DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Agricultural Environmental Services
RULE NO.:RULE TITLE:
5E-3.018Penalties
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 45 No. 124, June 26, 2019 issue of the Florida Administrative Register.
5E-3.018 Enforcement and Penalties.
(1) Section 580.051(5)(4), F.S., authorizes the department to assess a penalty in the amount of $100 per violation against the violator for the distribution of commercial feed without labeling as required under Section 580.051(1), F.S. The assessment of a penalty shall be imposed where no labeling is furnished or where labeling of a feed product containing a drug or antibiotic does not show the word “Medicated” in the brand name.
(2) All penalties assessed under Section 580.131, F.S., must be paid to the consumer within 60 days from the date of notice by the department to the registrant. When payment has been made in full to the consumer, the registrant must notify the department in writing at the Florida Department of Agriculture and Consumer Services, Bureau of Licensing and Enforcement, 3125 Conner Boulevard, Building 8, Tallahassee, Florida 32399-1650 of the form of the payment using the form entitled “Notice of Deficiency Payment” FDACS 13255, Rev. (05/19), which is hereby adopted and incorporated by reference in this rule and is available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxx., and provide the department with a copy of a release of the registrant from liability for the payment on the form entitled, “Receipt of Deficiency Payment” FDACS 13256, (Rev. 05/19), which is hereby adopted and incorporated by reference in this rule and is available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx. The release must be procured by the registrant from the consumer.
(3) Sampling Penalties:
(a) Enforcement. Section 580.121(1), F.S., authorizes the department to impose an administrative penalty against any person who violates a provision of Chapter 580, F.S. or Chapter 5E-3, F.A.C. The following are requirements of sampling as outlined in Section 580.091, F.S. and Rule 5E-3.003, F.A.C., for which an administrative penalty will be imposed:
1. No change.
2. Failure to submit any samples for a given Fiscal Year (July 1 – June 30), including the first quarter sample as required in rule 5E-3.003(4), F.A.C. subparagraph 1 will result in a Stop-Sale as described in Section 580.111. F.S., and administrative fine as described in paragraph 5E-3.018(3)(b), F.A.C. The department shall release the commercial feed or feedstuff when the provisions and rules have been complied with and all adinistrative fines have peen paid in full.
3. Further refusal to submit samples for the second consecutive fiscal year will result in increased fines, as outlined in paragraph 5E-3.018(3)(b), F.A.C., not to exceed $1000 per violation and suspension of the feed master registration. As authorized in Section 580.111 578.12, F.S., a suspension will incur a stop-sale of the products distributed by that registrant licensee until such a time that all provisions and rules have been complied with and all administrative fines have been paid in full.
4. Failure to meet all requirements of sampling as outlined in Rule 5E-3.003, F.A.C., including submission of any number of samples less than what is required under Rule 5E-3.003, F.A.C., for a consecutive three (3) year period will result in increased fines as outlined in paragraph 5E-3.018(3)(b), not to exceed $1,000 per violation and a suspension of the feed master registration. As authorized in Section 580.111, 578.12, F.S., a suspension will incur a stop-sale of the products distributed by that registrant licensee until such time that all provisions and rules have been complied with and all administrative fines have been paid in full.
5. No change.
(b) No change.
(4) Tonnage Reporting Enforcement. Section 580.121(1), F.S., authorizes the department to impose an administrative penalty against any person who violates a provision of Chapter 580, F.S., or Chapter 5E-3, F.A.C. The following are requirements of tonnage reporting as outlined in Section 580.041(1)(c)3., F.S. and Rule 5E-3.020, F.A.C., for which an administrative penalty will be imposed.
(a) No changes.
(b) Failure to submit tonnage reports as outlined in rule paragraph 5E-3.020 018(4)(a), F.A.C., for two (2) quarters within a three (3) year compliance period, shall result in the issuance of an administrative fine in the amount of $250.
(c) Failure to submit tonnage reports as outlined in rule paragraph 5E-3.020 018(4)(a), F.A.C., for any three (3) quarters within a three (3) year compliance period, shall result in a Stop-Sale as described in Section 580.111, F.S., and the issuance of an administrative fine in the amount of $500. The Stop-Sale shall remain in effect until such a time that all administrative fines have been paid in full and delinquent tonnage has been submitted.
(d) No change.
(5) through (8) No change.
(9) Fine Guide. FINE GUIDE = (A(B+C+D+E))$50. This guide shall apply for each violation for which a fine is imposed with the exception of those violations addressed in subsections 5E-3.003(3) and (4), F.A.C., relating to feed sampling and tonnage reporting. The maximum fine is $1,000 per violation. The terms and values used in the fine guide calculation shall be:
1. DEGREE AND EXTENT OF HARM
A = Animal, Human and Environmental Hazards
1No animal, human or environmental effects identified,
2Possibility, probability, or potential for harm existed, or
3Any harm to animals, humans or the environment.
B = Level of financial harm to the consumer that is created by the violation
1Unknown or under $1000,
2$1000 or over and under $5000, or
3$5000 or over.
2. WHETHER THE VIOLATION WAS COMMITTED WILLFULLY
C = Whether the violation was committed willfully.
1No evidence or insufficient evidence of willful intent by the violator, or
3Evidence of willful intent by the violator.
3. COMPLIANCE RECORD OF THE VIOLATOR
D = Compliance record of the violator
0No prior actions
1One prior action dissimilar to the current violation.
2Two or more prior actions dissimilar to current violation.
3Previous action for the same or similar violation or previously fined for a different violation, or
4Previous action for the same or similar violation.
4. SCOPE OF THE VIOLATION
E = The scope of the violation and/or distribution of the violative product(s)
1Very limited distribution, quantity or limited purchasers; violation is limited to a single lot.
2Distribution is limited to a specific region of the state; violations are limited to one or two products; quantity of product distributed is small (<50 ton distributed); small number of animals effected.
3Distribution is statewide and/or impacts other states; violations are seen in multiple products across multiple lots; quantity of products distributed is large (>50 tons effected), or
4Distribution is unlimited, potentially nationwide.
Rulemaking Authority 570.07(23), 580.036(2) FS. Law Implemented 120.695, 570.971, 580.051, 580.065, 580.091, 580.111, 580.121, 580.131 FS. History–New 3-4-87, Amended 3-31-93, 6-1-95, 11-14-01, _____________.
NAME OF PERSON ORIGINATING PROPOSED RULE: Kelly Friend, Director, Division of Agricultural Environmental Services
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture, Nicole “Nikki” Fried
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 14, 2019
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 18, 2019, Issue: 45/118
