Fla. Admin. Code R. 5N-1.113

Current through Reg. 50, No. 253; December 31, 2024

Section 5N-1.113 - Disciplinary Guidelines; Aggravating and Mitigating Circumstances; Range of Penalties

(1) Purpose. This rule sets forth disciplinary guidelines used by the division when imposing penalties authorized under Chapter 493, F.S. The guidelines notify applicants and licensees of the range of penalties which are routinely imposed unless the division finds it necessary to deviate based on aggravating and mitigating circumstances established within this rule.

(2) Violations.

(a) This rule provides general descriptions of offenses common to provisions of Chapter 493, F.S. The complete language of each statutory violation should be reviewed to determine all the conduct included.

(b) This rule does not and is not intended to encompass all possible violations of statute or rule. The absence from this rule of a violation should not be construed as an indication that the violation does not cause harm to the public or is not subject to a penalty. In any instance where a violation is not listed in this rule, the penalty will be determined by consideration of:

1. The closest analogous violation, if any, and

2. Aggravating and mitigating circumstances.

(3) Aggravating and Mitigating Circumstances.

In proceedings pursuant to Sections 120.57(1) and (2), F.S., the division will impose a penalty within the range corresponding to the violations as set forth below. The ranges are guidelines to which the division will refer in determining the level of the penalty. Penalty ranges are based on a single occurrence of each violation listed. Multiple occurrences of a violation, or a combination of different violations, will be added together to determine the total penalties to be assessed and can be grounds for enhancement of penalties. The division will consider any applicable aggravating or mitigating circumstances when imposing a penalty within or outside the guideline range as permitted by Section 493.6118(2), F.S. The division considers the following as aggravating or mitigating circumstances:

(a) The violation was intentional, negligent, or malicious;

(b) The danger to public safety or welfare caused by the violation;

(c) The amount of damage to persons or property caused by the violation;

(d) The duration of the violation;

(e) The length of time the violator has been licensed;

(f) The violator's disciplinary history;

(g) Subsequent remedial or corrective measures taken by the violator;

(h) The deterrent effect of the penalty imposed;

(i) Whether the violation occurred while the violator was on probation;

(j) Substantiated actions by another party preventing the violator from complying with applicable laws or rules;

(k) Acts of God or nature that impaired the violator's ability to comply with applicable laws and rules;

(l) Any other relevant aggravating or mitigating circumstances.

(4) Additional remedies.

(a) The provisions of this rule are not intended and shall not be construed to limit the ability of the division to:

1. Informally dispose of disciplinary actions by guidance or compliance letters, or by stipulation, agreed settlement, or consent order.

2. Pursue or recommend collateral civil or criminal action if appropriate.

(b) In addition to the penalties established in this rule the division reserves the right to recover any penalties, attorneys' fees, court costs, service fees, collection costs, costs resulting from a payment to the division that is returned for insufficent funds, or damages, as permitted by law.

(5) Final Orders. A violator's failure to comply with a final order that imposes penalties, shall result in denial of a license application, or revocation of existing Chapter 493, F.S., licenses pursuant to Sections 493.6118(2)(a) and (e), F.S. This is in addition to suspension of licenses under Section 493.6118(6), F.S., for nonpayment of fines. Additional penalties as stated within paragraph (4)(b) of this rule, can be sought by the division through enforcement of the final order in circuit court.

(6) The disciplinary guidelines for violations committed by agencies are as follows:

VIOLATION	RANGE OF PENALTIES
(a) Failure to maintain a physical location in Florida. (Section 493.6106(2), F.S.)	(a) From an administrative fine of $250-$650 to suspension, revocation or denial of license.
(b) Failure to timely notify the division of a change of address. (Section 493.6106(2)(a), F.S.)	(b) From an administrative fine of $150-$350 to probation or one month's suspension of license.
(c) Failure to post a license or disclosure notice. (Section 493.6106(2)(b), (c), F.S.)	(c) From a reprimand to an administrative fine of $50-$150.
(d) Failure to immediately notify the division of cancellation of liability insurance. (Section 493.6110(2), F.S.)	(d) An administrative fine of $150-$350.
(e) Failure to issue identification cards to licensed employees. (Section 493.6111(5), F.S.)	(e) An administrative fine of $50-$150 per employee.
(f) Failure to notify the division of changes in corporate officers. (Section 493.6112(1), F.S.)	(f) From an administrative fine of $150-$350 to one month's suspension of license.
(g) Failure to electronically report the hiring or termination of a licensed employee within 15 calendar days. (Section 493.6112(2), F.S., and Rule 5N-1.142(1), F.A.C.)	(g) From an administrative fine of $50-$150 to probation.
(h) Allowing an employee to carry a weapon which is not required by the employee's duties. (Section 493.6115(3), F.S.)	(h) From an administrative fine of $300-$700 to probation or one month's suspension of license.
(i) Allowing an employee to carry a firearm or ammunition not authorized by the division. (Section 493.6115(6), F.S., and Rule 5N-1.131, F.A.C.)	(i) From an administrative fine of $300-$700 to probation.
(j) Failure to timely notify the division of the discharge of a firearm. (Section 493.6115(9), F.S.)	(j) From an administrative fine of $300-$700 to probation or one month's suspension of license.
(k) Conducting or advertising regulated activities under an unauthorized fictitious name. (Section 493.6118(1)(b), F.S.)	(k) From an administrative fine of $200-$400 to one month's suspension of license.
(l) Making a false statement regarding an individual's employment status. (Section 493.6118(1)(d), F.S.)	(l) From an administrative fine of $250-$750 to one month's suspension of license.
(m) Failure to direct or supervise an armed employee. (Section 493.6118(1)(f), F.S.)	(m) From an administrative fine of $250-$750 to probation or one month's suspension of license.
(n) Conducting or advertising the business of an agency without a valid license or with an inactive license. (Section 493.6118(1)(g), F.S.)	(n) From an administrative fine of $250-$750 to revocation or denial of license.
(o) Conducting or advertising the business of an agency after suspension or revocation of a license. (Section 493.6118(1)(g), F.S.)	(o) From an administrative fine of $500-$1,000 to revocation or denial of license.
(p) Conducting or advertising the business of a branch office without a valid license. (Section 493.6118(1)(g), F.S.)	(p) From an administrative fine of $200-$600 to probation.
(q) Advertising or conducting regulated activity without liability insurance. (Section 493.6118(1)(h), F.S.)	(q) From an administrative fine of $200-$700 to probation or denial of license (in addition to suspension during uninsured period).
(r) Permitting or aiding an employee to impersonate a law enforcement officer or government employee. (Section 493.6118(1)(i), F.S.)	(r) From an administrative fine of $300-$700 or probation to one month's suspension of license.
(s) Allowing a security officer employee to perform regulated activities without a proper uniform. (Section 493.6305(1), F.S.)	(s) From an administrative fine of $250-$500 to probation.
(t) Violation of a cease and desist order issued by the division. (Section 493.6118(1)(k), F.S.)	(t) From an administrative fine of $500-$1,000 to revocation or denial of license.
(u) Employing an unlicensed unarmed private investigator, security officer or recovery agent. (Section 493.6118(1)(n), F.S.)	(u) An administrative fine of $250-$500.
(v) Employing an unlicensed armed security officer or private investigator. (Section 493.6118(1)(n), F.S.)	(v) From an administrative fine of $300-$700 to probation or one month's suspension of license.
(w) Advertising or conducting regulated activity without a properly licensed manager. (Section 493.6118(1)(n), F.S.)	(w) From an administrative fine of $200-$400 to probation.
(x) Failure to maintain business records for two years. (Section 493.6121(2), F.S.)	(x) From an administrative fine of $200-$700 to one month's suspension of license.
(y) Unauthorized use of the Great Seal of the State of Florida. (Section 493.6124, F.S.)	(y) An administrative fine of $150-$350.

(7) The disciplinary guidelines for violations committed by individuals are as follows:

VIOLATION	RANGE OF PENALTIES
(a) Failure to notify the division of a change of address. (Section 493.6106(3), F.S.)	(a) An administrative fine of $50-$250.
(b) Failure to return agency identification card or equipment to employer upon termination. (Section 493.6111(5)(c), F.S.)	(b) From an administrative fine of $100-$500 to suspension or denial of license.
(c) Carrying a weapon which is not required by the licensee's duties. (Section 493.6115(3), F.S.)	(c) From an administrative fine of $250-$450 or probation to suspension or denial of license.
(d) Carrying a firearm or ammunition not authorized by the division. (Section 493.6115(6), F.S., and Rule 5N-1.129, F.A.C.)	(d) From an administrative fine of $150-$350 or probation to suspension or denial of the Class "G" Statewide Firearm License.
(e) Failure to timely notify the division of the discharge of a firearm. (Section 493.6115(9), F.S.)	(e) From an administrative fine of $250-$650 or probation to one month's suspension or denial of license.
(f) Conviction of or adjudication of guilt withheld on a crime directly related to the business for which the license is held. (Section 493.6118(1)(c), F.S., and Rule 5N-1.114, F.A.C.)	(f) Revocation or denial of license.
(g) Unauthorized release of confidential information or of a professional secret. (Section 493.6118(1)(e), F.S.)	(g) From an administrative fine of $250-$750 to one month's suspension of license.
(h)The improper exhibition of a firearm, as defined in Section 790.10 (Section 493.6118(1)(f), F.S.)	(h) From an administrative fine of $250-$500 or probation to one month's suspension or denial of license.
(i) Careless or improper handling of a firearm resulting in a discharge. (Section 493.6118(1)(f), F.S.)	(i) From an administrative fine of $300-$700 or probation to three month's suspension or denial of license.
(j) Firing an unjustifiable warning shot while on duty. (Section 493.6118(1)(f), F.S., see also: Section 776.012, F.S.)	(j) From an administrative fine of $350-$750 or probation to three month's suspension or denial of license.
(k) Performing regulated activities without a valid license or with an Inactive license. (Section 493.6118(1)(g), F.S.)	(k) From an administrative fine of $100-$300 to denial of license.
(l) Performing regulated activities after suspension or revocation of a license. (Section 493.6118(1)(g), F.S.)	(l) From an administrative fine of $200-$600 to revocation or denial of license.
(m) Impersonating a law enforcement officer or government employee. (Section 493.6118(1)(i), F.S.)	(m) From an administrative fine of $500-$1,000 to suspension, revocation or denial of license.
(n) Commission of an act of violence not in the lawful protection of one's self or another. (Section 493.6118(1)(j), F.S.)	(n) From probation to suspension, revocation or denial of license.
(o) Violation of a cease and desist order issued by the division. (Section 493.6118(1)(k), F.S.)	(o) From an administrative fine of $500 to $1,000 to revocation or denial of license.
(p) Soliciting business for an attorney for compensation. (Section 493.6118(1)(l), F.S.)	(p) From an administrative fine of $150-$350 or probation to one month's suspension of license.
(q) Failure or refusal to cooperate with a division investigator. (Section 493.6118(1)(o), F.S.)	(q) From an administrative fine of $300-$700 to three month's suspension or denial of license.
(r) Failure to carry an agency identification card while on duty. (Section 493.6118(1)(p), F.S.)	(r) An administrative fine of $50-$150.
(s) Failure to carry a license while on duty. (Section 493.6118(1)(q), F.S.)	(s) From an administrative fine of $50-$250 to probation.
(t) Failure of a sponsor to timely certify the progress, completion or termination of an internship. (Section 493.6118(1)(r), F.S.)	(t) From an administrative fine of $150-$350 to probation.
(u) Unauthorized use of the Great Seal of the State of Florida. (Section 493.6124, F.S.)	(u) An administrative fine of $100-$200.
(v) Falling asleep while on duty. (Section 493.6118(1)(f), F.S.)	(v) From a reprimand to an administrative fine of $150 to $300 to probation or three months suspension.
(w) Abandoning post while on duty. (Section 493.6118(1)(f), F.S.)	(w) From an administrative fine of $150-500 to probation or three months suspension.

(8) In addition to the disciplinary guidelines set forth in subsections (6) and (7), guidelines for violations committed by recovery agencies, agents and interns are as follows:

VIOLATION	RANGE OF PENALTIES
(a) Performing a repossession before authorization from the legal owner or mortgagee. (Section 493.6118(1)(x)1., F.S.)	(a) From an administrative fine of $200-$700 or probation to one month's suspension of license.
(b) Charging for expenses not actually incurred. (Section 493.6118(1)(x)2., F.S.)	(b) From an administrative fine of $150-$300 to probation or one month's suspension of license.
(c) Using recovered property for personal benefit. (Section 493.6118(1)(x)3., F.S.)	(c) From an administrative fine of $300-$700 to one month's suspension or denial of license.
(d) Selling recovered property without written authorization from the legal owner or mortgagee. (Section 493.6118(1)(x)4., F.S.)	(d) From an administrative fine of $300-$600 or probation to one month's suspension or denial of license.
(e) Failure to notify law enforcement within 2 hours of a repossession. (Section 493.6118(1)(x)5., F.S.)	(e) From an administrative fine of $100-$300 to probation.
(f) Failure to timely remit to the client money collected in lieu of a repossession. (Section 493.6118(1)(x)6., F.S.)	(f) From an administrative fine of $150-$350 or probation to one month's suspension or denial of license.
(g) Failure to timely deliver to the client a negotiable instrument. (Section 493.6118(1)(x)7., F.S.)	(g) From an administrative fine of $100-$300 or probation to one month's suspension or denial of license.
(h) Falsification or alteration of inventory records. (Section 493.6118(1)(x)8., F.S.)	(h) From an administrative fine of $300-$700 or probation to three month's suspension or denial of license.
(i) Carrying a weapon or firearm while on private property in the performance of a recovery. (Section 493.6118(1)(x)9., F.S.)	(i) From an administrative fine of $300-$700 or probation to three month's suspension or denial of license.
(j) Solicitation of recovery services for a fee greater than the amount normally charged. (Section 493.6118(1)(x)10., F.S.)	(j) From an administrative fine of $200-$600 or probation to one month's suspension or denial of license.
(k) Displaying a badge in the course of a repossession. (Section 493.6118(1)(x)11., F.S.)	(k) From an administrative fine of $200-$600 to probation.
(l) Failure to maintain inventory of personal property recovered in a repossession. (Section 493.6404(1), F.S.)	(l) From an administrative fine of $150-$350 or probation to one month's suspension or denial of license.
(m) Failure to timely notify a debtor in writing of the location of personal property. (Section 493.6404(2), F.S.)	(m) From an administrative fine of $150-$350 to probation.

(9) The disciplinary guidelines for violations committed by instructors and schools or training facilities are as follows:

VIOLATION	RANGE OF PENALTIES
(a) Falsely certifying the completion of required training. (Section 493.6118(1)(f), F.S.)	(a) From an administrative fine of $300-$700 per student to three month's suspension or denial of license.
(b) Failing to provide students with the proper hours of instruction. (Sections 493.6118(1)(f), 493.6303(4)(a), 493.6403(2), F.S., and Rule 5N-1.140, F.A.C.)	(b) From an administrative fine of $300-$700 per student to three month's suspension or denial of license.
(c) Improperly administering or grading an examination. (Rule 5N-1.140, F.A.C., Section 493.6118(1)(f), F.S.)	(c) From an administrative fine of $200-$600 per student or probation to three month's suspension or denial of license.
(d) Failing to properly maintain records. (Rule 5N-1.140, F.A.C., Section 493.6118(1)(f), F.S.)	(d) From an administrative fine of $150-$350 or probation to one month's suspension or denial of license.
(e) Employing an unlicensed instructor to teach at a licensed school. (Sections 493.6118(1)(g), 493.6301(8), 493.6401(8), F.S.)	(e) From an administrative fine of $150-$350 or probation to one month's suspension or denial of license.
(f) Failure to teach approved curriculum. (Sections 493.6118(1)(f), 493.6118(1)(t), F.S., and Rule 5N-1.140, F.A.C.)	(f) From an administrative fine of $200-$600 or probation to one month's suspension of license.
(g) Operating an unlicensed school or training facility. (Section 493.6118(1)(g), F.S.)	(g) From an administrative fine of $300-$700 to denial of license.

Fla. Admin. Code Ann. R. 5N-1.113

Rulemaking Authority 493.6103 FS. Law Implemented 493.6106, 493.6110(2), 493.6111(5), 493.6112, 493.6115, 493.6118, 493.6121(2), 493.6124, 493.6301(8), 493.6303(4), 493.6305(1), 493.6401(8), 493.6403(2), 493.6404 FS.

New 5-7-91, Amended 5-15-95, Formerly 1C-3.113, Amended by Florida Register Volume 45, Number 089, May 7, 2019 effective 5/23/2019, Amended by Florida Register Volume 46, Number 176, September 9, 2020 effective 9/24/2020, Amended by Florida Register Volume 47, Number 016, January 26, 2021 effective 2/10/2021.

New 5-7-91, Amended 5-15-95, Formerly 1C-3.113, Amended 5-23-19, 9-24-20, 2-10-21.