62D-2.015: Civil Penalties
PURPOSE AND EFFECT: The purpose of this new rule section is to implement the provisions of Senate Bill 192 (2008) which was effective July 1, 2008. Once signed into law, the Senate Bill became, in part, Section 258.008, Florida Statutes. Section 258.008, Florida Statutes, changed Florida law to allow for relatively minor violations of state park rules to be punishable by civil fines. Prior to this change, these offenses were punishable as second degree misdemeanors, thereby creating a criminal record for an individual violating a state park rule. This rulemaking is an effort to provide notice to the public of the change in law and to outline the civil fine schedule.
SUMMARY: The new proposed Rule 62D-2.015, Florida Administrative Code, provides a fine schedule broken out into three fine categories of noncriminal infractions for offenses committed within state park boundaries. Level One fines identify most minor rule violations. Level Two fines identify more serious rule violations. Level Three fines identify the most serious rule violations. The remainder of violations not specifically addressed by this rule section but enumerated in Section 258.008, Florida Statutes, will continue to be punishable as constituting criminal conduct either under the misdemeanor or felony criminal codes.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Cost was prepared and is available to the public upon request. Rule 62D-2.015, Florida Administrative Code, is being created to implement the statutory change enacted in the 2008 legislative session, effective July 1, 2008. As amended in Senate Bill 192, Section 258.007, Florida Statutes, now grants the division the authority to impose penalties for the violation of division rules; and, Section 258.008, Florida Statutes, was created to decriminalize violations of division rules and directs the Agency to create a civil fine schedule pursuant to the criteria set by the legislature. The former statutory language for the penalty for violation of a division rule stated: “the violation of any rule authorized by this section shall be a misdemeanor and punishable accordingly.” The revised statutory language provides for “any person who violates or otherwise fails to comply with the rules adopted under this chapter commits a noncriminal infraction for which ejection from all property managed by the Division of Recreation and Parks and a fine of up to $500 may be imposed by the Division.” Impacts to small businesses, counties, and cities are likely to be minimal. Any effects will stem from changes in use patterns associated from the incidence of financial penalty for rule violations. The net effect of these changes is unclear with currently available data; however, the department believes that this impact will be at least net neutral, if not net positive.
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: 258.007, 258.008 FS.
LAW IMPLEMENTED: 258.008 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Wednesday, May 6, 2009, 6:30 p.m. – 8:30 p.m.
PLACE: Florida Department of Environmental Protection, 3900 Commonwealth Boulevard, Conference Room A, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Mr. Robert Wilhelm at (850)245-3076. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Mr. Robert Wilhelm, Division of Recreation and Parks, Bureau of Operational Services, MS535, Florida Department of Environmental Protection, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; (850)245-3076
THE FULL TEXT OF THE PROPOSED RULE IS:
62D-2.015 Civil Penalties.
(1) Intent. This section provides civil penalty schedules for violations of the provisions in Rules 62D-2.013 and 62D-2.014, F.A.C., as authorized by Sections 258.007, 258.008, 316.212, 316.2125 and 316.2126, F.S.
(2) Level One Violations.
(a) A person commits a Level One violation if he or she violates any of the provisions, rules, regulations, or orders relating to:
1. Feeding or petting wildlife;
2. Admission to state park property;
3. Traffic control and speed of vehicles;
4. Parking;
5. Swimming;
6. Launching or removal of watercraft from park waters;
7. Mooring, anchoring, or tying up watercraft in waters within or contiguous to park areas;
8. Fishing;
9. Alcoholic beverages;
10. Pets;
11. Merchandising;
12. Aircraft;
13. Operating Hours; and
14. Photography.
(b) A person who commits a Level One violation commits a noncriminal infraction and shall be cited to appear before the county court.
(c) The civil penalty for a person who commits a Level One violation is $75 per violation, unless paragraph (d) or (e) applies.
(d) The civil penalty for a person who commits a Level One violation is $150 per violation if the person cited has previously committed the same Level One violation within the preceding 36 months.
(e) The civil penalty for a person who commits a Level One violation is $500 per violation if the person cited has twice previously committed the same Level One violation within the preceding 60 months.
(3) Level Two Violations.
(a) A person commits a Level Two violation if he or she violates any of the provisions, rules, regulations, or orders relating to:
1. Damaging plant life, disturbing grass areas or impairing the natural condition of any area or placing debris or material of any kind on or about any plant.
2. The transplantation or removal of any plant life.
3. The introduction of any plant or animal species.
4. Unpermitted or uncontracted construction activities.
5. The failure or refusal to comply with any directions, instructions, or orders issued by park personnel.
6. The operation of watercraft in closed areas.
(b) A person who commits a Level Two violation commits a noncriminal infraction and shall be cited to appear before the county court.
(c) The civil penalty for a person who commits a Level Two violation is $100 per violation unless paragraph (d) or (e) applies.
(d) The civil penalty for a person who commits a Level Two violation is $200 per violation if the person cited has previously committed the same Level Two violation within the preceding 36 months.
(e) The civil penalty for a person who commits a Level Two violation is $500 per violation if the person cited has twice previously committed the same Level Two violation within the preceding 60 months.
(4) Level Three Violations.
(a) A person commits a Level Three violation if he or she violates any of the provisions, rules, regulations or orders relating to:
1. The removal or destruction of park property and resources.
2. Fires.
3. The rent or hire of watercraft in any park waters or permits needed pertaining to same.
4. Excursion boats for rent or hire carrying passengers for money.
5. Firearms or weapons.
(b) A person who commits a Level Three violation commits a noncriminal infraction and shall be cited to appear before the county court.
(c) The civil penalty for a person who commits a Level Three violation is $150 per violation, unless paragraph (d) or (e) applies.
(d) The civil penalty for a person who commits a Level Three violation is $300 per violation if the person cited has previously committed the same Level Three violation within the preceding 36 months.
(e) The civil penalty for a person who commits a Level Three violation is $500 per violation if the person cited has twice previously committed the same Level Three violation within the preceding 60 months.
(4) A person cited for a violation shall sign and accept a citation to appear before the county court. The issuing officer may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty.
(5) A person cited for a violation may pay the civil penalty by mail or in person within 30 days after receipt of the citation. If the civil penalty is paid, the person shall be deemed to have admitted committing the violation and to have waived his or her right to a hearing before the county court. Such admission may not be used as evidence in any other proceedings except to determine the appropriate fine for any subsequent violations.
(6) A person who refuses to accept a citation, who fails to pay the civil penalty for a violation, or who fails to appear before the county court, as required, commits a misdemeanor of the second degree, punishable as provided in Section 775.082 or 775.083, F.S.
(7) A person who elects to appear before the county court or who is required to appear before the county court shall be deemed to have waived the limitations of civil penalties under subsections (1), (2), (3) and (4). After a hearing, the county court shall determine if a violation has been committed, and if so, may impose a civil penalty of not less than $75 for each first-time Level One violation, $100 for each first-time Level Two violation or $150 for each first-time Level Three violation and not more than $500 for each subsequent Level One, Level Two or Level Three violation.
(8) The provisions set forth above for civil penalties are in addition to any action or actions brought to enforce the criminal penalty provisions of Section 258.008, F.S.
(9) Multiple cases, civil or criminal, may arise out of the same alleged facts or incident, and the pendency of result for one case shall not stay or control the result of the other or others.
Rulemaking Authority 258.007, 258.008 FS. Law Implemented 258.008 FS. History–New________.