5F-13.001: Guidelines for Imposing Administrative Penalties and Fines for Violations of Chapter 531, Florida Statutes
PURPOSE AND EFFECT: The purpose of Rule 5F-13.001, F.A.C., is to specify Departmental policies when imposing an administrative fine as described in Section. 531.50, F.S. The effect is to have uniform imposition of administrative fines.
SUMMARY: Proposed Rule 5F-13.001, F.A.C., will specify guidelines when administrative fines are imposed pursuant to Section. 531.50, F.S.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 531.41(3) FS.
LAW IMPLEMENTED: 531.50(1) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
TIME AND DATE: Thursday, July 6, 2006, 10:00 a.m.
PLACE: Bureau of Weights and Measures, Doyle Conner Laboratory Complex, 3125 Conner Boulevard, Bldg. #1, Room 105, Tallahassee, Florida 32399-1650
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Max Gray, Bureau Chief, Bureau of Weights and Measures, 3125 Conner Blvd., Bldg. #2, Tallahassee, FL 32399-1650, Phone: (850)488-9140
THE FULL TEXT OF THE PROPOSED RULE IS:
5F-13.001 Guidelines for Imposing Administrative Penalties and Fines for Violations of Chapter 531,
(1) These guidelines shall apply for each violation of Chapter 531,
(2) For Weighing and/or Measuring Device Violations:
(a) The misuse of equipment, which results in inaccurate measure. This includes failure to deduct for packaging materials (tare) during a direct sale transaction; non-single draft vehicle weighing (split-weighing); manipulating a device during use to obtain incorrect weight or measure; tampering with adjustments of a device to obtain incorrect weight or measure; failure to reset a measuring device to zero before beginning a transaction which results in inaccurate measure in favor of the device user; and other such practices resulting in inaccurate measure. Penalties shall be assessed as follows:
1. First violation: Warning letter;
2. Second violation within 2 years: $500 fine or the amount of the economic damages, whichever is greater, not to exceed $2500 fine;
3. Third or subsequent violation within 2 years: an increase of $500 over the previous fine amount or calculated economic damages, whichever is greater, not to exceed $5000 fine.
(b) Majority of scales found in one location are off-zero balance in favor of the scale owner or operator. This applies only to locations with more than five (5) scales, and is in addition to violations in paragraph (2)(a) above:
1. First violation: Warning letter;
2. Second violation within 2 years: $500 fine;
3. Third or subsequent violation within 2 years: $1000 fine.
(c) Using a device for commercial purposes that has been ordered “Out of Service,” prior to its being placed back into service and a “Placed in Service Report” submitted to the Bureau of Weights and Measures by an authorized, registered service agency or state inspector:
1. First violation: Warning letter;
2. Second violation within 2 years: $1000 fine;
3. Third or subsequent violation within 2 years: $2500 fine.
(d) Removing an “Out of Service” or “Condemned” tag without authorization:
1. First violation: Warning letter;
2. Second violation within 2 years: $1000 fine;
3. Third or subsequent violation within 2 years: $2500 fine.
(e) Authorized, registered repair service agency (under Chapter 5F-4, F.A.C.) returning a device back to commercial service that was placed “Out of Service” and that has not been properly corrected to comply with all state requirements. The registered repair agency shall be penalized as follows:
1. First violation: Warning letter;
2. Second violation within 2 years: $100 fine;
3. Third and/or subsequent violation within 2 years: $500 fine per violation.
(3) For Packaging and Labeling Violations:
(a) For packages that are packaged or that have the net contents determined at a location other than the retail store where tested, and that are found to contain less than declared net contents when tested using procedures adopted in Rule 5F-3.016, F.A.C.:
1. First violation: Warning letter;
2. Second violation within 2 years: $500 fine or calculated economic damages, whichever is greater, up to a maximum $2500 fine. “Calculated economic damages” equals the value of packages (price/package) times the average amount of shortage (% shortage per package) times the number of packages in lot(s);
3. Third or subsequent violation within 2 years: an increase of $500 over the previous fine amount or calculated economic damages not to exceed $5000 maximum. “Calculated economic damages” equals the value of packages (price/package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s).
(b) For packages that are packaged or have the net contents determined on the premises of the retail store location where the packages are tested or purchased, and that are found to contain less than the declared net contents when tested using procedures adopted in Rule 5F-3.016, F.A.C.:
1. First violation at a particular retail location: Warning letter;
2. Second violation within 2 years at the same retail location: $500 fine or calculated economic damages, whichever is greater, not to exceed $2500 fine. “Calculated economic damages” equals the value of packages (price/package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s);
3. Third or subsequent violation within 2 years at the same retail location: an increase of $500 over the previous fine amount or calculated economic damages, whichever is greater, not to exceed $5000 fine. “Calculated economic damages” equals the value of packages (price/package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s).
(c) For packages that are packaged or that have the net contents determined at a location other than the retail store where tested, and are found with labeling not in compliance with the requirements of Chapter 531, F.S., Rule 5F-3.001 or 5F-7.005, F.A.C. (other than net contents information that results in packages being found short measure as prescribed in paragraph 5F-13.001(3)(a) or (b), F.A.C.):
1. First violation: Warning letter;
2. Second violation within 2 years: $500 fine;
3. Third or subsequent violation within 2 years: an increase of $500 over the previous fine amount, not to exceed $5,000.
(d) For packages that are packaged or have the net contents determined on the premises of the retail store location where the packages are tested or purchased, and that are found with labeling not in compliance with the requirements of Chapter 531, Florida Statutes, Rule 5F-3.001 or 5F-7.005, F.A.C. (other than net contents information that results in packages being found short measure as prescribed in paragraph 5F-13.001(3)(a) or (3)(b), F.A.C.):
1. First violation at a particular retail location: Warning letter;
2. Second violation within 2 years at the same retail location: $500 fine;
3. Third or subsequent violation within 2 years at the same retail location: an increase of $500 over the previous fine amount, but not to exceed $5,000.
(e) Selling, or removing from premises, items under Stop-Sale Order without proper authorization:
1. First violation: $500 fine or 25% of total retail value of packages (up to $1000), whichever is greater;
2. Second violation within 2 years: $1000 fine or 50% of total retail value of packages (up to $2500), whichever is greater;
3. Third or subsequent violation within 2 years: total retail value of packages or $5000 fine, whichever is less.
(4) For Price Verification/Pricing Accuracy Violations:
(a) A particular business location that fails price verification examination performed using procedures adopted in Rule 5F-12.001, F.A.C., and has more than 2% overcharges on the failed test:
1. First violation at a particular business location: Warning Letter;
2. Second violation within 2 years at the same business location: $500 fine;
3. Third or subsequent violation within 2 years at the same business location: an increase of $500 over the previous fine amount, but not to exceed $5000 maximum.
(b) Selling items that were identified as overcharges and ordered off-sale for not being corrected during a Price Verification Examination, prior to the items being corrected and released for sale by a state inspector or official:
1. First violation: $500 fine;
2. Second violation within 2 years: $1000 fine;
3. Third or subsequent violation within 2 years: $5000 fine.
(5) For Bulk Sales Documentation Violations:
(a) Failure to provide delivery ticket as required in Section 531.46, F.S.:
1. First violation: Warning letter;
2. Second violation within 2 years: $500 fine;
3. Third or subsequent violation within 2 years: $1000 fine.
(6) Impeding, obstructing or hindering Department employee during performance of Department duties:
1. First violation: $1000 fine;
2. Second violation within 2 years: $2500 fine;
3. Third or subsequent violation within 2 years: $5000 fine.
(7) For Other Violations of Chapter 531, F.S.:
(a) Violations not specifically addressed in subsections 5F-13.001(1) through (6), F.A.C., that result in non-compliance with Chapter 531, F.S., will be assessed a warning letter or fine according to whether it is a first violation, a second violation within two years of the first violation, or a third or subsequent violation within two years of the first violation, the potential harm caused, the amount of money in which the violator benefited by non-compliance, and the compliance record of the violator. First occurrence fines shall not exceed $1000; second occurrence fines shall not exceed $2500; and in subsequent occurrences the fines shall not exceed $5000.
(b) Any violations of Chapter 531, F.S., committed willingly or knowingly, including those covered in subsections 5F-13.001(1) through (6), F.A.C., will be assessed the maximum fines authorized in Section 531.50(1), F.S.
(c) A violator’s failure to respond to an administrative complaint may result in a waiver of rights to a hearing and the Department may enter a Final Order imposing fines equal to twice the amount imposed in the administrative complaint, not to exceed the maximum amount allowed by law, for each violation.
Specific Authority 531.41(3) FS. Law Implemented 531.50(1) FS. History–New ________.