Adam H. Putnam, Commissioner    -    Izzy Rommes, Director

Weights and Measures Florida Administrative Code

The following are rules adopted by the Bureau of Weights and Measures for the State of Florida.

Chapter 5F-1 Weights and Measures

5F-1.030 Purpose.

It is the purpose of this rule to adopt the fees the Department will charge for actual Metrology Laboratory testing and calibration services.

Specific Authority 531.41(3) FS. Law Implemented 531.415 FS. History–New 10-10-93.

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5F-1.040 Fees.

The following fees are adopted:

(1) For each mass standard that is tested or certified to meet tolerances less stringent than American National Standards Institute/American Society for Testing and Materials ( ANSI/ ASTM) Standard E617 Appendix X5. for Class 4, the fee will be as follows:

  • <10 lbs. or equal to 10 lbs. or metric equivalent $1.95 per unit
  • >10-50 lbs. or metric equivalent $5.70 per unit
  • >50-1000 lbs. or metric equivalent $8.40 per unit
  • >1000 lbs. or metric equivalent $25.00 per unit

(2) For each mass standard that is tested or certified to meet ANSI/ ASTM Standard E617 Appendix X5. for Class 4 or equivalent tolerances, the fee will be as follows:

  • 0-10 lbs. or metric equivalent, without adjustment $5.00 per unit
  • 0-10 lbs. or metric equivalent, with adjustment $9.30 per unit
  • 10-50 lbs. or metric equivalent $28.20 per unit
  • >50 lbs. or metric equivalent $28.20 per unit

(3) For each mass standard that is tested or certified to meet ANSI/ ASTM Standard E617 Appendix X3. for Class 1 or calibrated to determine actual mass or apparent mass values, the fee will be as follows:

  • 0-10 lbs. or metric equivalent $28.20 per unit
  • >10-20 lbs. or metric equivalent $40.00 per unit
  • >20 lbs. or metric equivalent $50.00 per unit

(4) For each volumetric flask, graduate, or test measure, the fee will be as follows:

  • 0-5 gallon capacity or metric equivalent $25.00 per unit
  • >5-50 gallon capacity or metric equivalent $35.00 per unit
  • >50-200 gallon capacity or metric equivalent $56.70 per unit
  • >200-500 gallon capacity or metric equivalent $141.60 per unit
  • >500-1000 gallon capacity or metric equivalent $169.80 per unit
  • >1000 Gallon capacity or metric equivalent $228.00 per unit
  • 0-25 gallon capacity or metric equivalent used for measuring Liquid Propane Gas or similar gases $112.80 per unit
  • >25 gallon capacity or metric equivalent used for measuring Liquid Propane Gas or similar gases $169.80 per unit

(5) For each linear measure that is tolerance tested or certified to meet a certain tolerance, the fee shall be......$75.00.

(6) For each linear measure that is calibrated to determine actual values, the fee shall be as follows:

  • Rigid Rules (at no more than 6 calibration points) $100.00
  • Steel Tapes (at no more than 12 calibration points) $100.00

(7) For each liquid-in-glass or electronic thermometer that is tolerance tested or certified, the fee shall be $50.00.

(8) For each liquid-in-glass or electronic thermometer that is calibrated at no more than six (6) calibration points to determine actual values, the fee shall be $100.00. Additional calibration points will be assessed fees according to "Special tests and preparations" in Section (9).

(9) For each special test or special preparation, the fee shall be $50.00 per hour. Calibrations or tests whose individual fee(s) would total less than the equivalent of one-half hour of this hourly charge will be considered as special preparation and a fee of $25.00 will be charged to cover the actual costs of set-up and preparation.

(10) Materials. The American National Standards Institute/American Society for Testing and Materials Standard E617 Appendices X3. and X5. (1991) are hereby incorporated by reference. They may be obtained from the American Society of Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.

Specific Authority 531.41(3) FS., Law Implemented 531.415 FS. History-New 10-10-93, Amended 3-17-98.

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5F-1.050 Payment of Fees.

(1) Each fee is payable at the time the metrology service is provided, regardless of whether the item tested is certified or approved. The Department may refuse to accept for testing any item it considers unsuitable for its intended use after consideration of United States Department of Commerce, National Bureau of Standards (NBS): Monograph 150, Liquid-in-Glass Thermometry (1976); United States Department of Commerce, National Institute of Standards and Technology (NIST); Handbook 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (Rev. 1990); Handbook 105-2, Specifications and Tolerances for Reference Standard and Field Standard Weights and Measures, 2. Specifications and Tolerances for Field Standard Measuring Flask (1996); Handbook 105-3, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 3. Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards (1997); Handbook 105-4, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 4. Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers (1997); Handbook 105-7, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 7. Specifications and Tolerances for Dynamic Small Volume Provers (1997); and The American National Standards Institute/American Society for Testing and Materials, Standard E617 Appendices X1. and X2. (1991).

(2) Fees not collected within 30 days of the date the services are provided are considered delinquent.

(3) Materials. The following materials are hereby incorporated by reference:

(a) United States Department of Commerce, National Bureau of Standards (NBS), Monograph 150, Liquid-in-Glass Thermometry (1976). Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(b) United States Department of Commerce, National Institute of Standards and Technology (NIST), Handbook 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (Revised 1990). Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(c) United States Department of Commerce, National Institute of Standards and Technology, Handbook 105-2, Specifications and Tolerances for Reference Standard and Field Standard Weights and Measures, 2. Specifications and Tolerances for Field Standard Measuring Flask (1996). Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(d) United States Department of Commerce, National Institute of Standards and Technology, Handbook 105-3, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 3. Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards (1997). Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

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5F-1.070 Proof of Exempt Status.

Any equipment or items exempt from the above fees as provided in Chapter 531.415(4), F.S. shall be accompanied by documented evidence that qualifies it as exempt at the time the services are requested.

Specific Authority 531.41(3) FS. Law Implemented 531.415 FS. History–New 10-10-93.

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Chapter 5F-3 Model State Packaging and Labeling Regulation

5F-3.001 Purpose.

5F-3.016 Package Testing Procedures.

5F-3.001 Adoption of Uniform Packaging and Labeling Regulation.
The Department of Agriculture and Consumer Services hereby adopts the Uniform Packaging and Labeling Regulation as published by the United States Department of Commerce, National Institute of Standards and Technology (NIST), in NIST Handbook 130, 2006 Edition, as the rule for packaging and labeling of commodities and incorporates said uniform regulation herein by this reference. A copy of NIST, Handbook 130, 2006 Edition, may be obtained from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Phone: (202)512-1800 or http://ts.nist.gov/ts/htdocs/230/235/ pubs.htm. Copies of this uniform regulation are available from the Division of Standards, Bureau of Weights and Measures, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: (850)921-1570.
Specific Authority 531.41(3) FS. Law Implemented 531.41(4), 531.47, 531.49 FS. History–New 1-1-73, Formerly 5F-3.01, Amended 6-14-95, 8-27-98, 8-19-99, 7-3-00, 9-3-01, 6-23-02, 6-29-03, 6-21-04, 6-2-05, 5-23-06.

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5F-3.016 Package Testing Procedures.
The Department of Agriculture and Consumer Services hereby adopts the National Institute of Standards and Technology (NIST) Handbook 133, “Checking the Net Contents of Packaged Goods,” Fourth Edition (January 2005) as the rule for the procedures for testing packaged goods and commodities for net contents and incorporates said Handbook herein by this reference. A copy of NIST Handbook 133, Fourth Edition (January 2005) may be obtained from the National Conference on Weights and Measures, 15245 Shady Grove Road, Suite 130, Rockville, Maryland 20850, Phone: (240) 632-9454 or http://ts.nist.gov/ts/htdocs/230/235/pubs.htm.
Specific Authority 531.41(3) FS. Law Implemented 531.41(13) FS. History–New 4-9-98, Amended 6-23-02, 6-29-03, 6-2-05.

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Chapter 5F-4 Voluntary Registration of Servicemen and Service Agencies For Commercial Weighing and Measuring Devices

5F-4.001 Purpose.

(1) The Florida Department of Agriculture and Consumer Services hereby adopts the Uniform Regulation for the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices, promulgated by the United States Department of Commerce, National Institute of Standards and Technology, NIST Handbook 130, 1995 Edition, as the Rule for voluntary registration of servicepersons and service agencies for commercial weighing and measuring devices, and incorporates said uniform regulation herein by this reference. A copy of NIST Handbook 130, 1995 Edition, may be obtained from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Phone: (202) 783-3238.

Copies of this uniform regulation are available from the Division of Standards, Bureau of Weights and Measures, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: (850) 921-1570.

(2) There will be no fee for registration of Servicepersons or Service Agencies.

(3) The Certificate of Registration for each Serviceperson or Service Agency shall expire two years from the date of issuance.

(4) Standards and Testing Equipment used by Servicepersons or Service Agencies in service and testing functions shall be examined and re certified by the Department of Agriculture and Consumer Services, Bureau of Weights and Measures at least biennially.

(5) Reporting required by this rule shall be made to the Division of Standards, Bureau of Weights and Measures, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: (850) 921-1570.

Specific Authority 531.41(3) FS. Law Implemented 531.41(7) FS. History–New 1-1-73, Formerly 5F-4.01, Amended 6-14-95.

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Chapter 5F-5 Specifications, Tolerances, and Other Technical Requirements For Commercial Weighing and Measuring Devices

5F-5.001 Adoption of Specifications, Tolerances, and Other Technical Requirements for Commercial Weighing and Measuring Devices.
(1) The specifications, tolerances, and other techical requirements for commercial weighing and measuring devices adopted by the National Conference on Weights and Measures and contained in National Institute of Standards and Technology (NIST) Handbook 44, 2010 Edition, are hereby adopted as rules for the requirements for commercial weighing and measuring devices of the Department of Agriculture and Consumer Services. A copy of NIST Handbook 44, 2010 Edition, may be obtained from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Phone (202)512-1800 or http://www.flrules.org/Gateway/reference.asp?No=Ref-00115.
(2) The violation of any of the provisions of these rules and regulations is subject to the penalties and remedies provided in the Weights, Measures, and Standards Law, Chapter 531, F.S.
Rulemaking Authority 531.40, 531.41(3) FS. Law Implemented 531.40 FS. History–New 1-1-73, Amended 7-1-74, 4-18-75, 1-25-76, 1-17-77, 3-29-78, 2-15-79, 6-4-80, 4-5-81, 5-2-82, 6-30-83, 7-15-84, 8-11-85, Formerly 5F-5.01, Amended 7-7-86, 4-5-87, 4-27-88, 5-31-89, 8-21-90, 8-5-91, 12-10-92, 6-21-94, 8-16-95, 10-8-96, 8-27-98, 8-19-99, 7-3-00, 9-3-01, 6-23-02, 6-29-03, 6-21-04, 6-2-05, 5-23-06, 9-2-07, 3-9-11.

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5F-5.002 Weighing or Measuring Device Permits; Requirements and Fees.
(1) As used in this rule, the following definitions shall apply:
(a) Commercial Purpose. Any weighing and measuring device is used for a commercial purpose when it is: used or employed in commerce to establish the size, quantity, extent, area, or measurement of any commodity sold, offered, or submitted for sale or hire; used or employed in computing any basic charge or payment for services rendered on the basis of weight, measure, or count; or used or employed in determining the winner of any award based on weight, measure, or count.
(b) Department. The Florida Department of Agriculture and Consumer Services.
(c) Location. Any single structure, site, mobile unit or similar type establishment where commercial weighing and/or measuring activities are conducted by an owner or person in possession of a device for which a permit is required.
(d) Law Enforcement Purposes. Any weighing or measuring device is used for law enforcement purposes when it is: used or employed by a government agency for only the purposes of the enforcement of law and not for any commercial use. Examples of law enforcement purposes include, but are not limited to, the weighing of confiscated contraband by an agency as part of a criminal or civil case or investigation and the weighing of vehicles by a government agency to enforce highway weight restrictions.
(e) Owner. A person, as defined in this rule, that owns or uses, has primary possession or control over the use of, or otherwise employs a weighing or measuring device for use in conducting commercial transactions or for law enforcement purposes.
(f) Commercial Use Permit (Permit). A certificate issued by the Department that authorizes the holder to use or employ commercial weighing and/or measuring devices for an individual location for which the certificate is issued.
(g) Person. Includes both singular and plural, as the case demands, and includes individuals, partnerships, corporations, companies, societies, associations, and all other groups or combinations.
(h) Retail Establishment. A location, as defined above, in which scales with manufacturers’ rated capacity of 100 pounds or less or the metric equivalent are utilized in conducting commercial weighing or measuring activities.
(2) No owner or person in possession shall operate any commercial weighing or measuring device listed in paragraph 5F-5.002(6)(e) or (f), F.A.C., without first obtaining a weighing or measuring device commercial use permit.
(3) Commercial Use Permits (Permits). Each permit shall be conspicuously displayed at the location for which it is issued. Permits shall be issued by the Department following receipt and approval of a completed Weighing and Measuring Device Permit Application, DACS-03560, (Rev. 08/10), herein adopted and incorporated by reference, identifying the specific type of weighing and measuring devices for which the permit is sought. A copy of the Weighing and Measuring Device Permit Application can be obtained from the Florida Department of Agriculture and Consumer Services, Bureau of Weights and Measures, 3125 Conner Boulevard, Tallahassee, Florida 32399-1650 or from the Department’s web site at http://www.flrules.org/Gateway/reference.asp?No=Ref-00116. The applicant shall provide the requested business information, the name and signature of the applicant or applicant’s agent, shall complete the Permit Fee Worksheet (page two of application) providing the total number of each specific device type at the permit location, and shall pay a total fee based on the amounts specified in paragraph 5F-5.002(6)(e) or (f), F.A.C.
(4) Exemptions. The provisions of this rule do not apply to measuring devices used exclusively for measuring petroleum products taxed under Section 525.09, F.S.; to a taximeter that is licensed, permitted, or registered by a municipality, county, or other local government and tested for accuracy and compliance with state standards by the local government in cooperation with the state as authorized in Section 525.421, F.S.; or to a device used exclusively for weighing railroad cars and is tested for accuracy and compliance with state standards by a private testing agency.
(5) Except for permits for additional devices put into service at a location with an existing permit which will be prorated on a quarterly basis as prescribed in subsection 5F-5.002(7), F.A.C., Weighing and Measuring Device Permits shall be valid for one year from the date of issuance. Fees paid for required weighing and measuring device permits are not refundable.
(6) Weighing and Measuring Device Commercial Use Permit Fees.
(a) One annual commercial use permit shall be issued to each location for all weighing and measuring devices at that location based on the total number, type, size and/or capacity of devices at that location. The permit shall expire one year following the date of issuance and must be renewed annually. The annual permit renewal fee shall be the same as the fees established in paragraphs 5F-5.002(6)(e) and (f), F.A.C.
(b) If the ownership of a permitted device(s) changes, the current permit for that device(s) will remain in effect until its original expiration date and will be transferred by the Department to the new owner if:
1. The device(s) for which the permit was issued remained in the same location; and
2. The new owner, or a representative of the new owner, notifies the Department of the change in ownership in writing within 30 days of the change in ownership by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at (850) 921-1592.
(c) If the ownership and location of a permitted device(s) changes, the current permit for that device(s) automatically expires and a new permit application must be submitted to the Department and a new permit shall be issued which will expire one year from the date of issuance. However, if the location of a permitted device(s) changes without a change in ownership, the current permit for that device(s) shall be transferred by the Department to the new location upon notification by the owner. The owner shall notify the Department in writing within 30 days of the change in location by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at (850) 921-1592.
(d) The failure of an owner to notify the Department of the change in ownership or location of a permitted device(s) within thirty days of the change will subject the owner to paying the prescribed fees for a new permit and any applicable late fee as prescribed in subsection 5F-5.002(9), F.A.C.
(e) The following commercial use permit fees for weighing and measuring devices are based on the manufacturers’ rated capacity or the device’s design and use:
1. For weighing devices used during any portion of the period covered by the commercial use permit with a manufacturer’s rated capacity of up to and including 100 pounds or the metric equivalent, the fees in Table 1 will apply:


Table 1

Number of Devices per Single Retail Establishment

Fee per Single Retail Establishment

1 to 5

$40

6 to 10

$125

11 to 30

$175

31 and Over

$225

2. For weighing devices with a manufacturer’s rated capacity of greater than 100 pounds up to and including 250 pounds or the metric equivalents, the annual permit fee shall be $40 per device.
3. For weighing devices with a manufacturer’s rated capacity of greater than 250 pounds up to and including 5,000 pounds or the metric equivalents, the annual permit fee shall be $75 per device.
4. For weighing devices with a manufacturer’s rated capacity of greater than 5,000 pounds up to and including 20,000 pounds or the metric equivalents, the annual permit fee shall be $150 per device.
5. For weighing devices with a manufacturer’s rated capacity of greater than 20,000 pounds or the metric equivalent, the annual permit fee shall be $200 per device.
6. For wheel load weighing devices the annual permit fee shall be $15 per device.
7. For static and in-motion railroad track scales used to weigh railway cars that are not tested for accuracy and compliance with state standards by a private testing agency, the annual permit fee shall be $200 per device.
8. For belt conveyor scales, the annual permit fee shall be $400 per device.
9. For weighing devices used only for law enforcement purposes by a government agency, the annual permit fee shall be $0.
(f) The following are the commercial use permit fees for measuring devices:
1. For mass flow meters with a maximum flow rate of up to and including 150 pounds per minute or the metric equivalent, the annual permit fee shall be $100 per device.
2. For mass flow meters with a maximum flow rate of greater than 150 pounds per minute or the metric equivalent, the annual permit fee shall be $250 per device.
3. For volumetric flow meters with a maximum flow rate of up to and including 20 gallons per minute or the metric equivalent, the annual permit fee shall be $40 per device.
4. For volumetric flow meters with a maximum flow rate of greater than 20 gallons per minute or the metric equivalent, the annual permit fee shall be $80 per device.
5. For tanks used as measures with capacities of less than 500 gallons or the metric equivalent, with or without gauge rods or markers, the annual permit fee shall be $100 per device.
6. For tanks used as measures with capacities 500 gallons or greater or the metric equivalent, with or without gauge rods or markers, the annual permit fee shall be $200 per device.
7. For taximeters that are not tested for accuracy and compliance with state standards by a local government in cooperation with the state as authorized in Section 531.421, F.S., the annual permit fee shall be $35 per device.
8. For grain moisture meters, the annual permit fee shall be $25 per device.
9. For multiple dimension measuring devices, the annual permit fee shall be $100 per device.
10. For measuring devices used only for law enforcement purposes by a government agency, the annual permit fee shall be $0.
(g) The Department shall test weighing and measuring devices that are not used commercially, including devices used only for law enforcement purposes, only if the device is permitted and the appropriate fees are paid in accordance with this rule.
(7) Fees for Device(s) placed into Service at a Location with an Existing Commercial Use Permit. The Department shall be notified by the applicant about any non-replacement weighing or measuring device that is put into service during a permit year at a location with an existing permit using the Weighing and Measuring Device Permit Application, DACS-03560, (Rev. 06/09). The fee shall be prorated on a quarterly basis of the fee prescribed in paragraph 5F-5.002(6)(e) or (f), F.A.C., for every three month period or portion thereof remaining until the expiration of the existing permit for that location.
(8) Replacement Devices. Each device for which a permit has been issued may be replaced with a device of the same type, size and capacity and will not require additional fees to be paid until renewal of the permit providing the following conditions apply:
(a) The amount of the fee for the replacement device would have been the amount of the fee for the original device as prescribed in paragraph 5F-5.002(6)(e) or (f), F.A.C., and
(b) The replacement device shall be reported to the Department within 30 days of replacement in writing with the brand name and capacity of both the device(s) being replaced and the replacement device(s) by mail to the Bureau of Weights and Measures, 3125 Conner Boulevard, L-2, Tallahassee, Florida 32399-1650, or by facsimile at (850) 921-1592.
(9) Late Fees. The Department shall not issue a Weighing and Measuring Device Permit until all applicable fees, including late fees, are received by the Department. A late fee of $100 per location must be paid in addition to the annual commercial use permit fee required by paragraphs 5F-5.002(6)(e) and (f), F.A.C., if:
(a) The annual commercial use permit application and renewal fee is not received by the Department within thirty days after its annual due date (one year from the date of issuance); or
(b) A commercial use permit application and fee for a non-replacement device put into service at a permitted location is not received by the Department within thirty days after the device is placed into service.
(10) Enforcement Actions and Administrative Penalties.
(a) The Department shall impose administrative penalties against the owner or person in possession to enforce compliance with Sections 531.60-.66, F.S., and this rule.
(b) This section sets forth the guidelines the Department will follow in imposing the penalties authorized under Sections 531.50 and 531.60-.66, F.S. The purpose of the guidelines is to give notice of the range of penalties which normally will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed. No aggravating factors will be applied to increase a fine imposed for a violation above the statutory maximum as provided in Section 531.50, F.S. The guidelines in this rule are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine an overall total penalty and will be grounds for enhancement of penalties.
(c) Nothing in this rule shall limit the ability of the Department to informally dispose of administrative actions by settlement agreement, consent order, or other lawful means.
(d) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to, encompass all possible violations of the statutes or Department rules 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 is not subject to a penalty. In an instance where the violation is not listed in this rule, the penalty will be determined by consideration of:
1. The closest similar violation, if any, that is listed in this section; and
2. The mitigating or aggravating factors listed in this section.
(e) Aggravating and Mitigating Factors. The Department will consider aggravating and mitigating factors in determining penalties for violations of Sections 531.60-.66, F.S., and this rule. The factors shall be applied against each single count of the listed violation.
1. Aggravating Factors:
a. Degree and extent of potential harm caused by the violation.
b. The amount of money by which the violator benefited from noncompliance.
c. Whether the violation was committed willfully.
d. The compliance record of the violator including previous violations for the same or similar offenses that resulted in enforcement action.
e. The violation was repeated within 2 years of the first violation.
f. The violator impeded, or otherwise failed to cooperate with the Department’s inspection or investigation.
g. The deterrent effect of the penalty imposed.
h. Undue delay in initiating or completing corrective action or failure to take affirmative or corrective action after receipt of notice of the violation.
i. The violator’s prior knowledge of Sections 531.60-.66, F.S. and Rule 5F-5.002, F.A.C.
j. The cost of the enforcement action.
k. The number of other violations proven in the same proceeding.
2. Mitigating Factors:
a. Degree and extent of potential harm caused by the violation.
b. The amount of money by which the violator benefited from noncompliance.
c. Whether the violation was committed willfully.
d. The compliance record of the violator including previous violations for the same or similar offenses that resulted in enforcement action.
e. Any documented efforts by the violator to correct the violation.
f. Length of time operating location while out of compliance.
g. Reliance of written professional or expert counsel or advice.
h. Whether the intentional actions of another party prevented the violator from complying with the applicable law or rules.
i. Financial hardship.
j. Acts of God or nature that impairs the ability of the violator to comply with Sections 531.60-.66, F.S. or Rule 5F-5.002, F.A.C.
k. The violator expeditiously took affirmative or corrective action after it received written notification of the violation.
l. The number of violations charged in the administrative complaint.
m. If a repeat violator, whether 2 years has passed since the last violation.
(f) The provisions of this rule shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought. In addition to the penalties established in this rule, the Department reserves the right to seek to recover any other cost, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the Department reserves the right to seek to recover any cost, penalties, attorney’s fees, court costs, service fees, collection costs, and costs resulting from a payment that is returned for insufficient funds to the Department.
(g) Penalties.
1. Notification of Noncompliance. Any Department investigation or inspection which reveals a violation of Sections 531.60-.66, F.S., or this rule in which the Department determines the violator was unaware of the rule or unclear as to how to comply with it will result in the written notification informing the violator of the requirement to complete and submit the application for a Weighing and Measuring Device Permit and the required fee within 10 days of notification by the Department. For the purposes of this rule, the following violations shall result in the issuance of a notice of noncompliance for the first violation only:
a. Using a weighing or measuring device for commercial purposes without a valid Commercial Use Permit.
b. Failure to submit a Weighing and Measuring Device Permit Application for a location or facility using commercial weighing or measuring devices.
c. Failure to report a replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location or facility.
d. Failure to report a non-replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location.
e. Failure to renew an existing Weighing and Measuring Device Permit within 30 days after its due date for renewal.
2. Devices Placed Out of Service by the Department. Any investigation or inspection in which the Department determines that a device(s) does not have the commercial use permit required by Sections 531.60-.66, F.S., and this rule shall result in the device(s) being prohibited from further commercial use until the proper commercial use permit has been issued by the Department. The Department shall prevent the continued unauthorized use of the device(s) by attaching DACS Form 03562, “Out of Service” tag, (Rev. 06/09), to the device(s). DACS form 03562 (Rev. 06/09) is hereby adopted and incorporated by reference, a copy of which can be viewed on the Department’s web site at www.doacs.state.fl.us/onestop/index.html. When the applicable fee has been paid and the commercial use permit has been issued, the Out of Service tag shall be removed from the weighing and measuring device(s).
3. Minor Violations. A violation of Sections 531.60-.66, F.S., or this rule is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. The Department shall impose one or more of the following penalties, or any combination thereof: 1. Place the device out of service. 2. An administrative fine of $250 per violation. The fine will be adjusted upward or downward depending on the existence of aggravating or mitigating factors listed in paragraph (10)(e) of this rule; provided, however, that the maximum fine shall not exceed the fines authorized in Section 531.50(1)(b), F.S. For the purposes of this rule, the following violations shall be considered minor violations:
a. Using a weighing or measuring device for commercial purposes without a valid Commercial Use Permit.
b. Failure to submit a Weighing and Measuring Device Permit Application for a location or facility using commercial weighing or measuring devices.
c. Failure to report a replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location or facility.
d. Failure to report a non-replacement device(s) placed into service at a permitted location that would result in an increase in the fee for the location.
e. Failure to renew an existing Weighing and Measuring Device Permit within 30 days after its due date for renewal or within 10 days from receipt of a Notice of Noncompliance.
4. Major Violations. A violation of Sections 531.60-.66, F.S., or this rule is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare or creates a significant threat of such harm. In addition to placing the device(s) out of service, major violations shall result in the imposition of an administrative fine of $500 per violation, which will be adjusted upward or downward depending upon the existence of mitigating or aggravating factors listed in paragraph (10)(e) of this rule; provided, however, that the maximum fine shall not exceed the fines authorized in Section 531.50(1)(b), F.S. For the purposes of this rule, the following violations shall be considered major violations:
a. Using a device for commercial purposes after notifying the Department the device is not used commercially.
b. Removal of an “Out of Service” tag that was applied for violating provisions of this rule without approval from the Department.
c. Impeding, obstructing, or hindering, a Department employee during duties associated with enforcement of provisions of this rule.
(11) Resolution of Violations, Settlement, and Additional Enforcement Remedies.
(a) The Department and any person charged with a violation may agree to resolve violations prior to administrative hearing, or to enter into settlement pursuant to Section 120.57(4), F.S. The penalties addressed in this rule shall not be construed to limit the authority of the Department to resolve violations prior to or after initiation of any administrative action or to settle with any party. The Department shall utilize all available remedies to ensure voluntary compliance including administrative action, civil actions, and referrals for criminal prosecution. The Department shall enforce a failure to comply with an agreement to resolve violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Chapter 120 or 531, F.S.
(b) Failure to respond to an administrative complaint shall result in the entry of a Default Final Order against the violator or entity responsible for the violation. The Department shall impose administrative fines in a Default Final Order equal to the maximum amount allowable under Section 531.50(1)(b), F.S.
(c) A failure to comply with either a Final Order or a Default Final Order of the Department shall result in permit revocation and an administrative fine equal to the maximum amount allowable under Section 531.50(1)(b), F.S.
(d) Nothing in this rule shall prohibit the Department from exercising the special police powers granted the Department under Section 531.42, F.S.
Rulemaking Authority 570.07(23), 531.66 FS. Law Implemented 531.60-.66, 531.42(1), (2), 531.50 FS. History–New 10-14-09, Amended 3-9-11.

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Chapter 5F-7 Uniform Regulations For The Method of Sales of Commodities

       5F-7.005 Adoption of Uniform Method of Sale Regulation.
The Department of Agriculture and Consumer Services hereby adopts the Uniform Regulation for the Method of Sale of Commodities, as published by the United States Department of Commerce, National Institute of Standards and Technology (NIST), in NIST Handbook 130, 2006 Edition, as the rule for the method of sale for commodities, and incorporates said uniform regulation herein by this reference. A copy of NIST Handbook 130, 2006 Edition, may be obtained from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Phone: (202) 512-1800 or http://ts.nist.gov/ts/htdocs/230/235/ pubs.htm. Copies of this uniform regulation are available from the Division of Standards, Bureau of Weights and Measures, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: (850) 921-1570.
Specific Authority 531.41(3), (4), 531.45 FS. Law Implemented 531.41(3), (4), 531.45 FS. History–New 1-8-90, Amended 6-14-95, 8-27-98, 8-19-99, 7-3-00, 9-3-01, 6-23-02, 6-29-03, 6-21-04, 6-2-05, 5-23-06.

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Chapter 5F-12 Test Procedures To Determine Acceptable Pricing Practices

5F-12.001 Adoption of Examination Procedure for Price Verification.

The Department of Agriculture and Consumer Services hereby adopts the “Examination Procedure for Price Verification” published by the United States Department of Commerce, National Institute of Standards and Technology (NIST), in NIST Handbook 130, 2006 Edition, as the rule for the sampling procedures and compliance standards in testing the accuracy of pricing practices employed by businesses and other entities in the state and incorporates said regulation herein by this reference. A copy of NIST Handbook 130, 2006 Edition, may be obtained from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Phone: (202)512-1800 or http://ts.nist.gov/WeightsAndMeasures/pubs.cfm.

Specific Authority 531.41(3), 531.44(2) FS. Law Implemented 531.44 FS. History–New 4-9-98, Amended 6-2-05, 5-23-06.

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Chapter 5F-13.001 Guidelines for Imposing Administrative Penalties and Fines for Violations of Chapter 531, Florida Statutes

(1) These guidelines shall apply for each violation of Chapter 531, F.S., and Rules 5F-3.001, 5F-3.016, 5F-4.001, 5F-5.001, 5F-7.005, and 5F-12.001, F.A.C., for which administrative enforcement actions are imposed. Multiple violations of the same statute or rule identified during the same investigation will be consolidated in determining the appropriate penalty.

(2) For Weighing and/or Measuring Device Violations:

(a) The misuse of equipment, which results in inaccurate measure. This includes failure to deduct for packaging materials (tare) during a direct sale transaction; non-single draft vehicle weighing (split-weighing); manipulating a device during use to obtain incorrect weight or measure; tampering with adjustments of a device to obtain incorrect weight or measure; failure to reset a measuring device to zero before beginning a transaction which results in inaccurate measure in favor of the device user; and other such practices resulting in inaccurate measure. Penalties shall be assessed as follows:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $500 fine or the amount of the economic damages, whichever is greater, not to exceed $2500 fine;

3. Third or subsequent violation within 2 years after the first violation: an increase of $500 over the previous fine amount or calculated economic damages, whichever is greater, not to exceed $5000 fine.

(b) Majority of scales found in one location are off-zero balance in favor of the scale owner or operator. This applies only to locations with more than five (5) scales, and is in addition to violations in paragraph (2)(a) above:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $500 fine;

3. Third or subsequent violation within 2 years after the first violation: $1000 fine.

(c) Using a device for commercial purposes that has been ordered “Out of Service,” prior to its being placed back into service and a “Placed in Service Report” submitted to the Bureau of Weights and Measures by an authorized, registered service agency or state inspector:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $1000 fine;

3. Third or subsequent violation within 2 years after the first violation: $2500 fine.

(d) Removing an “Out of Service” or “Condemned” tag without authorization:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $1000 fine;

3. Third or subsequent violation within 2 years after the first violation: $2500 fine.

(e) Authorized, registered repair service agency (under Chapter 5F-4, F.A.C.) returning a device back to commercial service that was placed “Out of Service” and that has not been properly corrected to comply with all state requirements. The registered repair agency shall be penalized as follows:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $100 fine;

3. Third and/or subsequent violation within 2 years after the first violation: $500 fine per violation.

(3) For Packaging and Labeling Violations:

(a) For packages that are packaged or that have the net contents determined at a location other than the retail store where tested, and that are found to contain less than declared net contents when tested using procedures adopted in Rule 5F-3.016, F.A.C.:

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $500 fine or calculated economic damages, whichever is greater, up to a maximum $2500 fine. “Calculated economic damages” equals the value of packages (price/package) times the average amount of shortage (% shortage per package) times the number of packages in lot(s);

3. Third or subsequent violation within 2 years after the first violation: an increase of $500 over the previous fine amount or calculated economic damages not to exceed $5000 maximum. “Calculated economic damages” equals the value of packages (price/ package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s).

(b) For packages that are packaged or have the net contents determined on the premises of the retail store location where the packages are tested or purchased, and that are found to contain less than the declared net contents when tested using procedures adopted in Rule 5F-3.016, F.A.C.:

1. First violation at a particular retail location: Warning letter;

2. Second violation within 2 years after the first violation at the same retail location: $500 fine or calculated economic damages, whichever is greater, not to exceed $2500 fine. “Calculated economic damages” equals the value of packages (price/ package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s);

3. Third or subsequent violation within 2 years after the first violation at the same retail location: an increase of $500 over the previous fine amount or calculated economic damages, whichever is greater, not to exceed $5000 fine. “Calculated economic damages” equals the value of packages (price/package) multiplied by the average amount of shortage (% shortage per package) multiplied by the number of packages in lot(s).

(c) For packages that are packaged or that have the net contents determined at a location other than the retail store where tested, and are found with labeling not in compliance with the requirements of Chapter 531, F.S., Rule 5F-3.001 or 5F-7.005, F.A.C. (other than net contents information that results in packages being found short measure as prescribed in paragraph 5F-13.001(3)(a) or (3)(b), F.A.C.):

1. First violation: Warning letter;

2. Second violation within 2 years after the first violation: $500 fine;

3. Third or subsequent violation within 2 years after the first violation: an increase of $500 over the previous fine amount, not to exceed $5,000.

(d) For packages that are packaged or have the net contents determined on the premises of the retail store location where the packages are tested or purchased, and that are found with labeling not in compliance with the requirements of Chapter 531, F.S., Rule 5F-3.001 or 5F-7.005, F.A.C. (other than net contents information that results in packages being found short measure as prescribed in paragraph 5F-13.001(3)(a) or (3)(b), F.A.C.):

1. First violation at a particular retail location: Warning letter;

2. Second violation within 2 years after the first violation at the same retail location: $500 fine;

3. Third or subsequent violation within 2 years after the first violation at the same retail location: an increase of $500 over the previous fine amount, but not to exceed $5,000.

(e) Selling, or removing from premises, items under Stop-Sale Order without proper authorization:

1. First violation: $500 fine or 25% of total retail value of packages (up to $1000), whichever is greater;

2. Second violation within 2 years after the first violation: $1000 fine or 50% of total retail value of packages (up to $2500), whichever is greater;

3. Third or subsequent violation within 2 years after the first violation: total retail value of packages or $5000 fine, whichever is less.

(4) For Price Verification/Pricing Accuracy Violations:

(a) A particular business location that fails price verification examination performed using procedures adopted in Rule 5F-12.001, F.A.C. and has more than 2% overcharges on the failed test:

1. First violation at a particular business location: Warning Letter;

2. Second violation within 2 years after the first violation at the same business location: $500 fine;

3. Third or subsequent violation within 2 years after the first violation at the same business location: an increase of $500 over the previous fine amount, but not to exceed $5000 maximum.

(b) Selling items that were identified as overcharges and ordered off-sale for not being corrected during a Price Verification Examination, prior to the items being corrected and released for sale by a state inspector or official:

1. First violation: $500 fine;

2. Second violation within 2 years after the first violation: $1000 fine;

3. Third or subsequent violation within 2 years after the first violation: $5000 fine.

(5) For Bulk Sales Documentation Violations:

Failure to provide delivery ticket as required in Section 531.46, F.S.:

(a) First violation: Warning letter;

(b) Second violation within 2 years after the first violation: $500 fine;

(c) Third or subsequent violation within 2 years after the first violation: $1000 fine.

(6) Impeding, obstructing or hindering Department employee during performance of Department duties:

(a) First violation: $1000 fine;

(b) Second violation within 2 years after the first violation: $2500 fine;

(c) Third or subsequent violation within 2 years after the first violation: $5000 fine.

(7) For Other Violations of Chapter 531, F.S., not listed in subsections 5F-13.001(1) through (6), F.A.C.:

(a) First violation: Warning letter;

(b) Second violation within 2 years of the first violation: $500 fine;

(c) Third or subsequent violation within 2 years of the first violation: an increase of $500 over the previous fine amount, but not to exceed $5000 maximum.

(8) A violator's failure to respond to an administrative complaint will result in a waiver of rights to a hearing and the Department will enter a Final Order imposing fines equal to twice the amount imposed in the administrative complaint, not to exceed the maximum amount allowed by law, for each violation.

Specific Authority 531.41(3) FS. Law Implemented 531.50(1) FS. History–New 8-27-06.

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