Florida Administrative Code › 5 - DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES › 5L - Division of Aquaculture › Chapter 5L-1 - THE COMPREHENSIVE SHELLFISH CONTROL CODE › Section 5L-1.006 - Compliance and Penalties

Current through Reg. 50, No. 138; July 16, 2024
(1) The
				Department shall initiate enforcement action as follows:
(a) The Department shall inspect all
				certified shellfish processing facilities as necessary. The deficiency(ies)
				cited in an inspection report shall be documented regardless of the type of
				inspection being conducted.
(b) At
				the completion of an inspection, if a deficiency is cited the Department will
				provide a corrective action plan. The Department will solicit input from the
				shellfish processor, facility supervisor or the designated representative. The
				consent and cooperation of the shellfish processor, facility supervisor or the
				designated representative is not necessary. Lack of cooperation from the
				shellfish processor, facility supervisor or the designated representative will
				not affect the validity of the corrective action or requirement that the plan
				be implemented. A copy of the Shellfish Processing Facility Inspection Form
				(FDACS-15009, Revision 01/16), as incorporated in Rule
				5L-1.005, F.A.C., and the
				corrective action plan outlined on the the Shellfish Inspection Facility
				Inspection Form Addendum (FDACS-15012, Revision 10/16), as incorporated in Rule
				5L-1.005, F.A.C., will be
				provided to the shellfish processor, facility supervisor or the designated
				representative present at the conclusion of the inspection. The shellfish
				processor, facility supervisor, and the designated representative shall ensure
				that the facility is in full compliance with the corrective action plan as
				outlined on Shellfish Inspection Facility Inspection Form Addendum
				(FDACS-15012, Revision 10/16). The shellfish processor, facility supervisor, or
				the designated representative's failure to comply with the corrective action
				plan outlined on Shellfish Inspection Facility Inspection Form Addendum
				(FDACS-15012, Revision 1/16), will lead to administrative actions, suspension,
				and/or revocation of the Shellfish Processing Certification.
(c) If, upon inspection, the Department cites
				the facility for a "Critical, " "Key, " or "Other" deficiency(ies), the
				following schedule will be used by the Department with respect to the
				administrative actions to be taken:
Critical deficiency(ies)
When a "Critical" deficiency(ies) is cited a warning letter
				  will be issued and processing operations at the certified facility will be
				  suspended as a public health threat and the deficiency must be corrected
				  immediately or the certified facility's certification to operate will be
				  suspended. If the certification to operate is suspended, it will remain
				  suspended until corrections are made and verified by the Department. Product
				  affected by the "Critical" deficiency will be controlled to prevent
				  contaminated or adulterated product from reaching consumers. When necessary,
				  the Department shall detain or seize any product that may have been
				  adulterated, initiate a recall of any distributed product and notify necessary
				  officials of a recall.
In addition to these actions the sanction to be imposed on
				  the certified shellfish processing facility upon the finding of any repeat
				  deficiency(ies), as defined in Rule
				  5L-1.002, F.A.C., will be as
				  follows:
Offense
Critical
Key
Other
1st
Operations or certification suspended until corrected
							 and a warning letter issued
Correct deficiency pursuant to date on corrective
							 action plan
Correct deficiency pursuant to date on corrective
							 action plan
1st Repeat within proceeding 180 days
Operations or certification suspended until corrected
							 and fine of $500 per violation
Correct deficiency pursuant to date on corrective
							 action plan and fine of $100 per violation
Correct deficiency pursuant to date on corrective
							 action plan and fine of $50 per violation
2nd Repeat within proceeding 180 days
Operations or certification suspended until corrected
							 and fine of $1000 per violation
Correct deficiency pursuant to date on corrective
							 action plan and fine of $200 per violation
Correct deficiency pursuant to date on corrective
							 action plan and fine of $100 per violation
3rd Repeat within proceeding 180 days
Fine of $1000 per violation and 7-day suspension of
							 certification or until corrected, whichever is later
Correct deficiency pursuant to date on corrective
							 action plan and fine of $500 per violation and 7-day suspension of
							 certification
Correct deficiency pursuant to date on corrective
							 action plan and fine of $200 per violation
4th or Subsequent Repeat within proceeding 180
							 days
Fine of $1000 per violation and 14-day revocation of
							 certification
Correct deficiency pursuant to date on corrective
							 action plan and fine of $1000 per violation and 14-day suspension of
							 certification
Correct deficiency pursuant to date on corrective
							 action plan and fine of $400 per violation
(d) A
				warning letter will be sent to the shellfish processor when the establishment
				has:
1. One or more critical item deficiencies
				cited in violation of rule Chapter 5L-1, F.A.C., or
2. More than two "Key" item deficiencies
				cited in violation of rule Chapter 5L-1, F.A.C., or
3. One "Key" item deficiency and four "Other"
				item deficiencies cited in violation of rule Chapter 5L-1,
				F.A.C.
(e) Willful
				Violations 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 by a Shellfish Processor that may adversely affect public
				health, safety, or welfare or that creates a significant threat of such harm.
				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 Chapter
				5L-1, F.A.C., the penalty will be determined by consideration of:
1. The closest analogous violation, if any,
				that is listed in this rule; and
2.
				The mitigating or aggravating factors listed in this rule.
(f) Willful violations shall result in the
				imposition of an administrative fine of $1, 000 per violation, the suspension
				of Shellfish Processor certification, revocation of Shellfish Processor
				certification, or any combination thereof. The following shall constitute a
				willful violation by the shellfish processor:
1. The falsification of any records, tags or
				labels required under this rule or Chapter 5L-3, F.A.C.
2. The sale or distribution, or offering for
				sale or distribution, of any shellstock under recall order pursuant to
				subsection 5L-1.004(8),
				F.A.C.
3. Introducing adulterated
				or misbranded shellfish products into commerce.
4. The failure to oversee the receiving of
				shellstock from harvesters.
5.
				Deterring or preventing an employee of the Department from performing any
				duties authorized by law.
(g) In cases involving the imposition of a
				fine the Department will forward an administrative complaint to the shellfish
				processor, a proposed settlement offer, and a statement of rights. In cases
				involving the imposition of a suspension or revocation of a facility's
				shellfish processing certification the Department will forward an
				administrative complaint, a statement of rights, and a proposed settlement
				agreement to the shellfish processor except when the Department has to
				immediately suspend a certification license because of an immediate public
				health threat. Payment of fines owed to the Department must be made within 21
				days of the certificate holder receiving the notice imposing the fine unless
				the shellfish processor has sent a written request for a hearing on the matter
				pursuant to Chapter 120, F.S., within the 21 day period to the
				Department.
(h) A renewal of a
				shellfish facility's processing certification will not be made if there are any
				unpaid fines with respect to prior certification periods.