The purpose and effect of these rule amendments is to provide the regulated public with notice of the factors considered by the Division of Licensing when disciplining persons for violations of chapter 493, Florida Statutes.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Licensing

RULE NO:RULE TITLE:

5N-1.113Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

PURPOSE AND EFFECT: The purpose and effect of these rule amendments is to provide the regulated public with notice of the factors considered by the Division of Licensing when disciplining persons for violations of chapter 493, Florida Statutes.

SUMMARY: Proposed rule amendments specify factors considered by the Division of Licensing when imposing discipline for violations of chapter 493, Florida Statutes. Three common offenses have also been added for which no guideline previously existed, and one guideline has been removed. 

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS (SERC) AND LEGISLATIVE RATIFICATION: The agency has determined that this rule 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 division's economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the division concluded that this rule change will not have any impact on licensees and their businesses or the businesses that employ them. The rule will not increase any fees, business costs, personnel costs, will not decrease profit opportunities, and will not require any specialized knowledge to comply. This change will not increase any direct or indirect regulatory costs. Hence, the division determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature.  Additionally, no interested party submitted additional information regarding the economic impact.

Any person who wishes to provide information regarding the statement of estimated regulatory costs or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY:  493.6103, 493.6304(3), 493.6406(3), FS.

LAW IMPLEMENTED:  493.6107(5), 493.6110(2), 493.6111(5), 493.6112(1), (2), 493.6115, 493.6118, 493.6120(3), 493.6121, 493.6124, 493.6301(8), 493.6304(3), 493.6404, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FLORIDA ADMINISTRATIVE REGISTER.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: John Roberts, Government Analyst, Division of Licensing; [e-mail]; [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5N-1.113 Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances; Range of Penalties.

(1) Purpose. This rule sets forth disciplinary guidelines used by the division when imposing penalties authorized under chapter 493, F.S. The guidelines notify applicants and licensees of the range of penalties which are routinely imposed unless the division finds it necessary to deviate based on aggravating and mitigating factors established within this rule.

(2) Violations.

(a) This rule provides general descriptions of offenses common to provisions of chapter 493, F.S. The complete language of each statutory violation should be reviewed to determine all the conduct included.

(b) This rule does not and is not intended to encompass all possible violations of statute or rule. The absence from this rule of a violation should not be construed as an indication that the violation does not cause harm to the public or is not subject to a penalty. In any instance where a violation is not listed in this rule, the penalty will be determined by consideration of:

1. The closest analogous violation, if any, and

2. Aggravating and mitigating factors.

(3) Aggravating and Mitigating Factors.

In proceedings pursuant to sections 120.57(1) and (2), F.S., the division will impose a penalty within the range corresponding to the violations as set forth below. Penalty ranges are based on a single occurrence of each violation listed. Multiple occurrences of a violation, or a combination of different violations, will be added together to determine the total penalties to be assessed and can be grounds for enhancement of penalties. The division can deviate upward or downward from the range of penalties provided by this rule and impose any penalty permitted by section 493.6118(2), F.S., based on aggravating and mitigating factors related to each violation. The division considers the following as aggravating or mitigating circumstances: 

(a)  The violation was intentional, negligent, or malicious;

(b) The danger to public safety or welfare caused by the violation;

(c) The amount of damage to persons or property caused by the violation;

(d) The duration of the violation;

(e) The length of time the violator has been licensed;

(f) The violator’s disciplinary history;

(g) Subsequent remedial or corrective measures taken by the violator;

(h) The deterrent effect of the penalty imposed;

(i) Whether the violation occurred while the violator was on probation;

(j) Substantiated actions by another party preventing the violator from complying with applicable laws or rules;

(k) Acts of God or nature that impaired the violator's ability to comply with applicable laws and rules;

(l) Any other relevant aggravating or mitigating factor.

(4) Additional remedies. 

(a) The provisions of this rule are not intended and shall not be construed to limit the ability of the division to:

1. Informally dispose of disciplinary actions by guidance or compliance letters, or by stipulation, agreed settlement, or consent order.

2. Pursue or recommend collateral civil or criminal action if appropriate.

(b) In addition to the penalties established in this rule, the division reserves the right to recover any penalties, attorneys' fees, court costs, service fees, collection costs, costs resulting from a payment to the division that is returned for insufficent funds, or damages, as permitted by law. 

(5) Final Orders.  A violator’s failure to comply with a final order that imposes penalties, shall result in denial of a license application, or revocation of existing chapter 493 licenses pursuant to section 493.6118(2)(a) and (e), F.S. This is in addition to suspension of licenses under section 493.6118(6), F.S., for nonpayment of fines.  Additional penalties can be sought by the division through enforcement of the final order in circuit court.

The Division sets forth below disciplinary guidelines from which penalties will be imposed upon any person or agency violating chapter 493, F.S. The purpose of the disciplinary guidelines is to provide notice of the range of penalties which may be imposed for specific violations. The language below is intended to summarize the statutory language and is not a complete statement of the violation.

(6)(1) The disciplinary guidelines for violations committed by agencies are as follows:

VIOLATION	RANGE OF PENALTIES
(a) through (c) No change.	(a) through (c) No change.
(d) Failure to have a valid local occupational license. (Section 493.6107(5), F.S.)	(d) An administrative fine of $50-$150.
(d)(e) Failure to immediately notify the division of cancellation of liability insurance. (Section 493.6110(2), F.S.)	(d)(e) An administrative fine of $150-$350.
(e)(f) Failure to issue identification cards to licensed employees. (Section 493.6111(5), F.S.)	(e)(f) An administrative fine of $50-$150 per employee.
(f)(g) Failure to notify the division of changes in corporate officers. (Section 493.6112(1), F.S.)	(f)(g) From an administrative fine of $150-$350 to one month’s suspension of license.
(g)(h) Failure to electronically report the hiring or termination of a licensed employee within 15 calendar days. (Section 493.6112(2), F.S., and Rule 5N-1.142(1), F.A.C.	(g)(h) From an administrative fine of $50-$150 to probation.
(i) through (z) relabeled (h) through (y) No Change.	(i) through (z) relabeled (h) through (y) No Change.

 

(7)(2) The disciplinary guidelines for violations committed by individuals are as follows:

VIOLATION	RANGE OF PENALTIES
(a) through (i) No change.	(a) through (i) No change.
(j) Firing an a unjustifiable warning shot while on duty. (Section 493.6118(1)(f), F.S., see also: section 776.012, F.S.)	(j) No change.
(k) through (n) No change.	(k) through (n) No change.
(o) Violation of a cease and desist order issued by the division. (Sections 493.6118(1)(k), 493.6120(53), F.S.)	(o) No Change.
(p) through (u) No change.	(p) through (u) No change.
(v) Falling asleep while on duty. (Section 493.6118(1)(f), F.S.)	(v) From a reprimand to an administrative fine of $150 to $300 to probation or three months suspension.
(w) Abandoning post while on duty. (Section 493.6118(1)(f), F.S.)	(w) From an administrative fine of $150-500 to probation or three months suspension.
(x) Conviction for, or adjudication of guilt withheld on, a crime directly related to the business for which the license is held. (Section 493.6118(1)(c), F.S., and Rule 5N-1.114, F.A.C.)	(x) Revocation or denial of license.

 

(8)(3) In addition to the disciplinary guidelines set forth in subsections  (6)(2) and (7)(3), guidelines for violations committed by recovery agencies, agents, and interns are as follows:

VIOLATION	RANGE OF PENALTIES
(a) through (m) No change.	(a) through (m) No change.

 

(9)(4) The disciplinary guidelines for violations committed by instructors and schools or training facilities are as follows:

VIOLATION	RANGE OF PENALTIES
(a) through (g) No change.	(a) through (g) No change.

 

(5) The division shall be entitled to deviate from the above-mentioned guidelines and impose any penalty authorized under section 493.6118(2), F.S., upon a showing of one or more of the following aggravating or mitigating circumstances presented to the finder of fact:

(a) The violation was committed maliciously.

(b) The danger to public safety or welfare.

(c) The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

(d) The length of time the violator engaged in the prohibited activity.

(e) The length of time since the violation occurred.

(f) Previous disciplinary action against the violator in this or any other jurisdiction.

(g) The amount of damage to persons or property caused by the violation.

(h) The deterrent effect of the penalty imposed.

(i) Any efforts by the violator at rehabilitation.

(j) Attempts by the violator to correct violations or the failure to correct violations.

(k) The violator’s prior knowledge of chapter 493, F.S.

(l) Whether the violation resulted from negligence or an intentional act.

(m) Financial hardship.

(n) The cost of disciplinary proceedings.

(o) The number of other violations proven in the same proceeding.

(p) The violation occurred while on probation.

(6) The provisions of this rule are not intended and shall not be construed to limit the ability of the division to informally dispose of disciplinary actions by stipulation, settlement or consent order pursuant to section 120.57(3), F.S.

(7) The provisions of this rule are not intended and shall not be construed to limit the ability of the Division to pursue or recommend collateral civil or criminal action when appropriate.

Rulemaking Authority 493.6103, 493.6304(3), 493.6406(3) FS. Law Implemented 493.6107(5), 493.6110(2), 493.6111(5), 493.6112(1), (2), 493.6115, 493.6118, 493.6120(53), 493.6121, 493.6124, 493.6301(8), 493.6304(3), 493.6404 FS. History–New 5-7-91, Amended 5-15-95, Formerly 1C-3.113, Amended 5-23-19,                               .

 

NAME OF PERSON ORIGINATING PROPOSED RULE:

Steven Hurm, Director, Division of Licensing

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE:

Commissioner of Agriculture Nicole Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 22, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 12, 2019