5F-8.0127. Enforcement Actions and Administrative Penalties (Transferred)

(1) This rule sets forth the guidelines the Department will follow in imposing the penalties authorized under Chapter 616, 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 penalties to be imposed. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $2,500 per violation, per day. 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 an overall total penalty and will be grounds for enhancement of penalties.

(2) The Department will enforce compliance with Chapter 616, F.S., and this rule chapter by issuing an administrative complaint, a stop operation order, out of service tag, or an immediate final order for violations of Chapter 616, F.S., and this rule chapter.

(3) Stop Operation Orders. A stop operation order is necessary to effectuate the statutory duties of the Department in the interest of public health, safety, and welfare and is necessary to promote patron safety in the design, construction, assembly, disassembly, maintenance, and operation of amusement rides in Florida. A stop operation order will be used to prohibit the operation of an amusement ride that fails to comply with the requirements of Chapter 616, F.S., or this rule chapter.

(4) 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.

(5) 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 chapter 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 chapter, 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.

(6) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 616, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

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 for the same or a similar offense that resulted in enforcement action.

4. The violation occurred for more than 24 hours.

5. The violation was repeated within three years.

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

7. Previous disciplinary action against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.

8. Undue delay in initiating or completing, or failure to take, affirmative or corrective action after receipt of notice of the violation.

9. The violator’s prior knowledge of Chapter 616, F.S. and Chapter 5F-8, F.A.C.

10. Whether the violation resulted from negligence or an intentional act.

11. The cost of the enforcement action.

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

13. The benefit to the violator.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation.

2. Whether intentional actions of another party prevented the violator from complying with the applicable laws or rules.

3. Financial hardship.

4. Acts of God or nature that impairs the ability of the violator to comply with Chapter 616, F.S., or Chapter 5F-8, F.A.C.

5. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.

6. The violator expeditiously took affirmative or corrective action after it received written notification of the violation.

7. The number and seriousness of the counts in the administrative complaint.

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

9. If a repeat violation, whether three years has passed since the prior violation.

(7) 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.

(8) 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.

(9) 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. For the purposes of this rule, the following violations shall result in the issuance of a notice of noncompliance for the first violation only:

1. Failure to maintain or make immediately available to the Department upon request the required Owner’s Daily Inspection Reports.

2. Failure to maintain or make immediately available to the Department upon request employee training records (employee trained, but no records).

3. Failure to provide the Department a copy of the manufacturer’s operating instructions, operating fact sheet, or written manufacturer’s bulletins.

4. Failure to maintain the required operations manual written in the English language for each go-kart and go-kart track that includes a detailed scaled drawing of the go-kart type course, manufacturer’s maintenance instructions and specification for each go-kart, and written emergency plans.

5. Failure to maintain the required operations manual written in the English language for water parks that contain general maintenance and cleanup procedures, equipment operation instructions and written emergency plans.

(b) Minor Violations. A violation of Chapter 616, F.S., or this rule chapter 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 the imposition of an administrative fine against the owner of the amusement ride of $250 per violation, per day. Aggravating factors as defined in paragraph (6)(a) of this rule shall warrant the adjustment of the fine upward and mitigating factors as defined in paragraph (6)(b) of this rule shall warrant the adjustment of the fine downward, but no fine shall exceed the statutory maximum as outlined in Section 616.242(19)(a), F.S. For the purposes of this rule, the following violations shall be considered minor violations:

1. Failure to maintain or make immediately available to the Department upon request the required Owner’s Daily Inspection Reports.

2. Failure to maintain or make immediately available to the Department upon request employee training records (employee trained, but no records).

3. Failure to provide the Department a copy of the manufacturer’s operating instructions, operating fact sheet, or written manufacturer’s bulletins.

4. Failure to maintain the required operations manual written in the English language for each go-kart and go-kart track that includes a detailed scaled drawing of the go-kart type course, manufacturer’s maintenance instructions and specification for each go-kart, and written emergency plans.

5. Failure to maintain the required operations manual written in the English language for water parks that contain general maintenance and cleanup procedures, equipment operation instructions and written emergency plans.

6. Failure to report an accident as required by Section 616.242, F.S.

(c) Major Violations. A violation of a Chapter 616, 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 against the owner of the amusement ride of $1,000 per violation, per day or suspension of the owner’s permit or inspection certificate for not more than one year or revocation the owner’s permit or inspection certificate or any combination thereof. Aggravating factors as defined in paragraph (6)(a) of this rule shall warrant the adjustment of the fine upward and mitigating factors as defined in paragraph (6)(b) of this rule shall warrant the adjustment of the fine downward, but no fine shall exceed the statutory maximum as outlined in Section 616.242(19)(a), F.S. For the purposes of this rule, the following violations shall be considered major violations due to their high potential for consumer harm:

1. Operation of an amusement ride by an employee(s) who is/are not trained to operate or maintain the ride.

2. Operating an amusement ride in a manner or circumstance that presents a risk of serious injury to patrons, which does not result in a reportable accident.

3. Operating an amusement ride with a structural, mechanical or electrical defect, that affects patron safety, of which the owner or manager has knowledge, or through the exercise of reasonable diligence, should have knowledge, which does not result in a reportable accident.

4. Operating an amusement ride in a manner or circumstance that presents a risk of serious injury to patrons, which results in a reportable accident.

5. Operating an amusement ride with a structural, mechanical or electrical defect, that affects patron safety, of which the owner or manager has knowledge, or through the exercise of reasonable diligence, should have knowledge, which results in a reportable accident.

6. Operating an amusement ride which has not been inspected and tested by the owner or manager in accordance with the requirements of Section 616.242(15), F.S.

7. Operating an amusement ride without a current permit, affidavit of compliance/non-destructive testing, inspection certificate, insurance or bond or any combination of each.

8. Operating an amusement ride by an employee who is under the influence of drugs or alcohol.

9. Operating an amusement ride that has undergone a major modification without certification from a professional engineer that the amusement ride is in compliance with Section 616.242, F.S. or Chapter 5F-8, F.A.C.

10. Operating an amusement ride in violation of any order of the Department, or any court, or an Immediate Final Order.

11. Failure to provide track safety barriers that are constructed to prevent a vehicle from overturning or running over or under the barrier, as required by paragraph 5F-8.015(6)(b), F.A.C.

12. Failure to describe and demonstrate to patrons emergency signals prior to operation of vehicles, as required by paragraph 5F-8.015(4)(n), F.A.C.

13. Failure to instruct patrons as to safe operation procedures, as required by paragraph 5F-8.015(4)(o), F.A.C.

14. Failure to enforce rules for safe operations, as required by paragraph 5F-8.015(4)(p), F.A.C.

15. Operation of an amusement ride at a speed in excess of its maximum safe operating speed.

Rulemaking Authority 616.165, 616.242(4) FS. Law Implemented 616.242(4)(b), (18), (19) FS. History–New 5-30-10.