The purpose of this rule is to implement the statutory authority to issue citations for unlicensed elevator activity and adopt the required form.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Hotels and Restaurants

RULE NO.: RULE TITLE:
61C-5.023: Citations
PURPOSE AND EFFECT: The purpose of this rule is to implement the statutory authority to issue citations for unlicensed elevator activity and adopt the required form.
SUMMARY: The proposed rule identifies violations subject to citation and a stop work order, adopts the citation and stop work order form, specifies required information for a citation, identifies the process for serving and responding to a citation, and adopts fines.
OTHER RULES INCORPORATING THIS RULE: None.
EFFECT ON THOSE OTHER RULES: Not applicable.
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 been prepared by the agency.
The rule will not have an adverse impact on economic growth, private-sector job creation or employment, or private-sector investment in excess of $1 million within 5 years. This rule does not impact personal income, non-farm employment, housing starts, or reduce visitors to Florida, wages or salaries, or property income. The rule is a statute enforcement mechanism that will not raise the price or reduce the quantity of goods or services provided or produced by Florida businesses, add regulation not present in other states, reduce Florida business workforces, or increase regulatory costs to the extent to prohibit product development or innovation, or make illegal any product or service. The annual increase in regulatory costs is approximately $168,000, totaling $840,000 over five years. The rule is estimated to impact 578 elevator owners, registered elevator companies, and elevator workers with 625 potential citations annually. Rule implementation and enforcement will not impose additional cost on the department or other state or local governments. The division estimates 552 elevator owners, 21 unlicensed personnel, and five elevator companies will be subject to a $250 fine, while 45 elevator owners and two unlicensed personnel will be subject to a $500 fine. Of the total entities impacted, approximately 360 are small businesses and two are small cities or small counties. The total small business, small city, and small county impact is limited to the cost of the fine and the time associated with processing the citation, estimated at less than 30 minutes. The division believes this rule will provide an efficient enforcement mechanism not previously available that may also increase statutory compliance and public safety over the long run.
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:
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: 399.16 FS.
LAW IMPLEMENTED: 399.105, 399.16 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Michelle Comingore, Operations Review Specialist, Division of Hotels and Restaurants, Department of Business and Professional Regulation, 1940 N. Monroe St., Tallahassee, FL 32399; [phone]; [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

61C-5.023 Citations.

(1) Upon a determination of probable cause, the division will issue a citation for:

(a) Performing work without a valid permit or license, or operating an elevator without a valid temporary operating permit as required under Chapter 399, F.S.

(b) Operating an elevator with a certificate of operation that has been expired for two or more consecutive years.

(2) The division will determine probable cause exists when personal observation or investigation by the division provides facts to support a reasonable belief that the violation has occurred.

(3) The citation must be issued using DBPR Form HR 5023-059, DISCIPLINARY CITATION AND STOP WORK ORDER, (https://www.flrules.org/Gateway/reference.asp?No=Ref-00706) incorporated herein by reference and effective 2011 September 29. The citation will constitute a stop work order only when issued under paragraph 1(a). A sample copy of this form is available from the Division of Hotels and Restaurants Internet website at www.MyFloridaLicense.com/dbpr/hr; by e-mail to [e-mail]; or upon written request to the Division of Hotels and Restaurants, Bureau of Elevator Safety, 1940 North Monroe Street, Tallahassee, Florida 32399-1013.

(4) The citation must contain a brief factual statement of the activity engaged in; the section of law allegedly violated; the penalty imposed; instructions on how to pay the citation; and a statement that, in lieu of accepting and paying the citation, the subject may choose to dispute the citation and proceed with an administrative hearing in accordance with Sections 120.569 and 120.57, F.S. The citation must be issued to a natural person, elevator owner, or elevator company and contain the following information, if available or applicable:

(a) Subject’s full name and date of birth;

(b) Subject’s division-issued license number or registration number, whether current or expired, or subject’s drivers license number or any other identifying information;

(c) Subject’s last known address and telephone number; and

(d) Notification that the citation is issued as a stop work order.

(5) The citation must be served upon the subject by personal service or by certified mail. When the division issues DBPR Form HR 5023-059 as a stop work order, the activity identified on the citation must immediately stop upon receipt of the citation.

(6) A citation issued under paragraph (1)(a) will result in the following fines:

(a) Constructing, installing, altering, or relocating an elevator without obtaining a permit, in violation of Section 399.03(1), F.S., will result in a fine of $250 for the first offense and $500 for the second offense.

(b) Operating an elevator or allowing an elevator to operate for temporary use during installation or alteration without a valid temporary operating permit, in violation of Section 399.03(10), F.S., will result in a fine of $250 for the first offense and $500 for the second offense.

(c) Performing work that requires licensure as an elevator inspector without a license or with an expired license, in violation of Section 399.17, F.S., will result in a fine of $250 for the first offense and $500 for the second offense.

(d) Performing work that requires licensure as an elevator technician without a license or with an expired license, in violation of Section 399.01(14), F.S., will result in a fine of $250 for the first offense and $500 for the second offense.

(7) A citation issued under paragraph (1)(b) will result in a fine of $250 for the first offense and $500 for the second offense. Citations issued under paragraph (1)(b) will be dismissed if a valid certificate of operation has been obtained before the citation becomes a final order.

(8) The division will issue a citation for first and second offenses of the same violation. A third offense of the same violation will result in the issuance of an administrative complaint.

(9) The subject has 30 days from the date the citation is served to accept the citation or request a hearing pursuant to Chapter 120, F.S., in writing. If the subject does not request a hearing within 30 days after the date the citation is served, the citation will become a final order on the 90th day after the day the citation has been served.

(10) Violations of paragraph (1)(b) that are not corrected within 90 days of the date the citation has been served will result in the issuance of a new citation for a second offense of the same violation.

(11) All fines are due and payable within 30 days of the date the citation becomes a final order. All fine payments are to be made payable to the Division of Hotels and Restaurants.

(12) The division will approve an installment payment plan for up to 5 months for fines imposed by a citation if the fines impose a financial hardship. An installment payment plan must be requested within 30 days of the date the citation becomes a final order.

(13) Once the citation becomes a final order, it will be filed in accordance with procedures established for the filing of final orders by the department.

Rulemaking Authority 399.16 FS. Law Implemented 399.105, 399.16, FS. History–New________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Bill L. Veach, Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 17, 2011
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 30, 2010