5L-3.007. Enforcement Actions and Administrative Penalties for Failure to Comply With the Best Management Practices

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Section 597.0041, F.S. The purpose of the guidelines is to give notice of the range of penalties which will be imposed for a single violation within a twelve (12) month period. The twelve-month period shall be based on the date of the last non-compliance event documented against the violator. These guidelines list aggravating and mitigating factors that, if present, will increase or reduce 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 for a Section 570.971, F.S., Class I category of $1,000 for each violation as provided in Chapter 597, 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 Chapter 597, F.S., and this rule chapter by issuing a noncompliance letter or an administrative fine.

(3) Any person failing to meet the BMPs and/or refusing to implement the BMPs must obtain all necessary permits/authorizations required by the Department of Environmental Protection, Water Management District, Florida Fish and Wildlife Conservation Commission and any other appropriate regulatory authority.

(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 statutes or department rules 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 aggravating or mitigating 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 597, F.S., and this rule chapter. These factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

1. The violation endangered the public safety or welfare.

2. Previous violations within the preceding three (3) years for the same or a similar offense that resulted in imposition of administrative penalties, issuance of a noncompliance letter, or a suspension or revocation of a license.

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

4. The violation resulted from negligence or an intentional act.

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

6. The benefit to the violator.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation.

2. Financial hardship.

3. Acts of God or nature that impair the ability of the violator to comply with Chapter 597, F.S., or Rule 5L-3.007, F.A.C.

4. The violator took corrective action within twenty-four (24) hours of receiving written notification of the violation.

5. The disciplinary history of the person committing the violation in the preceding three years.

6. If a repeat violation, whether twelve (12) months has passed since the prior violation.

7. A statement, in writing, provided to the department during an investigation declaring acceptance of responsibility for a 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) Penalties. Any person who violates any provision of Chapter 597, F.S., or Rule Chapter 5L-3, F.A.C., commits a misdemeanor of the first degree, and is subject to a suspension or revocation of his or her certificate of registration.

(a) Notice of Noncompliance. Any departmental inspection which reveals the following will result in the issuance of a noncompliance letter as the department’s first response to the violation.

1. 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 the rule.

2. First time violations of Chapter 597, F.S. or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations. The violator will have 60 days within which to correct the deficiencies.

3. Failure to provide division staff access for inspections during department business hours.

(b) Minor violations. Minor violations shall result in imposition of a fine of up to $500. A violation of Chapter 597, 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. The following violations shall be considered minor violations:

1. Failure to correct deficiencies within 60 days following a noncompliance letter.

2. First repeat violations of Chapter 597, F.S. or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations, within twelve (12) months.

3. Possession of restricted nonnative species as defined in Rule Chapter 5L-3, F.A.C., without proper authorization.

(c) Major violations. Major violations shall result in imposition of a fine of up to $1,000. Any person who violates any provision of Chapter 597, F.S. or Rule Chapter 5L-3, F.A.C., commits a misdemeanor of the first degree, and is subject to a suspension or revocation of his or her certificate of registration. The following violations shall be considered major violations:

1. First repeat minor violation of Chapter 597, F.S. or Rule Chapter 5L-3, F.A.C., within twelve (12) months.

2. Second repeat of violation of Chapter 597, F.S. or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations, within twelve (12) months.

3. Commingling wild and aquaculture products.

4. Live sale of restricted nonnative species as defined in Rule Chapter 5L-3, F.A.C., without proper authorization and documentation.

5. Possession of prohibited species as defined in Rule Chapter 5L-3, F.A.C., without proper authorization.

6. Construction or excavation in a wetland without proper authorization from the Florida Department of Environmental Protection, Water Management District and/or Army Corps of Engineers.

7. Improper disposal of bags, cover netting, or other materials used for aquaculture on submerged lands when materials are removed during maintenance or harvesting or dislodged during storm events.

8. Direct sale of aquaculture shellfish from the farmer to the retailer or consumer.

9. Failure to properly tag aquacultured shellfish pursuant to rule Chapter 5L-1, F.A.C.

10. Culture or sale of Florida largemouth bass, Micropterus salmoides floridanus, for human consumption which have not been genetically authenticated.

(9) Additional Costs.

In addition to the penalties established in this rule, the department reserves the right to seek to recover any penalties, attorney’s fees, court costs, service fees, collection costs, damages, and other costs including costs resulting from a payment that is returned for insufficient funds to the department. Additionally, the cost of any enforcement proceeding may be added to any penalty imposed.

(10) 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.

(11) Failure to Comply.

1. A failure to comply with an agreement to resolve violations or a settlement agreement shall result in the penalties and remedies provided in the agreement as authorized by Chapter 120 or 597, F.S.

2. A failure to comply with either a Final Order or Default Final Order shall result in a permit revocation and an administrative fine of up to $1,000 per violation as provided in Section 597.0041, F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

(12) Failure to Respond. 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 $1,000 per violation pursuant to Section 570.971, F.S., for a Default Final Order.

Rulemaking Authority 597.07(23), 597.004(2)(a) FS. Law Implemented 597.004, 597.0041 FS. History–New 10-4-00, Amended 11-30-15, 9-26-22, 3-3-24.