Amend department forms incorporated by reference to implement statutory changes and 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-6.005 Licensing Requirement, Commercial Telephone Seller, Salesperson

5J-6.015 Security Requirements

5J-6.016 Enforcement Actions and Administrative Penalties

PURPOSE AND EFFECT: Amend department forms incorporated by reference to implement statutory changes and establish a penalty structure consistent with others established within the department.

SUMMARY: The proposed rule updates FDACS-10001 Commercial Telephone Seller Business License Application and incorporates by reference the Telemarketing Claim Affidavit to ensure statutory compliance with Ch. 2014-147, Laws of Florida. It also sets forth a range of administrative fines for violations of the Florida Telemarketing Act to ensure statutory compliance with 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 revisions adopt department forms that conform to recent statutory changes 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: 501.611(3), (5), 501.626, 570.07(23) FS.

LAW IMPLEMENTED: 501.605, 501.611, 501.612(1), (2)(d), 570.971 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:

 

5J-6.005 Licensing Requirement, Commercial Telephone Seller, Salesperson.

(1) No person may act as a commercial telephone seller or salesperson unless licensed by the Department of Agriculture and Consumer Services. All applicants for a license shall submit to the department FDACS-10001, Commercial Telephone Seller Business License Application, Rev. 12/14 08/13, hereby incorporated by reference, along with the required non-refundable fee. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at http:www.flrules.org/Gateway/reference.asp?No=Ref-___ http://www.flrules.org/Gateway/reference.asp?No=Ref-03519.

(2) through (5) No change.

Rulemaking Authority 501.626 FS. Law Implemented 501.605, 501.607, 501.608, 501.609 FS. History–New 4-12-92, Amended 2-15-93, 6-26-94, 5-15-95, 2-11-98, 1-20-03, 3-29-12, 1-19-14,___________.

 

5J-6.015 Security Requirements.

(1) If filing a bond, letter of credit, or assignment of certificate of deposit pursuant to Section 501.611, F.S., the applicant shall use the applicable forms included in FDACS-10001, Commercial Telephone Seller Business License Application, Rev. 12/14, incorporated by reference in Rule 5J-6.005, F.A.C.

(2) Claims against a bond, letter of credit, or certificate of deposit shall be submitted on FDACS-10984, Telemarketing Claim Affidavit, Rev. 12/14, hereby incorporated by reference.  Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or  accessed online at: http://www.flrules.org/Gateway/reference.

Rulemaking Authority 501.611(3), (5), 501.626 FS. Law Implemented 501.611 FS. History–New__________.

 

5J-6.016 Enforcement Actions and Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Sections 501.601-501.626, 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 $10,000 pursuant to the Class III category as provided in Section 501.612(2)(b), 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 501.601-501.626, F.S., and this rule chapter by issuing an administrative complaint, notice of noncompliance, or through civil litigation for violations of Sections 501.601-501.626, 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 501.601-501.626, 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 $10,000 pursuant to the Class III category as provided in Section 501.612(2)(b), 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 $1,000 not to exceed $10,000. 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 501.601-501.626, 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. A Notice of Noncompliance will be issued for a violation of Section 501.616(3), F.S.

(b) Minor Violations. A violation of Sections 501.601-501.626, 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 $1,000 to $10,000. The following statutory violations shall be considered minor violations:

1. A violation of Section 501.613(1), F.S.

2. A violation of Section 501.614, F.S.

3. A violation of any provision of Section 501.616(6), F.S.

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

(c) Major Violations. A violation of Sections 501.601-501.626, F.S., or this rule chapter 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 $5,000 to $10,000, suspension or revocation of the license as prescribed in Section 501.612(2)(d), F.S., or any of the penalties as prescribed in Section 501.612(2)(b)-(e), F.S. The following violations shall be considered major violations:

1. A violation of Section 501.605(1), F.S.

2. Failure to comply with any requirement enumerated in Section 501.605(2)-(5), F.S.

3. A violation of Section 501.605(7), F.S.

4. Failure to comply with any requirement enumerated in Section 501.606(1), F.S.

5. Failure to comply with Section 501.606(2)-(3), F.S.

6. Failure to comply with Section 501.607(1), or (4), F.S.

7. Failure to comply with Section 501.608(1)(b), or (2) F.S.

8. Failure to comply with Section 501.609(1), or (3)-(4), F.S.

9. Failure to comply with Section 501.611, F.S.

10. A violation of any provision of s. 501.612(1)(a)-(k), F.S.

11. Failure to comply with Section 501.613(2), F.S.

12. Failure to comply with Section 501.615(1)-(8), F.S.

13. A violation of Section 501.616(1)-(2), (4), or (7) F.S.

14. Any violation of Sections 501.601-501.626, F.S., that occurred while the violator was concurrently operating in violation of a registration or exemption filing requirement pursuant to the Solicitation of Contributions Act, Chapter 496, F.S.

15. Any violation of Sections 501.601-501.626, F.S., that occurred while the violator was concurrently operating in violation of the Florida No Sales Solicitation Act, Section 501.059, F.S.

16. Any willful violation of Sections 501.601-501.626, 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 Section 501.601-501.626, 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 $10,000 per violation pursuant to a Class III violation as referenced in Section 501.612(2)(b), 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 license denial or revocation pursuant to Section 501.612(2)(d), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 501.626, 570.07(23) FS. Law Implemented 501.612(1), (2)(d), 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 22, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 24, 2014