The purpose of this rulemaking is to clarify statutory fine/penalty authority for violations of chapter 500 and section 581.217, F.S., and Rule Chapter 5K-4 and clarify that all major rule violations shall result in a stop-sale ....

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Food Safety

RULE NOS.:RULE TITLES:

5K-4.020Food Permits; Requirements and Fees

5K-4.035Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: The purpose of this rulemaking is to clarify statutory fine/penalty authority for violations of chapter 500 and section 581.217, F.S., and Rule Chapter 5K-4 and clarify that all major rule violations shall result in a stop-sale or stop-use and an administrative fine. The purpose of this rulemaking is also to implement the statutory changes that were passed during the 2023 Legislative Session. To effectuate the statutory changes, “frozen dessert manufacturer” is defined and is added to the permitting fee schedule, the deadlines for applying for food permits is being updated to allow for the issuance of food permits on a rolling basis, and a new form is incorporated which gives food establishments a way to document their closure with the Department.

SUMMARY: This proposed rule addresses penalties for violations of chapter 500, section 581.217(7), F.S., and Rule Chapter 5K-4. Due to statutory changes a rule update is required to implement changes to definitions, permitting expiration, renewal, and proration, and the fee schedule.

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 department’s proposed rule does not increase fees or otherwise impose any other costs, directly or indirectly, on the regulated industry. Based on this information, the department determined there will be no adverse impact to small businesses and the potential regulatory costs of the proposed rule chapter does not exceed any of the criteria established in section 120.541(2)(a), F.S. 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: 500.09, 500.12, 500.12(1)(b), 500.12(1)(f), 570.07(23), 581.217(7), FS.

LAW IMPLEMENTED: 500.04, 500.09, 500.10, 500.12(1)(a), (b), (c), (d), (f), 500.12(2), 500.12(7), 500.121, 500.171, 500.172, 500.172, 500.173, 500.174, 500.177, 570.15, 570.161, 581.217(7) 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: Trevor Walls by email at [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5K-4.020 Food Permits; Requirements and Fees.

(1) As used in this rule, the following definitions shall apply in determining food permit fees:

(a) through (h) No change.

(i) Frozen dessert manufacturer. A person who manufactures, processes, converts, partially freezes, or freezes any mix or frozen dessert for distribution or sale without utilizing pasteurization. This definition includes ice cream manufacturers that do not utilize pasteurization.

(i) through (ii) renumbered to (j) through (jj) No change.

(2) Food permits. The Department shall not issue a food permit to a Food Establishment until the following conditions are met:

(a) The Food Establishment submits a complete Food Permit Application, FDACS-14306 (Rev. XX/23)(Rev. 12/19) to the Department, either online or by mail as indicated on the form. Food Permit Application, FDACS-14306 (Rev. XX/23)(Rev. 12/19) is incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX, or by requesting a copy by emailing [e-mail]. https://www.flrules.org/Gateway/reference.asp?No=Ref-11718.

(b) through (e) No change.

(3) No change.

(4) Food Permit Fees.

(a) One food permit shall be issued to and one fee shall be charged to the Food Establishment for all food operations at a single location, regardless of whether the location may qualify under the definitions of this subsection for two or more permits. If a location qualifies for two or more permits, only the largest applicable fee shall be charged to that location, except that any location qualifying for a Limited Sales permit shall only be charged the fee applicable to a Limited Sales permit. If the ownership or physical location of a Food Establishment changes during a calendar year, a new food permit application, an inspection meeting requirements, and a fee in the amount specified in subsection 5K-4.020(4), F.A.C., are required before a food permit shall be issued. Other license or permit fees may apply to a business, however, are not voided by payment of the food permit fee. Fees charged to new Food Establishments shall be the entire applicable fee for one year. if the completed application is submitted January 1 through June 30, and shall be fifty percent (50%) of the applicable permit fee if the completed application is submitted July 1 through December 31.

(b) Beginning January 1, 2024, food permits issued by the Department will be renewed on a rolling basis in accordance with Section 500.12, F.S., with permit expiration dates based on the month and date the food permit was first issued (“initial permit date”).

(c) Owners of One Food Establishment.

1. New food permits issued after September 1, 2023, must be renewed annually on or before the initial permit date.

2. Food permits issued before September 1, 2023, will expire on December 31, 2023. To renew the permit, owners must submit the renewal application on or before December 31, 2023. The renewed permit will expire on the initial permit date. Owners are required to pay a prorated fee for each month starting from January 1, 2024, until the initial permit date. This prorated fee amounts to 1/12 of the total permit fee for each month. Owners must continue to renew their food permits annually on or before the initial permit date.

(d) Owners of 2 to 99 Food Establishments.

1. The owner of 2 to 99 food establishments will have a single expiration date for all their establishments. This expiration date will be the same as the initial permit date of their first permitted food establishment.

2. Owners of 2 to 99 food establishments shall renew all their food establishment permits by December 31, 2023. The renewed permits will remain valid until the initial permit date established according to subsection (4)(d)1., upon which the permits will expire. Owners must pay a prorated fee of 1/12 of the permit fee for each food establishment for every month starting from January 1, 2024, until the initial permit date. Owners must renew their food permits on or before the initial permit date and continue renewing annually on or before that date.

3. An owner of 2 to 99 food establishments has the option to choose separate permit expiration dates for each food establishment as specified in subsection (4)(c)2. If the owner does not make this election by August 30, 2023, then the expiration date for all of the owner's food establishments will be determined according to subsection (4)(d)1.

4. Owners shall notify the Department of their expiration date election by emailing [e-mail] or mailing their expiration date election to FDACS, Division of Food Safety, PO Box 6720, Tallahassee, Florida, 32399.

(e) Owners that Acquire Two or More Food Establishments.

1. When an owner acquires multiple food establishments permitted by the Department after August 30, 2023, the food permits for all of the establishments shall expire on the initial permit date of the first permitted food establishment. Owners are required to pay a prorated fee of 1/12 of the permit fee for each subsequent month until the initial permit date. Owners must renew their food permits on or before the initial permit date and continue to renew annually on or before that date.

2. When an owner acquires and permits two or more food establishments, they have the option to choose separate permit expiration dates for each establishment as outlined in subsection (4)(d)3. However, if the owner does not make this election within 30 days of permitting the second establishment, the expiration date for all of the owner's food establishments will be determined in accordance with subsection (4)(e)1.

3. Owners shall notify the Department of their expiration date election by emailing [e-mail] or mailing their expiration date election to FDACS, Division of Food Safety, PO Box 6720, Tallahassee, Florida, 32399.

(f) Owners will be afforded one opportunity to elect individual food establishment expiration dates in accordance with subsections (4)(d)3. or (4)(e)2.

(g) Owners of 100 or More Food Establishments.

1. Owners of 100 or more food establishments permitted by the Department have the option to choose December 31 as the uniform expiration date for all their food permits. This election must be made on or before August 30, 2023.

2. If an owner of 100 or more food establishments does not elect an expiration of December 31 for all its permitted food establishments by August 30, 2023, then the expiration date for the permitted food establishments shall be determined in accordance with subsection (4)(c).

3. Owners shall notify the Department of their expiration date election by emailing [e-mail] or mailing their expiration date election to FDACS, Division of Food Safety, PO Box 6720, Tallahassee, Florida, 32399.

4. For food establishments acquired and permitted by an owner who has elected December 31 as the expiration date for all its food permits, after August 30, 2023, the owner shall pay a prorated fee of 1/12 of the permit fee for the newly acquired food establishment location until December 31 of the calendar year in which the new location was permitted. The new location shall have an annual expiration date of December 31.

(h) Owners that Acquire 100 or more Food Establishments.

1. When the owner of multiple food establishments permitted by the Department acquires and permits its 100th food establishment after August 30, 2023, the owner may elect to set the expiration of food permits for all of its food establishment locations as December 31 of each calendar year.

2. If the owner does not elect an expiration of December 31 for all its permitted food establishments within 30 days of permitting its 100th location, the expiration date for the permitted food establishments shall be determined in accordance with subsections (4)(e).

3. Owners shall notify the Department of their expiration date election by emailing [e-mail] or mailing their expiration date election to FDACS, Division of Food Safety, PO Box 6720, Tallahassee, Florida, 32399.

(i) Owners will be afforded one opportunity to elect December 31 as the permit expiration date for all of its food establishments in accordance with subsections (4)(g)1. or (4)(h)1.

(j)(b) The following schedule of fees is established for each food permit.

Bottling Plant385

Bottled Water Plant500

Canning Plant490

Convenience Store330

Convenience Store with Limited Food Service430

Convenience Store with Significant Food Service475

Food Salvage Center470

Food Storage Warehouse355

Frozen Dessert Manufacturer200

Grocery Store540

Health Food Store300

Health Food Store with Food Service415

Large Food Charity130

Limited Poultry and Egg Farm Operation100

Limited Sales130

Meat Market455

Minor Food Outlet300

Minor Food Outlet, Only Non-perishable Foods190

Minor Food Outlet with Limited Food Service415

Minor Food Outlet with Significant Food Service470

Mobile Vendor300

Packaged Ice Plant250

Processor, Other Non-perishable Foods335

Processor, Other Perishable Foods490

Rabbit or Game Processor390

Retail Bakery355

Retail Bakery with Food Service490

Salvage Store470

Seafood Market410

Seafood Processor520

Semi-permanent Vendor195

Small Food Charity    0

Supermarket650

Tomato Packing House100

Wholesale Bakery530

Unattended Food Establishment175

Water Vending Machine  35

(5) Late Fees.

(a) The renewal fee for all food permits shall be the same as the food permit fee required by subsection 5K-4.020(4), F.A.C., except Frozen Dessert Manufactures which have an initial permit fee of $200 and an annual renewal fee of $100 and shall be renewed annually by January 1. If the renewal application and applicable fee are is not received by the Department on or before its due date, a late fee of $100 must be paid in addition to the food permit fee required by subsection 5K-4.020(4), F.A.C., before the Department will issue the food permit.

(b) No change.

(6) No change.

(7) Food Establishments permitted pursuant to Section 500.12, F.S., shall notify the department within 30 days after closure or dissolution of the business. Food Establishments shall submit a completed Food Permit Dissolution Form, FDACS-XXXXX (Rev. XX/23)(Rev. 12/19) to the Department, either online via the Food Permit Center portal or by mail as indicated on the form. Food Permit Dissolution Form, FDACS-XXXXX (Rev. XX/23)(Rev. 12/19) is incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX or by requesting a copy by emailing [e-mail].

Rulemaking Authority 500.09, 500.12(1)(b), 500.12(1)(f), 570.07(23) FS. Law Implemented 500.04, 500.09, 500.10, 500.12(1)(a), (b), (c), (d), (f), 500.12(2), 500.12(7), 500.121, 500.171, 500.172, 500.177, 570.15, 570.161, FS. History–New 1-10-93, Formerly 5E-6.020, Amended 8-8-95, 3-11-98, 3-6-01, 10-30-01, 1-1-03, 11-1-04, 11-5-07, 10-28-08, 3-1-09, 3-24-14, 3-16-20, 3-14-22,__________.

 

5K-4.035 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the Department will follow in imposing the penalties authorized under Chapter 500, and section 581.217, F.S. The purpose of the guidelines is to give notice of the range of penalties that will be imposed for a single violation within a three-year period. The three-year period shall be based on the date of the last administrative enforcement action imposed against the violator. 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 for a Class II category of $5,000 for each violation as provided in Section 570.971, F.S., except for violations of Section 500.165, F.S., which have a statutory maximum for a Class III category of $10,000 as provided in Section 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 an overall total penalty and will be grounds for enhancement of penalties.

(2) The Department will enforce compliance with Chapter 500, section 581.217(7), F.S., and this rule chapter by issuing an administrative complaint, a stop-sale order, or stop-use order, notice of non-compliance, permit suspension or revocation, or an immediate final order for violations of Chapter 500, section 581.217(7), F.S., and this rule chapter.

(3) Stop-Sale, or Stop-Use Orders. The Department shall issue a Stop-Sale, or Stop-Use Order FDACS-14215, (Rev. 04/19), as provided in Section 500.172, F.S., whenever necessary to effectuate the statutory duties of the Department in the interest of public health, safety, and welfare and as necessary to promote the safety of any food product, food-processing equipment, or areas within an entity operating as a Food Establishment in Florida. A Stop-Sale, or Stop-Use Order 14215, (Rev. 04/19), will be used to give notice that such a product, processing equipment or area is, or is suspected of, failing to comply with the requirements of Chapter 500, section 581.217(7), F.S., or this rule chapter, and shall prohibit the removal, use, or disposal of such item. The Stop-Sale, or Stop-Use Order FDACS-14215, (Rev. 04/19), is incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-11722.

(4)-(5) No change.

(6) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 500, section 581.217(7), F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

1. through 2. No change.

3. Previous violations for the same or a similar offense that resulted in enforcement action, defined as follows:

a. First Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., when no disciplinary administrative complaints involving the same permitholder have been filed with the Agency Clerk within the three years preceding the date the current administrative complaint is issued.

b. Second Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., after one disciplinary administrative complaint involving the same permitholder has been filed with the Agency Clerk within the three years preceeding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

c. Third and Any Subsequent Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., after two disciplinary administrative complaint involving the same permitholder has been filed with the Agency Clerk within the three years preceeding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

4. through 10. No change.

(b) Mitigating Factors:

1. through 2. No change.

3. Acts of God or nature that impaired the ability of the violator to comply with Chapter 500, section 581.217(7), F.S., or this rule chapter.

4. through 7. No change.

(7)-(8) No change.

(9) Penalties.

(a) No change.

(b) Major Violations. Any violation of Chapter 500, section 581.217(7), F.S., or this rule chapter that may result in economic or physical harm to a person or may adversely affect the public health, safety, or welfare or creates a significant threat of such harm shall be considered a major violation.

1. Tier I. Tier I Major major violations shall result in the issuance of a stop-sale order, or stop-use order and an administrative fine of $500 up to the statutory maximum, or any combination thereof. Aggravating factors, as defined in paragraph (6)(a) of this rule shall warrant the adjustment of the fine upward per violation per aggravating factor and mitigating factors, as defined in paragraph (6)(b) of this rule, shall warrant the adjustment of the fine downward per violation per mitigating factor, but no fine shall exceed the statutory maximum as outlined in section 570.971, F.S., as applicable. If, three years after the day of the last violation under Chapter 500, section 581.217(7), F.S., or this rule chapter, no new violation has occurred, all previous fines shall be disregarded when administering a fine for the next violation. For the purposes of this rule, the following violations shall be considered Tier I major violations:

a. through o. renumbered to 1. through 14.

15. o. Violation of 21 CFR Part 117.20, as incorporated in Rule 5K-4.002, F.A.C. Premises are not maintained free of roaches and rodents.

2. Tier II. Tier II violations shall result in the issuance of a stop-sale, or stop-use order and an administrative fine of $500 up to the statutory maximum. Aggravating factors, as defined in paragraph (6)(a) of this rule shall warrant the adjustment of the fine upward per violation per aggravating factor and mitigating factors, as defined in paragraph(6)(b) of this rule shall warrant the adjustment of the fine downward per violation per mitigating factor, but no fine shall exceed the statutory maximum as outlined in Section 570.971, F.S., as applicable. If, three years after the day of the last violation under Chapter 500, F.S., or this rule chapter, no new violation has occurred, all previous fines shall be disregarded when administering a fine for the next violation. For the purposes of this rule the following violations shall be considered Tier II major violations:

16. a. Violations that result in a second and any subsequent minor violation, or Tier I major violation for the same or similar offense, within a three-year period.

b. through g. renumbered to 17. through 22.

23. Failing to notify the Department within 30 days after closure or dissolution of the business in violation of subsection 5K-4.020(7), F.A.C.

24. h. Any violation requiring an Immediate Final Order, as authorized by Chapter 500, F.S.

(10) through (11) No change.

Rulemaking Authority 500.09, 500.12, 570.07(23), 581.217(12) FS. Law Implemented 500.04, 500.09, 500.121, 500.171, 500.172, 500.173, 500.174, 500.177, 581.217(7), FS. History–New 3-16-20,_______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ben Rosson, Bureau Chief

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Wilton Simpson

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 08/01/2023

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 08/03/2023