5G-6.013. Guidelines for Imposing Administrative Penalties

(1) This rule sets forth the guidelines the Department will follow in imposing the penalties authorized under Sections 500.121 and 500.70(3)(b), 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 within a three (3) year period. The three-year period shall be based on the date of the last administrative enforcement action imposed for the same 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 $5,000.00 per violation. 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 500, F.S., rule Chapter 5G-6 and Rule 5K-4.029, F.A.C., by issuing an administrative complaint, stop sale order, and/or warning letter for violations of Chapter 500, F.S., rule Chapter 5G-6 and Rule 5K-4.029, F.A.C.

(a) For purposes of enforcing compliance with Chapter 500, F.S., this rule chapter, and Rule 5K-4.029, F.A.C., a Department representative shall issue FDACS-07153, (Rev. 10/14), Tomato Stop-Sale – Interdiction Stations, or FDACS-07154, (Rev. 10/14), Tomato Stop-Sale, to anyone producing, harvesting, packing, or repacking tomatoes that do not meet the requirements of Chapter 500, F.S., or rule Chapter 5G-6, F.A.C., including the Tomato Best Practices Manual, FDACS-P-01580, (Rev. 10/14), as adopted in Rule 5G-6.009, F.A.C. If the Department determines that the tomatoes under stop sale are in compliance, a Department representative shall issue FDACS-07152, (Rev. 10/14), Release of Tomato Stop-Sale to the owner of the tomatoes under stop-sale.

(b) The following forms are hereby adopted and incorporated by reference and are available online as indicated:

1. Tomato Stop-Sale – Interdiction Stations, FDACS-07153, (Rev. 10/14), https://www.flrules.org/Gateway/reference.asp?No=Ref-05942;

2. Tomato Stop-Sale, FDACS-07154, Rev. (10/14), http://www.flrules.org/Gateway/reference.asp?No=Ref-05943;

3. Release of Tomato Stop-Sale, FDACS-07152, Rev. (10/14), http://www.flrules.org/Gateway/reference.asp?No=Ref-05944;

(3) Nothing in this chapter shall limit the ability of the department to informally dispose of administrative actions by settlement agreement, or consent order.

(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 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, 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 Chapter 500, F.S., rule Chapter 5G-6 and Rule 5K-4.029, F.A.C. 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 harm to a person or property and the degree or extent of such harm;

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. Violation history over the past three years;

5. The violation existed in excess of 30 days;

6. The violation was repeated within 14 days;

7. The violator impeded, or otherwise failed to cooperate with, the department’s inspection and/or investigation;

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

9. Undue delay in initiating or completing, or failure to take, affirmative or corrective action after receipt of a Tomato Stop Sale, FDACS-07154, (Rev. 10/14), incorporated in Rule 5G-6.013, F.A.C., or a Tomato Good Agricultural Practices Corrective Action Needed Report, FDACS-07165, (Rev. 10/14), which is incorporated in Rule 5G-6.006, F.A.C.;

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

11. 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 500, F.S., rule Chapter 5G-6 and Rule 5K-4.029, 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, including costs incurred by the violator for rectifying any damage or harm to consumers vehicles and/or property on a Tomato Good Agricultural Practices Corrective Actions Needed Report, FDACS-07165, (Rev. 02/14), which is incorporated in Rule 5G-6.006, F.A.C.;

7. The disciplinary history of the person committing the violation within the previous (3) three years.

(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) Minor Violations. A violation of Chapter 500, F.S., of rule Chapter 5G-6 or Rule 5K-4.029, F.A.C., 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 issuance of a warning letter. Fines of up to $2,500.00 for minor violations shall result if subsequent violations are found within three years of the initial violation. For the purposes of this rule, the following violations shall be considered minor violations:

1. No Current copies of the Commodity Specific Food Safety Guidelines for the Fresh Tomato Supply Chain, Food Safety Programs and Auditing Protocol for the Fresh Tomato Supply Chain;

2. Bins, trays, or boxes made of corrugated cardboard are reused;

3. Tomato-contact bulk bins, gondolas, totes, or trays are not constructed of impervious materials that can be cleaned and sanitized regularly;

4. Water lines are not protected against back flow siphonage;

5. Signs reminding workers to wash their hands after using the toilet are not posted;

6. Portable hand wash water tanks not cleaned regularly;

7. Operation does not maintain written Environmental assessment documents to include a map or general description of the land being farmed, topography, land history of use, adjacent land use, water sources, and animal and wildlife presence or migration patterns;

8. Operation does not maintain an assessment document, signed by an authorized agent of the operation that shows that the production land and adjacent land have been assessed for a history of hazards including but not limited to industrial, toxic waste, landfill purposes, incinerator or municipal waste, animal manure, animal intrusion or animal husbandry;

9. Operation does not maintain an assessment document, signed by an authorized agent of the operation that acknowledges any environmental hazards or history as required by the Tomato Best Practices Manual (Part A (1)(b)3.), which is incorporated by reference in Rule 5G-6.009, F.A.C.;

10. Environmental assessment documents are not reviewed by the food safety designate prior to each production cycle;

11. Operation does not maintain adequate records of the sale or disposition of product;

12. Operation uses containers that are not accurately labeled with the commodity name, greenhouse or farm firm name, and information sufficient to allow for source and lot identification.

(b) Major Violations. A violation of a Chapter 500, F.S., of Chapter 5G-6 or Rule 5K-4.029, F.A.C. 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 threat of such harm. Major violations shall result in the issuance of a warning letter, stop sale, suspension of operating permit, or imposition of an administrative fine of up to $5,000 per violation. Aggravating factors, as described in paragraph (5)(a) of this rule, shall warrant the adjustment of the fine upward and mitigating factors, as defined in paragraph (5)(b) of this rule, shall warrant the adjustment of the fine downward, but no fine shall exceed the statutory maximum as outlined in Section 500.70(3)(b), and Sections 500.121(1) and (2), F.S. Fines for major violations shall result in a monetary penalty of a minimum of $500.00 up to $5,000.00. For the purposes of this rule, the following violations shall be considered major violations:

1. Firm is required to be registered with the Department, but does not hold a current food permit or producer registration as required by Rule 5G-6.007, F.A.C.;

2. Water used in the packinghouse does not meet the microbial standards for potable water or documentation of most recent test result is not available for inspection;

3. E.coli (or fecal coliforms) is detected in irrigation water above 126/100 ml and corrective measures are not immediately taken to minimize the potential for microbial contamination;

4. Compounds used to clean finished product containers, food contact surfaces or tools are not approved for that use by the U.S. EPA, FDA or other appropriate agency;

5. Mobile packing of tomatoes is conducted without an approved sanitizing procedure as described in the Tomato Best Practices Manual, Part A(1)(j) and Part B(1)(g) and which is adopted in Rule 5G-6.009, F.A.C.;

6. Mobile packing of tomatoes into cardboard containers without an approved sanitation process as described in the Tomato Best Practices Manual, Part A(1)(j) and Part B(1)(g) and which is adopted in Rule 5G-6.009, F.A.C.;

7. Biosolids are used for fertilizer;

8. Debris and injured fruit are allowed to collect in wash areas and dump tanks;

9. Debris and injured fruit are not actively removed from lot;

10. Approved sanitizer, as described in the Tomato Best Practices Manual, Part B(1)(g), which is adopted in Rule 5G-6.009, F.A.C., is not used in the dump tank wash water or on the spray line;

11. Sanitizer activity level is outside of its effective range;

12. Sanitizer is not maintained within its allowable limits (Provide documentation);

13. Re-circulated or re-used water is not changed at least daily or proper records of water use not maintained;

14. Workers are not instructed to seek prompt treatment for cuts, abrasions and other injuries or clean first aid supplies are not provided;

15. Pesticide application equipment is not properly maintained and calibrated at a frequency sufficient to assure the accuracy of delivery;

16. Fertilizers containing manures or composts that have not been properly treated (e.g. composted or heat treated) are used for fertilization;

17. Procedures ensuring that any water source and distribution system are properly designed, located, constructed, and maintained in a manner to prevent contamination, including backflow prevention, proper well construction, and to prevent fouling by animals and pests are not followed;

18. Items that come into contact with product including tools, utensils, containers, and food contact equipment are not made of impervious, cleanable material capable of sanitization;

19. Pesticide chemicals are used in a manner that does not comply with all requirements of national registration and any federal, state or local regulations;

20. Pesticide chemicals are used that do not comply with all requirements of national registration and any federal, state or local regulations.

(c) Willful Violations. The following shall result in the imposition of an administrative fine of $5,000 per violation:

1. Any willful and intentional violation of Chapter 500, F.S., rule Chapter 5G-6, Rule 5K-4.029, F.A.C., or of any requirement or standard adopted pursuant thereto;

2. Any willful and intentional violation of a stop sale/use order or stipulated conditions of release from a stop sale/use order;

3. Any willful and intentional violation of a warning letter.

(9) Resolution of  Violations, Settlement, and Additional Enforcement Remedies.

(a) The department and person charged with a violation may agree to resolve violations prior to an administrative hearing or enter into settlement pursuant to Section 120.57(4), F.S. The penalties addressed in this rule shall not be construed to limit the authority of the department to resolve violations prior to or after initiation of any administrative action or to settle with any party. The department shall utilize all available remedies to ensure compliance including administrative action, civil actions, settlements, and referrals for criminal prosecution. 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 or 500, F.S.

(b) 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 administrative fines in a Default Final Order equal to the maximum amount as allowable under Section 500.70(3)(b) or Section 500.121(1) or (2), F.S.

(c) A failure to comply with either a Final Order or a Default Final Order of the department shall result in any applicable permit or registration revocation and an administrative fine equal to the maximum amount as allowable under Section 500.70(3)(b) or Section 500.121(1) or (2), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 500.09(3), 500.70(7), 570.07(6), (10), (23) FS. Law Implemented 500.121, 500.70(3)(b) FS. History–New 4-16-08, Amended 12-9-15.