5J-18.0127. Enforcement Actions and Administrative Penalties

(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 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 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 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, notice of noncompliance, and/or an immediate final order for violations of Chapter 616, F.S., and this rule chapter.

(3) Stop Operation Orders. A stop operation order, which acts as an immediate final 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. Once the amusement ride is in compliance with the requirements of Chapter 616, F.S., and this rule chapter, the stop operation order shall be released by the department.

(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, it will be penalized in accordance with paragraph (9)(c) of this rule.

(5) 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. 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 Tier I or Tier II violation as described in subsection (9), below.

(a) Aggravating factors shall include:

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 a permit.

4. The violation occurred for more than 24 hours.

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

6. Previous disciplinary action against the violator in this or any other jurisdiction.

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

8. The violator’s prior knowledge of Chapter 616, F.S., and Chapter 5J-18, F.A.C.

9. The violation resulted from an intentional act.

10. The cost of the enforcement action.

11. The benefit to the violator.

(b) Mitigating factors shall include:

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 Chapter 616, F.S., or this rule chapter.

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

6. The disciplinary history contains no prior violations within the past 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) 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. If a notice of noncompliance is issued for an initial violation, a second violation within a three-year period shall be penalized in accordance with paragraph (7)(b) of this rule. Any subsequent violation within a three-year period shall be penalized in accordance with paragraph (7)(c) of this rule. 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) Tier I Violations. Tier I violations shall result in the imposition of an administrative fine against the owner or manager of the amusement ride of up to $5,000 per violation, per day. For the purposes of this rule, the following violations shall be considered Tier I 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 manual, operating document, maintenance checklist, 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 maintain the required operations manual written in the English language for amusement devices that are not included in subparagraphs 4. or 5. of this paragraph.

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

8. Failure to prominently display required signage.

(c) Tier II Violations. Tier II violations shall result in the imposition of an administrative fine against the owner or manager of the amusement ride of up to $10,000 per violation, per day or suspension of the owner’s or manager’s permit for not more than one year or revocation of the owner’s or manager’s permit or any combination thereof. For the purposes of this rule, the following violations shall be considered Tier II 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.

3. Operating an amusement ride with a structural, mechanical or electrical defect/failure, that affects patron safety, of which the owner or manager has knowledge, or through the exercise of reasonable diligence, should have knowledge.

4. 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(16), F.S.

5. Operating an amusement ride without a current permit, as outlined in Section 616.242(5) and (6), F.S.

6. Operating an amusement ride without an affidavit of compliance/non-destructive testing, as outlined in Section 616.242(7), F.S.

7. Presenting a ride as ready for inspection when it has a defect that affects patron safety, and when the owner or manager had or should have had knowledge of the defect.

8. Operating an amusement ride without insurance, as outlined in Section 616.242(10), F.S.

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

10. 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., and Chapter 5J-18, F.A.C.

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

12. 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 5J-18.015(6)(b), F.A.C.

13. Failure to describe and demonstrate to patrons emergency signals prior to operation of vehicles, as required by paragraph 5J-18.015(4)(n), F.A.C.

14. Failure to instruct patrons as to safe operation procedures, as required by paragraph 5J-18.015(4)(o), F.A.C.

15. Failure to enforce rules for safe operations, as required by paragraph 5J-18.015(4)(p), F.A.C.

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

17. Operating in violation of any requirement set forth in Rule 5J-18.0152, F.A.C.

18. Failure to timely correct a violation as directed in a notice of correction.

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

20. Violations of Section 616.242(15)(b), F.S.

Rulemaking Authority 616.165, 616.242(4) FS. Law Implemented 616.242(4)(b), (19), (21) FS. History–New 5-30-10, Formerly 5F-8.0127, Amended 7-27-17, 10-29-19, 11-18-20.