The purpose of this rulemaking is to amend the form incorporated by reference, clarify the fee structure and amend the sign in Rule 5J-12.002, F.A.C.; amend a citation in Rule 5J-12.004, F.A.C.; provide criteria for denial of licensure in Rule 5J-12....

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-12.002Registration

5J-12.004Advertising

5J-12.006Denials

5J-12.007Enforcement Actions and Administrative Penalties

PURPOSE AND EFFECT: The purpose of this rulemaking is to amend the form incorporated by reference, clarify the fee structure and amend the sign in Rule 5J-12.002, F.A.C.; amend a citation in Rule 5J-12.004, F.A.C.; provide criteria for denial of licensure in Rule 5J-12.006, F.A.C.; and provide guidelines for imposing administrative fines to comply with Section 56, Ch. 2014-150, L.O.F., in Rule 5J-12.007, F.A.C.

SUMMARY: The proposed rule updates FDACS-10900, Motor Vehicle Repair Registration Package to ensure statutory compliance and to make the registration process more efficient; clarifies when the registration fee is exempt; updates the sign to be posted by all registered motor vehicle repair shops; amends inaccurate citation; and sets forth a range of administrative fines for violations of the Florida Motor Vehicle Repair Act.

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 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. 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: 559.92201, 570.07(23) FS.

LAW IMPLEMENTED: 559.904, 559.916, 559.921(4), 570.971(4) 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: Amy Topol, Assistant Director, Division of Consumer Services, Terry L. Rhodes Building, 2005 Apalachee Parkway, Tallahassee, Florida 32399-6500, email: [e-mail] or by phone: [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

(Substantial rewording of Rule 5J-12.002 follows. See Florida Administrative Code for present text.)

 

5J-12.002 Registration.

(1) Any person who intends to operate a motor vehicle repair shop shall, prior to offering motor vehicle repair services, apply for and obtain a registration certificate from the department using FDACS-10900, Motor Vehicle Repair Registration Package, Rev. 11/14, hereby incorporated by reference. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Motor Vehicle Repair, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at: http://www.flrules.org/Gateway.

(2) If the motor vehicle repair shop is located in a municipality or county that has an ordinance containing standards that the department has determined are at least equal to the requirements of the Florida Motor Vehicle Repair Act, no biennial registration fee is required, but the motor vehicle repair shop must register with the department and provide a copy of the current registration issued by the municipality or county.

(3) The department shall provide a 11'' x 17'' sign with 30 point type to each registered motor vehicle repair shop to be posted pursuant to Section 559.916, F.S.  The sign, FDACS P-01516, Rev. 08/07, is hereby incorporated by reference. A sample copy of the sign may be accessed online at: http://www.flrules.org/Gateway/reference.asp?No=Ref-___. The registration certificate shall be attached to the sign by the registrant in the designated area. The sign with the accompanying registration certificate shall be conspicuously displayed at the customer service area in full view of the motor vehicle repair shop’s customers.

(4)  If the registrant has multiple customer service areas and the area is configured so that a single sign and accompanying registration certificate cannot be posted in full view of the motor vehicle repair shop’s customers, the registrant may request from the department only such copies of the sign and registration certificate sufficient to comply with these rules.

Rulemaking Authority 559.92201, 570.07(23) FS. Law Implemented 559.904, 559.916 FS. History–New 1-18-95, Amended 5-24-95, 2-11-98, 1-20-03, 11-4-03, 6-27-05, 11-22-05, 3-8-12,__________.

 

5J-12.004 Advertising.

(1) No change.

(2) If registrants with more than one place of business utilize a single display advertisement, and a consecutive series of registration numbers has been issued to the registrants, the registrants may use a statement disclosing the range of registration numbers issued to the registrants named in the advertisement to satisfy the requirements of Section 559.916(2) 501.916(2), F.S.

Rulemaking Authority 570.07(23) FS. Law Implemented 559.916(2) FS. History–New 1-18-95, Amended_________.

 

5J-12.006 Denials.

The purpose of this rule part is to implement Section 559.904(10)(b), (c) and (d), F.S. It is a ground for denial of registration if the department finds that the applicant, or any of its directors, officer, owners, or general partners:

(1) Has not satisfied a civil fine, administrative fine, or other penalty arising out of any administrative or enforcement action brought by any governmental agency based upon conduct involving fraud or dishonest dealing, or any violation of the Florida Motor Vehicle Repair Act;

(2) Has had against them any civil, criminal, or administrative adjudication in any jurisdiction within the last five (5) years based upon conduct involving fraud, dishonest dealing, or any violation of the Florida Motor Vehicle Repair Act;

(3) Has had a judgment entered against them within the last five (5) years in any action brought by the department or the state attorney pursuant to the Florida Deceptive and Unfair Trade Practices Act or the Florida Motor Vehicle Repair Act.

Rulemaking Authority 559.92201, 570.07(23) FS. Law Implemented 559.904(10) FS. History–New_________.

 

5J-12.007 Enforcement Actions and Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Sections 559.901-559.9221, 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 the penalties to be imposed against the violator by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $1,000 pursuant to the Class I category as provided in Section 559.921(4)(b)2., F.S. and 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 a total penalty and will be grounds for enhancement of penalties.

(2) The department will enforce compliance with Sections 559.901-559.9221, F.S., and this rule chapter by issuing an administrative complaint, notice of noncompliance, or through civil litigation for violations of Sections 559.901-559.9221, F.S., and this rule chapter.

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

(4) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to encompass all possible violations of statute or department rule 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 does not cause harm to the public or is not subject to a penalty. In any instance where the violation is not listed in this rule, the penalty will be determined by consideration of:

(a) The closest analogous violation, if any, that is listed in this rule; and

(b) The mitigating or aggravating factors listed in this rule.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Sections 559.901-559.9221, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.  In no event shall a fine for a single violation exceed the statutory maximum of $1,000 pursuant to the Class I category as provided in Section 559.921(4)(b)2., F.S. and in Section 570.971, F.S. If a notice of noncompliance is imposed for an initial violation, a second violation within a three-year period shall result in a fine of at least $100 not to exceed $1,000. Both aggravating and mitigating factors, if present, shall be applied against each single count of the listed violation regardless of whether the violation is a minor violation or a major violation as described in subsection (8) below.

(a) Aggravating factors shall include, but not be limited to, the following:

1. The violation caused, or has the potential to cause, serious injury to a person.

2. The violation endangered the public safety or welfare.

3. Previous violations within the preceding three years for the same or a similar offense that resulted in imposition of administrative penalties, issuance of a Notice of Noncompliance, or suspension or revocation of license.

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

5. The violation resulted from an intentional act.

6. The cost of the enforcement action.

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

8. The benefit to the violator.

(b) Mitigating factors shall include, but not be limited to:

1. Any documented efforts by the violator at rehabilitation.

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

3. Substantiated financial hardship.

4. Acts of God or nature that impair the ability of the violator to comply with Sections 559.901-559.9221, F.S., or this rule chapter.

5. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.

6. The violator took corrective action within twenty-four (24) hours of receiving written notification of the violation.

7. The disciplinary history of the person committing the violation.

(6) The provisions of this rule chapter 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 costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the department reserves the right to seek to recover any costs, penalties, attorney’s fees, court costs, service fees, collection costs, and costs resulting from a payment that is returned for insufficient funds to the department.

(8) Penalties.

(a) Notice of Noncompliance. Any department investigation or inspection which reveals minor violations of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with it will result in the issuance of a Notice of Noncompliance as the department’s first response to the violation. In addition, the following statutory violations shall result in the issuance of a notice of noncompliance for the first violation only: Violations of any provision contained in Section 559.916, F.S.

(b) Minor Violations. A violation of Sections 559.901-559.9221, F.S., 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. Minor violations shall result in imposition of a fine ranging from $100 to $1,000. The following statutory violations shall be considered minor violations:

1. Failure to comply with Section 559.905(1), (2) or (4), F.S.

2. Failure to comply with Section 559.911(1)-(6), F.S.

3. Failure to comply with Section 559.915(1) or (2), F.S.

4. Violations of Section 559.920(11), (14)-(15), F.S.

5.  A subsequent occurrence of any of the violations enumerated in paragraph (8)(a), above.

(c) Major Violations. A violation of Sections 559.901-559.9221, F.S., 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. Major violations shall result in the imposition of an administrative fine of $1,000, denial, suspension, or revocation of the license as prescribed in Section 559.904, F.S., or any of the penalties as prescribed in Section 559.921(4)(b)2.-5., F.S. The following violations shall be considered major violations:

1. Violations of Section 559.907(2), F.S.

2. Violations of Section 559.909(3) or (4), F.S.

3. Violations of Section 559.920(1)-(10), (12), (16)-(17), F.S.

4. Any willful violation of Sections 559.901-559.9221, F.S.

(9) Nothing in this rule chapter shall prohibit the department and person charged with a violation from resolving violations prior to administrative hearing, or from entering into settlement pursuant to Section 120.57(4), F.S. The department is authorized to utilize all available remedies to ensure compliance including administrative action, civil actions, and referrals for criminal prosecution. The cost of any enforcement proceeding may be added to any penalty imposed. 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, F.S. or Sections 559.901-559.9221, F.S.

(10) 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 the maximum administrative fine amount of $1,000 per violation pursuant to a Class I violation as referenced in Section 559.921(4)(b)2., F.S. and in Section 570.971, F.S., for a default Final Order.

(11) A violator’s failure to comply with a Final Order shall result in a registration denial or revocation pursuant to Section 559.904(10)(b), F.S., and the posting of a “Closed by Order of the Department” sign pursuant to Section 559.904(11), F.S.  Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 559.92201, 570.07(23) FS. Law Implemented 559.904(10)(b), (11), 559.921(4), 570.971(4) FS. History–New__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Amy Topol, Assistant Director, Division of Consumer Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 9, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 18, 2014