Fla. Admin. Code R. 5K-4.035
(5) 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, the penalty will be determined by consideration of:
(6) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 500, section 581.217(7), F.S. and this rule chapter. 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 the public 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, defined as follows:
a. First Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., when no disciplinary administrative complaints involving the same permitholder have been filed with the Agency Clerk within the three years preceding the date the current administrative complaint is issued.
b. Second Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., after one disciplinary administrative complaint involving the same permitholder has been filed with the Agency Clerk within the three years preceeding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.
c. Third and Any Subsequent Offense. A violation of any law subject to penalty under Chapter 500, or section 581.217(7), F.S., after two disciplinary administrative complaint involving the same permitholder has been filed with the Agency Clerk within the three years preceeding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.
4. The violation history over the past three years.
5. The violation was repeated within one year.
6. The violator impeded, or otherwise failed to cooperate with, the Department’s inspection and/or investigation.
7. Whether the violation resulted from negligence or an intentional act.
8. The cost of enforcement action.
9. The number of other violations proven in the same proceeding.
10. 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. Acts of God or nature that impaired the ability of the violator to comply with Chapter 500, section 581.217(7), F.S., or this rule chapter.
4. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.
5. The disciplinary history of the violator.
6. The violator expeditiously took affirmative or corrective action after it received written notification of the violation to rectify any financial damage or harm to the public.
7. If a repeat violation, whether three years has passed since the prior violation.
(9) Penalties.
(a) Minor Violation. Any Department investigation or inspection which reveals 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 Non-Compliance as the Department’s first response to the violation. For the purposes of this rule, the following violations shall be considered minor and shall result in the issuance of a notice of noncompliance:
1. Violations to subsection 5K-4.002(1), F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
2. Violations to subsection 5K-4.002(2), F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
3. Violations to subsection 5K-4.002(3), F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
4. Violations to subsection 5K-4.002(4), F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
5. Violations to Rule 5K-4.004, F.A.C, where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
6. Violations to subsection Rule 5K-4.0041, F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
7. Violations to Rule 5K-4.0050, F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
8. Violations to Rule 5K-4.023, F.A.C., where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.
(b) Major Violations. Any violation of Chapter 500, section 581.217(7), F.S., or this rule chapter that may result in economic or physical harm to a person or may adversely affect the public health, safety, or welfare or creates a significant threat of such harm shall be considered a major violation. Major violations shall result in the issuance of a stop-sale or stop-use order and an administrative fine of $500 up to the statutory maximum, or any combination thereof. Aggravating factors, as defined in paragraph (6)(a) of this rule shall warrant the adjustment of the fine upward per violation per aggravating factor and mitigating factors, as defined in paragraph (6)(b) of this rule, shall warrant the adjustment of the fine downward per violation per mitigating factor, but no fine shall exceed the statutory maximum as outlined in section 570.971, F.S., as applicable. If, three years after the day of the last violation under Chapter 500, section 581.217(7), F.S., or this rule chapter, no new violation has occurred, all previous fines shall be disregarded when administering a fine for the next violation. For the purposes of this rule, the following violations shall be considered major violations:
1. Operating a Food Establishment with no hot water available.
2. Operating a Food Establishment while hot water is available, but the source is turned off.
3. Failure to provide copies of required microbiological and/or chemical analysis for review.
4. Operating a Food Establishment without the required service sink or curbed cleaning facility.
5. Failure to have an adequate or accurately maintained process control system including Hazards Analysis and Critical Control Points (HACCP), scheduled process, food safety plan, or any such other requirement in provided in by Rule 5K-4.002, F.A.C.
6. Failure to follow process control system such as, but not limited to, Hazards Analysis and Critical Control Points (HACCP), scheduled process, food safety plan, or any such other requirement provided in Rule 5K-4.002, F.A.C.
7. The manufacture, sale or delivery, holding or offering for sale any food that is deemed adulterated, as outlined in Section 500.10, F.S.
8. The manufacture, sale or delivery, holding or offering for sale any food that is misbranded as provided in Section 500.11, F.S., or in 21 CFR Part 101 as incorporated in Rule 5K-4.002, F.A.C.
9. Transporting food under conditions which may render the food to be deemed adulterated, as provided in Section 500.10, F.S.
10. Transporting food in a vessel contaminated by any substance that may pose a threat to human health as provided in Section 500.165, F.S.
11. Packaged ice found in violation of subsection 5K-4.023(5), F.A.C.
12. Vended water or ice sample found positive for coliforms or E. coli.
13. The presence of a pathogenic Escherichia Coli, Salmonella Enterica, or Listeria Monocytogenes found in the environment of a Food Establishment in a location where contamination of food is likely to occur from the presence of the organism(s). In case of such violation, a stop-use order(s) shall be issued and shall not be released by the Department until the Food Establishment has cleaned and/or repaired the affected areas and all test results following environmental sampling are observed by the Department and reported as “negative” from an ISO (International Organizaiton of Standardization) 17025 based accrediated laboratory certified to conduct testing for the microorganism of concern. Any and all cleaning, repairs, environmental sampling and testing shall be at the expense of the facility.
14. Violation of 21 CFR Part 117.20, as incorporated in Rule 5K-4.002, F.A.C. Sewage is not conveyed to the point of disposal through an approved sanitary sewage system or another system constructed, maintained, and operated according to law, which may result in a way that a public health hazard or nuisance is created.
15. Violation of 21 CFR Part 117.20, as incorporated in Rule 5K-4.002, F.A.C. Premises are not maintained free of roaches and rodents.
16. Violations that result in a second and any subsequent minor violation within a three-year period.
17. The receipt of two or more consecutive inspection reports not meeting requirements.
18. The receipt of an inspection report not meeting inspection requirements, followed by an inspection report meeting inspection requirements, followed by an inspection report not meeting inspection requirements, within a three-year period.
19. The person-in-charge does not exclude or restrict a food employee from an establishment as required in section 2-201.12 of the Food Code incorporated by reference in Rule 5K-4.002, F.A.C.
20. The misbranding of species identification.
21. Refusal to permit entry or inspection during operating hours as required by Section 500.147, F.S.
22. Operating as a Food Establishment without a valid food permit as provided in Section 500.12, F.S.
23. Failing to notify the Department within 30 days after closure or dissolution of the business in violation of subsection 5K-4.020(7), F.A.C.
24. Any violation requiring an Immediate Final Order, as authorized by Chapter 500, F.S.
(10) Willful Violations. Willful violations shall result in the imposition of an administrative fine of $5,000 per violation, permit suspension, or permit revocation or any combination thereof. The following shall constitute a willful violation:
(11) Resolution Of Violations, Settlement, And Additional Enforcement Remedies.
Rulemaking Authority 500.09, 500.12, 570.07(23), 581.217(12) FS. Law Implemented 500.04, 500.09, 500.121, 500.171, 500.172, 500.173, 500.174, 500.177, 581.217(7), FS. History–New 3-16-20, Amended 11-20-23.