.60-.66, F.S.

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Standards

RULE NO: RULE TITLE
5F-5.002: Weighing or Measuring Device Permits; Requirements and Fees
PURPOSE AND EFFECT: To create and administer a program to permit commercially operated weighing and measuring devices in the State of Florida, in accordance with the mandates of Sections 531.60-.66, F.S.
SUMMARY: Establishes requirements, fees and adopts such forms as are necessary to create and administer a program, in accordance with Sections 531.60-.66, F.S., for the permitting of commercially operated weighing and measuring devices in the State of Florida.
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: 531.66 FS.
LAW IMPLEMENTED: 531.60 -.66 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 24 hours before the workshop/meeting by contacting: Max Gray, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Max Gray, Chief, Bureau of Weights and Measures, 3125 Conner Blvd, Tallahassee, FL 32399, phone: [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

5F-5.002 Weighing or Measuring Device Permits; Requirements and Fees.

(1) As used in this rule, the following definitions shall apply:

(a) Commercial Purpose. Any weighing and measuring device is used for a commercial purpose when it is: used or employed in commerce to establish the size, quantity, extent, area, or measurement of any commodity sold, offered, or submitted for sale or hire; used or employed in computing any basic charge or payment for services rendered on the basis of weight, measure, or count; or used or employed in determining the winner of any award based on weight, measure, or count.

(b) Department. The Florida Department of Agriculture and Consumer Services.

(c) Location. Any single structure, site, mobile unit or similar type establishment where commercial weighing and/or measuring activities are conducted by an owner or person in possession of a device for which a permit is required.

(d) Law Enforcement Purposes. Any weighing or measuring device is used for law enforcement purposes when it is: used or employed by a government agency for only the purposes of the enforcement of law and not for any commercial use. Examples of law enforcement purposes include, but are not limited to, the weighing of confiscated contraband by an agency as part of a criminal or civil case or investigation and the weighing of vehicles by a government agency to enforce highway weight restrictions.

(e) Owner. A person, as defined in this rule, that owns or uses, has primary possession or control over the use of, or otherwise employs a weighing or measuring device for use in conducting commercial transactions or for law enforcement purposes.

(f) Commercial Use Permit (Permit). A certificate issued by the Department that authorizes the holder to use or employ commercial weighing and/or measuring devices for an individual location for which the certificate is issued.

(g) Person. Includes both singular and plural, as the case demands, and includes individuals, partnerships, corporations, companies, societies, associations, and all other groups or combinations.

(h) Retail Establishment. A location, as defined above, in which scales with manufacturers’ rated capacity of 100 pounds or less or the metric equivalent are utilized in conducting commercial weighing or measuring activities.

(2) No owner or person in possession shall operate any commercial weighing or measuring device listed in paragraph 5F-5.002(6)(e) or (f), F.A.C., without first obtaining a weighing or measuring device commercial use permit.

(3) Commercial Use Permits (Permits). Each permit shall be conspicuously displayed at the location for which it is issued. Permits shall be issued by the Department following receipt and approval of a completed Weighing and Measuring Device Permit Application, DACS-03560, (Rev. 06/09), herein adopted and incorporated by reference, identifying the specific type of weighing and measuring devices for which the permit is sought. A copy of the Weighing and Measuring Device Permit Application can be obtained from the Florida Department of Agriculture and Consumer Services, Bureau of Weights and Measures, 3125 Conner Boulevard, Tallahassee, Florida 32399-1650 or from the Department’s web site at http://www.doacs.state.fl.us/onestop/index.html. The applicant shall provide the requested business information, the name and signature of the applicant or applicant’s agent, shall complete the Permit Fee Worksheet (page two of application) providing the total number of each specific device type at the permit location, and shall pay a total fee based on the amounts specified in subsection 5F-5.002(6)(e) or (f), F.A.C.

(4) Exemptions. The provisions of this rule do not apply to measuring devices used exclusively for measuring petroleum products taxed under Section 525.09, F.S.; to a taximeter that is licensed, permitted, or registered by a municipality, county, or other local government and tested for accuracy and compliance with state standards by the local government in cooperation with the state as authorized in Section 525.421, F.S.; or to a device used exclusively for weighing railroad cars and is tested for accuracy and compliance with state standards by a private testing agency.

(5) Except for permits for additional devices put into service at a location with an existing permit which will be prorated on a quarterly basis as prescribed in subsection 5F-5.002(7), F.A.C., Weighing and Measuring Device Permits shall be valid for one year from the date of issuance. Fees paid for required weighing and measuring device permits are not refundable.

(6) Weighing and Measuring Device Commercial Use Permit Fees.

(a) One annual commercial use permit shall be issued to each location for all weighing and measuring devices at that location based on the total number, type, size and/or capacity of devices at that location. The permit shall expire one year following the date of issuance and must be renewed annually. The annual permit renewal fee shall be the same as the fees established in paragraphs 5F-5.002(6)(e) and (f), F.A.C.

(b) If the ownership of a permitted device(s) changes, the current permit for that device(s) will remain in effect until its original expiration date and will be transferred by the Department to the new owner if:

1. The device(s) for which the permit was issued remained in the same location; and

2. The new owner, or a representative of the new owner, notifies the Department of the change in ownership in writing within 30 days of the change in ownership by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at [phone].

(c) If the ownership and location of a permitted device(s) changes, the current permit for that device(s) automatically expires and a new permit application must be submitted to the Department and a new permit shall be issued which will expire one year from the date of issuance. However, if the location of a permitted device(s) changes without a change in ownership, the current permit for that device(s) shall be transferred by the Department to the new location upon notification by the owner. The owner shall notify the Department in writing within 30 days of the change in location by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at [phone].

(d) The failure of an owner to notify the Department of the change in ownership or location of a permitted device(s) within thirty days of the change will subject the owner to paying the prescribed fees for a new permit and any applicable late fee as prescribed in subsection 5F-5.002(9), F.A.C.

(e) The following commercial use permit fees for weighing and measuring devices are based on the manufacturers’ rated capacity or the device’s design and use:

1. For weighing devices used during any portion of the period covered by the commercial use permit with a manufacturer’s rated capacity of up to and including 100 pounds or the metric equivalent, the fees in Table 1 will apply:

Table 1
Number of Devices per Single Retail Establishment	Fee per Single Retail Establishment
1 to 5	$40
6 to 10	$125
11 to 30	$175
31 and Over	$225

2. For weighing devices with a manufacturer’s rated capacity of greater than 100 pounds up to and including 5,000 pounds or the metric equivalents, the annual permit fee shall be $75 per device.

3. For weighing devices with a manufacturer’s rated capacity of greater than 5,000 pounds up to and including 20,000 pounds or the metric equivalents, the annual permit fee shall be $150 per device.

4. For weighing devices with a manufacturer’s rated capacity of greater than 20,000 pounds or the metric equivalent, the annual permit fee shall be $200 per device.

5. For wheel load weighing devices the annual permit fee shall be $15 per device.

6. For static and in-motion railroad track scales used to weigh railway cars that are not tested for accuracy and compliance with state standards by a private testing agency, the annual permit fee shall be $200 per device.

7. For belt conveyor scales, the annual permit fee shall be $400 per device.

8. For weighing devices used only for law enforcement purposes by a government agency, the annual permit fee shall be $0.

(f) The following are the commercial use permit fees for measuring devices:

1. For mass flow meters with a maximum flow rate of up to and including 150 pounds per minute or the metric equivalent, the annual permit fee shall be $100 per device.

2. For mass flow meters with a maximum flow rate of greater than 150 pounds per minute or the metric equivalent, the annual permit fee shall be $250 per device.

3. For volumetric flow meters with a maximum flow rate of up to and including 20 gallons per minute or the metric equivalent, the annual permit fee shall be $40 per device.

4. For volumetric flow meters with a maximum flow rate of greater than 20 gallons per minute or the metric equivalent, the annual permit fee shall be $80 per device.

5. For tanks used as measures with capacities of less than 500 gallons or the metric equivalent, with or without gage rods or markers, the annual permit fee shall be $100 per device.

6. For tanks used as measures with capacities 500 gallons or greater or the metric equivalent, with or without gage rods or markers, the annual permit fee shall be $200 per device.

7. For taximeters that are not tested for accuracy and compliance with state standards by a local government in cooperation with the state as authorized in Section 525.421, F.S., the annual permit fee shall be $35 per device.

8. For grain moisture meters, the annual permit fee shall be $25 per device.

9. For multiple dimension measuring devices, the annual permit fee shall be $100 per device.

10. For measuring devices used only for law enforcement purposes by a government agency, the annual permit fee shall be $0.

(g) The Department shall test weighing and measuring devices that are not used commercially, including devices used only for law enforcement purposes, only if the device is permitted and the appropriate fees are paid in accordance with this rule.

(7) Fees for Device(s) placed into Service at a Location with an Existing Commercial Use Permit. The Department shall be notified by the applicant about any non-replacement weighing or measuring device that is put into service during a permit year at a location with an existing permit using the Weighing and Measuring Device Permit Application, DACS-03560, (Rev. 06/09). The fee shall be prorated on a quarterly basis of the fee prescribed in paragraph 5F-5.002(6)(e) or (f), F.A.C., for every three month period or portion thereof remaining until the expiration of the existing permit for that location.

(8) Replacement Devices. Each device for which a permit has been issued may be replaced with a device of the same type, size and capacity and will not require additional fees to be paid until renewal of the permit providing the following conditions apply:

(a) The amount of the fee for the replacement device would have been the amount of the fee for the original device as prescribed in paragraph 5F-5.002(6)(e) or (f), F.A.C., and

(b) The replacement device shall be reported to the Department within 30 days of replacement in writing with the brand name and capacity of both the device(s) being replaced and the replacement device(s) by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at [phone].

(9) Late Fees. The Department shall not issue a Weighing and Measuring Device Permit until all applicable fees, including late fees, are received by the Department. A late fee of $100 per location must be paid in addition to the annual commercial use permit fee required by subsections 5F-5.002(6)(e) and (f), F.A.C., if:

(a) The annual commercial use permit application and renewal fee is not received by the Department within thirty days after its annual due date (one year from the date of issuance); or

(b) A commercial use permit application and fee for a non-replacement device put into service at a permitted location is not received by the Department within thirty days after the device is placed into service.

(10) Enforcement Actions and Administrative Penalties.

(a) The Department shall impose administrative penalties against the owner or person in possession to enforce compliance with Sections 531.60-.66, F.S., and this rule.

(b) This section sets forth the guidelines the Department will follow in imposing the penalties authorized under Section 531.50 and Sections 531.60-.66, F.S. The purpose of the guidelines is to give notice of the range of penalties which normally will be imposed for a single violation. 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 violation above the statutory maximum as provided in Section 531.50, F.S. The guidelines in this rule 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 an overall total penalty and will be grounds for enhancement of penalties.

(c) 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.

(d) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to, encompass all possible violations of the statutes or Department rules that might be committed by any person. The absence of any violation from this rule shall in no way be construed to indicate that the violation is not subject to a penalty. In an instance where the violation is not listed in this rule, the penalty will be determined by consideration of:

1. The closest similar violation, if any, that is listed in this section; and

2. The mitigating or aggravating factors listed in this section.

(e) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining penalties for violations of Sections 531.60-.66, F.S., and this rule. The factors shall be applied against each single count of the listed violation.

1. Aggravating Factors:

a. Degree and extent of potential harm caused by the violation.

b. The amount of money by which the violator benefited from noncompliance.

c. Whether the violation was committed willfully.

d. The compliance record of the violator including previous violations for the same or similar offenses that resulted in enforcement action.

e. The violation was repeated with 2 years of the first violation.

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

g. The deterrent effect of the penalty imposed.

h. Undue delay in initiating or completing corrective action or failure to take affirmative or corrective action after receipt of notice of the violation.

i. The violator’s prior knowledge of Sections 531.60-.66, F.S. and Rule 5F-5.002, F.A.C.

j. The cost of the enforcement action.

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

2. Mitigating Factors:

a. Degree and extent of potential harm caused by the violation.

b. The amount of money by which the violator benefited from noncompliance.

c. Whether the violation was committed willfully.

d. The compliance record of the violator including previous violations for the same or similar offenses that resulted in enforcement action.

e. Any documented efforts by the violator to correct the violation.

f. Length of time operating location while out of compliance.

g. Reliance of written professional or expert counsel or advice.

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

i. Financial hardship.

j. Acts of God or nature that impairs the ability of the violator to comply Sections 531.60-.66, F.S. or Rule 5F-5.002, F.A.C.

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

l. The number of violations charged in the administrative complaint.

m. If a repeat violator, whether 2 years has passed since the last violation.

(f) The provisions of this rule shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought. In addition to the penalties established in this rule, the Department reserves the right to seek to recover any other cost, 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 cost, 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.

(g) Penalties.

1. Notification of Noncompliance. Any Department investigation or inspection which reveals a violation of Sections 531.60-.66, F.S., or this rule in which the Department determines the violator was unaware of the rule or unclear as to how to comply with it will result in the written notification informing the violator of the requirement to complete and submit the application for a Weighing and Measuring Device Permit and the required fee within 10 days of notification by the Department. For the purposes of this rule, the following violations shall result in the issuance of a notice of noncompliance for the first violation only:

a. Using a weighing or measuring device for commercial purposes without a valid Commercial Use Permit.

b. Failure to submit a Weighing and Measuring Device Permit Application for a location or facility using commercial weighing or measuring devices.

c. Failure to report a replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location or facility.

d. Failure to report a non-replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location.

e. Failure to renew an existing Weighing and Measuring Device Permit within 30 days after its due date for renewal.

2. Devices Placed Out of Service by the Department. Any investigation or inspection in which the Department determines that a device(s) is out of compliance with Sections 531.60-.66, F.S., or this rule shall result in the device(s) being prohibited from further commercial use until the proper commercial use permit has been issued by the Department. The Department shall prevent the continued unauthorized use of the device(s) by attaching DACS Form 03562, “Out of Service” tag, (Rev. 06/09), to the device(s). DACS form 03562 (Rev. 06/09) is hereby adopted and incorporated by reference, a copy of which can be viewed on the Department’s web site at www.doacs.state.fl.us/onestop/index.html. Upon compliance with the applicable requirement, the Out of Service tag shall be removed from the weighing and measuring device(s).

3. Minor Violations. A violation of Sections 531.60-.66, F.S., or this rule 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. In addition to placing the device(s) out of service, the Department may impose an administrative fine of $250 per violation which may be adjusted upward for the existence of aggravating factors to statutory maximum of $1,000 for a first violation or downward depending upon the existence of mitigating factors. For the purposes of this rule, the following violations shall be considered minor violations:

a. Using a weighing or measuring device for commercial purposes without a valid Commercial Use Permit.

b. Failure to submit a Weighing and Measuring Device Permit Application for a location or facility using commercial weighing or measuring devices.

c. Failure to report a replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location or facility.

d. Failure to report a non-replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location.

e. Failure to renew an existing Weighing and Measuring Device Permit within 30 days after its due date for renewal or within 10 days from receipt of a Notice of Noncompliance.

4. Major Violations. A violation of Sections 531.60-.66, F.S., or this rule 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. In addition to placing the device(s) out of service, major violations shall result in the imposition of an administrative fine of $500 per violation, which may be adjusted upward to statutory maximum of $1,000 for a first violation, $2,500 for a second violation within two years of the first violation, $5,000 for a third violation within two years of the first violation, or downward depending upon the existence of mitigating or aggravating factors. For the purposes of this rule, the following violations shall be considered major violations:

a. Using a device for commercial purposes after notifying the Department the device is not used commercially.

b. Removal of an “Out of Service” tag that was applied for violating provisions of this rule without approval from the Department.

c. Impeding, obstructing, or hindering, a Department employee during duties associated with enforcement of provisions of this ruler.

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

(a) The Department and any person charged with a violation may agree to resolve violations prior to administrative hearing, or to 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 voluntary compliance including administrative action, civil actions, 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 Chapter 120 or Chapter 531, F.S.

(b) Failure to respond to an administrative complaint shall result in the entry of a Default Final Order against the violator or entity responsible for the violation. The Department may impose administrative fines in a Default Final Order equal to the maximum amount allowed, not to exceed $5,000 per violation.

(c) A failure to comply with either a Final Order or a Default Final Order of the Department shall result in permit revocation and an administrative fine of $5,000 per violation.

(d) Nothing in this rule shall prohibit the Department from imposing additional sanctions for violations of Chapter 531, F.S., or the rules promulgated thereunder.

Rulemaking Authority 570.07(23), 531.66 FS. Law Implemented 531.60-.66 FS. History–New________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Isadore Rommes, Director, Division of Standards
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charles H. Bronson, Commissioner of Agriculture
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 17, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 19, 2009