The purpose and effect of the proposed rule amendment is to set forth guidelines on what penalties will be assessed for various violations of Chapter 450, Part III, Florida Statutes.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Child and Farm Labor Program

Rule No.: RULE TITLE
61L-1.012: Civil Penalties
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment is to set forth guidelines on what penalties will be assessed for various violations of Chapter 450, Part III, Florida Statutes.
SUMMARY: The subject area to be addressed in this rule is for assessing penalties for various violations of Chapter 450, Part III, Florida Statutes.
OTHER RULES INCORPORATING THIS RULE: None.
AFFECT ON THOSE OTHER RULES: Not Applicable.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency determined that this rule does not affect small businesses. No statement of estimated regulatory costs has been prepared.
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.
OTHER RULES INCORPORATING THIS RULE: None.

AFFECT ON THOSE OTHER RULES: Not Applicable.

SPECIFIC AUTHORITY: 450.36, 450.38 (3), 455.2273 FS.
LAW IMPLEMENTED: 450.30, 450.31, 450.33, 450.34, 450.35, 450.39, 455.2273 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Cecelia D. Jefferson, Deputy Director, Division of Regulation, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

(Substantial rewording of Rule 61L-1.012 follows. See Administrative code for present text.)

61L-1.012 Disciplinary Guidelines Civil Penalties.

(1) Purpose. Pursuant to Sections 450.031, 450.036, and 450.038, F.S., the Department provides within this rule disciplinary guidelines, which shall be imposed upon any person, firm, association, or corporation that commits a violation of Chapter 450, F.S. or any rules promulgated pursuant thereto. The purpose of this rule is to notify any person, firm, business entity, association, or corporation of the range of penalties which would routinely be imposed for the most common violations unless the Department finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The lowest range of penalties provided below is based upon a single count violation of each provision listed; multiple counts of the violated provision or a combination of violations may result in a higher penalty than that for a single, isolated violation. Each worker affected constitutes a separate violation and will add another count, increasing the penalty. This list is not intended to be all inclusive of the potential violations that could be found.

(2) Major Violations and Range of Penalties. In imposing discipline upon applicants and registrants, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Department shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. The department shall consider any prior violation when determining the severity of a penalty. Any agreed settlement stipulation or consent order, as provided for in subsection (4) of this rule, is an offense notwithstanding the failure to admit or deny guilt in the prior case. For any fourth or subsequent violation, the penalty is revocation.

 

RANGE OF PENALTIES

VIOLATIONFIRST OFF.SECOND OFF.THIRD OFF.

(a) Acting as a Farm Labor Contractor Without

Certificate of Registration (450.30(1), F.S)

1) Threat of economic or physical harm,$500.00$1500.00$2500.00

2) Actual economic or physical harm$1000.00$1750.00$2500.00

(b) Misrepresentation or False Statement in

Application for Certificate of Registration

(450.31(2)(b), 450.34(1), F.S.)

1) Threat of economic or physical harm$500.00$1000.00$1750.00

2) Actual economic or physical harm$750.00$1500.00$2500.00

(c) Misrepresentation Concerning Terms

Conditions or Existence of Employment

(450.31(2)(c)(, 450.34(2), F.S.)

1) Threat of economic or physical harm$500.00$1000.00$1750.00

2) Actual economic or physical harm$750.00$1500.00$2500.00

(d) Failure to Pay Wages when Due (450.33(2)F.S.)

1) Actual economic or physical harm$1000.00$1500.00$2500.00

(e) Failure to Honor Agreement (450.33(3), F.S.)

1) Threat of economic or physical harm$500.00$1000.00$1500.00

2) Actual economic or physical harm,$1000.00$1500.00$2500.00

(f) Failure to Take Out Policy of Insurance or obtain

sufficient amount of insurance (450.33(5), F.S.)

1) Threat of economic or physical harm,$1000.00$1250.00$1500.00

2) Actual economic or physical harm$1000.00$1500.00$2500.00

(g) Failure to Provide Wage Statements

(450.33(7), F.S.)

1) Threat of economic or physical harm$500.00$1000.00$1500.00

2) Actual economic or physical harm$750.00$1500.00$2500.00

(h) Failure to Ensure Vehicle Safety

No Vehicle Inspection (450.33(8), F.S.)

1)Threat of economic or physical harm$1000.00$2000.00$2500.00

2) Actual economic or physical harm$1500.00$2500.00$2500.00

(i) Failure to Deduct Proper Amounts

From Pay (450.33(7), 450.31(2)(e),

450.31(2)(g),F.S.)

1) Threat of economic or physical harm$750.00$1500.00$2500.00

(j) No Valid Driver’s License, Not Proper

Class (450.33(9), F.S.; 29 CFR 500.

100(a); 29 CFR 500.105(b)(1)(iii)(E))

1) Threat of economic or physical harm$500.00$1000.00$1500.00

2) Actual economic or physical harm$1000.00$1500.00$2500.00

(k) Transporting Workers in Unsafe Vehicles

(450.33(9), F.S.; 29 CFR 500.101(a) &

(b); 29 CFR 500.102(a) & (b))

1) Threat of economic or physical harm$1000.00$2000.00$2500.00

2) Actual economic or physical harm$1500.00$2500.00$2500.00

(l) Unsafe Transportation of Fuel (450.33(9)

F.S.; 29 CFR 500.105(b)(2)(xiii))

1) Threat of economic or physical harm$750.00$1500.00$1750.00

2) Actual economic or physical harm$1000.00$1750.00$2500.00

(m) Transporting Workers in Overloaded

Vehicle (450.33(9) F.S.; 29 CFR 500.

105(b)(2)(vii)(E)) & 29 CFR 500.105(b)(3)(vi)(d))

1) Threat of economic or physical harm$1000.00$1500.00$1750.00

2) Actual economic or physical harm$1500.00$2000.00$2500.00

(n) Unsafe Operation of Transportation

Vehicle (450.33(9), F.S),; 29 CFR 500.105(b)(2)(i)

1) Threat of economic or physical harm$500.00$1000.00$1750.00

2) Actual economic or physical harm$750.00$1500.00$2500.00

(o) Sexual Harassment (450.33(9);760.10 F.S.)

1) Threat of economic or physical harm$1000.00$1500.00$2500.00

2) Actual economic or physical harm$1500.00$2000.00$2500.00

(p) Transportation Unauthorized (450.33(9) F.S,;

29 CFR 500.71)

1) Threat of economic or physical harm$1000.00$2000.00$2500.00

2) Actual economic or physical harm$1500.00$2500.00$2500.00

(q) Driver Unauthorized (450.33(9), F.S;

29 CFR 500.105(b)(2)(xiv))

1) Threat of economic or physical harm$1000.00$2000.00$2500.00

2) Actual economic or physical harm$1500.00$2500.00$2500.00

(r) Compliance with Housing Requirements

(450.33(9), F.S.; 29 CFR 500.132)

1) Threat of economic or physical harm$500.00$1500.00$1750.00

2) Actual economic or physical harm$1000.00$1750.00$2500.00

(s) No Field Toilet Facilities (450.33(9), F.S.;

64E-14.016(1), F.A.C.; 29 CFR 1928.110(c)(2))

1) Actual economic or physical harm$750.00$1500.00$2500.00

(t) No Drinking Water

(450.33(9) F.S),; 64E-14.016(4), F.A.C.;

29 CFR 1928.110(c)(1))

1) Actual economic or physical harm$750.00$1500.00$2500.00

(u) Failure to Maintain Daily Field Records

(450.33(10), F.S).

1) Threat of economic or physical harm$500.00$1000.00$1500.00

2) Actual economic or physical harm$750.00$1500.00$2500.00

(v) Unlawful Wage Deductions (450.34(3), F.S).

1) Actual economic or physical harm$1000.00$1750.00$2500.00

(w) Retaliation (450.34(4), F.S).

1) Threat of economic or physical harm$1000.00$1500.00$1750.00

2) Actual economic or physical harm$1500.00$1750.00$2500.00

(x) Utilization of Unregistered Farm Labor

Contractor (450.34(5), 450.35, F.S).

1) Threat of economic or physical harm$500.00$1000.00$1750.00

2) Actual economic or physical harm$1000.00$1750.00$2500.00

(y) Required Purchase or Unreasonable

Cost (450.39(1)(2), F.S.).

1) Threat of economic or physical harm$1000.00$1500.00$1750.00

2) Actual economic or physical harm$1500.00$1750.00$2500.00

(z) Failure to Maintain a Charged Fire

Extinguisher (450.33(9), F.S.);

29 CFR 500.105(b)(2)(vi))

1) Threat of economic or physical harm$1000.00$1250.00$1500.00

2) Actual economic or physical harm$1500.00$2000.00$2500.00

(aa) Failure to Maintain Payroll Records,

(450.33(9), F.S.).; 29 CFR 500.80)

1) Threat of economic or physical harm$500.00$1000.00$1750.00

2) Actual economic or physical harm$1000.00$1750.00$2500.00

 

(3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in each individual case, the Department may deviate from the penalties recommended above. The Department shall consider as aggravating or mitigating factors the following;

(a) Exposure of worker(s) to injury, physical or economic: none, minor, major, or death;

(b) Legal status of the certificate of registration at the time of the offense; no restraints, or legal constraints;

(c) The number of counts or separate offenses;

(d) The number of times the same or substantially similar offense or offenses have previously been committed by the registrant or applicant, regardless of the jurisdiction in which the offense was committed;

(e) The disciplinary history of the applicant or registrant in any jurisdiction, including federal, and the length of registration;

(f) Pecuniary benefit or self-gain inuring to the registrant;

(g) Whether the violation was corrected as soon as possible;

(h) Whether the penalty would cause significant financial hardship to the registrant due to a natural disaster;

(i) Whether the registrant and/or the registrant’s employees have completed a continuing education course or instituted a training program relevant to the violations charged; and

(j) Any other relevant mitigating factors.

(4) Stipulations or Settlements. The provisions of this rule are not intended to and shall not be construed to limit the ability of the Department to dispose informally of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(5) Minor Violations and Range of Penalties.

(a) A warning shall be issued for the first minor violation.

(b) Each successive minor violation will be assessed in increments of $250.00 up to $2500.00. A violation committed after the maximum monetary amount of $2500 has been reached shall result in a denial of an application for, or the revocation of, a certificate of registration. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. This list is not intended to be all inclusive of the potential violations that could be found.

1. Failure to carry Certificate of Registration (450.33(1), F.S.)

2. Failure to Display Poster Disclosing the Terms and Conditions of Employment (450.33(4), F.S.)

3. Failure to Carry a Doctor’s Certificate for Every Driver (450.33(9),F.S.; 29 CFR 500.105(b)(1)(i)(H))

4. Failure to Display Railroad Crossing Sign on Vehicle (450.33(9), F.S.; 29 CFR 500.105(b)(2)(xvii))

5. Failure to Notify of Change of Address (450.33(9), F.S.; 29 CFR 500.54)

6. Failure to Provide Field Hand Washing Units (450.33(9), F.S.; 64E-14.016(1) & (3), F.A.C., 29 CFR 1928.110(c)(2)(iii); 29 CFR 1928.110(c)(3)(iii))

7. Failure to provide Single Use Drinking Cups (450.33(9), F.S.; 64E-14.016(4), F.A.C.; 29 CFR 1928.110(c)(1)(iii))

8. Failure to Label Drinking Water (450.33(9), F.S.; 64E-14.016(4), F.A.C)

9. Failure to Provide Toilet Facilities Within One Quarter (0.25) Mile (450.33(9), F.S.; 64E-14.016(1) & (3), F.A.C.; 29 CFR 1928.110(c)(2)(iii))

10. Failure to Provide Toilet Paper (450.33(9), F.S,; 29 CFR 1928.110(c)(2))

11. Failure to Keep Toilet Facilities Clean (450.33(9), F.S.; 64E-14.016(2), F.A.C,; 29 CFR 1928.110(c)(3)(ii))

12. Failure to Provide Hand Washing Soap (450.33(9), F.S.; 64E-14.016(3), F.A.C.; 29 CFR 1928.110(c)(2))

13. Failure to Provide Single Use Towels (450.33(9), F.S.; 64E-14.016(3), F.A.C.; 29 CFR 1028.110(c)(2))

14. Failure to Ensure Operational External Vehicle Lights and Bulbs (450.33(9), F.S.; 29 CFR 500.104(a), 500.105(b)(2)(vi), 500.105(b)(3)(ii))

15. Ineffective Windshield Wiper Blades (450.33(9), F.S.; 29 CFR 500.104(g), 500.105(b)(3)(vi), 500.105(b)(2), 500.105(b)(5))

16. Failure to Replace or Repair Cracked Side Window (450.33(9), F.S.; 29 CFR500.104(g), 500.105(b)(3), 500.105(b)(5))

17. Removable Materials Blocking Vehicle Exit (450.33(9), F.S.; 29 CFR 500.105(b)(3)(vi)(F))

18. Materials Blocking Vehicle Taillights (450.33(9), F.S.; 29 CFR 500.105(b)(2)(xi))

19. Vehicle with a Bald Tire (450.33(9), 29 CFR 500.104(c), 500.105(b)(3)(v))

20. Having an In-operable Vehicle Horn (450.33(9), F.S.; 29 CFR 500.104(c), 500.105(b)(2)(vi))

21. Failure to Properly Maintain Interior and Exterior Vehicle Mirrors (450.33(9), F.S.; 29 CFR 500.104(f), 500.105(b)(2)(vi))

22. Failure to Properly Maintain Windows and Window Handles (450.33(9), F.S.; 29 CFR 500.105(b)(5))

(6) Other Action. The provisions of this rule are not intended to and shall not be construed to limit the ability of the Department to recommend or pursue criminal actions when appropriate.

Rulemaking Specific Authority 550.0251, 550.2415 450.36 FS. Law Implemented 550.0251(11), 550.2415(1), (8)(e), (9)(c), (13), (14), (16) 450.38 FS. History–New 11-28-86, Formerly 38B-4.12. 38B-4.012, 38H-4.012, 38H-11.012, Amended________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Cecelia D. Jefferson, Deputy Director, Division of Regulation, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Charlie Liem, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 27, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: February 5, 2010