The purpose of this rulemaking is to add a clarifying statement to the definition of “Commercial Purpose”; update adopted versions of ASTM International Standard Designation E617-18 and National Institute of Standards and ....

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-22.001Definitions             

5J-22.002Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring

Devices

5J-22.003Uniform Regulations and Methods of Sale

5J-22.004Net Contents of Packaged Goods

5J-22.005Metrology Lab Fees

5J-22.006 Weighing and Measuring Device Permits

5J-22.007 Guidelines for Imposing Administrative Penalties.

PURPOSE AND EFFECT:  The purpose of this rulemaking is to add a clarifying statement to the definition of “Commercial Purpose”; update adopted versions of ASTM International Standard Designation E617-18 and National Institute of Standards and Technology (NIST) Handbooks 44, 130, 133, 105-1, 105-4, and 105-8; provide for the approval of weighing and measuring devices for which National Type Evaluation Program (NTEP) evaluation is not offered; prohibit specific mobile fuel delivery systems; increase registration fees for scales and update the device application form; and revise language related to the imposition of administrative penalties.

SUMMARY:   The proposed rules add an additional statement to the definition of Commercial Purpose for weighing and measuring devices; update adopted versions of NIST Handbooks; prohibit the use of mobile fuel delivery systems that may adulterate the products they deliver; provide for the use of specific weighing and measuring devices for which NTEP evaluation is not offered; update adopted ASTM International Standard Designation E617-18; update FDACS-03560, Weighing and Measuring Device Permit Application; increase scale permit fees to offset high inspection/testing costs for these devices; and revise language related to the imposition of administrative penalties.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that these rules 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 rules.  A SERC has not been prepared by the Agency. 

The Agency has determined that the proposed rules are 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 economic analysis of the adverse impact of potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. Potential adverse impacts were avoided by keeping increases in permit fees minimal. Other updates being made to the proposed rules will have little or no economic impact. 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:  366.94, 531.40, 531.41(3), (4), (16), 531.44(2), 531.66, 570.07(23), FS.

LAW IMPLEMENTED: 366.94, 531.40, 531.41, (3), (4), (7), (16), 531.415, 531.42, 531.44, 531.45, 531.47, 531.48, 531.49, 531.50, (1), 531.60, 531.61, 531.62, 531.63, 531.64, 531.65, 531.66 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:

Harold Prince, Chief, Bureau of Standards, 2005 Apalachee Parkway, Office #200, Tallahassee, FL 32399 [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5J-22.001 Definitions

As used in this rule chapter, the following definitions and those provided in section 531.37, F.S., shall apply:

(1) Commercial Purpose means any weighing and measuring device:

(a) through (b) No change.

(c) Used in determining the winner of any award based on weight, measure, or count; or.

(d) Used to determine a weight, measure, size, quantity, extent, area or measurement when a fee is charged to make that determination.

(2) through (4) No change.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.60, 531.61, 531.62, 531.63, 531.64, 531.65, 531.66 FS. History–New 8-17-17, Amended         .                    

5J-22.002 Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices.

(1) The National Institute of Standards and Technology (NIST) Handbook 44, Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices, 20202017 Edition, is hereby adopted and incorporated by reference as the requirements for commercial weighing and measuring devices. A copy of thisNIST hHandbook 44, 2017 Edition, may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or http://www.flrules.org/Gateway/reference.asp?No=Ref-    08505. A copy of this handbook is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 2005 Apalachee Parkway, Office #200 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) Any weighing or measuring device that fails to meet applicable tolerances, as adopted in this rule, shall be placed out of service by the department using FDACS-10988, Stop Use Order, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08509. Upon conformance with the requirements of this rule, the stop use order shall be released by the department using FDACS-03209, Release, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08515.

(3) Prohibited Devices. Any mobile petroleum measuring device or delivery system that uses a single measurement meter and/or hose for the delivery of multiple products or grades of products is prohibited. Notwithstanding this prohibition, the department shall authorize commercial use of such a device if:

(a) A written request is received by the department prior to the device being placed in commercial service; and

(b) The request provides documentation demonstrating that the performance and construction of the device is in conformance with the standards adopted in this rule chapter; and

(c) The device has been inspected and tested by the Bureau of Standards and has been found to comply with the requirements adopted in chapter 531, F.S., and this rule chapter.

Rulemaking Authority 366.94, 531.40, 531.41(3) FS. Law Implemented 366.94, 531.40, 531.42 FS. History–New 8-17-17, Amended               .

 

5J-22.003 Uniform Regulations and Methods of Sale.

(1) The National Institute of Standards and Technology (NIST), Handbook 130, Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality, 2020 2017 Edition, Sections: Uniform Packaging and Labeling Regulation; Uniform Regulation for National Type Evaluation; Uniform Regulation for the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices; Uniform Regulation for the Method of Sale of Commodities; Examination Procedure for Price Verification; and Uniform Unit Pricing Regulation are hereby adopted and incorporated by reference. Uniform Regulation for the Method of Sale of Commodities is also adopted and incorporated by reference with the following exceptions: sections 2.20.1, 2.30., 2.31.1, 2.31.2., and 2.31.4. Section 2.21 - Liquefied Petroleum Gas is adopted with the following amended language: All liquefied petroleum gas, including, but not limited to propane, butane, and mixtures thereof, shall be kept, offered, exposed for sale, or sold by the pound, metered cubic foot of vapor (defined as 1 ft3 at 60 ºF [15.6 °C]), or the gallon (defined as 231 in3 at 60 ºF [15.6 °C]), with the exception of portable cylinders with a water capacity of 96 pounds or less . All metered sales by the gallon, except those using meters with a maximum rated capacity of 20 gal/min or less, shall be accomplished by use of a meter and device that automatically compensates for temperature.  A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or http://www.flrules.org/Gateway/reference.asp?No=Ref-      08519. A copy of this handbook is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 2005 Apalachee Parkway, Office #200 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) All packages sold or offered for sale shall meet the packaging and labeling requirements adopted under this rule. Any package that fails to possess a declaration of identity, declaration of responsibility or declaration of quantity, as adopted in subsection (1), of this rule, shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08521. Once made to conform with the requirements adopted in subsection (1) of this rule, the packages shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C.

(3) All weighing and measuring devices, including retail motor fuel dispensers, placed into service for the first time that will be used in commerce in the state must be approved through the National Type Evaluation Program (NTEP) and possess a valid Ccertificate of Conformance, issued by the National Conference on Weights and Measures, verifying such approval. Notwithstanding this requirement, a device for which an NTEP Certificate of Conformance has not been issued may be lawfully placed in service for commercial use if the following conditions are met:

(a) The National Conference on Weights and Measures does not offer NTEP evaluation and Certificates of Conformance for the class of device, and no other similar devices have been granted NTEP approval; and

(b) Written notification is received by the department prior to the device being placed in commercial service; and

(c) The notification is accompanied by documentation demonstrating that the performance and construction of the device is in conformance with the standards adopted in this rule chapter; and

(d) The device has been inspected and tested by the Bureau of Standards and has been found to comply with all other requirements set forth in chapter 531, F.S., and adopted in this rule chapter.

Any investigation or inspection in which the department determines a weighing or measuring device does not have a valid NTEP certificate or written approval from the Division of Consumer Services, shall result in the device being prohibited from further commercial use until a valid NTEP certificate or written approval has been obtained. The department shall prohibit the continued unauthorized use of the device using FDACS-10988, Stop Use Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C. When the NTEP certificate or written approval has been obtained, the stop use order shall be released by the department using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C.

(4) through (5) No change.

(6) All commodities sold or offered for sale shall be in accordance with the Method of Sale requirements adopted under this rule. Any person ulitizing a method of sale that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be issued a notice of noncompliance by the department using FDACS-03576, Notice of Noncompliance, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08526. The notice of noncompliance shall be considered satisfied once the method of sale is made to conform with the requirements adopted in subsection (1) of this rule.

(7) The pricing of commodities shall be verified by using the examination procedures for price verification adopted under this rule. Any pricing of a commodity that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be prohibited and affected commodities placed under stop sale order by the department  using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C. The commodities shall be released by the department from the stop sale order  using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the pricing is made to conform with the requirements adopted in subsection (1) of this rule.

(8) The unit pricing of commodities requirements shall not apply to any seller unless a system of unit pricing has been voluntarily established by the seller. Nothing contained herein shall be construed to require that a seller unit price any consumer commodity other than those with regard to which the seller has voluntarily established a system of unit pricing. Any unit pricing of a commodity that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be prohibited and affected commodities placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C. The commodities shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the unit pricing is made to conform with the requirements adopted in subsection (1) of this rule.

Rulemaking Authority 531.40, 531.41(3),(4), (16), 531.44(2) FS. Law Implemented 531.40, 531.41(3), (4), (7), (16), 531.42, 531.44, 531.45, 531.47, 531.49 FS. History–New 8-17-17, Amended             .

 

5J-22.004 Net Contents of Packaged Goods.

(1) The National Institute of Standards and Technology (NIST) Handbook 133, Checking the Net Contents of Packaged Goods, 2020 2017 Edition, is hereby adopted and incorporated by reference as the procedures for testing packaged goods and commodities for net contents. A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-     08530. A copy of this handbook is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 2005 Apalachee Parkway, Office #200 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) Any package that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be placed under stop sale order by the department  using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C. The packages shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the packaging is made to conform with the requirements adopted in this rule.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.41, 531.42, 531.44, 531.45, 531.47, 531.48, 531.49 FS. History–New 8-17-17, Amended           .

 

5J-22.005 Metrology Lab Fees.

(1) The department shall charge fees for metrology services provided as outlined in this rule.

(a) Fees for each mass standard tested or certified (calibrated) against the maximum permissible errors tolerances less stringent than American National Standards Institute (ANSI)/ as listed in Table 1 ASTM International Standard Designation E617-18 13 Appendix X5. for Class 5 and above or equivalent 4:

1. 0-2 lbs. or metric equivalent	$6 per unit
2. >2-10 lbs. or metric equivalent	$8 per unit
3. >10-50 lbs. or metric equivalent	$12 per unit
4. >50-500 lbs. or metric equivalent	$20 per unit
5. >500-1000 lbs. or metric equivalent	$30 per unit
6. >1000-2500 lbs. or metric equivalent	$40 per unit
7. >2500-5000 lbs. or metric equivalent	$50 per unit

 

(b) Fees for each mass standard calibrated tested or certified against the maximum permissible errors as listed in Table 1 ANSI/ASTM International Standard Designation E617-18 13 Appendix X5. for Class 4 or equivalent tolerances:

1. 0-10 lbs. or metric equivalent	$20 per unit
2. >10-50 lbs. or metric equivalent	$30 per unit
3. > 50-500 lbs. or metric equivalent	$40 per unit
4. >500-1000 lbs. or metric equivalent	$50 per unit
5. >1000-2500 lbs. or metric equivalent	$60 per unit
6. >2500-5000 lbs. or metric equivalent	$75 per unit

 

(c) Fees for each mass standard that is calibrated  tested or certified to meet the maximum permissible errors of Table 1 ANSI/ASTM International Standard Designation E617-18 13 Appendix X3. for Class 2 or equivalent:

1. 0-20 lbs. or metric equivalent	$40 per unit
2. > 20-50 lbs. or metric equivalent	$50 per unit
3. >50-1000 lbs. or metric equivalent	$70 per unit
4. >1000-2500 lbs. or metric equivalent	$150 per unit
5. >2500-5000 lbs. or metric equivalent	$250 per unit

 

(d) Fees for each volumetric calibration test:

1. 0-5 gallon capacity or metric equivalent	$35
2. > 5 gallon capacity or metric equivalent	Plus $0.75 for each additional gallon.

 

3. All volumetric capacities for measuring liquified petroleum gas or other closed vessels used to measure other compressed or pressurized gasses shall be assessed at the special test fee rate in paragraph subsection (e).

(e) Fees for each special calibration test or special preparation shall be $50 per hour. Calibrations or preparations whose individual fee(s) would total less than the equivalent of one-half hour of this hourly charge shall be charged for one half-hour of time.

(2) Each fee is payable at the time metrology services are done, regardless of whether the item tested is certified or fails. Requests for services must be accompanied by a completed form FDACS-03224, Metrology Calibration Request, Rev. 02/17, prior to acceptance of any item for testing. The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08531. The department may refuse to accept for testing any item it considers unfit for testing due to its condition as determined by the state metrologist or if it is unsuitable for its intended use after consideration of United States Department of Commerce, National Institute of Standards and Technology (NIST) Handbooks:

(a) 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (2019) (1990); or

(b) through (c) No change.

(d) 105-4, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 4. Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers (2016) (2010); or

(e) through (f) No change.

(g) 105-8, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 8. Specifications and Tolerances for Field Standard Weight Carts (2019) (2003).

(3) Materials.

(a) The American National Standards Institute (ANSI)/ASTM International Standard Designation E617-18 13 “Standard Specification for Laboratory Weights and Precision Mass Standards” (Approved October May 1, 2018 2013) is hereby adopted and incorporated by reference. It may be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or http://www.astm.org, and is also available for public inspection during regular business hours at the Florida Administrative Code and Register, R.A. Gray Building, 500 South Bronough Street, Tallahassee, FL 32399-0250,  and at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 2005 Apalachee Parkway, Office #200 3125 Conner Boulevard, Lab #2, Tallahassee, FL 32399-1650, Phone: [phone]. Posting of the preceding material on the internet for purposes of public examination would violate federal copyright law.

(b) The materials in subsection (2), are adopted and incorporated by reference below. Copies of the National Institute of Standards and Technology publications may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, STOP 2600, Gaithersburg, MD 20899-2600. All publications are also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of  Standards, 2005 Apalachee Parkway, Office #200 3125 Conner Boulevard, Lab #2, Tallahassee, FL 32399-1650, Phone: [phone].

1. National Institute of Standards and Technology (NIST) Handbook 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (2019) (1990), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-        08536.

2. National Institute of Standards and Technology (NIST) Handbook 105-2, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 2. Specifications and Tolerances for Field Standard Measuring Flasks (1996), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08539.

3. National Institute of Standards and Technology (NIST) Handbook 105-3, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 3. Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards (2010), is hereby incorporated by reference and can accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08540.

4. National Institute of Standards and Technology (NIST) Handbook 105-4, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 4. Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers (2016) (2010), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-        08541.

5. National Institute of Standards and Technology (NIST) Handbook 105-6, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 6. Specifications and Tolerances for Thermometers (1997), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08543.

6. National Institute of Standards and Technology (NIST) Handbook 105-7, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 7. Specifications and Tolerances for Dynamic Small Volume Provers (1997), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-08544.

7. National Institute of Standards and Technology (NIST) Handbook 105-8, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 8. Specifications and Tolerances for Field Standard Weight Carts (2019) (2003), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-     08545.

(4) No change.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.415 FS. History–New 8-17-17, Amended            .

 

5J-22.006 Weighing and Measuring Device Permits.

(1) No change.

(2) Each permit shall be conspicuously displayed at the location for which it is issued. Permits shall be issued by the department upon receipt of payment in full and approval of a completed form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. XX/20 02/18, identifying the specific number and type of weighing and measuring devices that will be used for commercial purposes. The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-      09322.

(3) No change.

(4) Fees.

(a) through (d) No change.

(e) The failure of an owner to notify the department of a change as prescribed in paragraphs subsections (b) and (c), above, shall immediately void the permit and require full application and fees and will result in the imposition of penalties pursuant to rule 5J-22.007, F.A.C.

(f) The following annual commercial use permit fees for weighing devices are based on the manufacturers’ rated capacity or the device’s design and intended 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 Category	Annual Fee per Single Retail Establishment
1 to 5	$45 40
6 to 10	$130 125
11 to 30	$185 175
31 or more	$235 225

2. For weighing devices with a manufacturer’s rated capacity of greater than 100 pounds up to and including 250 pounds or the metric equivalent, the annual permit fee shall be $45 40 per device.

3. For weighing devices with a manufacturer’s rated capacity of greater than 250 pounds up to and including 5,000 pounds or the metric equivalent, the annual permit fee shall be $80 75 per device.

4. 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 equivalent, the annual permit fee shall be $175 150 per device.

5. 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 $225 200 per device.

6. through 8. No change.

(g) No change.

(5) Fees for Device(s) Placed into Service at a Location with an Existing Commercial Use Permit. The department shall be notified by the owner of any non-replacement weighing or measuring device that is put into service during a permit year at a location and will change the permit fees by submitting form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. XX/20 02/18, which is adopted and incorporated by reference in subsection (2). The fee shall be prorated on a quarterly basis of the annual fee prescribed in subsection (4), for every quarter remaining until the expiration of the existing permit for that location.

(6) through (7) No change.

Rulemaking Authority 531.66, 570.07(23) FS. Law Implemented 531.42, 531.50, 531.60, 531.61, 531.62, 531.63, 531.64, 531.65, 531.66 FS. History–New 8-17-17, Amended 5-24-18,               .

 

5J-22.007 Guidelines for Imposing Administrative Penalties.

(1) through (4) No change.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of chapter 531, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors shall include:

1. The violation caused, or has the potential to cause harm to a person or property and the degree or extent of such harm.

2. through 6. No change.

7. Previous disciplinary action against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.

8. through 9. No change.

10. The need for repeated follow-up inspections without valid evidence of remedial action taken by the violator. The cost of enforcement action.

11. through 12. No change.

(b) Mitigating Factors shall include:

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

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

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

4. through 7. renumbered 2. through 5. No change.

6.8. Documented fFinancial hardship.

9. through 11. renumbered 7. through 9. No change.

(6) 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.

(7) 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.

(6)(8) Penalties.

(a) No change.

(b) Major Violations: Tier I. Tier I violations shall result in the issuance of a Sstop Ssale Oorder using FDACS-03206, Stop Sale Order, Rev. 02/17, or the device(s) removed from service using aFDACS-10988, Stop Use Order, Rev. 02/17, as specified below. Discovery of a repeat violation within a three-year period shall result in the imposition of an administrative fine not to exceed the statutory maximum set forth in section 531.50(1)(b), F.S. If a second Tier I violation is discovered within a three-year period, a $250 penalty shall be imposed. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each Tier I violation discovered thereafter. Aggravating factors, as defined in paragraph (5)(a) of this rule, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b) of this rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. The documents referenced in this subsection are adopted and incorporated by reference in subsections 5J-22.002(2) and 5J-22.003(2), of this rule chapter. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. through 4. No change.

(c) Major Violations: Tier II. Tier II violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the affected products, placing any affected equipment out of service and imposition of an administrative fine not to exceed the statutory maximum set forth in section 531.50(1)(b), F.S.,  of $250 for each per violation, for first-time offenders of chapter 531, F.S., and/or rule chapter 5J-22, F.A.C. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each subsequent violation within the three-year period. Aggravating factors, as defined in paragraph (5)(a) of this rule, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b) of this rule, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. For the purposes of this rule, the following violations shall be considered Tier II violations:

1. through 8. No change.

(d) Willful Violations. Any willful and intentional violation of chapter 531, F.S., or this rule chapter or of any requirement or standard adopted pursuant thereto, shall result in the imposition of an administrative fine of up to the maximum amount allowable under section 531.50(1)(b), F.S., $5,000 per violation. Willful violations shall include the following:

1. through 6. No change.

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

(a) No change.

(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 shall impose administrative fines in a default final order up equal to the maximum amount allowable under section 531.50(1)(b), F.S., except for default final orders for violations of rule 5J-22.006, F.A.C., in which a fine of $1,000 shall be imposed.

(c) through (d) No change.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.42, 531.50(1), 531.65 FS. History–New 8-17-17, Amended 5-24-18,              .

NAME OF PERSON ORIGINATING PROPOSED RULE: Harold Prince, Chief of Standards

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nicole Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 2, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 4, 2020