To provide definitions, incorporate department forms by reference, and to establish a penalty structure consistent with others established within the department.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-5.001Definitions

5J-5.002Complaints

5J-5.003 Enforcement Actions and Administrative Penalties

PURPOSE AND EFFECT: To provide definitions, incorporate department forms by reference, and to establish a penalty structure consistent with others established within the department.

SUMMARY: The proposed rules provide definitions that clarify terms referenced in statute, and incorporate by reference department forms to ensure statutory compliance. They also set forth a range of administrative fines for violations of the no sales telephone solicitation law to ensure statutory compliance with s. 41, ch. 2014-150, Laws of Florida.

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 proposed rules provide definitions, incorporate by reference department forms, and provide penalty guidelines for violators. There are no regulatory costs associated with these revisions. 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: 501.059(12), 570.07(23) FS.

LAW IMPLEMENTED: 501.059(1)(h), (4), (5), (9)(a), (b), 570.544(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, 2005 Apalachee Parkway, Tallahassee, Florida, 32399-6500, email at “[e-mail]” or by phone [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-5.001 Definitions.

(1) As referenced in Section 501.059(1)(h)1., F.S., the term “in response to an express request” means a telephonic sales call made no more than 18 months from the date of a request that:

(a) has been made in writing, bearing the signature or electronic signature, if recognized as a valid signature under applicable federal or state law, of the person called; and

(b) clearly authorizes the telephone solicitor to contact the consumer called; and

(c) includes the specific telephone numbers by which the consumer called may be contacted.

(2) As referenced in Section 501.059(1)(h)3., F.S, the term “prior or existing business relationship” means a relationship formed by a voluntary two-way communication between a telephone solicitor  and a consumer  without an exchange of consideration, on the basis of the consumer’s  purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephonic sales call or on the basis of the consumer’s  inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the telephonic sales call, which relationship has not been previously terminated by either party.

(3) As referenced in Section 501.059(5), F.S., the term “previously communicated” means:

(a) that the consumer or donor has communicated directly to the telephone solicitor or person; or

(b) that the consumer or donor has communicated to the department in the form of a written complaint and that complaint has been provided to the telephone solicitor or person as part of the department’s normal course of complaint mediation.

Rulemaking Authority 501.059(12), 570.07(23) FS. Law Implemented 501.059(1)(h), (5), FS. History–New         .

5J-5.002 Forms used with complaints.

(1) The following forms and instructions are hereby adopted by reference and are used by the department in its investigations of alleged violations of Section 501.059, Florida Statutes:

(a) FDACS-10402, Florida Do Not Call Complaint Form, Rev. 06/15, https://www.flrules.org/gateway.

(b) FDACS-10982, Florida Do Not Text Complaint Form, Rev. 06/15, https://www.flrules.org/gateway.

(c) FDACS-10983, Florida Business Reply Form, Rev. 06/15, https://www.flrules.org/gateway.

(2)  Copies of the above forms may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Mediation and Enforcement, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at the links identified in subsection (1) above.  They may also be completed and submitted online at http://www.freshfromflorida.com/Forms-Publications/Forms.

Rulemaking Authority 501.059(12), 570.07(23) FS. Law Implemented 501.059(9)(a), 570.544(4) FS.  History–New________.

 

5J-5.003 Enforcement Actions and Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Section 501.059, F.S. The purpose of the guidelines is to give notice of the range of penalties which 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.  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 Section 501.059, F.S., and this rule chapter by issuing an administrative complaint or through civil litigation for violations of Section 501.059, F.S.

(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) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Section 501.059, F.S. The factors shall be applied against each single count of the listed violation.   Both aggravating and mitigating factors, if present, shall be applied against each single count of the listed violation.

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

1.  The violation endangered the public safety or welfare.

2. Previous administrative or civil complaints brought by any governmental agency within the preceding three years for the same or a similar offense(s) that resulted in settlement, imposition of administrative penalties, or suspension or revocation of a license. 

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

4. The violation resulted from an intentional act.

5. The cost of the enforcement action.

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

7. 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 Section 501.059 F.S., or this rule chapter.

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

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

(5) 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.

(6) 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.

(7) Penalties. Any violation of s. 501.059, F.S., shall result in the imposition of an administrative fine ranging from $500 to $1,000 per violation pursuant to a Class I violation as referenced in Sections 501.059(9)(b) and 570.971, F.S.

(8) 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 and the department shall impose the maximum administrative fine amount of $1,000 per violation pursuant to a Class I violation as referenced in Sections 501.059(9)(b) and 570.971, F.S.

(9) A violator’s failure to comply with a Final Order shall result in additional penalties sought through the enforcement of the order in circuit court.

Rulemaking Authority 501.059(12), 570.07(23) FS. Law Implemented 501.059(9)(b), 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: August 26, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 28, 2015