CopyCited 1 times | Florida 4th District Court of Appeal
...the
proposed penalties which are found in Form OFR 560-09, and adopted by
rule 69V-560.1000, Florida Administrative Code. The Worksheet is used
to assist the OFR in ensuring that the OFR imposes such penalties in a
consistent manner, as required in section 560.1141(2), Florida Statutes
(2024).
The Worksheet contains columns indicating the number of violations
and sample size, which are used to calculate the violation rate, i.e., the
percentage of records examined which contain a violation....
...factors, as well as the “cooperation mitigator” utilized to reduce or
eliminate suspensions and establish an initial baseline for determining the
recommended penalties applicable to a licensee, is an unadopted rule. On
this point, we agree with Appellants.
Pursuant to section 560.1141, the Commission shall adopt mitigators
and aggravators....
...However, the OFR applies this mitigator exclusively to eliminate
suspensions and not to reduce monetary fines or revocations.
Additionally, by assigning a fixed, nondiscretionary value—twenty-five
percent—to aggravators and mitigators, the OFR has imposed a formulaic
framework that gives section 560.1141 a meaning not apparent from the
statutory text and is generally applicable....
... “minor violations” in the Worksheet is an unadopted rule. The ALJ found
that Appellants failed to meet their burden of demonstrating that the
OFR’s use and application of the term “minor violations” met the definition
of an unadopted rule. In so deciding, the ALJ noted that section 560.1141
requires the Commission to adopt, by rule, disciplinary guidelines that
distinguish minor violations from those that endanger the public health,
safety, or welfare. We find Appellants’ argument on this point meritless.
Section 560.1141(2) requires the Commission to adopt by rule
disciplinary guidelines that ““shall specify a meaningful range of
designated penalties based upon the severity and repetition of specific
offenses and that distinguish minor violations...
