2010 Florida Statutes (including Special Session A)
| Title XXXII REGULATION OF PROFESSIONS AND OCCUPATIONS |
Chapter 468 MISCELLANEOUS PROFESSIONS AND OCCUPATIONS |
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CHAPTER 468
MISCELLANEOUS PROFESSIONS AND OCCUPATIONS
SPEECH-LANGUAGE PATHOLOGY AND
AUDIOLOGY
AUDIOLOGY
468.1105 Legislative intent.
468.1115 Exemptions.
468.1125 Definitions.
468.1135 Board of Speech-Language Pathology and Audiology.
468.1145 Fees; establishment; disposition.
468.1155 Provisional license; requirements.
468.1165 Professional employment experience requirement.
468.1175 Examination.
468.1185 Licensure.
468.1195 Renewal of license or certificate; continuing education requirements; standards for approval of continuing education providers.
468.1201 Requirement for instruction on human immunodeficiency virus and acquired immune deficiency syndrome.
468.1205 Inactive status; reactivation; continuing education; application procedures; renewal.
468.1215 Speech-language pathology assistant and audiology assistant; certification.
468.1225 Procedures, equipment, and protocols.
468.1245 Itemized listing of prices; delivery of hearing aid; receipt; guarantee; packaging; disclaimer.
468.1246 Thirty-day trial period; purchaser’s right to cancel; notice; refund; cancellation fee.
468.1255 Cancellation by medical authorization; purchaser’s right to return.
468.1265 Sale or distribution of hearing aids through mail; penalty.
468.1275 Place of business; display of license.
468.1285 Prohibitions; penalties.
468.1295 Disciplinary proceedings.
468.1296 Sexual misconduct.
468.1315 Saving clauses.
468.1105 Legislative intent.—The sole legislative purpose for enacting this part is to ensure that every speech-language pathologist and audiologist practicing in this state meets minimum requirements for safe practice in this state. It is the legislative intent that speech-language pathologists and audiologists who fall below minimum competencies or who otherwise present a danger to the public health and safety be prohibited from practicing in this state.
History.—ss. 1, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429.
468.1115 Exemptions.—
(1) No provision of this part shall be construed to limit the practice of persons licensed in this state from engaging in the professions for which they are licensed, so long as they do not hold themselves out to the public as possessing a license or certificate issued pursuant to this part or use a title protected by this part.
(2) The provisions of this part shall not apply to:
(a) Students actively engaged in a training program, if such persons are acting under the direct supervision of a licensed speech-language pathologist or a licensed audiologist.
(b) Persons practicing a licensed profession or operating within the scope of their profession, such as doctors of medicine, clinical psychologists, nurses, or hearing aid specialists, who are properly licensed under the laws of this state.
(c) Persons certified in the areas of speech-language impairment or hearing impairment in this state under chapter 1012 when engaging in the profession for which they are certified, or any person under the direct supervision of such a certified person, or of a licensee under this chapter, when the person under such supervision is performing hearing screenings in a school setting for prekindergarten through grade 12.
(d) Laryngectomized individuals, rendering guidance and instruction to other laryngectomized individuals, who are under the supervision of a speech-language pathologist licensed under this part or of a physician licensed under chapter 458 or chapter 459 and qualified to perform this surgical procedure.
(e) Persons licensed by another state as speech-language pathologists or audiologists who provide services within the applicable scope of practice set forth in s. 468.1125(6) or (7) for no more than 5 calendar days per month or 15 calendar days per year under the direct supervision of a Florida-licensed speech-language pathologist or audiologist. A person whose state of residence does not license speech-language pathologists or audiologists may also qualify for this exemption, if the person holds a certificate of clinical competence from the American Speech-Language and Hearing Association and meets all other requirements of this paragraph. In either case, the board shall hold the supervising Florida licensee fully accountable for the services provided by the out-of-state licensee.
(f) Nonlicensed persons working in a hospital setting who provide newborn infant hearing screenings, so long as training, clinical interpretation of the screenings, and the protocol for followup of infants who fail in-hospital screenings are provided by a licensed audiologist.
History.—ss. 2, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 267, ch. 97-103; s. 111, ch. 97-264; s. 1014, ch. 2002-387.
468.1125 Definitions.—As used in this part, the term:
(1) “Audiologist” means a person licensed under this part to practice audiology.
(2) “Board” means the Board of Speech-Language Pathology and Audiology.
(3) “Certified audiology assistant” means a person who is certified under this part to perform audiology services under the direct supervision of an audiologist.
(4) “Certified speech-language pathology assistant” means a person who is certified under this part to perform speech pathology services under the direct supervision of a speech pathologist.
(5) “Department” means the Department of Health.
(6)(a) “Practice of audiology” means the application of principles, methods, and procedures for the prevention, identification, evaluation, consultation, habilitation, rehabilitation, instruction, treatment, and research, relative to hearing and the disorders of hearing, and to related language and speech disorders. “Disorders” are defined to include any and all conditions, whether of organic or nonorganic origin, peripheral or central, that impede the normal process of human communication, including, but not limited to, disorders of auditory sensitivity, acuity, function, or processing, or damage to the integrity of the physiological system.
(b) Any audiologist who has complied with the provisions of this part may:
1. Offer, render, plan, direct, conduct, consult, or supervise services to individuals or groups of individuals who have or are suspected of having disorders of hearing, including prevention, identification, evaluation, treatment, consultation, habilitation, rehabilitation, instruction, and research.
2. Participate in hearing conservation, evaluation of noise environment, and noise control.
3. Conduct and interpret tests of vestibular function and nystagmus, electrophysiologic auditory-evoked potentials, central auditory function, and calibration of measurement equipment used for such purposes.
4. Habilitate and rehabilitate, including, but not limited to, hearing aid evaluation, prescription, preparation, fitting and dispensing, assistive listening device selection and orientation, auditory training, aural habilitation, aural rehabilitation, speech conservation, and speechreading.
5. Fabricate earmolds.
6. Evaluate tinnitus.
7. Include speech and language screening, limited to a pass/fail determination for identifying individuals with disorders of communication.
(7)(a) “Practice of speech-language pathology” means the application of principles, methods, and procedures for the prevention, identification, evaluation, treatment, consultation, habilitation, rehabilitation, instruction, and research, relative to the development and disorders of human communication; to related oral and pharyngeal competencies; and to behavior related to disorders of human communication. “Disorders” are defined to include any and all conditions, whether of organic or nonorganic origin, that impede the normal process of human communication, including, but not limited to, disorders and related disorders of speech, phonology, articulation, fluency, voice, accent, verbal and written language and related nonoral/nonverbal forms of language, cognitive communication, auditory and visual processing, memory and comprehension, interactive communication, mastication, deglutition, and other oral, pharyngeal, and laryngeal sensorimotor competencies.
(b) Any speech-language pathologist who has complied with the provisions of this part may:
1. Offer, render, plan, direct, conduct, and supervise services to individuals or groups of individuals who have or are suspected of having disorders of human communication, including identification, evaluation, treatment, consultation, habilitation, rehabilitation, amelioration, instruction, and research.
2. Determine the need for personal alternatives or augmentative systems, and recommend and train for the utilization of such systems.
3. Perform a hearing screening, limited to a pass/fail determination, for the purpose of initial identification of communication disorders.
(8) “Speech-language pathologist” means a person licensed under this part to practice speech pathology.
(9) “Direct supervision” means responsible supervision and control by a licensed speech-language pathologist who shall assume legal liability for the services rendered by any certified speech-language pathology assistant under the licensee’s supervision, or responsible supervision and control by a licensed audiologist who shall assume legal liability for the services rendered by any certified audiology assistant under the licensee’s supervision. Direct supervision shall require the physical presence of the licensed speech-language pathologist for consultation and direction of the actions of the certified speech-language pathology assistant, or the physical presence of the licensed audiologist for consultation and direction of the actions of the certified audiology assistant, unless the assistant is acting under protocols established by the board. The board shall establish rules further defining direct supervision of a certified speech-language pathology assistant or a certified audiology assistant.
History.—ss. 3, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 101, ch. 92-149; s. 130, ch. 94-218; s. 112, ch. 97-264.
468.1135 Board of Speech-Language Pathology and Audiology.—
(1) There is created within the department the Board of Speech-Language Pathology and Audiology, composed of seven members appointed by the Governor and confirmed by the Senate.
(2)(a) Four members of the board shall be persons licensed under this part, as follows:
1. Two members shall be practicing speech-language pathologists.
2. Two members shall be practicing audiologists.
(b) One member shall be a physician licensed pursuant to chapter 458 who is a neurologist, an otolaryngologist, or a pediatrician.
(c) Two members shall be citizens of the state who are communicatively impaired and who are not, and have never been, licensed as a speech-language pathologist or an audiologist and who are in no way connected with the practice of such profession. At least one of the two shall be a hearing aid user.
(d) At least one member of the board shall be 60 years of age or older.
(3) As the terms of the initial members expire, the Governor shall appoint successors who meet the requirements of subsection (2) for terms of 4 years. Members shall serve until their successors are appointed.
(4)(a) The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part conferring duties upon it.
(b) The board shall adopt rules requiring that each prospective purchaser of a hearing aid be notified by the attending audiologist, at the time of the initial examination for fitting and sale of a hearing aid, of telecoil, “t” coil, or “t” switch technology. The rules shall further require that licensed audiologists make available to prospective purchasers information regarding telecoils, “t” coils, or “t” switches. These rules shall be effective on or before October 1, 1994.
(5) All provisions of chapter 456 relating to activities of regulatory boards shall apply to the board.
(6) The board shall maintain its official headquarters in Tallahassee.
History.—ss. 4, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 329, ch. 94-119; s. 2, ch. 94-160; s. 131, ch. 94-218; s. 268, ch. 97-103; s. 75, ch. 98-166; s. 131, ch. 98-200; s. 133, ch. 2000-160; s. 78, ch. 2002-1.
468.1145 Fees; establishment; disposition.—
(1) The board, by rule, shall establish fees to be paid for application, examination, reexamination, licensing and renewal, reinstatement, and recordmaking and recordkeeping. The board may also establish, by rule, a late renewal penalty. The board shall establish fees which are adequate to ensure continued operation of the board and to fund the proportionate expenses incurred by the department in carrying out its licensure and other related responsibilities under this part. Fees shall be based on department estimates of the revenue required to implement this part and the provisions of law with respect to the regulation of speech-language pathologists and audiologists.
(2) The application fee shall not exceed $200 and shall be nonrefundable.
(3) The examination fee shall be in an amount which covers the costs of obtaining and administering the examination and shall be refunded if the applicant is found ineligible to sit for the examination. The combined fees for initial application and examination shall not exceed $200 plus the actual per applicant cost to the department for developing or procuring the licensure examination.
(4) The initial license fee shall not exceed $500.
(5) The provisional license fee shall not exceed $200.
(6) The fee for licensure by endorsement shall not exceed $200.
(7) The fee for certification as a speech-language pathology assistant or an audiology assistant shall not exceed $50.
(8) The biennial renewal fee shall not exceed $500.
(9) The fee for application for an inactive status license or for reactivation of an inactive status license shall not exceed $100.
(10) All moneys derived from fees and fines imposed pursuant to this part shall be deposited as required by s. 456.025.
History.—ss. 5, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 76, ch. 98-166; s. 134, ch. 2000-160.
468.1155 Provisional license; requirements.—
(1)(a) A provisional license shall be required of all applicants for a license in speech-language pathology who cannot document a minimum of 9 months of supervised professional employment experience and a passing score on the national examination. A provisional license shall be required of all applicants for a license in audiology who cannot document a minimum of 11 months of supervised clinical experience and a passing score on the national examination.
(b) Individuals who are required to hold a provisional license under paragraph (a) shall apply to the department and be certified by the board for licensure prior to initiating the professional employment experience required pursuant to s. 468.1165.
(2) The department shall issue a provisional license to practice speech-language pathology to each applicant who the board certifies has:
(a) Completed the application form and remitted the required fees, including a nonrefundable application fee.
(b) Received a master’s degree or has completed the academic requirement of a doctoral degree program with a major emphasis in speech-language pathology from an institution of higher learning that is, or at the time the applicant was enrolled and graduated was, accredited by an accrediting agency recognized by the Council for Higher Education Accreditation or its successor or the United States Department of Education, or from an institution that is a member in good standing with the Association of Universities and Colleges of Canada. An applicant who graduated from or is currently enrolled in a program at a university or college outside the United States or Canada must present documentation of the determination of equivalency of the program to standards established by an accrediting body recognized by the Council for Higher Education Accreditation or its successor or the United States Department of Education in order to qualify.
1. The applicant must have completed the program requirements by academic course work, practicum experience, or laboratory or research activity, as verified by the program, including:
a. Knowledge of basic human communication and swallowing processes, including their biological, neurological, acoustic, psychological, developmental, and linguistic and cultural bases.
b. Knowledge of the nature of speech, language, hearing, and communication disorders and differences and swallowing disorders, including their etiologies, characteristics, anatomical or physiological, acoustic, psychological, developmental, and linguistic and cultural correlates, voice and resonance, including respiration and phonation, receptive and expressive language in speaking, listening, reading, writing, and manual modalities, hearing, including the impact on speech and language, swallowing, cognitive aspects of communication, social aspects of communication, and communication modalities.
c. Knowledge of the principles and methods of prevention, assessment, and intervention for people having communication and swallowing disorders, including consideration of anatomical or physiological, psychological, developmental, and linguistic and cultural correlates of the disorders, articulation, fluency, voice and resonance, receptive and expressive communication, hearing, swallowing, cognitive aspects of communication, social aspects of communication, and communication modalities.
2. The program must include appropriate supervised clinical experiences.
The board may waive the requirements for education, practicum, and professional employment experience for an applicant who received a professional education in another country if the board is satisfied that the applicant meets the equivalent education and practicum requirements and passes the examination in speech-language pathology.
(3) The department shall issue a provisional license to practice audiology to each applicant who the board certifies has:
(a) Completed the application form and remitted the required fees, including a nonrefundable application fee.
(b) Effective January 1, 2008, earned a doctoral degree in audiology, but has not passed the license examination required for a license in audiology or has completed the academic requirements of a doctoral degree program with a major emphasis in audiology from an institution of higher learning that is, or at the time the applicant was enrolled and graduated was, accredited by an accrediting agency recognized by the Council for Higher Education Accreditation or its successor or the United States Department of Education, or from an institution that is a member in good standing with the Association of Universities and Colleges of Canada. An applicant who graduated from or is currently enrolled in a program at a university or college outside the United States or Canada must present documentation of the determination of equivalency of the program to standards established by an accrediting body recognized by the Council for Higher Education Accreditation or its successor or the United States Department of Education in order to qualify.
1. The program must assure that the student obtained knowledge of foundation areas of basic body systems and processes related to hearing and balance.
2. The program must assure that the student obtained skills for the diagnosis, management, and treatment of auditory and vestibular or balance conditions and diseases.
3. The program must assure that the student can effectively communicate with patients and other health care professionals.
4. The program must assure that the student obtained knowledge of professional ethical systems as they relate to the practice of audiology.
5. The program must assure that the student obtained clinical experiences that encompass the entire scope of practice and focus on the most current evidence-based practice.
The board may waive the education, practicum, and professional employment experience requirements for an applicant who received a professional education in another country if the board is satisfied that the applicant meets equivalent education and practicum requirements and passes the examination in audiology.
(c) Earned a master’s degree with a major emphasis in audiology which was conferred before January 1, 2008, from an institution of higher learning which was, or at the time the applicant was enrolled and graduated, accredited by an accrediting agency recognized by the Council for Higher Education Accreditation or its successor, the United States Department of Education, or from an institution that is a member in good standing with the Association of Universities and Colleges of Canada.
1. An applicant who graduated from or is currently enrolled in a program at a university or college outside the United States or Canada must present documentation of the determination of equivalency of the program to standards established by an accrediting body recognized by the Council for Higher Education Accreditation or its successor or the United States Department of Education in order to qualify.
2. The board may waive the education, practicum, and professional employment experience requirements for an applicant who received a professional education in another country if the board is satisfied that the applicant meets equivalent education and practicum requirements and passes the examination in audiology. This paragraph expires on January 1, 2013.
(4) The board, by rule, shall establish requirements for the renewal of a provisional license. However, a provisional license may not exceed a period of 24 months.
History.—ss. 6, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 102, ch. 92-149; s. 25, ch. 94-310; s. 113, ch. 97-264; s. 127, ch. 99-397; s. 114, ch. 2001-277; s. 1, ch. 2006-83.
468.1165 Professional employment experience requirement.—Every applicant for licensure as a speech-language pathologist must demonstrate, prior to licensure, a minimum of 9 months of full-time professional employment, or the equivalent in part-time professional employment. Each applicant for licensure as an audiologist must demonstrate, prior to licensure, a minimum of 11 months of full-time professional employment, or the equivalent in part-time professional employment. The board, by rule, shall establish standards for obtaining and verifying the required professional employment experience.
History.—ss. 7, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 2, ch. 2006-83.
468.1175 Examination.—A person desiring to be licensed as a speech-language pathologist or an audiologist shall apply to the appropriate examining entity for examination. A person who fails an examination may make application for reexamination to the appropriate examining entity.
History.—ss. 8, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 103, ch. 92-149.
468.1185 Licensure.—
(1) The department shall license any applicant whom the board certifies is qualified to practice speech-language pathology or audiology and who has paid the initial licensure fee.
(2) The board shall certify for licensure any applicant who has:
(a) Satisfied the education and supervised clinical requirements of s. 468.1155.
(b) Satisfied the professional experience requirement of s. 468.1165.
(c) Passed the licensure examination required by s. 468.1175.
(d) An applicant for an audiologist license who has obtained a doctoral degree in audiology has satisfied the education and supervised clinical requirements of paragraph (a) and the professional experience requirements of paragraph (b).
(3) The board shall certify as qualified for a license by endorsement as a speech-language pathologist or audiologist an applicant who:
(a) Holds a valid license or certificate in another state or territory of the United States to practice the profession for which the application for licensure is made, if the criteria for issuance of such license were substantially equivalent to or more stringent than the licensure criteria which existed in this state at the time the license was issued; or
(b) Holds a valid certificate of clinical competence of the American Speech-Language and Hearing Association or board certification in audiology from the American Board of Audiology.
(4) The board may refuse to certify any applicant who is under investigation in any jurisdiction for an act which would constitute a violation of this part or chapter 456 until the investigation is complete and disciplinary proceedings have been terminated.
(5) The board may refuse to certify any applicant who has violated any of the provisions of s. 468.1245.
History.—ss. 9, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 114, ch. 97-264; s. 77, ch. 98-166; s. 135, ch. 2000-160; s. 3, ch. 2006-83.
468.1195 Renewal of license or certificate; continuing education requirements; standards for approval of continuing education providers.—
(1) The department shall renew a license or certificate upon receipt of the renewal application, renewal fee, and proof satisfactory to the board that the licensee or certificateholder has completed the continuing education requirements established by the board. A licensee or certificateholder who receives initial licensure or certification 6 months or less before the end of the biennial licensure cycle is exempt from the continuing education requirements for the first renewal of the license or certificate.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses and certificates.
(3) The board may prescribe by rule continuing education, not to exceed 60 hours biennially in each area of licensure or certification, as a condition for renewal of a license or a certificate. The board may establish by rule standards for the approval of such continuing education activities. The board may make exception from the requirements of continuing education in emergency or hardship cases.
(4) The board may establish by rule standards for the approval of providers of continuing education activities.
History.—ss. 10, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 185, ch. 94-119; s. 115, ch. 97-264.
468.1201 Requirement for instruction on human immunodeficiency virus and acquired immune deficiency syndrome.—The board shall require, as a condition of granting a license under this part, that an applicant making initial application for licensure complete an education course acceptable to the board on human immunodeficiency virus and acquired immune deficiency syndrome. An applicant who has not taken a course at the time of licensure shall, upon submission of an affidavit showing good cause, be allowed 6 months to complete this requirement.
History.—s. 116, ch. 97-264.
468.1205 Inactive status; reactivation; continuing education; application procedures; renewal.—
(1) The board shall prescribe by rule continuing education requirements as a condition of reactivating a license or certificate. The continuing education requirements for reactivating a license or certificate may not exceed 25 contact hours for each year the license was inactive in addition to the continuing education that was required for renewal on the date the license became inactive.
(2) The board shall adopt rules relating to application procedures for inactive status, the renewal of an inactive license or certificate, and the reactivation of an inactive license or certificate.
History.—ss. 11, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 186, ch. 94-119.
468.1215 Speech-language pathology assistant and audiology assistant; certification.—
(1) The department shall issue a certificate as a speech-language pathology assistant to each applicant who the board certifies has:
(a) Completed the application form and remitted the required fees, including a nonrefundable application fee.
(b) Earned a bachelor’s degree from a college or university accredited by a regional association of colleges and schools recognized by the Department of Education which includes at least 24 semester hours of coursework as approved by the board at an institution accredited by an accrediting agency recognized by the Council for Higher Education Accreditation.
(2) The department shall issue a certificate as an audiology assistant to each applicant who the board certifies has:
(a) Completed the application form and remitted the required fees, including a nonrefundable application fee.
(b) Earned a high school diploma or its equivalent.
(3) An audiologist or speech-language pathologist who employs a speech-language assistant or audiology assistant must provide the assistant with a plan approved by the board for on-the-job training and must maintain responsibility for all services performed by the assistant. The board, by rule, shall establish minimum education and on-the-job training and supervision requirements for certification as a speech-language pathology assistant or audiology assistant.
(4) The provisions of this section shall not apply to any student, intern, or trainee performing speech-language pathology or audiology services while completing the supervised clinical experience as required in s. 468.1155.
History.—ss. 12, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 26, ch. 94-310; s. 117, ch. 97-264; s. 128, ch. 99-397; s. 115, ch. 2001-277; s. 4, ch. 2006-83.
468.1225 Procedures, equipment, and protocols.—
(1) The following minimal procedures shall be used when a licensed audiologist fits and sells a hearing aid:
(a) Pure tone audiometric testing by air and bone to determine the type and degree of hearing deficiency when indicated.
(b) Effective masking when indicated.
(c) Appropriate testing to determine speech reception thresholds, speech discrimination scores, the most comfortable listening levels, uncomfortable loudness levels, and the selection of the best fitting arrangement for maximum hearing aid benefit when indicated.
(2) The following equipment shall be used:
(a) A wide range audiometer which meets the specifications of the American National Standards Institute for diagnostic audiometers when indicated.
(b) A speech audiometer or a master hearing aid in order to determine the most comfortable listening level and speech discrimination when indicated.
(3) A final fitting ensuring physical and operational comfort of the hearing aid shall be made when indicated.
(4) A licensed audiologist who fits and sells hearing aids shall obtain the following medical clearance: If, upon inspection of the ear canal with an otoscope in the common procedure of fitting a hearing aid and upon interrogation of the client, there is any recent history of infection or any observable anomaly, the client shall be instructed to see a physician, and a hearing aid shall not be fitted until medical clearance is obtained for the condition noted. If, upon return, the condition noted is no longer observable and the client signs a medical waiver, a hearing aid may be fitted. Any person with a significant difference between bone conduction hearing and air conduction hearing must be informed of the possibility of medical or surgical correction.
(5)(a) A licensed audiologist’s office must have available, or have access to, a selection of hearing aid models, hearing aid supplies, and services complete enough to accommodate the various needs of the hearing aid wearers.
(b) At the time of the initial examination for fitting and sale of a hearing aid, the attending audiologist must notify the prospective purchaser of the benefits of telecoil, also known as “t” coil or “t” switch, technology, including increased access to telephones and noninvasive access to assistive listening systems required under the Americans with Disabilities Act of 1990.
(6) Unless otherwise indicated, each audiometric test conducted by a licensee or a certified audiology assistant in the fitting and selling of hearing aids shall be made in a testing room that has been certified by the department, or by an agent approved by the department, not to exceed the following sound pressure levels at the specified frequencies: 250Hz-40dB, 500Hz-40dB, 750Hz-40dB, 1000Hz-40dB, 1500Hz-42dB, 2000Hz-47dB, 3000Hz-52dB, 4000Hz-57dB, 6000Hz-62dB, and 8000Hz-67dB. An exception to this requirement shall be made in the case of a client who, after being provided written notice of the benefits and advantages of having the test conducted in a certified testing room, requests that the test be conducted in a place other than the licensee’s certified testing room. Such request shall be documented by a waiver which includes the written notice and is signed by the licensee and the client prior to the testing. The waiver shall be executed on a form provided by the department. The executed waiver shall be attached to the client’s copy of the contract, and a copy of the executed waiver shall be retained in the licensee’s file.
(7) The board shall have the power to prescribe the minimum procedures and equipment used in the conducting of hearing assessments and for the fitting and selling of hearing aids. The board shall adopt and enforce rules necessary to carry out the provisions of this subsection and subsection (6).
(8) Any duly authorized officer or employee of the department shall have the right to make such inspections and investigations as are necessary in order to determine the state of compliance with the provisions of this section and the applicable rules and may enter the premises of a licensee and inspect the records of same upon reasonable belief that a violation of this law is being or has been committed or that the licensee has failed or is failing to comply with the provisions of this part.
History.—ss. 13, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 104, ch. 92-149; ss. 187, 330, ch. 94-119; s. 3, ch. 94-160.
468.1245 Itemized listing of prices; delivery of hearing aid; receipt; guarantee; packaging; disclaimer.—
(1) Prior to delivery of services or products to a prospective purchaser, a licensee shall disclose, upon request by the prospective purchaser, an itemized listing of prices, which listing shall include separate price estimates for each service component and each product. Provision of such itemized listing of prices shall not be predicated on the prospective purchaser’s payment of any charge or agreement to purchase any service or product.
(2) Any licensee who fits and sells a hearing aid shall, at the time of delivery, provide the purchaser with a receipt containing the seller’s signature, the address of his or her regular place of business, and his or her license or certification number, if applicable, together with the brand, model, manufacturer or manufacturer’s identification code, and serial number of the hearing aid furnished and the amount charged for the hearing aid. The receipt also shall specify whether the hearing aid is new, used, or rebuilt, and shall specify the length of time and other terms of the guarantee and by whom the hearing aid is guaranteed. When the client has requested an itemized list of prices, the receipt shall also provide an itemization of the total purchase price, including, but not limited to, the cost of the aid, ear mold, batteries, and other accessories, and the cost of any services. Notice of the availability of this service must be displayed in a conspicuous manner in the office. The receipt also shall state that any complaint concerning the hearing aid and its guarantee, if not reconciled with the licensee from whom the hearing aid was purchased, should be directed by the purchaser to the department. The address and telephone number of such office shall be stated on the receipt.
(3) No hearing aid may be sold to any person unless both the packaging containing the hearing aid and the contract provided pursuant to subsection (2) carry the following disclaimer in 10-point or larger type: “A hearing aid will not restore normal hearing, nor will it prevent further hearing loss.”
History.—ss. 14, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 105, ch. 92-149; s. 331, ch. 94-119; s. 4, ch. 94-160; s. 269, ch. 97-103; s. 118, ch. 97-264.
468.1246 Thirty-day trial period; purchaser’s right to cancel; notice; refund; cancellation fee.—
(1) A person selling a hearing aid in this state must provide the buyer with written notice of a 30-day trial period and money-back guarantee. The guarantee must permit the purchaser to cancel the purchase for a valid reason as defined by rule of the board within 30 days after receiving the hearing aid, by returning the hearing aid or mailing written notice of cancellation to the seller. If the hearing aid must be repaired, remade, or adjusted during the 30-day trial period, the running of the 30-day trial period is suspended 1 day for each 24-hour period that the hearing aid is not in the purchaser’s possession. A repaired, remade, or adjusted hearing aid must be claimed by the purchaser within 3 working days after notification of availability. The running of the 30-day trial period resumes on the day the purchaser reclaims a repaired, remade, or adjusted hearing aid or on the 4th day after notification of availability.
(2) The board, in consultation with the Board of Hearing Aid Specialists, shall prescribe by rule the terms and conditions to be contained in the money-back guarantee and any exceptions thereto. Such rule shall provide, at a minimum, that the charges for earmolds and service provided to fit the hearing aid may be retained by the licensee. The rules shall also set forth any reasonable charges to be held by the licensee as a cancellation fee. Such rule shall be effective on or before December 1, 1994. Should the board fail to adopt such rule, a licensee may not charge a cancellation fee which exceeds 5 percent of the total charge for a hearing aid alone. The terms and conditions of the guarantee, including the total amount available for refund, shall be provided in writing to the purchaser prior to the signing of the contract.
History.—s. 332, ch. 94-119; s. 5, ch. 94-160.
468.1255 Cancellation by medical authorization; purchaser’s right to return.—
(1) In addition to any other rights and remedies the purchaser of a hearing aid may have, the purchaser shall have the right to rescind the transaction if the purchaser for whatever reason consults a licensed physician with specialty board certification in otolaryngology or internal medicine or a licensed family practice physician, subsequent to purchasing a hearing aid, and the physician certifies in writing that the purchaser has a hearing impairment for which a hearing aid will not provide a benefit or that the purchaser has a medical condition which contraindicates the use of a hearing aid.
(2) The purchaser of a hearing aid shall have the right to rescind provided in subsection (1) only if the purchaser gives a written notice of the intent to rescind the transaction to the seller at the seller’s place of business by certified mail, return receipt requested, which notice shall be posted not later than 60 days following the date of delivery of the hearing aid to the purchaser, and the purchaser returns the hearing aid to the seller in the original condition less normal wear and tear.
(3) If the conditions of subsections (1) and (2) are met, the seller shall, without request, refund to the purchaser, within 10 days of the receipt of notice to rescind, a full and complete refund of all moneys received, less 5 percent. The purchaser shall incur no additional liability for rescinding the transaction.
History.—ss. 15, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429.
468.1265 Sale or distribution of hearing aids through mail; penalty.—It is unlawful for any person to sell or distribute hearing aids through the mail to the ultimate consumer. Any person who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 16, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 106, ch. 92-149; s. 37, ch. 95-144.
468.1275 Place of business; display of license.—Each licensee who fits and sells a hearing aid shall declare and establish a regular place of business, at which his or her license shall be conspicuously displayed.
History.—ss. 17, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 270, ch. 97-103.
468.1285 Prohibitions; penalties.—
(1) No person shall knowingly:
(a) Practice speech-language pathology or audiology, unless the person is licensed pursuant to this part.
(b) Use terms such as, but not limited to: “speech pathologist,” “speech therapy,” “speech therapist,” “speech correction,” “speech correctionist,” “speech clinic,” “speech clinician,” “language pathology,” “language pathologist,” “voice therapist,” “voice pathology,” “voice pathologist,” “logopedics,” “logopedist,” “communicology,” “communicologist,” “cognitive communication therapy,” “cognitive communication therapist,” “aphasiologist,” or “phoniatrist,” or any title, designation, words, letters, abbreviations, or device tending to indicate that such person holds an active license as a speech-language pathologist when the person is not licensed as a speech-language pathologist pursuant to this part.
(c) Use terms such as, but not limited to: “audiology,” “audiologist,” “audiometrist,” “audiological,” “hearing therapy,” “hearing therapist,” “hearing clinic,” “hearing clinician,” “hearing aid audiologist,” “aural habilitationalist,” “aural rehabilitationalist,” or any title, designation, words, letters, abbreviations, or device tending to indicate that such person holds an active license as an audiologist when the person is not licensed as an audiologist pursuant to this part.
(d) Present as his or her own the license of another.
(e) Use or attempt to use a license to practice speech-language pathology or audiology which has been suspended, revoked, or placed on inactive or delinquent status.
(f) Give false or forged evidence to the board or a member thereof.
(g) Employ unlicensed persons in the practice of speech-language pathology or audiology.
(h) Sell or fraudulently obtain or furnish any speech-language pathology or audiology diploma, license, or record of registration, or aid or abet in the same.
(i) Conceal information relative to violations of this part.
(2) Any person who is convicted of a violation of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 18, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 188, ch. 94-119; s. 271, ch. 97-103.
468.1295 Disciplinary proceedings.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Procuring or attempting to procure a license by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
(b) Having a license revoked, suspended, or otherwise acted against, including denial of licensure, by the licensing authority of another state, territory, or country.
(c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of speech-language pathology or audiology.
(d) Making or filing a report or record which the licensee knows to be false, intentionally or negligently failing to file a report or records required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such report or record shall include only those reports or records which are signed in one’s capacity as a licensed speech-language pathologist or audiologist.
(e) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
(f) Being proven guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of speech-language pathology or audiology.
(g) Violating a lawful order of the board or department previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the board or department.
(h) Practicing with a revoked, suspended, inactive, or delinquent license.
(i) Using, or causing or promoting the use of, any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or other representation, however disseminated or published, which is misleading, deceiving, or untruthful.
(j) Showing or demonstrating or, in the event of sale, delivery of a product unusable or impractical for the purpose represented or implied by such action.
(k) Failing to submit to the board on an annual basis, or such other basis as may be provided by rule, certification of testing and calibration of such equipment as designated by the board and on the form approved by the board.
(l) Aiding, assisting, procuring, employing, or advising any licensee or business entity to practice speech-language pathology or audiology contrary to this part, chapter 456, or any rule adopted pursuant thereto.
(m) Misrepresenting the professional services available in the fitting, sale, adjustment, service, or repair of a hearing aid, or using any other term or title which might connote the availability of professional services when such use is not accurate.
(n) Representing, advertising, or implying that a hearing aid or its repair is guaranteed without providing full disclosure of the identity of the guarantor; the nature, extent, and duration of the guarantee; and the existence of conditions or limitations imposed upon the guarantee.
(o) Representing, directly or by implication, that a hearing aid utilizing bone conduction has certain specified features, such as the absence of anything in the ear or leading to the ear, or the like, without disclosing clearly and conspicuously that the instrument operates on the bone conduction principle and that in many cases of hearing loss this type of instrument may not be suitable.
(p) Stating or implying that the use of any hearing aid will improve or preserve hearing or prevent or retard the progression of a hearing impairment or that it will have any similar or opposite effect.
(q) Making any statement regarding the cure of the cause of a hearing impairment by the use of a hearing aid.
(r) Representing or implying that a hearing aid is or will be “custom-made,” “made to order,” or “prescription-made,” or in any other sense specially fabricated for an individual, when such is not the case.
(s) Canvassing from house to house or by telephone, either in person or by an agent, for the purpose of selling a hearing aid, except that contacting persons who have evidenced an interest in hearing aids, or have been referred as in need of hearing aids, shall not be considered canvassing.
(t) Failing to notify the department in writing of a change in current mailing and place-of-practice address within 30 days after such change.
(u) Failing to provide all information as described in ss. 468.1225(5)(b), 468.1245(1), and 468.1246.
(v) Exercising influence on a client in such a manner as to exploit the client for financial gain of the licensee or of a third party.
(w) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee or certificateholder knows, or has reason to know, the licensee or certificateholder is not competent to perform.
(x) Aiding, assisting, procuring, or employing any unlicensed person to practice speech-language pathology or audiology.
(y) Delegating or contracting for the performance of professional responsibilities by a person when the licensee delegating or contracting for performance of such responsibilities knows, or has reason to know, such person is not qualified by training, experience, and authorization to perform them.
(z) Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to s. 468.1296.
(aa) Being unable to practice the profession for which he or she is licensed or certified under this chapter with reasonable skill or competence as a result of any mental or physical condition or by reason of illness, drunkenness, or use of drugs, narcotics, chemicals, or any other substance. In enforcing this paragraph, upon a finding by the State Surgeon General, his or her designee, or the board that probable cause exists to believe that the licensee or certificateholder is unable to practice the profession because of the reasons stated in this paragraph, the department shall have the authority to compel a licensee or certificateholder to submit to a mental or physical examination by a physician, psychologist, clinical social worker, marriage and family therapist, or mental health counselor designated by the department or board. If the licensee or certificateholder refuses to comply with the department’s order directing the examination, such order may be enforced by filing a petition for enforcement in the circuit court in the circuit in which the licensee or certificateholder resides or does business. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice for which he or she is licensed or certified with reasonable skill and safety to patients.
(bb) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The department shall reissue the license or certificate which has been suspended or revoked upon certification by the board that the licensee or certificateholder has complied with all of the terms and conditions set forth in the final order.
History.—ss. 19, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 189, ch. 94-119; s. 119, ch. 97-264; s. 78, ch. 98-166; s. 136, ch. 2000-160; s. 46, ch. 2000-318; s. 37, ch. 2001-277; s. 13, ch. 2005-240; s. 89, ch. 2008-6.
468.1296 Sexual misconduct.—Sexual misconduct by any person licensed or certified in the practice of his or her profession is prohibited. Sexual misconduct means to induce or to attempt to induce the patient to engage, or to engage or to attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient.
History.—s. 120, ch. 97-264.
468.1315 Saving clauses.—
(1) No judicial or administrative proceeding pending pursuant to part I of chapter 468, Florida Statutes, 1989, on October 1, 1990, shall be abated as a result of the repeal of ss. 468.139, 468.140, 468.141, 468.142, 468.1425, 468.143, 468.144, 468.145, 468.146, 468.147, 468.148, and 468.149. In any such unabated proceeding, the Board of Speech-Language Pathology and Audiology and the department shall be deemed parties in interest and shall be made parties to the proceeding.
(2) Certificates of registration and provisional registration issued pursuant to part I of chapter 468, Florida Statutes 1989, which are in effect on September 30, 1990, shall remain in effect pursuant to the provisions of this part.
History.—ss. 21, 31, ch. 90-134; s. 21, ch. 90-341; ss. 1, 10, ch. 90-345; s. 4, ch. 91-429; s. 132, ch. 94-218.
NURSING HOME ADMINISTRATION
468.1635 Purpose.
468.1645 Administrator license required.
468.1655 Definitions.
468.1665 Board of Nursing Home Administrators; membership; appointment; terms.
468.1675 Board headquarters.
468.1685 Powers and duties of board and department.
468.1695 Licensure by examination.
468.1705 Licensure by endorsement; temporary license.
468.1715 Renewal of license.
468.1725 Inactive status.
468.1735 Provisional license.
468.1745 Prohibitions; penalties.
468.1755 Disciplinary proceedings.
468.1756 Statute of limitations.
468.1635 Purpose.—The sole legislative purpose for enacting this chapter is to ensure that every nursing home administrator practicing in this state meets minimum requirements for safe practice. It is the legislative intent that nursing home administrators who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 1, 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429.
468.1645 Administrator license required.—
(1) No nursing home in the state may operate unless it is under the management of a nursing home administrator who holds a currently valid license, provisional license, or temporary license.
(2) Nothing in this part or in the rules adopted hereunder shall require an administrator of any facility or institution operated by and for persons who rely exclusively upon treatment by spiritual means through prayer, in accordance with the creed or tenets of any organized church or religious denomination, to be licensed as a nursing home administrator if the administrator is employed only to administer in such facilities or institutions for the care and treatment of the sick.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 2, 16, 17, ch. 86-223; s. 2, ch. 88-411; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 108, ch. 97-261; s. 1, ch. 97-264.
468.1655 Definitions.—As used in this part:
(1) “Board” means the Board of Nursing Home Administrators.
(2) “Department” means the Department of Health.
(3) “Nursing home administrator” means a person who is licensed to engage in the practice of nursing home administration in this state under the authority of this part.
(4) “Practice of nursing home administration” means any service requiring nursing home administration education, training, or experience and the application of such to the planning, organizing, staffing, directing, and controlling of the total management of a nursing home. A person shall be construed to practice or to offer to practice nursing home administration who:
(a) Practices any of the above services.
(b) Holds himself or herself out as able to perform, or does perform, any form of nursing home administration by written or verbal claim, sign, advertisement, letterhead, or card; or in any other way represents himself or herself to be, or implies that he or she is, a nursing home administrator.
(5) “Nursing home” means an institution or facility licensed as such under part II of chapter 400.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 3, 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 133, ch. 94-218; s. 272, ch. 97-103; s. 121, ch. 97-264; s. 124, ch. 2000-153.
468.1665 Board of Nursing Home Administrators; membership; appointment; terms.—
(1) The Board of Nursing Home Administrators is created within the department and shall consist of seven members, to be appointed by the Governor and confirmed by the Senate to a term of 4 years or for a term to complete an unexpired vacancy.
(2) Three members of the board must be licensed nursing home administrators. Two members of the board must be health care practitioners. The remaining two members of the board must be laypersons who are not, and have never been, nursing home administrators or members of any health care profession or occupation. At least one member of the board must be 60 years of age or older.
(3) Only board members who are nursing home administrators may have a direct financial interest in any nursing home.
(4) All provisions of chapter 456 relating to activities of regulatory boards shall apply.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; s. 36, ch. 83-329; ss. 4, 16, 17, ch. 86-223; s. 19, ch. 87-172; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 134, ch. 94-218; s. 79, ch. 98-166; s. 137, ch. 2000-160.
468.1675 Board headquarters.—The board shall maintain its official headquarters in the City of Tallahassee.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429.
468.1685 Powers and duties of board and department.—It is the function and duty of the board, together with the department, to:
(1) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part conferring duties upon the board.
(2) Develop, impose, and enforce specific standards within the scope of the general qualifications established by this part which must be met by individuals in order to receive licenses as nursing home administrators. These standards shall be designed to ensure that nursing home administrators are individuals of good character and otherwise suitable and, by training or experience in the field of institutional administration, qualified to serve as nursing home administrators.
(3) Develop by appropriate techniques, including examinations and investigations, a method for determining whether an individual meets such standards.
(4) Issue licenses to qualified individuals meeting the standards of the board and revoke or suspend licenses previously issued by the board when the individual holding such license is determined to have failed to conform substantially to the requirements of such standards.
(5) Establish and carry out procedures, by rule, designed to ensure that licensed nursing home administrators will comply with standards adopted by the board.
(6) Receive, investigate, and take appropriate action with respect to any charge or complaint filed with the department to the effect that a licensed nursing home administrator has failed to comply with the requirements or standards adopted by the board.
(7) Conduct a continuing study and investigation of nursing homes and administrators of nursing homes in order to improve the standards imposed for the licensing of such administrators and the procedures and methods for enforcing such standards with respect to administrators of nursing homes who have been licensed as such.
(8) Set up procedures by rule for advising and acting together with the Department of Health and other boards of other health professions in matters affecting procedures and methods for effectively enforcing the purpose of this part and the administration of chapters 400 and 429.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 5, 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 132, ch. 98-200; s. 228, ch. 99-8; s. 93, ch. 2006-197.
468.1695 Licensure by examination.—
(1) Any person desiring to be licensed as a nursing home administrator shall apply to the department to take the licensure examination. The examination shall be given at least two times a year and shall include, but not be limited to, questions on the subjects of nursing home administration such as:
(a) Applicable standards of nursing home health and safety;
(b) Federal, state, and local health and safety laws and rules;
(c) General administration;
(d) Psychology of patient care;
(e) Principles of medical care;
(f) Personal and social care;
(g) Therapeutic and supportive care and services in long-term care;
(h) Departmental organization and management;
(i) Community interrelationships; and
(j) Terminology.
The board may, by rule, adopt use of a national examination in lieu of part or all of the examination required by this part.
(2) The department shall examine each applicant who the board certifies has completed the application form and remitted an examination fee set by the board not to exceed $250 and who:
(a)1. Holds a baccalaureate degree from an accredited college or university and majored in health care administration or has credit for at least 60 semester hours in subjects, as prescribed by rule of the board, which prepare the applicant for total management of a nursing home; and
2. Has fulfilled the requirements of a college-affiliated or university-affiliated internship in nursing home administration or of a 1,000-hour nursing home administrator-in-training program prescribed by the board; or
(b)1. Holds a baccalaureate degree from an accredited college or university; and
2.a. Has fulfilled the requirements of a 2,000-hour nursing home administrator-in-training program prescribed by the board; or
b. Has 1 year of management experience allowing for the application of executive duties and skills, including the staffing, budgeting, and directing of resident care, dietary, and bookkeeping departments within a skilled nursing facility, hospital, hospice, assisted living facility with a minimum of 60 licensed beds, or geriatric residential treatment program and, if such experience is not in a skilled nursing facility, has fulfilled the requirements of a 1,000-hour nursing home administrator-in-training program prescribed by the board.
(3) The department shall issue a license to practice nursing home administration to any applicant who successfully completes the examination in accordance with this section and otherwise meets the requirements of this part. The department shall not issue a license to any applicant who is under investigation in this state or another jurisdiction for an offense which would constitute a violation of s. 468.1745 or s. 468.1755. Upon completion of the investigation, the provisions of s. 468.1755 shall apply.
(4) The board may by rule establish a preceptor certification and recertification fee not to exceed $100 which shall be remitted by those individuals seeking board approval to act as preceptors in administrator-in-training programs as prescribed by the board. Said fee may be charged at the time of application for initial certification and at the time of application for recertification. The board may by rule establish a trainee application fee not to exceed $500 to defray the costs of the board’s supervision of the administrator-in-training program, to be remitted by those individuals seeking to undergo a board prescribed administrator-in-training program.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 6, 13, 14, 16, 17, ch. 86-223; s. 17, ch. 88-205; s. 68, ch. 89-374; s. 23, ch. 90-134; s. 3, ch. 90-345; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 31, ch. 92-173; s. 5, ch. 93-259; s. 193, ch. 94-119; s. 40, ch. 95-210; s. 122, ch. 97-264; s. 25, ch. 99-394; s. 125, ch. 2000-153; s. 84, ch. 2001-277.
468.1705 Licensure by endorsement; temporary license.—
(1) The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee set by the board not to exceed $500, demonstrates to the board that he or she:
(a) Meets one of the following requirements:
1. Holds a valid active license to practice nursing home administration in another state of the United States, provided that the current requirements for licensure in that state are substantially equivalent to, or more stringent than, current requirements in this state; or
2. Meets the qualifications for licensure in s. 468.1695; and
(b)1. Has successfully completed a national examination which is substantially equivalent to, or more stringent than, the examination given by the department;
2. Has passed an examination on the laws and rules of this state governing the administration of nursing homes; and
3. Has worked as a fully licensed nursing home administrator for 2 years within the 5-year period immediately preceding the application by endorsement.
(2) National examinations for licensure as a nursing home administrator shall be presumed to be substantially equivalent to, or more stringent than, the examination and requirements in this state, unless found otherwise by rule of the board.
(3) The department shall not issue a license by endorsement or a temporary license to any applicant who is under investigation in this or another state for any act which would constitute a violation of this part until such time as the investigation is complete and disciplinary proceedings have been terminated.
(4) A temporary license may be issued one time only to an applicant who has filed an application for licensure by endorsement and has paid the fee for the next laws and rules examination offered in this state, and who meets all of the following requirements:
(a) Has filed an application for a temporary license and paid a fee not to exceed $750.
(b) Meets the requirements of subsection (1) or s. 468.1695.
(c) Has worked as a fully licensed nursing home administrator for 2 years within the 5-year period immediately preceding application for a temporary license.
A temporary license shall be valid for the nursing home administrator applicant only at the facility for which it is issued and shall not be transferred to another facility or to another applicant. An applicant shall not be eligible to reapply for a temporary license or an extension of a temporary license. The applicant must take and pass the next laws and rules examination offered in this state following issuance of a temporary license. The temporary license is valid until the results of the examination are certified by the board and the applicant is notified.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 9, 42, ch. 82-179; s. 91, ch. 83-218; ss. 37, 119, ch. 83-329; ss. 7, 16, 17, ch. 86-223; s. 39, ch. 89-162; s. 24, ch. 90-134; s. 4, ch. 90-345; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 273, ch. 97-103.
468.1715 Renewal of license.—
(1) The department shall renew a license upon receipt of the renewal application and fee.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
(3) The board may by rule prescribe continuing education, not to exceed 40 hours biennially, as a condition for renewal of a license or certificate. The board shall by rule establish criteria for the approval of such programs or courses. The programs or courses approved by the board shall include correspondence courses that meet the criteria for continuing education courses held in a classroom setting. The board may establish by rule an application fee not to exceed $100 for anyone seeking approval to provide continuing education courses and may provide by rule a fee not to exceed $50 for renewal of providership.
History.—ss. 1, 2, ch. 79-227; s. 2, ch. 80-291; ss. 2, 3, ch. 81-318; ss. 8, 16, 17, ch. 86-223; s. 69, ch. 89-374; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 190, ch. 94-119.
468.1725 Inactive status.—
(1) The board shall prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license may not exceed 20 classroom hours for each year the license was inactive, in addition to completion of the number of hours required for renewal on the date the license became inactive.
(2) The board shall adopt rules relating to application procedures for inactive status, for the renewal of inactive licenses, and for the reactivation of licenses. The board shall prescribe by rule an application fee for inactive status, a renewal fee for inactive status, a delinquency fee, and a fee for the reactivation of a license. None of these fees may exceed the biennial renewal fee established by the board for an active license.
(3) The department may not reactivate a license unless the inactive or delinquent licensee has paid any applicable biennial renewal or delinquency fee, or both, and a reactivation fee.
History.—ss. 1, 2, ch. 79-227; s. 331, ch. 81-259; ss. 2, 3, ch. 81-318; s. 102, ch. 83-329; ss. 9, 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 191, ch. 94-119.
468.1735 Provisional license.—The board may establish by rule requirements for issuance of a provisional license. A provisional license shall be issued only to fill a position of nursing home administrator that unexpectedly becomes vacant due to illness, sudden death of the administrator, or abandonment of position and shall be issued for one single period as provided by rule not to exceed 6 months. The department shall not issue a provisional license to any applicant who is under investigation in this state or another jurisdiction for an offense which would constitute a violation of s. 468.1745 or s. 468.1755. Upon completion of the investigation, the provisions of s. 468.1755 shall apply. The provisional license may be issued to a person who does not meet all of the licensing requirements established by this part, but the board shall by rule establish minimal requirements to ensure protection of the public health, safety, and welfare. The provisional license shall be issued to the person who is designated as the responsible person next in command in the event of the administrator’s departure. The board may set an application fee not to exceed $500 for a provisional license.
History.—ss. 1, 2, ch. 79-227; s. 332, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 10, 42, ch. 82-179; ss. 10, 16, 17, ch. 86-223; s. 40, ch. 89-162; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 193, ch. 94-119; s. 25, ch. 99-394; s. 84, ch. 2001-277.
468.1745 Prohibitions; penalties.—
(1) No person shall:
(a) Practice nursing home administration unless the person holds an active license to practice nursing home administration.
(b) Use the name or title “nursing home administrator” when the person has not been licensed pursuant to this act.
(c) Present as his or her own the license of another.
(d) Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license.
(e) Use or attempt to use a nursing home administrator’s license which has been suspended or revoked.
(f) Knowingly employ unlicensed persons in the practice of nursing home administration.
(g) Knowingly conceal information relative to violations of this part.
(2) Any person who violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 97, ch. 91-224; s. 4, ch. 91-429; s. 274, ch. 97-103.
468.1755 Disciplinary proceedings.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Violation of any provision of s. 456.072(1) or s. 468.1745(1).
(b) Attempting to procure a license to practice nursing home administration by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
(c) Having a license to practice nursing home administration revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(d) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of nursing home administration or the ability to practice nursing home administration. Any plea of nolo contendere shall be considered a conviction for purposes of this part.
(e) Making or filing a report or record which the licensee knows to be false, intentionally failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed nursing home administrator.
(f) Authorizing the discharge or transfer of a resident for a reason other than those provided in ss. 400.022 and 400.0255.
(g) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
(h) Fraud or deceit, negligence, incompetence, or misconduct in the practice of nursing home administration.
(i) Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board or department.
(j) Practicing with a revoked, suspended, inactive, or delinquent license.
(k) Repeatedly acting in a manner inconsistent with the health, safety, or welfare of the patients of the facility in which he or she is the administrator.
(l) Being unable to practice nursing home administration with reasonable skill and safety to patients by reason of illness, drunkenness, use of drugs, narcotics, chemicals, or any other material or substance or as a result of any mental or physical condition. In enforcing this paragraph, upon a finding of the State Surgeon General or his or her designee that probable cause exists to believe that the licensee is unable to serve as a nursing home administrator due to the reasons stated in this paragraph, the department shall have the authority to issue an order to compel the licensee to submit to a mental or physical examination by a physician designated by the department. If the licensee refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or serves as a nursing home administrator. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee affected under this paragraph shall have the opportunity, at reasonable intervals, to demonstrate that he or she can resume the competent practice of nursing home administration with reasonable skill and safety to patients.
(m) Willfully or repeatedly violating any of the provisions of the law, code, or rules of the licensing or supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes.
(n) Paying, giving, causing to be paid or given, or offering to pay or to give to any person a commission or other valuable consideration for the solicitation or procurement, either directly or indirectly, of nursing home usage.
(o) Willfully permitting unauthorized disclosure of information relating to a patient or his or her records.
(p) Discriminating with respect to patients, employees, or staff on account of race, religion, color, sex, or national origin.
(q) Failing to implement an ongoing quality assurance program directed by an interdisciplinary team that meets at least every other month.
(r) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The department shall reissue the license of a disciplined licensee upon certification by the board that the disciplined licensee has complied with all of the terms and conditions set forth in the final order.
History.—ss. 1, 2, ch. 79-227; ss. 2, 3, ch. 81-318; ss. 11, 16, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; ss. 10, 192, ch. 94-119; s. 275, ch. 97-103; s. 80, ch. 98-166; s. 21, ch. 99-394; s. 138, ch. 2000-160; s. 27, ch. 2000-318; ss. 38, 83, ch. 2001-277; s. 14, ch. 2005-240; s. 90, ch. 2008-6.
468.1756 Statute of limitations.—An administrative complaint may only be filed pursuant to s. 456.073 for an act listed in s. 468.1755(1)(c)-(q) within 4 years from the time of the incident giving rise to the complaint, or within 4 years from the time the incident is discovered or should have been discovered.
History.—ss. 12, 17, ch. 86-223; s. 61, ch. 91-137; s. 10, ch. 91-156; s. 4, ch. 91-429; s. 193, ch. 94-119; s. 81, ch. 98-166; s. 26, ch. 99-394; s. 139, ch. 2000-160.
OCCUPATIONAL THERAPY
468.201 Short title; purpose.
468.203 Definitions.
468.204 Authority to adopt rules.
468.205 Board of Occupational Therapy Practice.
468.207 License required.
468.209 Requirements for licensure.
468.211 Examination for licensure.
468.213 Licensure by endorsement.
468.215 Issuance of license.
468.217 Denial of or refusal to renew license; suspension and revocation of license and other disciplinary measures.
468.219 Renewal of license; continuing education.
468.221 Fees.
468.223 Prohibitions; penalties.
468.225 Exemptions.
468.201 Short title; purpose.—
(1) This act shall be known and may be cited as the “Occupational Therapy Practice Act.”
(2) It is the purpose of this act to provide for the regulation of persons offering occupational therapy services to the public in order to:
(a) Safeguard the public health, safety, and welfare.
(b) Protect the public from being misled by incompetent, unscrupulous, and unauthorized persons.
(c) Assure the highest degree of professional conduct on the part of occupational therapists and occupational therapy assistants.
(d) Assure the availability of occupational therapy services of high quality to persons in need of such services.
History.—ss. 1, 2, ch. 75-179; s. 2, ch. 81-318; ss. 12, 13, ch. 84-4; s. 4, ch. 91-429.
468.203 Definitions.—As used in this act, the term:
(1) “Association” means the Florida Occupational Therapy Association.
(2) “Board” means the Board of Occupational Therapy Practice.
(3) “Occupational therapist” means a person licensed to practice occupational therapy as defined in this act and whose license is in good standing.
(4) “Occupational therapy” means the use of purposeful activity or interventions to achieve functional outcomes.
(a) For the purposes of this subsection:
1. “Achieving functional outcomes” means to maximize the independence and the maintenance of health of any individual who is limited by a physical injury or illness, a cognitive impairment, a psychosocial dysfunction, a mental illness, a developmental or a learning disability, or an adverse environmental condition.
2. “Assessment” means the use of skilled observation or the administration and interpretation of standardized or nonstandardized tests and measurements to identify areas for occupational therapy services.
(b) Occupational therapy services include, but are not limited to:
1. The assessment, treatment, and education of or consultation with the individual, family, or other persons.
2. Interventions directed toward developing daily living skills, work readiness or work performance, play skills or leisure capacities, or enhancing educational performance skills.
3. Providing for the development of: sensory-motor, perceptual, or neuromuscular functioning; range of motion; or emotional, motivational, cognitive, or psychosocial components of performance.
These services may require assessment of the need for use of interventions such as the design, development, adaptation, application, or training in the use of assistive technology devices; the design, fabrication, or application of rehabilitative technology such as selected orthotic devices; training in the use of assistive technology; orthotic or prosthetic devices; the application of physical agent modalities as an adjunct to or in preparation for purposeful activity; the use of ergonomic principles; the adaptation of environments and processes to enhance functional performance; or the promotion of health and wellness.
(c) The use of devices subject to 21 C.F.R. s. 801.109 and identified by the board is expressly prohibited except by an occupational therapist or occupational therapy assistant who has received training as specified by the board. The board shall adopt rules to carry out the purpose of this provision.
(5) “Occupational therapy aide” means a person who assists in the practice of occupational therapy, who works under the direct supervision of a licensed occupational therapist or occupational therapy assistant, and whose activities require a general understanding of occupational therapy pursuant to board rules.
(6) “Occupational therapy assistant” means a person licensed to assist in the practice of occupational therapy, who works under the supervision of an occupational therapist, and whose license is in good standing.
(7) “Person” means any individual, partnership, unincorporated organization, or corporate body, except that only an individual may be licensed under this act.
(8) “Supervision” means responsible supervision and control, with the licensed occupational therapist providing both initial direction in developing a plan of treatment and periodic inspection of the actual implementation of the plan. Such plan of treatment shall not be altered by the supervised individual without prior consultation with, and the approval of, the supervising occupational therapist. The supervising occupational therapist need not always be physically present or on the premises when the assistant is performing services; however, except in cases of emergency, supervision shall require the availability of the supervising occupational therapist for consultation with and direction of the supervised individual.
History.—s. 3, ch. 75-179; s. 1, ch. 78-18; s. 333, ch. 81-259; s. 2, ch. 81-318; ss. 1, 12, 13, ch. 84-4; s. 1, ch. 90-22; s. 4, ch. 91-429; s. 107, ch. 92-149; s. 123, ch. 97-264.
468.204 Authority to adopt rules.—The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part conferring duties upon it.
History.—ss. 2, 13, ch. 84-4; s. 4, ch. 91-429; s. 133, ch. 98-200.
468.205 Board of Occupational Therapy Practice.—
(1) There is created within the department the Board of Occupational Therapy Practice, composed of seven members appointed by the Governor, subject to confirmation by the Senate.
(2) Four members shall be licensed occupational therapists in good standing in this state who are residents of this state and have been engaged in the practice of occupational therapy for at least 4 years immediately prior to their appointment. One member shall be a licensed occupational therapy assistant in good standing in this state who is a resident of the state and has been engaged in the practice of occupational therapy for at least 4 years immediately prior to the appointment. Two members shall be consumers who are residents of the state who are not connected with the practice of occupational therapy.
(3) Within 90 days after the effective date of this act, the Governor shall appoint the board as follows:
(a) Two members for terms of 2 years each.
(b) Two members for terms of 3 years each.
(c) Three members for terms of 4 years each.
(4) As the terms of the members expire, the Governor shall appoint successors for terms of 4 years and such members shall serve until their successors are appointed.
(5) All provisions of chapter 456 relating to activities of the board shall apply.
History.—s. 6, ch. 75-179; s. 171, ch. 77-104; s. 2, ch. 81-318; s. 1, ch. 82-46; s. 2, ch. 83-265; ss. 3, 12, 13, ch. 84-4; s. 2, ch. 90-22; s. 4, ch. 91-429; s. 124, ch. 97-264; s. 82, ch. 98-166; s. 140, ch. 2000-160.
468.207 License required.—No person shall practice occupational therapy or hold himself or herself out as an occupational therapist or an occupational therapy assistant or as being able to practice occupational therapy or to render occupational therapy services in the state unless he or she is licensed in accordance with the provisions of this act.
History.—s. 4, ch. 75-179; s. 2, ch. 81-318; ss. 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 276, ch. 97-103.
468.209 Requirements for licensure.—
(1) An applicant applying for a license as an occupational therapist or as an occupational therapy assistant shall file a written application, accompanied by the application for licensure fee prescribed in s. 468.221, on forms provided by the department, showing to the satisfaction of the board that she or he:
(a) Is of good moral character.
(b) Has successfully completed the academic requirements of an educational program in occupational therapy recognized by the board, with concentration in biologic or physical science, psychology, and sociology, and with education in selected manual skills. Such a program shall be accredited by the American Occupational Therapy Association’s Accreditation Council for Occupational Therapy Education, or its successor.
(c) Has successfully completed a period of supervised fieldwork experience at a recognized educational institution or a training program approved by the educational institution where she or he met the academic requirements. For an occupational therapist, a minimum of 6 months of supervised fieldwork experience is required. For an occupational therapy assistant, a minimum of 2 months of supervised fieldwork experience is required.
(d) Has passed an examination conducted or adopted by the board as provided in s. 468.211.
(2) An applicant who has practiced as a state-licensed or American Occupational Therapy Association-certified occupational therapy assistant for 4 years and who, prior to January 24, 1988, completed a minimum of 6 months of supervised occupational-therapist-level fieldwork experience may take the examination to be licensed as an occupational therapist without meeting the educational requirements for occupational therapists made otherwise applicable under paragraph (1)(b).
(3) If the board determines that an applicant is qualified to be licensed by endorsement under s. 468.213, the board may issue the applicant a temporary permit to practice occupational therapy until the next board meeting at which license applications are to be considered, but not for a longer period of time. Only one temporary permit by endorsement shall be issued to an applicant, and it shall not be renewable.
(4) If the board determines that the applicant has not passed an examination, which examination is recognized by the board, to determine competence to practice occupational therapy and is not qualified to be licensed by endorsement, but has otherwise met all the requirements of this section and has made application for the next scheduled examination, the board may issue the applicant a temporary permit allowing her or him to practice occupational therapy under the supervision of a licensed occupational therapist until notification of the results of the examination. An individual who has passed the examination may continue to practice occupational therapy under her or his temporary permit until the next meeting of the board. An individual who has failed the examination shall not continue to practice occupational therapy under her or his temporary permit; and such permit shall be deemed revoked upon notification to the board of the examination results and the subsequent, immediate notification by the board to the applicant of the revocation. Only one temporary permit by examination shall be issued to an applicant, and it shall not be renewable. However, applicants enrolled in a full-time advanced master’s occupational therapy education program who have completed all requirements for licensure except examination shall, upon written request, be granted a temporary permit valid for 6 months even if that period extends beyond the next examination, provided the applicant has not failed the examination. This permit shall remain valid only while the applicant remains a full-time student and, upon written request, shall be renewed once for an additional 6 months.
(5) An applicant seeking reentry into the profession who has not been in active practice within the last 5 years must, prior to applying for licensure, submit to the board documentation of continuing education as prescribed by rule.
History.—s. 7, ch. 75-179; s. 1, ch. 77-174; s. 2, ch. 78-18; s. 2, ch. 81-318; ss. 4, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 277, ch. 97-103; s. 125, ch. 97-264.
468.211 Examination for licensure.—
(1) Any person applying for licensure shall, in addition to demonstrating his or her eligibility in accordance with the requirements of s. 468.209, make application to the board or the appropriate examining entity for examination, upon a form and in such a manner as the board or the examining entity prescribes. Such application shall be accompanied by the nonrefundable fee prescribed by s. 468.221 or by a fee established by the examining entity. A person who fails an examination may make application for reexamination accompanied by the prescribed fee; such person shall also reapply to the board for licensure in the manner prescribed in s. 468.209.
(2) Each applicant for licensure under this act shall be examined in a manner determined by the board in a written examination to test his or her knowledge of the basic and clinical sciences relating to occupational therapy and occupational therapy theory and practice, including the applicant’s professional skills and judgment in the utilization of occupational therapy techniques and methods, and such other subjects as the board may deem useful to determine the applicant’s fitness to practice. The board shall establish standards for acceptable performance.
(3) Applicants for licensure shall be examined at such times and places and under such supervision as the board may determine. Examinations shall be given at least twice each year at such places within this state as the board may determine, and the board shall give reasonable public notice of such examinations in accordance with its rules at least 60 days prior to their administration and shall notify by mail each individual examination applicant of the time and place of their administration.
(4) The board may, by rule, adopt the use of a national examination in lieu of part or all of the examination required by this section; and a reasonable passing score shall be set by rule of the board.
(5) Applicants may obtain their examination scores and review their papers in accordance with such rules as the board may establish.
(6) If an applicant fails to pass the examination in three attempts, the applicant shall not be eligible for reexamination unless the applicant completes additional education or training requirements prescribed by the board. An applicant who has completed the additional education or training requirements prescribed by the board may take the examination on two more occasions. If the applicant has failed to pass the examination after five attempts, the applicant is no longer eligible to take the examination.
History.—s. 8, ch. 75-179; s. 2, ch. 81-318; ss. 5, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 278, ch. 97-103; s. 126, ch. 97-264.
468.213 Licensure by endorsement.—
(1) The board may waive the examination and grant a license to any person who presents proof of current certification as an occupational therapist or occupational therapy assistant by a national certifying organization if the board determines the requirements for such certification to be equivalent to the requirements for licensure in this act.
(2) The board may waive the examination and grant a license to any applicant who presents proof of current licensure as an occupational therapist or occupational therapy assistant in another state, the District of Columbia, or any territory or jurisdiction of the United States or foreign national jurisdiction which requires standards for licensure determined by the board to be equivalent to the requirements for licensure in this act.
History.—s. 9, ch. 75-179; s. 2, ch. 81-318; ss. 6, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 127, ch. 97-264.
468.215 Issuance of license.—
(1) The board shall issue a license to any person who meets the requirements of this act upon payment of the license fee prescribed.
(2) Any person who is issued a license as an occupational therapist under the terms of this act may use the words “occupational therapist,” “licensed occupational therapist,” or “occupational therapist registered,” or he or she may use the letters “O.T.,” “L.O.T.,” or “O.T.R.,” in connection with his or her name or place of business to denote his or her registration hereunder.
(3) Any person who is issued a license as an occupational therapy assistant under the terms of this act may use the words “occupational therapy assistant,” “licensed occupational therapy assistant,” or “certified occupational therapy assistant,” or he or she may use the letters, “O.T.A.,” “L.O.T.A.,” or “C.O.T.A.,” in connection with his or her name or place of business to denote his or her registration hereunder.
History.—s. 10, ch. 75-179; s. 2, ch. 81-318; ss. 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 279, ch. 97-103.
468.217 Denial of or refusal to renew license; suspension and revocation of license and other disciplinary measures.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Attempting to obtain, obtaining, or renewing a license to practice occupational therapy by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
(b) Having a license to practice occupational therapy revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of occupational therapy or to the ability to practice occupational therapy. A plea of nolo contendere shall be considered a conviction for the purposes of this part.
(d) False, deceptive, or misleading advertising.
(e) Advertising, practicing, or attempting to practice under a name other than one’s own name.
(f) Failing to report to the department any person who the licensee knows is in violation of this part or of the rules of the department or of the board.
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice occupational therapy contrary to this part or to a rule of the department or the board.
(h) Failing to perform any statutory or legal obligation placed upon a licensed occupational therapist or occupational therapy assistant.
(i) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records include only those which are signed in the capacity as a licensed occupational therapist or occupational therapy assistant.
(j) Paying or receiving any commission, bonus, kickback, or rebate to or from, or engaging in any split-fee arrangement in any form whatsoever with, a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent an occupational therapist or occupational therapy assistant from receiving a fee for professional consultation services.
(k) Exercising influence within a patient-therapist relationship for purposes of engaging a patient in sexual activity. A patient is presumed to be incapable of giving free, full, and informed consent to sexual activity with the patient’s occupational therapist or occupational therapy assistant.
(l) Making deceptive, untrue, or fraudulent representations in the practice of occupational therapy or employing a trick or scheme in the practice of occupational therapy if such scheme or trick fails to conform to the generally prevailing standards of treatment in the occupational therapy community.
(m) Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct. A “solicitation” is any communication which directly or implicitly requests an immediate oral response from the recipient.
(n) Failing to keep written records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.
(o) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which includes, but is not limited to, the promoting or selling of services, goods, appliances, or drugs.
(p) Performing professional services which have not been duly authorized by the patient or client, or his or her legal representative, except as provided in s. 768.13.
(q) Gross or repeated malpractice or the failure to practice occupational therapy with that level of care, skill, and treatment which is recognized by a reasonably prudent similar occupational therapist or occupational therapy assistant as being acceptable under similar conditions and circumstances.
(r) Performing any procedure which, by the prevailing standards of occupational therapy practice in the community, would constitute experimentation on a human subject without first obtaining full, informed, and written consent.
(s) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform.
(t) Being unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel an occupational therapist or occupational therapy assistant to submit to a mental or physical examination by physicians designated by the department. The failure of an occupational therapist or occupational therapy assistant to submit to such examination when so directed constitutes an admission of the allegations against him or her, upon which a default and final order may be entered without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond his or her control. An occupational therapist or occupational therapy assistant affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of occupational therapy with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against an occupational therapist or occupational therapy assistant in any other proceeding.
(u) Delegating professional responsibilities to a person when the licensee who is delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
(v) Violating a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
(w) Conspiring with another licensee or with any other person to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.
(x) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The board may not reinstate the license of an occupational therapist or occupational therapy assistant, or cause a license to be issued to a person it has deemed unqualified, until such time as the board is satisfied that such person has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of occupational therapy.
History.—s. 11, ch. 75-179; s. 36, ch. 78-95; s. 2, ch. 81-318; ss. 7, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 280, ch. 97-103; s. 39, ch. 2001-277; s. 15, ch. 2005-240.
468.219 Renewal of license; continuing education.—
(1) Licenses issued under this part are subject to biennial renewal as provided in s. 456.004.
(2) The board may by rule prescribe continuing education requirements, not to exceed 30 contact hours biennially, as a condition for renewal of licensure. The program criteria for those requirements must be approved by the board.
History.—s. 12, ch. 75-179; s. 2, ch. 81-318; ss. 8, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 194, ch. 94-119; s. 83, ch. 98-166; s. 141, ch. 2000-160.
468.221 Fees.—
(1) The board shall prescribe, and publish in the manner established by its rules, fees in amounts determined by the board for the following purposes:
(a) Application for license.
(b) Examination fee.
(c) Initial license fee.
(d) Renewal of active license fee.
(e) Delinquency fee.
(f) Application for inactive license fee.
(g) Renewal of inactive license fee.
(h) Reactivation fee.
(2) Such fees shall be set in such amounts as to reimburse the state, to the extent feasible, for the cost of the services rendered.
History.—s. 13, ch. 75-179; s. 2, ch. 81-318; ss. 9, 12, 13, ch. 84-4; s. 4, ch. 91-429; s. 195, ch. 94-119.
468.223 Prohibitions; penalties.—
(1) A person may not:
(a) Practice occupational therapy unless such person is licensed pursuant to ss. 468.201-468.225;
(b) Use, in connection with his or her name or place of business, the words “occupational therapist,” “licensed occupational therapist,” “occupational therapist registered,” “occupational therapy assistant,” “licensed occupational therapy assistant,” “certified occupational therapy assistant”; the letters “O.T.,” “L.O.T.,” “O.T.R.,” “O.T.A.,” “L.O.T.A.,” or “C.O.T.A.”; or any other words, letters, abbreviations, or insignia indicating or implying that he or she is an occupational therapist or an occupational therapy assistant or, in any way, orally or in writing, in print or by sign, directly or by implication, to represent himself or herself as an occupational therapist or an occupational therapy assistant unless the person is a holder of a valid license issued pursuant to ss. 468.201-468.225;
(c) Present as his or her own the license of another;
(d) Knowingly give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a license which has been suspended, revoked, or placed on inactive or delinquent status;
(f) Employ unlicensed persons to engage in the practice of occupational therapy; or
(g) Conceal information relative to any violation of ss. 468.201-468.225.
(2) Any person who violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 14, ch. 75-179; s. 2, ch. 81-318; ss. 10, 12, 13, ch. 84-4; s. 3, ch. 90-22; s. 4, ch. 91-429; s. 196, ch. 94-119; s. 281, ch. 97-103.
468.225 Exemptions.—
(1) Nothing in this act shall be construed as preventing or restricting the practice, services, or activities of:
(a) Any person licensed in this state by any other law from engaging in the profession or occupation for which he or she is licensed.
(b) Any person employed as an occupational therapist or occupational therapy assistant by the United States, if such person provides occupational therapy solely under the direction or control of the organization by which he or she is employed.
(c) Any person pursuing a course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program, if such activities and services constitute a part of a supervised course of study and if such a person is designated by a title which clearly indicates his or her status as a student or trainee.
(d) Any person fulfilling the supervised fieldwork experience requirements of s. 468.209, if such activities and services constitute a part of the experience necessary to meet the requirements of that section.
(2) No provision of this act shall be construed to prohibit physicians, physician assistants, nurses, physical therapists, osteopathic physicians or surgeons, clinical psychologists, speech-language pathologists, or audiologists from using occupational therapy as a part of or incidental to their profession, when they practice their profession under the statutes applicable to their profession.
History.—s. 5, ch. 75-179; s. 1, ch. 77-174; s. 2, ch. 81-318; ss. 12, 13, ch. 84-4; s. 4, ch. 90-22; s. 4, ch. 91-429; s. 282, ch. 97-103; s. 128, ch. 97-264.
RADIOLOGICAL PERSONNEL CERTIFICATION
468.3001 Short title.
468.3003 Declaration of policy.
468.301 Definitions.
468.302 Use of radiation; identification of certified persons; limitations; exceptions.
468.303 Rules.
468.304 Certification.
468.305 Certification; standards.
468.306 Examinations.
468.3065 Certification by endorsement.
468.307 Certificate; issuance; display.
468.309 Certificate; duration; renewal; reversion to inactive status; members of Armed Forces and spouses.
468.3095 Inactive status; reactivation; automatic suspension; reinstatement.
468.3101 Disciplinary grounds and actions.
468.311 Violations; penalties.
468.3115 Injunctive relief.
468.312 Fees; disposition.
468.314 Advisory Council on Radiation Protection; appointment; terms; powers; duties.
468.3001 Short title.—This part may be cited as the “Radiological Personnel Certification Act.”
History.—ss. 1, 19, ch. 84-269; s. 4, ch. 91-429; s. 1, ch. 2006-139.
468.3003 Declaration of policy.—It is declared to be the policy of the state that the health and safety of the people must be protected against the harmful effects of excessive and improper exposure to ionizing radiation. Such protection can in some major measure be accomplished by requiring adequate training and experience of persons who use radiation and radiation-emitting equipment in each particular case under the specific direction of licensed practitioners. It is the purpose of this part to establish standards of education, training, and experience and to require the examination and certification of users of radiation and radiation-emitting equipment.
History.—s. 1, ch. 78-383; s. 2, ch. 81-318; ss. 2, 18, 19, ch. 84-269; s. 4, ch. 91-429.
Note.—Former s. 468.30.
468.301 Definitions.—As used in this part, the term:
(1) “Basic X-ray machine operator” means a person who is employed by a licensed practitioner to perform certain radiographic functions, specifically excluding nuclear medicine and radiation therapy procedures, under the direct supervision of that practitioner.
(2) “Basic X-ray machine operator-podiatric medicine” means a person who is employed by and under the direct supervision of a licensed podiatric physician to perform only those radiographic functions that are within the scope of practice of a podiatric physician licensed pursuant to chapter 461, specifically excluding nuclear medicine and radiation therapy procedures.
(3) “Certificate” means a certification granted and issued by the department under this part.
(4) “Certificateholder” means any person who holds a certificate under this part that authorizes that person to use radiation on human beings.
(5) “Council” means the Advisory Council on Radiation Protection.
(6) “Department” means the Department of Health.
(7) “Direct supervision” means supervision and control by a licensed practitioner who assumes legal liability for the services rendered by the basic X-ray machine operator or basic X-ray machine operator-podiatric medicine, which supervision requires the physical presence of the licensed practitioner for consultation and direction of the actions of the basic X-ray machine operator or basic X-ray machine operator-podiatric medicine.
(8) “Educational program” means training or education, including either a didactic or a clinical practicum, or both, which has a specified objective, planned activities for students, and suitable methods for measuring student attainment, which program is offered, sponsored, or approved by an organization or institution that is able to meet or enforce these criteria and which program is subject to approval by the department.
(9) “General radiographer” means a person who is employed and certificated in radiography, other than a basic X-ray machine operator or basic X-ray machine operator-podiatric medicine.
(10) “General supervision” means supervision whereby a practitioner authorizes the services to be performed by the radiologic technologist, which supervision, except in cases of emergency, requires the easy availability or physical presence of the licensed practitioner for consultation and direction of the actions of the radiologic technologist.
(11) “Licensed practitioner” means a person who is licensed or otherwise authorized by law to practice medicine, podiatric medicine, chiropody, osteopathic medicine, naturopathy, or chiropractic medicine in this state.
(12) “National organization” means a professional association or registry, approved by the department, that examines, registers, certifies, or approves individuals and educational programs relating to operators of sources of radiation.
(13) “Person” means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, political subdivision of this state or any other state, or political subdivision of any agency thereof and any legal successor, representative, agent, or agency of the foregoing.
(14) “Radiation” means X rays and gamma rays, alpha and beta particles, high-speed electrons, neutrons, and other nuclear particles.
(15) “Radiologic technologist” means a person, other than a licensed practitioner, who is qualified by education, training, or experience, as more specifically defined in s. 468.302(3)(d)-(g), to use radiation on human beings under the specific direction and general supervision of a licensed practitioner in each particular case.
(16) “Radiologist” means a physician specializing in radiology certified by or eligible for certification by the American Board of Radiology or the American Osteopathic Board of Radiology, the British Royal College of Radiology, or the Canadian College of Physicians and Surgeons.
(17) “Radiologist assistant” means a person, other than a licensed practitioner, who is qualified by education and certification, as set forth in s. 468.304, as an advanced-level radiologic technologist who works under the supervision of a radiologist to enhance patient care by assisting the radiologist in the medical imaging environment.
History.—s. 2, ch. 78-383; s. 2, ch. 81-318; ss. 3, 18, 19, ch. 84-269; s. 1, ch. 88-310; s. 4, ch. 91-429; s. 73, ch. 97-237; s. 51, ch. 97-264; ss. 211, 281, ch. 98-166; s. 2, ch. 2006-139; s. 91, ch. 2008-6.
468.302 Use of radiation; identification of certified persons; limitations; exceptions.—
(1) Except as provided in this section, a person may not use radiation or otherwise practice radiologic technology or any of the duties of a radiologist assistant on a human being unless he or she:
(a) Is a licensed practitioner;
(b) Is the holder of a certificate, as provided in this part, and is operating under the direct supervision or general supervision of a licensed practitioner in each particular case; or
(c) Is the holder of a radiologist assistant certificate, as provided in this part, and is operating under the supervision of a radiologist, as specified in paragraph (3)(h).
(2)(a) A person holding a certificate as a basic X-ray machine operator may use the title “Basic X-ray Machine Operator.”
(b) A person holding a certificate as a basic X-ray machine operator-podiatric medicine may use the title “Basic X-ray Machine Operator-Podiatric Medicine.”
(c) A person holding a certificate as a general radiographer may use the title “Certified Radiologic Technologist-Radiographer” or the letters “CRT-R” after his or her name.
(d) A person holding a certificate as a limited computed tomography technologist may use the title “Certified Radiologic Technologist-Computed Tomography” or the letters “CRT-C” after his or her name.
(e) A person holding a certificate as a radiation therapy technologist may use the title “Certified Radiologic Technologist-Therapy” or the letters “CRT-T” after his or her name.
(f) A person holding a certificate as a nuclear medicine technologist may use the title “Certified Radiologic Technologist-Nuclear Medicine” or the letters “CRT-N” after his or her name.
(g) A person holding a certificate as a radiologist assistant may use the title “Certified Radiologist Assistant” or the letters “CRA” after his or her name.
No other person is entitled to so use a title or letters contained in this subsection or to hold himself or herself out in any way, whether orally or in writing, expressly or by implication, as being so certified.
(3)(a) A person holding a certificate as a basic X-ray machine operator may perform general diagnostic radiographic and general fluoroscopic procedures, specifically excluding nuclear medicine and radiation therapy procedures, under the direct supervision and control of a licensed practitioner in that practitioner’s office or in a hospital pursuant to paragraph (b). A basic X-ray machine operator may participate in additional approved programs as provided by rule of the department.
(b) A basic X-ray machine operator or basic X-ray machine operator-podiatric medicine may not practice radiologic technology in walk-in emergency centers, freestanding breast clinics, freestanding cancer clinics, state mental hospitals, state correctional institutions, or in any facility regulated under chapter 390, chapter 392, chapter 393, chapter 394, or chapter 641. For a facility licensed under chapter 395, a basic X-ray machine operator may only perform the procedures specified in paragraph (a) in a hospital with a capacity of 150 beds or less. If such a hospital has or acquires radiographic or fluoroscopic equipment other than general diagnostic radiographic and general fluoroscopic equipment, that hospital shall keep a record documenting which personnel performed each radiographic or fluoroscopic procedure. For purposes of this paragraph, a walk-in emergency center shall not include a physician-operated walk-in clinic which operates with or without appointments and with extended hours and which does not hold itself out to the public as an emergency center.
(c) A person holding a certificate as a basic X-ray machine operator-podiatric medicine may perform only podiatric radiographic procedures under the direct supervision and control of a licensed podiatric physician.
(d) A person holding a certificate as a general radiographer may not perform nuclear medicine and radiation therapy procedures, except as provided in this paragraph. A person who is a general radiographer certified pursuant to this part who receives additional training and skills in radiation therapy technology procedures as referenced in this paragraph may assist with managing patients undergoing radiation therapy treatments if that assistance is provided to a person registered with the American Registry of Radiologic Technologists in radiation therapy who is also certified pursuant to this part as a radiation therapy technologist. Both the general radiographer and the radiation therapy technologist must perform these radiation therapy services under the general supervision of a physician licensed under chapter 458 or chapter 459 who is trained and skilled in performing radiation therapy treatments. The radiation therapy technologist identified under this paragraph may not delegate any function to the general radiographer which could reasonably be expected to create an unnecessary danger to a patient’s life, health, or safety. The general radiographer identified under this section may not, however, perform the following services while assisting the radiation therapy technologist: radiation treatment planning, calculation of radiation therapy doses, or any of the duties of a medical physicist. The general radiographer identified under this section must successfully complete a training program in the following areas before assisting with radiation therapy technology duties:
1. Principles of radiation therapy treatment;
2. Biological effects of radiation;
3. Radiation exposure and monitoring;
4. Radiation safety and protection;
5. Evaluation and handling of radiographic treatment equipment and accessories; and
6. Patient positioning for radiation therapy treatment.
In addition, a general radiographer may participate in additional approved programs as provided by rule of the department.
(e) A person holding a certificate as a limited computed tomography technologist may perform only diagnostic computed tomography examinations.
(f) A person holding a certificate as a radiation therapy technologist may administer only X radiation and ionizing radiation emitted from particle accelerators and external beam teletherapy from sealed sources of radioactive material to human beings for therapeutic or simulation purposes.
(g)1. A person holding a certificate as a nuclear medicine technologist may only:
a. Conduct in vivo and in vitro measurements of radioactivity and administer radiopharmaceuticals to human beings for diagnostic and therapeutic purposes.
b. Administer X radiation from a combination nuclear medicine-computed tomography device if that radiation is administered as an integral part of a nuclear medicine procedure that uses an automated computed tomography protocol for the purposes of attenuation correction and anatomical localization and the person has received device-specific training on the combination device.
2. The authority of a nuclear medicine technologist under this paragraph excludes:
a. Radioimmunoassay and other clinical laboratory testing regulated pursuant to chapter 483;
b. Creating or modifying automated computed tomography protocols; and
c. Any other operation of a computed tomography device, especially for the purposes of stand-alone diagnostic imaging, which must be performed by a general radiographer certified under this part.
(h) A person holding a certificate as a radiologist assistant may:
1. Perform specific duties allowed for a radiologist assistant as defined by the department by rule. The rule must be consistent with guidelines adopted by the American College of Radiology, the American Society of Radiologic Technologists, and the American Registry of Radiologic Technologists, with the level of supervision required by such guidelines.
2. Not perform nuclear medicine or radiation therapy procedures unless currently certified and trained to perform those duties under the person’s nuclear medicine technologist or radiation therapy technologist certificate; not interpret images; not make diagnoses; and not prescribe medications or therapies.
(4) A person holding a certificate as a radiologic technologist may only use radiation or radiation-producing equipment on human beings for diagnostic or therapeutic purposes while operating, in each particular case, under the general supervision of a licensed practitioner and only if the application of radiation is limited to those persons or parts of the human body specified in the law under which the practitioner is licensed.
(5) Nothing contained in this part relating to radiologic technology or a radiologist assistant shall be construed to limit, enlarge, or affect in any respect the practice by duly licensed practitioners of their respective professions.
(6) Requirement for certification does not apply to:
(a) A hospital resident who is not a licensed practitioner in this state or a student enrolled in and attending a school or college of medicine, osteopathic medicine, chiropody, podiatric medicine, or chiropractic medicine or a radiologic technology educational program or radiologist assistant educational program and who applies radiation to a human being while under the direct supervision of a licensed practitioner.
(b) A person who is engaged in performing the duties of a radiologic technologist or of a radiologist assistant in his or her employment by a governmental agency of the United States.
(c) A person who is trained and skilled in cardiopulmonary technology and who provides cardiopulmonary technology services at the direction, and under the direct supervision, of a licensed practitioner.
(7) A person who is licensed pursuant to chapter 483 to perform nuclear medicine procedures is not required to be certificated under this part, provided such person does not perform any other procedures regulated under this part.
History.—s. 3, ch. 78-383; s. 2, ch. 81-318; ss. 4, 18, 19, ch. 84-269; s. 13, ch. 86-287; s. 2, ch. 88-310; s. 4, ch. 91-429; s. 6, ch. 96-309; s. 1113, ch. 97-103; s. 52, ch. 97-264; ss. 212, 282, ch. 98-166; s. 108, ch. 2001-277; s. 38, ch. 2004-350; s. 3, ch. 2006-139.
468.303 Rules.—The department is authorized to make such rules, not inconsistent with law, as may be necessary to carry out the provisions of this part. The department is authorized to establish by rule fees to be paid for application, examination, reexamination, certification, and renewal, and for recordmaking and recordkeeping, provided that no fee shall exceed the amounts provided in this part. Fees shall be based on department estimates of the revenue required to implement the provisions of this part. The department may, based upon estimates of revenue required to implement this part, establish separate fee schedules for application, examination, reexamination, certification, and renewal for the different categories of certification.
History.—s. 4, ch. 78-383; s. 2, ch. 81-318; ss. 18, 19, ch. 84-269; s. 3, ch. 88-310; s. 4, ch. 91-429.
468.304 Certification.—The department shall certify any applicant who meets the following criteria:
(1) Pays to the department a nonrefundable fee that may not exceed $100, plus the actual per-applicant cost to the department for purchasing the examination from a national organization.
(2) Submits a completed application on a form specified by the department. An incomplete application expires 6 months after initial filing. The application must include the social security number of the applicant. Each applicant shall notify the department in writing of his or her current mailing address. Notwithstanding any other law, service by regular mail to an applicant’s last reported mailing address constitutes adequate and sufficient notice of any official departmental communication to the applicant.
(3) Submits satisfactory evidence, verified by oath or affirmation, that she or he:
(a) Is at least 18 years of age at the time of application;
(b) Is a high school, vocational school, technical school, or college graduate or has successfully completed the requirements for a graduate equivalency diploma (GED) or its equivalent;
(c) Is of good moral character;
(d) Has passed an examination as specified in s. 468.306 or meets the requirements specified in s. 468.3065; and
(e)1. Has successfully completed an educational program, which program may be established in a hospital licensed pursuant to chapter 395 or in an accredited postsecondary academic institution which is subject to approval by the department as maintaining a satisfactory standard; or
2.a. With respect to an applicant for a basic X-ray machine operator’s certificate, has completed a course of study approved by the department with appropriate study material provided the applicant by the department;
b. With respect to an applicant for a basic X-ray machine operator-podiatric medicine certificate, has completed a course of study approved by the department, provided that such course of study shall be limited to that information necessary to perform radiographic procedures within the scope of practice of a podiatric physician licensed pursuant to chapter 461;
c. With respect only to an applicant for a general radiographer’s certificate who is a basic X-ray machine operator certificateholder, has completed an educational program or a 2-year training program that takes into account the types of procedures and level of supervision usually and customarily practiced in a hospital, which educational or training program complies with the rules of the department;
d. With respect only to an applicant for a nuclear medicine technologist’s certificate who is a general radiographer certificateholder, has completed an educational program or a 2-year training program that takes into account the types of procedures and level of supervision usually and customarily practiced in a hospital, which educational or training program complies with the rules of the department; or
e. With respect to an applicant for a radiologist assistant’s certificate who demonstrates to the department that he or she holds a current certificate or registration as a radiologist assistant granted by the American Registry of Radiologic Technologists.
(4) Submits complete documentation of any criminal offense in any jurisdiction of which the applicant has been found guilty, regardless of whether adjudication of guilt was withheld, or to which the applicant has pled guilty or nolo contendere.
(5) Submits complete documentation of any final disciplinary action taken against the applicant by a licensing or regulatory body in any jurisdiction, by a national organization, or by a specialty board that is recognized by the department. Disciplinary action includes revocation, suspension, probation, reprimand, or being otherwise acted against, including being denied certification or resigning from or nonrenewal of membership taken in lieu of or in settlement of a pending disciplinary case.
The department may not certify any applicant who has committed an offense that would constitute a violation of any of the provisions of s. 468.3101 or the rules adopted thereunder if the applicant had been certified by the department at the time of the offense. No application for a limited computed tomography certificate shall be accepted. All persons holding valid computed tomography certificates as of October 1, 1984, are subject to the provisions of s. 468.309.
History.—s. 5, ch. 78-383; s. 2, ch. 81-318; ss. 5, 18, 19, ch. 84-269; s. 4, ch. 88-310; s. 4, ch. 91-429; s. 283, ch. 97-103; s. 213, ch. 98-166; s. 57, ch. 99-397; s. 39, ch. 2004-350; s. 4, ch. 2006-139.
468.305 Certification; standards.—The department shall develop standards for certification for the categories of radiological personnel or procedures specified in s. 468.302. The certification standards shall be developed by the department to provide for educational programs for persons who are duly licensed or have a credential in a recognized health care profession or who have other training that is relevant to the program of study to be undertaken. All such categories shall include a demonstration of safety procedure competency; however, nothing in this part shall be construed to require that all operators of radiation equipment be registered radiologic technologists. An application fee of not more than $350 shall be assessed those educational programs seeking approval from the department. Application for approval shall be made on forms provided by the department. Once approved by the department, an educational program shall be assessed an annual fee not to exceed $150.
History.—s. 6, ch. 78-383; s. 2, ch. 81-318; ss. 6, 18, 19, ch. 84-269; s. 5, ch. 88-310; s. 4, ch. 91-429.
468.306 Examinations.—All applicants for certification as a radiologic technologist, basic X-ray machine operator, or basic X-ray machine operator-podiatric medicine, except those certified pursuant to s. 468.3065, shall be required to pass an examination. In lieu of an examination for a radiologist assistant certificate, the department shall accept a demonstration by the applicant for such a certificate that he or she holds a current certificate or registration as a radiologist assistant granted by the American Registry of Radiologic Technologists. The department may develop or use examinations for each type of certificate. The department may require an applicant who does not pass an examination after five attempts to complete additional remedial education, as specified by rule of the department, before admitting the applicant to subsequent examinations.
(1) The department may contract with organizations that develop such test examinations. Examinations may be administered by the department or the contracting organization.
(2) Examinations shall be given for each type of certificate at least twice a year at such times and places as the department may determine to be advantageous for applicants.
(3) All examinations shall be written and include positioning, technique, and radiation protection. The department shall either pass or fail each applicant on the basis of his or her final grade. The examination for a basic X-ray machine operator shall include basic positioning and basic techniques directly related to the skills necessary to safely operate radiographic equipment.
(4) A nonrefundable fee not to exceed $75 plus the actual per-applicant cost for purchasing the examination from a national organization shall be charged for any subsequent examination.
History.—s. 7, ch. 78-383; s. 2, ch. 81-318; ss. 7, 18, 19, ch. 84-269; s. 6, ch. 88-310; s. 4, ch. 91-429; s. 284, ch. 97-103; s. 26, ch. 98-151; s. 58, ch. 99-397; s. 40, ch. 2004-350; s. 5, ch. 2006-139.
468.3065 Certification by endorsement.—
(1) The department may issue a certificate by endorsement to practice as a radiologist assistant to an applicant who, upon applying to the department and remitting a nonrefundable fee not to exceed $50, demonstrates to the department that he or she holds a current certificate or registration as a radiologist assistant granted by the American Registry of Radiologic Technologists.
(2) The department may issue a certificate by endorsement to practice radiologic technology to an applicant who, upon applying to the department and remitting a nonrefundable fee not to exceed $50, demonstrates to the department that he or she holds a current certificate, license, or registration to practice radiologic technology, provided that the requirements for such certificate, license, or registration are deemed by the department to be substantially equivalent to those established under this part and rules adopted under this part.
History.—ss. 7, 19, ch. 84-269; s. 4, ch. 91-429; s. 285, ch. 97-103; s. 41, ch. 2004-350; s. 6, ch. 2006-139.
468.307 Certificate; issuance; display.—
(1) The department shall issue a certificate to each candidate who has met the requirements of ss. 468.304 and 468.306 or has qualified under s. 468.3065. The department may by rule establish a subcategory of a certificate issued under this part limiting the certificateholder to a specific procedure or specific type of equipment. The first regular certificate issued to a new certificateholder expires on the last day of the certificateholder’s birth month and shall be valid for at least 12 months but no more than 24 months. However, if the new certificateholder already holds a regular, active certificate in a different category under this part, the new certificate shall be combined with and expire on the same date as the existing certificate.
(2)(a) The department may, at its discretion, issue a temporary certificate to:
1. An applicant who has completed an educational program and is awaiting examination for a certificate specified in s. 468.302(2)(b), (c), (e), or (f), if the applicant has met all other requirements established pursuant to s. 468.304.
2. A basic X-ray machine operator, if such person is under the direct supervision of a licensed practitioner and the licensed practitioner has not requested issuance of a temporary certificate within the previous 18 months, upon application by a licensed practitioner who is practicing in an office of five or fewer licensed practitioners.
3. A basic X-ray machine operator-podiatric medicine, if such person is under the direct supervision of a licensed podiatric physician and the licensed podiatric physician has not requested issuance of a temporary certificate within the previous 18 months, upon application by a licensed podiatric physician who is practicing in an office of five or fewer licensed podiatric physicians.
(b)1. A temporary certificate, as provided in this subsection, shall be issued only if the department finds that its issuance will not violate the purposes of this part or tend to endanger the public health and safety. Temporary certificates shall not be extended, renewed, or reissued.
2. A temporary certificate shall expire automatically 6 months after the date of issuance or when the determination is made either to issue to the applicant, or to deny him or her the issuance of, a regular certificate.
(3) Every employer of certificateholders shall display the certificates of all of such employees in a place accessible to view.
History.—s. 8, ch. 78-383; s. 2, ch. 81-318; ss. 8, 18, 19, ch. 84-269; s. 7, ch. 88-310; s. 4, ch. 91-429; s. 286, ch. 97-103; s. 214, ch. 98-166; s. 129, ch. 99-397; s. 126, ch. 2000-153; s. 42, ch. 2004-350; s. 7, ch. 2006-139.
468.309 Certificate; duration; renewal; reversion to inactive status; members of Armed Forces and spouses.—
(1)(a) A certificate issued in accordance with this part expires as specified in rules adopted by the department which establish a procedure for the biennial renewal of certificates. A certificate shall be renewed by the department for a period of 2 years upon payment of a renewal fee in an amount not to exceed $75 and upon submission of a renewal application containing such information as the department deems necessary to show that the applicant for renewal is a certificateholder in good standing and has completed any continuing education requirements that the department establishes.
(b) Sixty days before the end of the biennium, the department shall mail a notice of renewal to the last known address of the certificateholder.
(c) Each certificateholder shall notify the department in writing of his or her current mailing address and place of practice. Notwithstanding any other law, service by regular mail to a certificateholder’s last reported mailing address constitutes adequate and sufficient notice of any official departmental communication to the certificateholder.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of certificates.
(3) The department may, by rule, prescribe continuing education requirements, not to exceed 24 hours each licensure period, as a condition for renewal of a certificate. The criteria for approval of continuing education providers, courses, and programs shall be as specified by the department. Continuing education, which may be required for persons certified under this part, may be obtained through home study courses approved by the department.
(4) Any certificate that is not renewed by its expiration date shall automatically be placed in an expired status, and the certificateholder may not practice radiologic technology or perform the duties of a radiologist assistant until the certificate has been reactivated.
(5) A certificateholder in good standing remains in good standing when he or she becomes a member of the Armed Forces of the United States on active duty without paying renewal fees or accruing continuing education credits as long as he or she is a member of the Armed Forces on active duty and for a period of 6 months after discharge from active duty, if he or she is not engaged in practicing radiologic technology or performing the duties of a radiologist assistant in the private sector for profit. The certificateholder must pay a renewal fee and complete continuing education not to exceed 12 classroom hours to renew the certificate.
(6) A certificateholder who is in good standing remains in good standing if he or she is absent from the state because of his or her spouse’s active duty with the Armed Forces of the United States. The certificateholder remains in good standing without paying renewal fees or completing continuing education as long as his or her spouse is a member of the Armed Forces on active duty and for a period of 6 months after the spouse’s discharge from active duty, if the certificateholder is not engaged in practicing radiologic technology or performing the duties of a radiologist assistant in the private sector for profit. The certificateholder must pay a renewal fee and complete continuing education not to exceed 12 classroom hours to renew the certificate.
(7) A certificateholder may resign his or her certification by submitting to the department a written, notarized resignation on a form specified by the department. The resignation automatically becomes effective upon the department’s receipt of the resignation form, at which time the certificateholder’s certification automatically becomes null and void and may not be reactivated or renewed or used to practice radiologic technology or to perform the duties of a radiologist assistant. A certificateholder who has resigned may become certified again only by reapplying to the department for certification as a new applicant and meeting the certification requirements pursuant to s. 468.304 or s. 468.3065. Any disciplinary action that had been imposed on the certificateholder prior to his or her resignation shall be tolled until he or she again becomes certified. Any disciplinary action proposed at the time of the certificateholder’s resignation shall be tolled until he or she again becomes certified.
History.—s. 10, ch. 78-383; s. 2, ch. 81-318; ss. 10, 18, 19, ch. 84-269; s. 8, ch. 88-310; s. 4, ch. 91-145; s. 4, ch. 91-429; s. 287, ch. 97-103; s. 59, ch. 99-397; s. 43, ch. 2004-350; s. 8, ch. 2006-139.
468.3095 Inactive status; reactivation; automatic suspension; reinstatement.—
(1) A certificateholder may request that his or her certificate be placed in an inactive status by making application to the department and paying a fee in an amount set by the department not to exceed $50.
(2)(a) A certificate that has been expired for less than 10 years may be reactivated upon payment of the biennial renewal fee and a late renewal fee, not to exceed $100, and submission of a reactivation application containing any information that the department deems necessary to show that the applicant is a certificateholder in good standing and has met the requirements for continuing education. The department shall prescribe, by rule, continuing education requirements as a condition of reactivating a certificate. The continuing education requirements for reactivating a certificate may not exceed 10 classroom hours for each year the certificate was expired and may not exceed 100 classroom hours for all years in which the certificate was expired.
(b) A certificate that has been inactive for less than 10 years may be reactivated by meeting all of the requirements of paragraph (a) for expired certificates, except for payment of the fee for late renewal.
(c) A certificate that has been inactive or expired for 10 years or more automatically becomes null and void and may not be reactivated, renewed, or used to practice radiologic technology or to perform the duties of a radiologist assistant. A certificateholder whose certificate has become null and void may become certified again only by reapplying to the department as a new applicant and meeting the requirements of s. 468.304 or s. 468.3065.
(d) When an expired or inactive certificate is reactivated, the reactivated certificate expires on the last day of the certificateholder’s birth month and shall be valid for at least 12 months but no more than 24 months. However, if the reactivating certificateholder already holds a regular, active certificate in a different category under this part, the reactivated certificate shall be combined with and expire on the same date as the existing certificate.
History.—ss. 11, 19, ch. 84-269; s. 4, ch. 91-429; s. 288, ch. 97-103; s. 44, ch. 2004-350; s. 9, ch. 2006-139.
468.3101 Disciplinary grounds and actions.—
(1) The department may make or require to be made any investigations, inspections, evaluations, and tests, and require the submission of any documents and statements, which it considers necessary to determine whether a violation of this part has occurred. The following acts shall be grounds for disciplinary action as set forth in this section:
(a) Procuring, attempting to procure, or renewing a certificate by bribery, by fraudulent misrepresentation, or through an error of the department.
(b) Having a voluntary or mandatory certificate to practice radiologic technology or to perform the duties of a radiologist assistant revoked, suspended, or otherwise acted against, including being denied certification, by a national organization; by a specialty board recognized by the department; or by a certification authority of another state, territory, or country.
(c) Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime that directly relates to the practice of radiologic technology or to the performance of the duties of a radiologist assistant, or to the ability to practice radiologic technology or the ability to perform the duties of a radiologist assistant. Pleading nolo contendere shall be considered a conviction for the purpose of this provision.
(d) Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime against a person. Pleading nolo contendere shall be considered a conviction for the purposes of this provision.
(e) Making or filing a false report or record that the certificateholder knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing such filing or inducing another to do so. Such reports or records include only those reports or records which are signed in the capacity of the certificateholder.
(f) Engaging in unprofessional conduct, which includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice of radiologic technology or the standards of practice for radiologist assistants as established by the department, in which case actual injury need not be established.
(g) Being unable to practice radiologic technology or to perform the duties of a radiologist assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or other materials or as a result of any mental or physical condition. A certificateholder affected under this paragraph shall, at reasonable intervals, be afforded an opportunity to demonstrate that he or she can resume the competent practice of his or her certified profession with reasonable skill and safety.
(h) Failing to report to the department any person who the certificateholder knows is in violation of this part or of the rules of the department.
(i) Violating any provision of this part, any rule of the department, or any lawful order of the department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.
(j) Employing, for the purpose of applying ionizing radiation or otherwise practicing radiologic technology or performing the duties of a radiologist assistant on a human being, any individual who is not certified under the provisions of this part.
(k) Testing positive for any drug, as defined in s. 112.0455, on any confirmed preemployment or employer-required drug screening when the certificateholder does not have a lawful prescription and legitimate medical reason for using such drug.
(l) Failing to report to the department in writing within 30 days after the certificateholder has had a voluntary or mandatory certificate to practice radiologic technology or to perform the duties of a radiologist assistant revoked, suspended, or otherwise acted against, including being denied certification, by a national organization, by a specialty board recognized by the department, or by a certification authority of another state, territory, or country.
1(m) Having been found guilty of, regardless of adjudication, or pleading guilty or nolo contendere to, any offense prohibited under s. 435.04 or similar statute of another jurisdiction.
(n) Failing to comply with the recommendations of the department’s impaired practitioner program for treatment, evaluation, or monitoring. A letter from the director of the impaired practitioner program that the certificateholder is not in compliance shall be considered conclusive proof under this part.
(2) If the department finds any person or firm guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to approve an application for certification.
(b) Revocation or suspension of a certificate.
(c) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the certificateholder on probation for such period of time and subject to such conditions as the department may specify, including requiring the certificateholder to submit to treatment, to undertake further relevant education or training, to take an examination, or to work under the supervision of a licensed practitioner.
(3) The department shall not reinstate a person’s certificate, or cause a certificate to be issued to a person it has deemed unqualified, until such time as the department is satisfied that such person has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of his or her certified profession.
(4) The department shall, by rule, establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of suspension or probation, or conditions of probation or reissuance of a certificate.
(5) A final disciplinary action taken against a certificateholder in another jurisdiction, whether voluntary or mandatory, shall be considered conclusive proof of grounds for a disciplinary proceeding under this part.
(6) The department may revoke approval of a continuing education provider and its approved courses if the provider’s certification has been revoked, suspended, or otherwise acted against by a national organization; by a specialty board recognized by the department; or by a certification authority of another state, territory, or country. The department may establish by rule additional guidelines and criteria for the discipline of continuing education providers, including, but not limited to, revoking approval of a continuing education provider or a continuing education course and refusing to approve a continuing education provider or continuing education course.
History.—ss. 15, 19, ch. 84-269; s. 9, ch. 88-310; s. 4, ch. 91-429; s. 289, ch. 97-103; s. 74, ch. 97-237; s. 45, ch. 2004-350; s. 10, ch. 2006-139; s. 52, ch. 2010-114.
1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”
468.311 Violations; penalties.—Each of the following acts constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083:
(1) Practicing radiologic technology or performing the duties of a radiologist assistant without holding an active certificate to do so.
(2) Using or attempting to use a certificate which has been suspended or revoked.
(3) The willful practice of radiologic technology or the willful performance of the duties of a radiologist assistant by a student without a direct supervisor being present.
(4) Knowingly allowing a student to practice radiologic technology or perform the duties of a radiologist assistant without a direct supervisor being present.
(5) Obtaining or attempting to obtain a certificate under this part through bribery or fraudulent misrepresentation.
(6) Using any name or title specified in s. 468.302(2) or any other name or title which implies that a person is certified to practice radiologic technology or to perform the duties of a radiologist assistant, unless such person is duly certified as provided in this part.
(7) Knowingly concealing information relating to the enforcement of this part or rules adopted pursuant to this part.
(8) Employing, for the purpose of applying ionizing radiation to, or otherwise practicing radiologic technology or any of the duties of a radiologist assistant on, any human being, any individual who is not certified under the provisions of this part.
History.—s. 12, ch. 78-383; s. 2, ch. 81-318; ss. 12, 18, 19, ch. 84-269; s. 98, ch. 91-224; s. 4, ch. 91-429; s. 11, ch. 2006-139.
468.3115 Injunctive relief.—The practice of radiologic technology or the performance of the duties of a radiologist assistant in violation of this part, or the performance of any act prohibited in this part, is declared a nuisance inimical to the public health, safety, and welfare of this state. In addition to other remedies provided in this part, the department, or any state attorney in the name of the people of this state, may bring an action for an injunction to restrain such violation until compliance with the provisions of this part and the rules adopted pursuant to this part has been demonstrated to the satisfaction of the department.
History.—ss. 13, 19, ch. 84-269; s. 4, ch. 91-429; s. 12, ch. 2006-139.
468.312 Fees; disposition.—All moneys derived from fees imposed pursuant to this part shall be placed in the Radiation Protection Trust Fund to be used by the department for the sole purpose of carrying out the provisions of this part.
History.—s. 13, ch. 78-383; s. 2, ch. 81-318; ss. 14, 18, 19, ch. 84-269; s. 4, ch. 91-429.
468.314 Advisory Council on Radiation Protection; appointment; terms; powers; duties.—
(1) The Advisory Council on Radiation Protection is created within the Department of Health and shall consist of 16 persons to be appointed by the State Surgeon General for 3-year terms.
(2) The council shall be comprised of:
(a) A certified radiologic technologist-radiographer.
(b) A certified radiologic technologist-nuclear medicine.
(c) A certified radiologic technologist-therapy.
(d) A basic X-ray machine operator or a licensed practitioner who employs such an operator.
(e) A board-certified radiologist.
(f) A board-certified nuclear medicine physician.
(g) A certified health physicist.
(h) A certified radiologist assistant.
(i) A representative from the administration of a hospital affiliated with a radiologic technology educational program.
(j) An expert in environmental radiation matters.
(k) A chiropractic radiologist.
(l) A board-certified podiatric physician.
(m) A board-certified radiological physicist.
(n) A board-certified therapeutic radiologist or board-certified radiation oncologist.
(o) Two persons, neither of whom has ever been certified pursuant to this part or been a member of any closely related profession.
(3) The council shall meet at least twice a year, but no more than four times per year unless authorized by the State Surgeon General.
(4) Members of the council shall not receive compensation for their services; however, they are entitled to reimbursement for necessary travel expenses, pursuant to s. 112.061, from the funds derived from fees collected under the provisions of this part.
(5)(a) The council may recommend to the department examination procedures for applicants and minimum requirements for qualification of applicants.
(b) The council shall:
1. Recommend to the department a code of ethics for the certificateholder’s practice of his or her certified profession.
2. Make recommendations for the improvement of continuing education courses.
3. Make recommendations to the department on matters relating to the practice of radiologic technology, the performance of the duties of a radiologist assistant, and radiation protection.
4. Study the utilization of medical imaging and nonionizing radiation, such as nuclear magnetic resonance or similarly related technology, and make recommendations to the department on the personnel appropriate to conduct such procedures and the minimum qualifications for such personnel.
History.—ss. 16, 17, 19, ch. 84-269; ss. 4, 5, ch. 91-429; s. 25, ch. 95-146; s. 290, ch. 97-103; s. 75, ch. 97-237; ss. 215, 283, ch. 98-166; s. 66, ch. 2000-158; s. 13, ch. 2006-139; s. 92, ch. 2008-6.
RESPIRATORY THERAPY
468.35 Short title.
468.351 Purpose and intent; application.
468.352 Definitions.
468.353 Board of Respiratory Care; powers and duties.
468.354 Board of Respiratory Care; organization; function.
468.355 Licensure requirements.
468.358 Licensure by endorsement.
468.359 Assumption of title and use of abbreviations.
468.36 Current address.
468.361 Renewal of licensure; continuing education.
468.363 Reactivation of licensure; continuing education.
468.364 Fees; establishment; disposition.
468.365 Disciplinary grounds and actions.
468.366 Penalties for violations.
468.367 Injunctive relief.
468.368 Exemptions.
468.369 Payment or reimbursement by hospitals of costs of compliance with part.
468.35 Short title.—This part shall be known and may be cited as the “Respiratory Care Act.”
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429.
468.351 Purpose and intent; application.—
(1)(a) The purpose in enacting this part is to provide for the licensure of persons who deliver respiratory care services and who meet certain requirements. The delivery of respiratory care services by persons licensed pursuant to this part shall not be construed to permit the practice of medicine.
(b) It is the finding of the Legislature that the delivery of respiratory care services by unskilled and incompetent persons presents a danger to the public health and safety. Because it is difficult for the public to make informed choices related to respiratory care services and since the consequences of wrong choices can seriously endanger public health and safety, it is the intent of the Legislature to prohibit the delivery of respiratory care services by persons who are determined to possess less than minimum competencies or who otherwise present a danger to the public.
(2) It is the intent of the Legislature that the department regulate blood gas laboratories and that the supervision of health care practitioners performing blood gas analysis and specimen collection for the purpose of such analysis be specified in rules pursuant to the applicable practice act. Further, it is the intent of the Legislature that personnel licensed pursuant to this part shall be exempt from the licensure provisions of chapter 483.
History.—ss. 1, 3, ch. 84-252; s. 1, ch. 86-60; s. 1, ch. 87-553; s. 4, ch. 91-429; s. 129, ch. 97-264.
468.352 Definitions.—As used in this part, the term:
(1) “Board” means the Board of Respiratory Care.
(2) “Certified respiratory therapist” means any person licensed pursuant to this part who is certified by the National Board for Respiratory Care or its successor; who is employed to deliver respiratory care services, under the order of a physician licensed pursuant to chapter 458 or chapter 459, in accordance with protocols established by a hospital or other health care provider or the board; and who functions in situations of unsupervised patient contact requiring individual judgment.
(3) “Critical care” means care given to a patient in any setting involving a life-threatening emergency.
(4) “Department” means the Department of Health.
(5) “Direct supervision” means practicing under the direction of a licensed, registered, or certified respiratory therapist who is physically on the premises and readily available, as defined by the board.
(6) “Physician supervision” means supervision and control by a physician licensed under chapter 458 or chapter 459 who assumes the legal liability for the services rendered by the personnel employed in his or her office. Except in the case of an emergency, physician supervision requires the easy availability of the physician within the office or the physical presence of the physician for consultation and direction of the actions of the persons who deliver respiratory care services.
(7) “Practice of respiratory care” or “respiratory therapy” means the allied health specialty associated with the cardiopulmonary system that is practiced under the orders of a physician licensed under chapter 458 or chapter 459 and in accordance with protocols, policies, and procedures established by a hospital or other health care provider or the board, including the assessment, diagnostic evaluation, treatment, management, control, rehabilitation, education, and care of patients in all care settings.
(8) “Registered respiratory therapist” means any person licensed under this part who is registered by the National Board for Respiratory Care or its successor, and who is employed to deliver respiratory care services under the order of a physician licensed under chapter 458 or chapter 459, in accordance with protocols established by a hospital or other health care provider or the board, and who functions in situations of unsupervised patient contact requiring individual judgment.
(9) “Respiratory care practitioner” means any person licensed under this part who is employed to deliver respiratory care services, under direct supervision, pursuant to the order of a physician licensed under chapter 458 or chapter 459.
(10) “Respiratory care services” includes:
(a) Evaluation and disease management.
(b) Diagnostic and therapeutic use of respiratory equipment, devices, or medical gas.
(c) Administration of drugs, as duly ordered or prescribed by a physician licensed under chapter 458 or chapter 459 and in accordance with protocols, policies, and procedures established by a hospital or other health care provider or the board.
(d) Initiation, management, and maintenance of equipment to assist and support ventilation and respiration.
(e) Diagnostic procedures, research, and therapeutic treatment and procedures, including measurement of ventilatory volumes, pressures, and flows; specimen collection and analysis of blood for gas transport and acid/base determinations; pulmonary-function testing; and other related physiological monitoring of cardiopulmonary systems.
(f) Cardiopulmonary rehabilitation.
(g) Cardiopulmonary resuscitation, advanced cardiac life support, neonatal resuscitation, and pediatric advanced life support, or equivalent functions.
(h) Insertion and maintenance of artificial airways and intravascular catheters.
(i) Education of patients, families, the public, or other health care providers, including disease process and management programs and smoking prevention and cessation programs.
(j) Initiation and management of hyperbaric oxygen.
History.—ss. 1, 3, ch. 84-252; s. 2, ch. 86-60; s. 2, ch. 87-553; s. 4, ch. 91-429; s. 135, ch. 94-218; s. 291, ch. 97-103; s. 130, ch. 97-264; s. 176, ch. 99-397; s. 109, ch. 2001-277; s. 1, ch. 2004-299.
468.353 Board of Respiratory Care; powers and duties.—
(1) The board is authorized to establish minimum standards for the delivery of respiratory care services and to adopt those rules necessary to administer this part.
(2) The board may administer oaths, summon witnesses, and take testimony in all matters relating to its duties under this part.
(3) The board may adopt rules to administer this part, including rules governing the investigation, inspection, and review of schools and colleges that offer courses in respiratory care in order to ascertain their compliance with standards established by the board or appropriate accrediting agencies.
History.—ss. 1, 2, 3, ch. 84-252; ss. 4, 5, ch. 91-429; s. 25, ch. 95-146; s. 177, ch. 99-397.
468.354 Board of Respiratory Care; organization; function.—
(1) There is created within the department, the Board of Respiratory Care, composed of seven members appointed by the Governor and confirmed by the Senate.
(2) The board shall include:
(a) A registered respiratory therapist.
(b) A certified respiratory therapist.
(c) A respiratory care professional from each of the following areas:
1. Respiratory care education.
2. Respiratory care management and supervision.
3. Homecare/subacute.
(d) Two consumer members, who are residents of this state and have never been licensed as health care practitioners.
Each respiratory care professional on the board must have been actively engaged in the delivery of respiratory care services in this state for at least 4 consecutive years prior to appointment.
(3)(a) Except as provided in paragraph (b), the term of office for each board member shall be 4 years. No member shall serve for more than two consecutive terms. Any time there is a vacancy to be filled, all professional organizations dealing with respiratory therapy incorporated within the state as not for profit which register their interest shall recommend at least twice as many persons to fill the vacancy as the number of vacancies to be filled, and the Governor may appoint from the submitted list, in his or her discretion, any of those persons so recommended. The Governor shall, insofar as possible, appoint persons from different geographical areas.
(b) To achieve staggering of terms, within 120 days after July 1, 1999, the Governor shall appoint the board members as follows:
1. Two members shall be appointed for terms of 2 years.
2. Two members shall be appointed for terms of 3 years.
3. Three members shall be appointed for terms of 4 years.
(c) All provisions of chapter 456, relating to boards apply to this part.
(4)(a) The board shall annually elect from among its members a chair and vice chair.
(b) The board shall meet at least twice a year and shall hold additional meetings as are deemed necessary. Four members of the council constitute a quorum.
(c) Unless otherwise provided by law, a board member shall be compensated $50 for each day he or she attends an official board meeting and for each day he or she participates in any other board business. A board member shall also be entitled to reimbursement for expenses pursuant to s. 112.061. Travel out of the state shall require the prior approval of the State Surgeon General.
(5) The board may recommend to the department a code of ethics for those persons licensed pursuant to this part.
History.—ss. 1, 2, 3, ch. 84-252; s. 3, ch. 86-60; s. 3, ch. 87-553; ss. 4, 5, ch. 91-429; s. 25, ch. 95-146; s. 292, ch. 97-103; s. 131, ch. 97-264; s. 57, ch. 99-5; s. 178, ch. 99-397; s. 11, ch. 2000-159; s. 142, ch. 2000-160; s. 80, ch. 2001-62; s. 93, ch. 2008-6.
468.355 Licensure requirements.—To be eligible for licensure by the board, an applicant must be an active “certified respiratory therapist” or an active “registered respiratory therapist” as designated by the National Board for Respiratory Care, or its successor.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 86-60; s. 4, ch. 91-429; s. 132, ch. 97-264; s. 179, ch. 99-397; s. 110, ch. 2001-277; s. 2, ch. 2004-299.
468.358 Licensure by endorsement.—
(1) Licensure as a certified respiratory therapist shall be granted by endorsement to an individual who holds the “Certified Respiratory Therapist” credential issued by the National Board for Respiratory Care or an equivalent credential acceptable to the board. Licensure by this mechanism requires verification by oath and submission of evidence satisfactory to the board that such credential is held.
(2) Licensure as a registered respiratory therapist shall be granted by endorsement to an individual who holds the “Registered Respiratory Therapist” credential issued by the National Board for Respiratory Care or an equivalent credential acceptable to the board. Licensure by this mechanism requires verification by oath and submission of evidence satisfactory to the board that such credential is held.
(3) An individual who has been granted licensure, certification, registration, or other authority, by whatever name known, to deliver respiratory care services in another state or country may petition the board for consideration for licensure in this state and, upon verification by oath and submission of evidence of licensure, certification, registration, or other authority acceptable to the board, may be granted licensure by endorsement.
(4) Licensure shall not be granted by endorsement as provided in this section without the submission of a proper application and the payment of the requisite fees therefor.
History.—ss. 1, 3, ch. 84-252; s. 6, ch. 86-60; s. 4, ch. 91-429; s. 135, ch. 97-264; s. 112, ch. 2001-277.
468.359 Assumption of title and use of abbreviations.—
(1) Only persons who are licensed pursuant to this part as respiratory care practitioners have the right to use the title “Respiratory Care Practitioner” and the abbreviation “RCP.”
(2) Only persons who are licensed pursuant to this part as registered respiratory therapists have the right to use the title “Registered Respiratory Therapist” and the abbreviation “RRT” when delivering services pursuant to this part.
(3) Only persons who are licensed pursuant to this part as certified respiratory therapists have the right to use the title “Certified Respiratory Therapist” and the abbreviation “CRT” when delivering services pursuant to this part.
(4) No person in this state shall deliver respiratory care services; advertise as, or assume the title of, respiratory care practitioner, certified respiratory therapist, or registered respiratory therapist; or use the abbreviation “RCP,” “CRT,” or “RRT” that would lead the public to believe that such person is licensed pursuant to this part unless such person is so licensed; or take any other action that would lead the public to believe that such person is licensed pursuant to this part unless such person is so licensed.
History.—ss. 1, 3, ch. 84-252; s. 7, ch. 86-60; s. 4, ch. 91-429; s. 136, ch. 97-264; s. 113, ch. 2001-277.
468.36 Current address.—Every licensee shall file with the department the licensee’s current residence address as defined by board rule.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429; s. 293, ch. 97-103; s. 137, ch. 97-264.
468.361 Renewal of licensure; continuing education.—
(1) The department shall provide by rule a method for the biennial renewal of licensure at fees set by the board.
(2) The board shall prescribe by rule continuing education requirements, not to exceed 24 hours biennially, as a condition for renewal of licensure. The program criteria with respect thereto shall be approved by the board.
(3) The board shall approve continuing education courses which may be accepted in meeting the requirements of this part. Providers of such courses shall also be approved by the board.
(4) The board may make exceptions from the requirements of this section in emergency or hardship cases.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429; s. 197, ch. 94-119; s. 138, ch. 97-264.
468.363 Reactivation of licensure; continuing education.—The board shall prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license may not exceed 12 classroom hours for each year the license was inactive.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429; s. 198, ch. 94-119; s. 139, ch. 97-264.
468.364 Fees; establishment; disposition.—
(1) The board shall establish by rule fees for the following purposes:
(a) Application, a fee not to exceed $50.
(b) Initial licensure, a fee not to exceed $200.
(c) Renewal of licensure, a fee not to exceed $200 biennially.
(d) Renewal of inactive licensure, a fee not to exceed $50.
(e) Reactivation, a fee not to exceed $50.
(2) The fees established pursuant to subsection (1) shall be based upon the actual costs incurred by the department in carrying out its responsibilities under this part.
(3) All moneys collected by the department under this part shall be deposited as required by s. 456.025.
History.—ss. 1, 3, ch. 84-252; s. 5, ch. 87-553; s. 18, ch. 88-205; s. 4, ch. 91-429; s. 140, ch. 97-264; s. 84, ch. 98-166; s. 181, ch. 99-397; s. 143, ch. 2000-160.
468.365 Disciplinary grounds and actions.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Procuring, attempting to procure, or renewing a license as provided by this part by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
(b) Having licensure, certification, registration, or other authority, by whatever name known, to deliver respiratory care services revoked, suspended, or otherwise acted against, including the denial of licensure, certification, registration, or other authority to deliver respiratory care services by the licensing authority of another state, territory, or country.
(c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to respiratory care services or to the ability to deliver such services.
(d) Willfully making or filing a false report or record, willfully failing to file a report or record required by state or federal law, or willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records include only those reports or records which require the signature of a respiratory care practitioner or respiratory therapist licensed pursuant to this part.
(e) Circulating false, misleading, or deceptive advertising.
(f) Unprofessional conduct, which includes, but is not limited to, any departure from, or failure to conform to, acceptable standards related to the delivery of respiratory care services, as set forth by the board in rules adopted pursuant to this part.
(g) Engaging or attempting to engage in the possession, sale, or distribution of controlled substances, as set forth by law, for any purpose other than a legitimate purpose.
(h) Willfully failing to report any violation of this part.
(i) Violating a lawful order of the board or department previously entered in a disciplinary hearing.
(j) Engaging in the delivery of respiratory care services with a revoked, suspended, or inactive license.
(k) Permitting, aiding, assisting, procuring, or advising any person who is not licensed pursuant to this part, contrary to this part or to any rule of the department or the board.
(l) Failing to perform any statutory or legal obligation placed upon a respiratory care practitioner or respiratory therapist licensed pursuant to this part.
(m) Accepting and performing professional responsibilities which the licensee knows, or has reason to know, she or he is not competent to perform.
(n) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows, or has reason to know, that such person is not qualified by training, experience, or licensure to perform them.
(o) Gross or repeated malpractice or the failure to deliver respiratory care services with that level of care, skill, and treatment which is recognized by a reasonably prudent respiratory care practitioner or respiratory therapist with similar professional training as being acceptable under similar conditions and circumstances.
(p) Paying or receiving any commission, bonus, kickback, or rebate to or from, or engaging in any split-fee arrangement in any form whatsoever with, a person, organization, or agency, either directly or indirectly, for goods or services rendered to patients referred by or to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent the licensee from receiving a fee for professional consultation services.
(q) Exercising influence within a respiratory care relationship for the purpose of engaging a patient in sexual activity. A patient is presumed to be incapable of giving free, full, and informed consent to sexual activity with the patient’s respiratory care practitioner or respiratory therapist.
(r) Making deceptive, untrue, or fraudulent representations in the delivery of respiratory care services or employing a trick or scheme in the delivery of respiratory care services if such a scheme or trick fails to conform to the generally prevailing standards of other licensees within the community.
(s) Soliciting patients, either personally or through an agent, through the use of fraud, deception, or otherwise misleading statements or through the exercise of intimidation or undue influence.
(t) Failing to keep written respiratory care records justifying the reason for the action taken by the licensee.
(u) Exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party, which includes, but is not limited to, the promoting or selling of services, goods, appliances, or drugs.
(v) Performing professional services which have not been duly ordered by a physician licensed pursuant to chapter 458 or chapter 459 and which are not in accordance with protocols established by the hospital, other health care provider, or the board, except as provided in ss. 743.064, 766.103, and 768.13.
(w) Being unable to deliver respiratory care services with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material as a result of any mental or physical condition. In enforcing this paragraph, the department shall, upon probable cause, have authority to compel a respiratory care practitioner or respiratory therapist to submit to a mental or physical examination by physicians designated by the department. The cost of examination shall be borne by the licensee being examined. The failure of a respiratory care practitioner or respiratory therapist to submit to such an examination when so directed constitutes an admission of the allegations against her or him, upon which a default and a final order may be entered without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond her or his control. A respiratory care practitioner or respiratory therapist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent delivery of respiratory care services with reasonable skill and safety to her or his patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a respiratory care practitioner or respiratory therapist in any other proceeding.
(x) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The board shall not reinstate licensure, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that such person has complied with all the terms and conditions set forth in the final order and that the respiratory care practitioner or respiratory therapist is capable of safely engaging in the delivery of respiratory care services.
(4) The board may, by rule, establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision on probation, or conditions upon probation or reissuance of a license.
History.—ss. 1, 3, ch. 84-252; s. 8, ch. 86-60; s. 4, ch. 91-429; s. 38, ch. 95-144; s. 295, ch. 97-103; s. 141, ch. 97-264; s. 85, ch. 98-166; s. 182, ch. 99-397; s. 144, ch. 2000-160; s. 40, ch. 2001-277; s. 16, ch. 2005-240.
468.366 Penalties for violations.—
(1) It is a violation of law for any person, including any firm, association, or corporation, to:
(a) Sell or fraudulently obtain, attempt to obtain, or furnish to any person a diploma, license, or record, or aid or abet in the sale, procurement, or attempted procurement thereof.
(b) Deliver respiratory care services, as defined by this part or by rule of the board, under cover of any diploma, license, or record that was illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation.
(c) Deliver respiratory care services, as defined by this part or by rule of the board, unless such person is duly licensed to do so under the provisions of this part or unless such person is exempted pursuant to s. 468.368.
(d) Use, in connection with his or her name, any designation tending to imply that he or she is a respiratory care practitioner or a respiratory therapist, duly licensed under the provisions of this part, unless he or she is so licensed.
(e) Advertise an educational program as meeting the requirements of this part, or conduct an educational program for the preparation of respiratory care practitioners or respiratory therapists, unless such program has been approved by the board.
(f) Knowingly employ unlicensed persons in the delivery of respiratory care services, unless exempted by this part.
(g) Knowingly conceal information relative to any violation of this part.
(2) Any violation of this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—ss. 1, 3, ch. 84-252; s. 9, ch. 86-60; s. 4, ch. 91-429; s. 296, ch. 97-103; s. 142, ch. 97-264; s. 58, ch. 2000-318.
468.367 Injunctive relief.—The department may, in its discretion, in lieu of or in addition to any remedy set forth in this part, file a proceeding in the name of the state seeking issuance of a restraining order, an injunction, or a writ of mandamus against any person who is or has been violating any of the provisions of this part or the lawful rules, orders, or subpoenas of the department or board.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429.
468.368 Exemptions.—This part may not be construed to prevent or restrict the practice, service, or activities of:
(1) Any person licensed in this state by any other law from engaging in the profession or occupation for which he or she is licensed.
(2) Any legally qualified person in the state or another state or territory who is employed by the United States Government or any agency thereof while such person is discharging his or her official duties.
(3) A friend or family member who is providing respiratory care services to an ill person and who does not represent himself or herself to be a respiratory care practitioner or respiratory therapist.
(4) An individual providing respiratory care services in an emergency who does not represent himself or herself as a respiratory care practitioner or respiratory therapist.
(5) Any individual employed to deliver, assemble, set up, or test equipment for use in a home, upon the order of a physician licensed pursuant to chapter 458 or chapter 459. This subsection does not, however, authorize the practice of respiratory care without a license.
(6) Any individual certified or registered as a pulmonary function technologist who is credentialed by the National Board for Respiratory Care for performing cardiopulmonary diagnostic studies.
(7) Any student who is enrolled in an accredited respiratory care program approved by the board, while performing respiratory care as an integral part of a required course.
(8) The delivery of incidental respiratory care to noninstitutionalized persons by surrogate family members who do not represent themselves as registered or certified respiratory care therapists.
(9) Any individual credentialed by the Underseas Hyperbaric Society in hyperbaric medicine or its equivalent as determined by the board, while performing related duties. This subsection does not, however, authorize the practice of respiratory care without a license.
History.—ss. 1, 3, ch. 84-252; s. 10, ch. 86-60; s. 6, ch. 87-553; s. 4, ch. 91-429; s. 297, ch. 97-103; s. 143, ch. 97-264; s. 3, ch. 2004-299.
468.369 Payment or reimbursement by hospitals of costs of compliance with part.—A hospital shall not be required to pay for or reimburse any person for the costs of compliance with any of the requirements of this part, including costs of continuing education.
History.—ss. 1, 3, ch. 84-252; s. 4, ch. 91-429.
AUCTIONEERS
468.381 Purpose.
468.382 Definitions.
468.383 Exemptions.
468.384 Florida Board of Auctioneers.
468.385 Licenses required; qualifications; examination.
468.3851 Renewal of license.
468.3852 Reactivation of license; fee.
468.3855 Apprenticeship training requirements.
468.386 Fees; local licensing requirements.
468.387 Licensing of nonresidents; endorsement; reciprocity.
468.388 Conduct of an auction.
468.389 Prohibited acts; penalties.
468.391 Penalty.
468.392 Auctioneer Recovery Fund.
468.393 Surcharge to license fee; assessments.
468.394 Interest credited; payment of expenses.
468.395 Conditions of recovery; eligibility.
468.396 Claims against a single licensee in excess of dollar limitation; joinder of claims, payment; insufficient funds.
468.397 Payment of claim.
468.398 Suspension of judgment debtor’s license; repayment by licensee; interest.
468.399 Expenditure of excess funds.
468.381 Purpose.—The Legislature finds that unqualified auctioneers and apprentices and unreliable auction businesses present a significant threat to the public. It is the intent of the Legislature to protect the public by creating a board to regulate auctioneers, apprentices, and auction businesses and by requiring a license to operate.
History.—ss. 1, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429.
468.382 Definitions.—As used in this act, the term:
(1) “Auction business” means a sole proprietorship, partnership, or corporation which in the regular course of business arranges, manages, sponsors, advertises, promotes, or carries out auctions, employs auctioneers to conduct auctions in its facilities, or uses or allows the use of its facilities for auctions.
(2) “Auctioneer” means any person licensed pursuant to this part who holds a valid Florida auctioneer license.
(3) “Apprentice” means any person who is being trained as an auctioneer by a licensed auctioneer.
(4) “Board” means the Florida Board of Auctioneers.
(5) “Department” means the Department of Business and Professional Regulation.
(6) “Livestock” means any animal included in the definition of “livestock” by s. 585.01 or s. 588.13.
(7) “Agricultural product” means the natural products from a farm, nursery, grove, orchard, vineyard, garden, or apiary, including livestock, tobacco, and vegetables and includes those agricultural products as defined in chapter 618.
(8) “Absolute auction” means an auction that requires no minimum opening bid that limits the sale other than to the highest bidder.
History.—ss. 2, 14, ch. 86-119; s. 66, ch. 90-321; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 1, ch. 91-207; s. 4, ch. 91-429; s. 5, ch. 92-206; s. 3, ch. 92-291; s. 136, ch. 94-218; s. 10, ch. 2000-356.
468.383 Exemptions.—This act does not apply to the following:
(1) Auctions conducted by the owner, or the owner’s attorney, of any part of the property being offered, unless the owner acquired the goods to resell.
(2) Auctions conducted under a judicial or an administrative order, or sales required by law to be at auction.
(3) Auctions conducted by a charitable, civic, or religious organization, or for such organization by a person who receives no compensation.
(4) Auctions of livestock if conducted by a person who specializes in the sale of livestock and the auction is conducted under the supervision of a livestock trade association, a governmental agency, or an owner of the livestock. The act does not apply to the auction of agricultural products as defined in s. 618.01(1) or the equipment or tools used to produce or market such products, if the auction is conducted at a farm or ranch where the products are produced or where the equipment and tools are used or at an auction facility that sells primarily agricultural products.
(5) Auctions conducted by a trustee pursuant to a power of sale contained in a deed of trust on real property.
(6) Auctions of collateral, sales conducted to enforce carriers’ or warehousemen’s liens, sales of the contents of self-contained storage units, bulk sales, sales of goods by a presenting bank following dishonor of a documentary draft, resales of rightfully rejected goods, or resales conducted pursuant to law, if the auction is conducted by the owner or agent of the lien on or interest in such goods.
(7) Auctions conducted as a part of the sale of real property by a real estate broker, as defined in s. 475.01(1)(a).
(8) Auctions of motor vehicles among motor vehicle dealers if conducted by an auctioneer.
(9) Auctions conducted by a person enrolled in a class at an approved school of auctioneering, for the purpose of training and receiving instruction, under the direct supervision of an auctioneer who is also an instructor in the school and who further assumes full and complete responsibility for the activities of the student.
History.—ss. 3, 14, ch. 86-119; s. 1, ch. 87-210; s. 67, ch. 90-321; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 2, ch. 91-207; s. 4, ch. 91-429; s. 199, ch. 94-119; s. 5, ch. 97-42; s. 298, ch. 97-103.
468.384 Florida Board of Auctioneers.—
(1) There is created in the department the Florida Board of Auctioneers. The board shall be composed of five members appointed by the Governor and confirmed by the Senate, two of whom shall have been actively and principally engaged as auctioneers for a period of not less than 5 years preceding their appointment, one of whom shall be a principal of an auction company, and two of whom shall be laypersons. Members shall serve for terms of 4 years.
(2) The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act conferring duties upon it.
(3) The board shall receive and act upon applications for auctioneer, apprentice, and auction business licenses and shall have the power to issue, suspend, and revoke such licenses and to take such other action as is necessary to carry out the provisions of this act.
History.—ss. 4, 11, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429; s. 47, ch. 92-149; s. 137, ch. 94-218; s. 134, ch. 98-200.
468.385 Licenses required; qualifications; examination.—
(1) The department shall license any applicant who the board certifies is qualified to practice auctioneering.
(2) No person shall auction or offer to auction any property in this state unless he or she is licensed by the department or is exempt from licensure under this act.
(3) No person shall be licensed as an auctioneer or apprentice if he or she:
(a) Is under 18 years of age; or
(b) Has committed any act or offense in this state or any other jurisdiction which would constitute a basis for disciplinary action under s. 468.389.
(4) Any person seeking a license as an auctioneer must pass a written examination approved by the board which tests his or her general knowledge of the laws of this state relating to provisions of the Uniform Commercial Code that are relevant to auctions, the laws of agency, and the provisions of this act.
(5) Each apprentice application and license shall name a licensed auctioneer who has agreed to serve as the supervisor of the apprentice. No apprentice may conduct, or contract to conduct, an auction without the express approval of his or her supervisor. The supervisor shall regularly review the apprentice’s records, which are required by the board to be maintained, to determine if such records are accurate and current.
(6) No person shall be licensed as an auctioneer unless he or she:
(a) Has held an apprentice license and has served as an apprentice for 1 year or more, or has completed a course of study, consisting of not less than 80 classroom hours of instruction, that meets standards adopted by the board;
(b) Has passed the required examination; and
(c) Is approved by the board.
(7)(a) Any auction that is subject to the provisions of this part must be conducted by an auctioneer who has an active license or an apprentice who has an active apprentice auctioneer license and who has received prior written sponsor consent.
(b) No business shall auction or offer to auction any property in this state unless it is licensed as an auction business by the board or is exempt from licensure under this act. Each application for licensure shall include the names of the owner and the business, the business mailing address and location, and any other information which the board may require. The owner of an auction business shall report to the board within 30 days of any change in this required information.
(8) A license issued by the department to an auctioneer, apprentice, or auction business is not transferable.
History.—ss. 5, 14, ch. 86-119; s. 3, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 3, 16, ch. 91-207; s. 4, ch. 91-429; s. 17, ch. 94-119; s. 138, ch. 94-218; s. 11, ch. 97-94; s. 299, ch. 97-103; ss. 11, 15, ch. 2000-356.
468.3851 Renewal of license.—
(1) The department shall renew a license upon receipt of the renewal application and fee.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
History.—ss. 4, 9, ch. 87-210; ss. 62, 65, ch. 91-137; ss. 11, 12, ch. 91-156; s. 4, ch. 91-429; s. 200, ch. 94-119.
468.3852 Reactivation of license; fee.—The board shall prescribe by rule a fee not to exceed $250 for the reactivation of an inactive license. The fee shall be in addition to the current biennial renewal fee.
History.—ss. 5, 9, ch. 87-210; s. 41, ch. 89-162; ss. 62, 65, ch. 91-137; ss. 11, 12, ch. 91-156; s. 4, ch. 91-429; s. 201, ch. 94-119.
468.3855 Apprenticeship training requirements.—
(1) An auctioneer may not sponsor more than three apprentices at one time. Any auctioneer who serves as a sponsor must have held an active, valid license for 3 consecutive years preceding the date on which that auctioneer is named as sponsor of the apprentice.
(2) Any auctioneer who undertakes the sponsorship of an apprentice shall ensure that the apprentice receives training as required by board rule.
(3) An apprentice must actively participate in auction sales as required by board rule, and a record of each auction for which participation credit is claimed must be made as required by board rule.
(4) Apprentices are prohibited from conducting any auction without the prior express written consent of the sponsor. The apprentice’s sponsor must be present at the auction site at any time the apprentice is actively participating in the conduct of the auction. If the apprentice’s sponsor cannot attend a particular auction, the sponsor may appoint a qualified auctioneer who meets the requirements of board rule to attend the auction in his or her place. Prior written consent must be given by the apprentice’s sponsor for each substitution.
(5) Each apprentice and sponsor shall file reports as required by board rule.
(6) A sponsor may not authorize an apprentice to conduct an auction or act as principal auctioneer unless the sponsor has determined that the apprentice has received adequate training to do so.
(7) The sponsor shall be responsible for any acts or omissions of the apprentice which constitute a violation of law in relation to the conduct of an auction.
(8) All apprentice applications shall be valid for a period of 6 months after board approval. Any applicant who fails to complete the licensure process within that time shall be required to make application as a new applicant.
(9) Any licensed apprentice who wishes to change the sponsor under whom he or she is licensed must submit a new application and application fee. However, a new license fee shall not be required and credit shall be awarded for training received or any period of apprenticeship served under the previous sponsor.
(10) Credit for training received or any period of apprenticeship served shall not be allowed unless it occurred under the supervision of the sponsor under whose supervision the apprentice is licensed.
History.—s. 12, ch. 2000-356.
468.386 Fees; local licensing requirements.—
(1) The board by rule may establish application, examination, licensure, renewal, and other reasonable and necessary fees, based upon the department’s estimate of the costs to the board in administering this act.
(2) An auctioneer shall obtain a local occupational license, if required, in the jurisdiction in which his or her permanent business or branch office is located. However, no local government or local agency may charge any other fee for the practice of auctioneering or require any auctioneer’s license in addition to the license required by this part.
History.—ss. 6, 14, ch. 86-119; s. 6, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429; s. 300, ch. 97-103.
468.387 Licensing of nonresidents; endorsement; reciprocity.—The department shall issue a license by endorsement to practice auctioneering to an applicant who, upon applying to the department and remitting the required fee, set by the board, demonstrates to the board that he or she satisfies the requirements of s. 468.385(3) and holds a valid license to practice auctioneering in another state, provided that the requirements for licensure in that state are substantially equivalent to or more stringent than those existing in this state. The endorsement and reciprocity provisions of this section shall apply to auctioneers only and not to professions or occupations regulated by other statutes.
History.—ss. 7, 14, ch. 86-119; s. 7, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 4, 16, ch. 91-207; s. 4, ch. 91-429; s. 18, ch. 94-119; s. 11, ch. 97-94; s. 301, ch. 97-103.
468.388 Conduct of an auction.—
(1) Prior to conducting an auction in this state, an auctioneer or auction business shall execute a written agreement with the owner, or the agent of the owner, of any property to be offered for sale, stating:
(a) The name and address of the owner of the property;
(b) The name and address of the person employing the auctioneer or auction business, if different from the owner; and
(c) The terms or conditions upon which the auctioneer or auction business will receive the property for sale and remit the sales proceeds to the owner.
(2) The auctioneer or auction business shall give the owner one copy of the agreement and shall keep one copy for 2 years after the date of the auction.
(3) Each auctioneer or auction business shall maintain a record book of all sales. The record book shall be open to inspection by the board at reasonable times.
(4) Each auction must be conducted by an auctioneer who has an active license or by an apprentice who has an active apprentice auctioneer license and who has received prior written sponsor consent. Each auction must be conducted under the auspices of a licensed auction business. Any auctioneer or apprentice auctioneer conducting an auction, and any auction business under whose auspices such auction is held, shall be responsible for determining that any auctioneer, apprentice, or auction business with whom they are associated in conducting such auction has an active Florida auctioneer, apprentice, or auction business license.
(5) The principal auctioneer shall prominently display at the auction site the licenses of the principal auctioneer, the auction business, and any other licensed auctioneers or apprentices who are actively participating in the auction. If such a display is not practicable, then an oral announcement at the beginning of the auction or a prominent written announcement that these licenses are available for inspection at the auction site must be made.
(6) If a buyer premium or any surcharge is a condition to sale at any auction, the amount of the premium or surcharge must be announced at the beginning of the auction and a written notice of this information must be conspicuously displayed or distributed to the public at the auction site.
(7) At the beginning of an auction must be announced the terms of bidding and sale and whether the sale is with reserve, without reserve, or absolute or if a minimum bid is required. If the sale is absolute and has been announced or advertised as such, an article or lot may not be withdrawn from sale once a bid has been accepted. If no bid is received within a reasonable time, the item or lot may be withdrawn.
(8) If an auction has been advertised as absolute, no bid shall be accepted from the owner of the property or from someone acting on behalf of the owner unless the right to bid is specifically permitted by law.
(9) The auction business under which the auction is conducted is responsible for all other aspects of the auction as required by board rule. The auction business may delegate in whole, or in part, different aspects of the auction only to the extent that such delegation is permitted by law and that such delegation will not impede the principal auctioneer’s ability to ensure the proper conduct of his or her independent responsibility for the auction. The auction business under whose auspices the auction is conducted is responsible for ensuring compliance as required by board rule.
(10)(a) When settlement is not made immediately after an auction, all sale proceeds received for another person must be deposited in an escrow or trust account in an insured bank or savings and loan association located in this state within 2 working days after the auction. A maximum of $100 may be kept in the escrow account for administrative purposes.
(b) Each auction business shall maintain, for not less than 2 years, a separate ledger showing the funds held for another person deposited and disbursed by the auction business for each auction. The escrow or trust account must be reconciled monthly with the bank statement. A signed and dated record shall be maintained for a 2-year period and be available for inspection by the department or at the request of the board.
(c) Any interest which accrues to sale proceeds on deposit shall be the property of the seller for whom the funds were received unless the parties have agreed otherwise by written agreement executed prior to the auction.
(d) Unless otherwise provided by written agreement executed prior to the auction, funds received by a licensee from the seller or his or her agent for expenses, including advertising, must be expended for the purposes advanced or refunded to the seller at the time of final settlement. Any funds so received shall be maintained in an escrow or trust account in an insured bank or savings and loan association located in this state. However, this does not prohibit advanced payment of a flat fee.
(11)(a) All advertising by an auctioneer or auction business shall include the name and Florida license number of such auctioneer and auction business. The term “advertising” shall not include articles of clothing, directional signs, or other promotional novelty items.
(b) No licensed auctioneer, apprentice, or auction business may disseminate or cause to be disseminated any advertisement or advertising which is false, deceptive, misleading, or untruthful. Any advertisement or advertising shall be deemed to be false, deceptive, misleading, or untruthful if it:
1. Contains misrepresentations of facts.
2. Is misleading or deceptive because, in its content or in the context in which it is presented, it makes only a partial disclosure of relevant facts.
3. Creates false or unjustified expectations of the services to be performed.
4. Contains any representation or claim which the advertising licensee fails to perform.
5. Fails to include the name and license number of the principal auctioneer and the auction business.
6. Fails to include the name and license number of the sponsor if an apprentice is acting as the principal auctioneer.
7. Advertises an auction as absolute without specifying any and all items to be sold with reserve or with minimum bids.
8. Fails to include the percentage amount of any buyer’s premium or surcharge which is a condition to sale.
(c) The provisions of this subsection apply to media exposure of any nature, regardless of whether it is in the form of paid advertising.
(d) The auction business shall be responsible for the content of all advertising disseminated in preparation for an auction.
History.—ss. 8, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 5, ch. 91-207; s. 4, ch. 91-429; s. 302, ch. 97-103; s. 13, ch. 2000-356.
468.389 Prohibited acts; penalties.—
(1) The following acts shall be grounds for the disciplinary activities provided in subsections (2) and (3):
(a) A violation of any law relating to trade or commerce of this state or of the state in which an auction is conducted.
(b) Misrepresentation of property for sale at auction or making false promises concerning the use, value, or condition of such property by an auctioneer or auction business or by anyone acting as an agent of or with the consent of the auctioneer or auction business.
(c) Failure to account for or to pay or return, within a reasonable time not to exceed 30 days, money or property belonging to another which has come into the control of an auctioneer or auction business through an auction.
(d) False, deceptive, misleading, or untruthful advertising.
(e) Any conduct in connection with a sales transaction which demonstrates bad faith or dishonesty.
(f) Using or permitting the use of false bidders, cappers, or shills.
(g) Making any material false statement on a license application.
(h) Commingling money or property of another person with his or her own. Every auctioneer and auction business shall maintain a separate trust or escrow account in an insured bank or savings and loan association located in this state in which shall be deposited all proceeds received for another person through an auction sale.
(i) Refusal or neglect of any auctioneer or other receiver of public moneys to pay the moneys so received into the State Treasury at the times and under the regulations prescribed by law.
(j) Violating a statute or administrative rule regulating practice under this part or a lawful disciplinary order of the board or the department.
(k) Having a license to practice a comparable profession revoked, suspended, or otherwise acted against by another state, territory, or country.
(l) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice or the ability to practice the profession of auctioneering.
(2) When the board finds any person guilty of any of the prohibited acts set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify to the department an application for licensure.
(b) Revocation or suspension of a license.
(c) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the auctioneer on probation for a period of time and subject to conditions as the board may specify, including requiring the auctioneer to successfully complete the licensure examination.
(f) Requirement that the person in violation make restitution to each consumer affected by that violation. Proof of such restitution shall be a signed and notarized release executed by the consumer or the consumer’s estate.
(3)(a) Failure to pay a fine within a reasonable time, as prescribed by board rule, may be grounds for disciplinary action.
(b) The department may file for an injunction or bring any other appropriate civil action against anyone who violates this part.
History.—ss. 9, 14, ch. 86-119; s. 8, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 6, 16, ch. 91-207; s. 4, ch. 91-429; s. 19, ch. 94-119; s. 11, ch. 97-94; s. 303, ch. 97-103; s. 14, ch. 2000-356.
468.391 Penalty.—Any auctioneer, apprentice, or auction business or any owner or manager thereof, or, in the case of corporate ownership, any substantial stockholder of the corporation owning the auction business, who operates without an active license or violates any provision of the prohibited acts listed under s. 468.389 commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 12, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 7, ch. 91-207; s. 4, ch. 91-429; s. 15, ch. 2000-356.
468.392 Auctioneer Recovery Fund.—There is created the Auctioneer Recovery Fund as a separate account in the Professional Regulation Trust Fund. The fund shall be administered by the Florida Board of Auctioneers.
(1) The Chief Financial Officer shall invest the money not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested. Interest that accrues from these investments shall be deposited to the credit of the Auctioneer Recovery Fund and shall be available for the same purposes as other moneys deposited in the Auctioneer Recovery Fund.
(2) All payments and disbursements from the Auctioneer Recovery Fund shall be made by the Chief Financial Officer upon a voucher signed by the Secretary of Business and Professional Regulation or the secretary’s designee.
(3) If at any time the moneys in the Auctioneer Recovery Fund are insufficient to satisfy any valid claim or portion thereof, the board shall satisfy such unpaid claim or portion thereof as soon as a sufficient amount has been deposited in or transferred to the fund. When there is more than one unsatisfied claim outstanding, such claims shall be paid in the order in which the claims were made.
(4) Upon the payment of any amount from the Auctioneer Recovery Fund in settlement of a claim in satisfaction of a judgment against an auctioneer or auction business as described in s. 468.395, the license of such auctioneer or auction business shall be automatically suspended until the licensee has complied with s. 468.398. A discharge of bankruptcy shall not relieve a person from the penalties and disabilities provided in this section.
(5) Moneys in the fund at the end of a fiscal year shall be retained in the fund and shall accrue for the benefit of auctioneers and auction businesses. When the fund exceeds the amount as set forth in s. 468.393(2), all surcharges shall be suspended until such time as the fund is reduced below the amount as set forth in s. 468.393(3).
History.—ss. 8, 17, ch. 91-207; s. 4, ch. 91-429; s. 139, ch. 94-218; s. 16, ch. 2000-356; s. 502, ch. 2003-261; s. 54, ch. 2005-152.
468.393 Surcharge to license fee; assessments.—
(1) At the time of licensure under s. 468.385, s. 468.3851, or s. 468.3852, each licensee shall pay, in addition to an application and license fee, a surcharge in an amount to be determined by the board, not to exceed $300, which shall be deposited in the Auctioneer Recovery Fund.
(2) If the total amount in the Auctioneer Recovery Fund, including principal and interest, exceeds $500,000 at the end of the state fiscal year after the payment of all claims and expenses, the amount in excess of $500,000 shall remain in the fund for benefit of the licensees in tolling the surcharge until such time as the surcharge shall need replenishing.
(3) After October 1, 1995, if the total amount in the Auctioneer Recovery Fund, including principal and interest, is less than $200,000 at the end of the fiscal year after the payment of all claims and expenses, the board shall assess, in addition to any other fees under s. 468.3852, a surcharge against a licensee at the time of initial licensure or at the time of license renewal, according to the following formula in order to maintain the fund at $500,000:
(a) Determine the amount remaining in the fund at the end of the state fiscal year after all expenses and claims have been paid.
(b) Subtract the amount determined under paragraph (a) from $500,000.
(c) Determine the number of initial licenses and license renewals in the fiscal year that precedes the current fiscal year.
(d) Divide the amount determined under paragraph (b) by the number determined under paragraph (c).
(4) The board shall assess the surcharge described in subsection (3) against each licensee who receives an initial license or receives a renewal license during the fiscal year that follows the year in which the amount remaining in the fund was less than $200,000.
History.—ss. 9, 17, ch. 91-207; s. 4, ch. 91-429; s. 130, ch. 92-149.
468.394 Interest credited; payment of expenses.—Any interest earned or investment of money in the Auctioneer Recovery Fund shall be credited at least semiannually to the fund. No money may be appropriated from the General Revenue Fund for payment of any expenses incurred under this part, and none of these expenses may be charged against the state.
History.—ss. 10, 17, ch. 91-207; s. 4, ch. 91-429.
468.395 Conditions of recovery; eligibility.—
(1) Recovery from the Auctioneer Recovery Fund may be obtained as follows:
(a) Any aggrieved person is eligible to receive recovery from the Auctioneer Recovery Fund if the Florida Board of Auctioneers has issued a final order directing an offending licensee to pay restitution to the claimant as the result of the licensee violating, within this state, any provision of s. 468.389 or any rule adopted by the board and if the board determined that the order of restitution cannot be enforced; or
(b) Any aggrieved person who obtains a final judgment in any court against any licensee to recover damages for any actual loss that results from the violation, within this state, by a licensee of any provision of s. 468.389 or any rule adopted by the board may, upon termination of all proceedings, including appeals and proceedings supplemental to judgment for collection purposes, file a verified application to the board for an order directing payment out of the Auctioneer Recovery Fund of the amount of actual loss in the transaction that remains unpaid upon the judgment. The amount of actual loss may include court costs, but shall not include attorney’s fees or punitive damages awarded.
(2) The amount paid from the Auctioneer Recovery Fund may not exceed $50,000 per claim or claims arising out of the same transaction or auction or an aggregate lifetime limit of $100,000 with respect to any one licensee. For purposes of this subsection, auctions conducted under a single contract, agreement, or consignment shall be considered a single transaction or auction even though conducted at more than one time or place.
(3) A claim for recovery from the Auctioneer Recovery Fund shall be made within 2 years from the time of the act giving rise to the claim or within 2 years from the time the act is discovered or should have been discovered with the exercise of due diligence; however, in no event may a claim for recovery be made more than 4 years after the date of the act giving rise to the claim.
(4) The board shall not issue an order for payment of a claim from the Auctioneer Recovery Fund unless the claimant has reasonably established to the board that she or he has taken proper and reasonable action to collect the amount of her or his claim from the licensee responsible for the loss and that any recovery made has been applied to reduce the amount of the claim on the Auctioneer Recovery Fund.
(5) Notwithstanding any other provision of this part, no claim based on any act or omission that occurred outside this state or that occurred before October 1, 1991, shall be payable from the Auctioneer Recovery Fund.
(6) In case of payment of loss from the Auctioneer Recovery Fund, the fund shall be subrogated, to the extent of the amount of the payment, to all the rights of the claimant against any licensee with respect to the loss.
History.—ss. 11, 17, ch. 91-207; s. 4, ch. 91-429; s. 131, ch. 92-149; s. 304, ch. 97-103; s. 17, ch. 2000-356.
468.396 Claims against a single licensee in excess of dollar limitation; joinder of claims, payment; insufficient funds.—
(1) If the payment in full of two or more pending valid claims that have been filed by aggrieved persons against a single licensee would exceed the $50,000 limit as set forth in s. 468.395, the $50,000 shall be distributed among the aggrieved persons in the ratio that their respective claims bear to the aggregate of all valid claims or in any other manner that a court of record may determine to be equitable. Such money shall be distributed among the persons entitled to share in it without regard to the order of priority in which their respective judgments have been obtained or their claims have been filed.
(2) Upon petition of the board, the court may require all claimants and prospective claimants against one licensee to be joined in one action, to the end that the respective rights of all the claimants to the board may be equitably adjudicated and settled.
(3) On June 30 and December 31 of each year, the board shall identify each claim that the court orders to be paid during the 6-month period that ended on that day. The board shall pay the part of each claim that is so identified within 15 days after the end of the 6-month period in which the claim is ordered paid. However, if the balance in the fund is insufficient to pay the full payable amount of each claim that is ordered to be paid during a 6-month period, the board shall pay a prorated portion of each claim that is ordered to be paid during the period. Any part of the payable amount of a claim left unpaid due to the prorating of payments under this subsection shall be paid, subject to the $50,000 limit described in s. 468.395, before the payment of claims ordered to be paid during the following 6 months.
History.—ss. 12, 17, ch. 91-207; s. 4, ch. 91-429.
468.397 Payment of claim.—Upon a final order of the court directing that payment be made out of the Auctioneer Recovery Fund, the board shall, subject to the provisions of this part, make the payment out of the Auctioneer Recovery Fund as provided in s. 468.395.
History.—ss. 13, 17, ch. 91-207; s. 4, ch. 91-429; s. 18, ch. 2000-356.
468.398 Suspension of judgment debtor’s license; repayment by licensee; interest.—If the board is required to make any payment from the Auctioneer Recovery Fund in settlement of a claim or toward the satisfaction of a judgment under this part, the board shall suspend the judgment debtor’s license. The licensee is not eligible to be licensed again as either an auctioneer or auction business until the licensee has repaid in full the amount paid from the Auctioneer Recovery Fund, with interest at the current applicable rate.
History.—ss. 14, 17, ch. 91-207; s. 4, ch. 91-429.
468.399 Expenditure of excess funds.—Subject to the approval of the board with the concurrence of the department, the board may expend excess moneys from the Auctioneer Recovery Fund to fund publications that provide:
(1) Information concerning the board’s activities and administrative rulings.
(2) Distribution of laws, rules, and educational information concerning the practice of auctioneering.
History.—ss. 15, 17, ch. 91-207; s. 4, ch. 91-429.
TALENT AGENCIES
468.401 Regulation of talent agencies; definitions.
468.402 Duties of the department; authority to issue and revoke license; adoption of rules.
468.403 License requirements.
468.404 License; fees; renewals.
468.405 Qualification for talent agency license.
468.406 Fees to be charged by talent agencies; rates; display.
468.407 License; content; posting.
468.408 Bond required.
468.409 Records required to be kept.
468.410 Prohibition against registration fees; referral.
468.411 Labor disputes; statements required.
468.412 Talent agency regulations; prohibited acts.
468.413 Legal requirements; penalties.
468.414 Collection and deposit of moneys; appropriation.
468.415 Sexual misconduct in the operation of a talent agency.
468.401 Regulation of talent agencies; definitions.—As used in this part or any rule adopted pursuant hereto:
(1) “Talent agency” means any person who, for compensation, engages in the occupation or business of procuring or attempting to procure engagements for an artist.
(2) “Owner” means any partner in a partnership, member of a firm, or principal officer or officers of a corporation, whose partnership, firm, or corporation owns a talent agency, or any individual who is the sole owner of a talent agency.
(3) “Compensation” means any one or more of the following:
(a) Any money or other valuable consideration paid or promised to be paid for services rendered by any person conducting the business of a talent agency under this part;
(b) Any money received by any person in excess of that which has been paid out by such person for transportation, transfer of baggage, or board and lodging for any applicant for employment; or
(c) The difference between the amount of money received by any person who furnishes employees, performers, or entertainers for circus, vaudeville, theatrical, or other entertainments, exhibitions, engagements, or performances and the amount paid by him or her to such employee, performer, or entertainer.
(4) “Engagement” means any employment or placement of an artist, where the artist performs in his or her artistic capacity. However, the term “engagement” shall not apply to procuring opera, music, theater, or dance engagements for any organization defined in s. 501(c)(3) of the Internal Revenue Code or any nonprofit Florida arts organization that has received a grant from the Division of Cultural Affairs of the Department of State or has participated in the state touring program of the Division of Cultural Affairs.
(5) “Department” means the Department of Business and Professional Regulation.
(6) “Operator” means the person who is or who will be in actual charge of a talent agency.
(7) “Buyer” or “employer” means a person, company, partnership, or corporation that uses the services of a talent agency to provide artists.
(8) “Artist” means a person performing on the professional stage or in the production of television, radio, or motion pictures; a musician or group of musicians; or a model.
(9) “Person” means any individual, company, society, firm, partnership, association, corporation, manager, or any agent or employee of any of the foregoing.
(10) “License” means a license issued by the Department of Business and Professional Regulation to carry on the business of a talent agency under this part.
(11) “Licensee” means a talent agency which holds a valid unrevoked and unforfeited license issued under this part.
History.—ss. 1, 15, ch. 86-292; s. 1, ch. 87-325; s. 1, ch. 88-44; s. 1, ch. 89-66; s. 1, ch. 90-202; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 20, ch. 94-119; s. 140, ch. 94-218; s. 305, ch. 97-103.
468.402 Duties of the department; authority to issue and revoke license; adoption of rules.—
(1) The department may take any one or more of the actions specified in subsection (5) against any person who has:
(a) Obtained or attempted to obtain any license by means of fraud, misrepresentation, or concealment.
(b) Violated any provision of this part, chapter 455, any lawful disciplinary order of the department, or any rule of the department.
(c) Been found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime involving moral turpitude or dishonest dealings under the laws of this state or any other state or government.
(d) Made, printed, published, distributed, or caused, authorized, or knowingly permitted the making, printing, publication, or distribution of any false statement, description, or promise of such a character as to reasonably induce any person to act to his or her damage or injury, if such statement, description, or promises were purported to be performed by the talent agency and if the owner or operator then knew, or by the exercise of reasonable care and inquiry, could have known, of the falsity of the statement, description, or promise.
(e) Knowingly committed or been a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme, or device whereby any other person lawfully relying upon the work, representation, or conduct of the talent agency acts or has acted to his or her injury or damage.
(f) Failed or refused upon demand to disclose any information, as required by this part, within his or her knowledge, or failed or refused to produce any document, book, or record in his or her possession for inspection to the department or any authorized agent thereof acting within its jurisdiction or by authority of law.
(g) Established the talent agency within any place where intoxicating liquors are sold, any place where gambling is permitted, or any house of prostitution.
(h) Charged, collected, or received compensation for any service performed by the talent agency greater than specified in its schedule of maximum fees, charges, and commissions previously filed with the department.
(i) Had a license to operate a talent agency revoked, suspended, or otherwise acted against, including, but not limited to, having been denied a license for good cause by the licensing authority of any state, territory, or country.
(j) Willfully made or filed a report or record that the licensee knew to be false, failed to file a report or record required by state or federal law, impeded or obstructed such filing, or induced another person to impede or obstruct such filing. Such reports or records shall include only those that are signed in the licensee’s capacity as a licensed talent agency.
(k) Advertised goods or services in a manner that was fraudulent, false, deceptive, or misleading in form or content.
(l) Advertised, operated, or attempted to operate under a name other than the name appearing on the license.
(m) Been found guilty of fraud or deceit in the operation of a talent agency.
(n) Operated with a revoked, suspended, inactive, or delinquent license.
(o) Permitted, aided, assisted, procured, or advised any unlicensed person to operate a talent agency contrary to this part or to a rule of the department.
(p) Failed to perform any statutory or legal obligation placed on a licensed talent agency.
(q) Practiced or offered to practice beyond the scope permitted by law or has accepted and performed professional responsibilities that the licensee knows or has reason to know that he or she is not competent to perform.
(r) Conspired with another licensee or with any other person to commit an act, or has committed an act, that would tend to coerce, intimidate, or preclude another licensee from advertising his or her services.
(s) Solicited business, either personally or through an agent or through any other person, through the use of fraud or deception or by other means; through the use of misleading statements; or through the exercise of intimidation or undue influence.
(t) Exercised undue influence on the artist in such a manner as to exploit the artist for financial gain of the licensee or a third party, which includes, but is not limited to, the promoting or selling of services to the artist.
(2) The department may revoke any license that is issued as a result of the mistake or inadvertence of the department.
(3) The department has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part.
(4) A revoked or suspended license must be returned to the department within 7 days after the time for appeal has elapsed.
(5) Upon a finding of a violation of any one or more of the grounds enumerated in subsection (1) or any other section of this part, the department may take the following actions:
(a) Deny an application for licensure as a talent agency.
(b) Permanently revoke or suspend the license of a talent agency.
(c) Impose an administrative fine, not to exceed $5,000, for each count or separate offense.
(d) Require restitution.
(e) Issue a public reprimand.
(f) Place the licensee on probation, subject to such conditions as the department may specify.
(6) A person shall be subject to the disciplinary actions specified in subsection (5) for violations of subsection (1) by that person’s agents or employees in the course of their employment with that person.
(7) The department may deny a license if any owner or operator listed on the application has been associated with a talent agency whose license has been revoked or otherwise disciplined.
History.—ss. 2, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 23, ch. 91-220; s. 4, ch. 91-429; s. 21, ch. 94-119; s. 306, ch. 97-103; s. 86, ch. 98-166; s. 135, ch. 98-200; s. 145, ch. 2000-160; s. 4, ch. 2009-195.
468.403 License requirements.—
(1) A person may not own, operate, solicit business, or otherwise engage in or carry on the occupation of a talent agency in this state unless the person first procures a license for the talent agency from the department. A license is not required for a person who acts as an agent for herself or himself, a family member, or exclusively for one artist. However, a person may not advertise or otherwise hold herself or himself out as a “talent agency” or “talent agent” unless the person is licensed under this section as a talent agency.
(2) Each application for a license must be accompanied by an application fee set by the department not to exceed $300, plus the actual cost for fingerprint analysis for each owner application, to cover the costs of investigating the applicant. Each application for a change of operator must be accompanied by an application fee of $150. These fees are not refundable.
(3)(a) Each owner of a talent agency if other than a corporation and each operator of a talent agency shall submit to the department with the application for licensure of the agency a full set of fingerprints and a photograph of herself or himself taken within the preceding 2 years. The department shall conduct an examination of fingerprint records and police records.
(b) Each owner of a talent agency that is a corporation shall submit to the department, with the application for licensure of the agency, a full set of fingerprints of the principal officer signing the application form and the bond form, and a full set of fingerprints of each operator, and a photograph of each taken within the preceding 2 years. The department shall conduct an examination of fingerprint records and police records.
(4) Each application must include:
(a) The name and address of the owner of the talent agency.
(b) Proof of at least 1 year of direct experience or similar experience of the operator of such agency in the talent agency business or as a subagent, casting director, producer, director, advertising agency, talent coordinator, or musical booking agent.
(c) The street and number of the building or place where the talent agency is to be located.
(5) The department shall investigate the owner of an applicant talent agency only to determine her or his ability to comply with this part and shall investigate the operator of an applicant talent agency to determine her or his employment experience and qualifications.
(6) If the applicant is other than a corporation, the application shall also include the names and addresses of all persons, except bona fide employees on stated salaries, financially interested, either as partners, associates, or profit sharers, in the operation of the talent agency in question, together with the amount of their respective interest.
(7) If the applicant is a corporation, the application shall include the corporate name and the names, residential addresses, and telephone numbers of all persons actively participating in the business of the corporation and shall include the names of all persons exercising managing responsibility in the applicant’s or licensee’s office.
(8) The application must be accompanied by affidavits of at least five reputable persons, other than artists, who have known or have been associated with the applicant for at least 3 years, stating that the applicant is a person of good moral character or, in the case of a corporation, has a reputation for fair dealing.
(9) If any information in the application supplied to the department by the applicant or licensee changes in any manner whatsoever, the applicant or licensee shall submit such changes to the department within 30 days after the date of such change or after the date such change is known or should have been known to the applicant or licensee.
History.—ss. 3, 15, ch. 86-292; s. 2, ch. 87-325; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 24, ch. 91-220; s. 4, ch. 91-429; s. 22, ch. 94-119; s. 307, ch. 97-103; s. 5, ch. 2009-195.
468.404 License; fees; renewals.—
(1) The department by rule shall establish biennial fees for initial licensing, renewal of license, and reinstatement of license, none of which fees shall exceed $400. The department may by rule establish a delinquency fee of no more than $50. The fees shall be adequate to proportionately fund the expenses of the department which are allocated to the regulation of talent agencies and shall be based on the department’s estimate of the revenue required to administer this part.
(2) If one or more individuals on the basis of whose qualifications a talent agency license has been obtained cease to be connected with the agency for any reason, the agency business may be carried on for a temporary period, not to exceed 90 days, under such terms and conditions as the department provides by rule for the orderly closing of the business or the replacement and qualifying of a new owner or operator. The licensee’s good standing under this part shall be contingent upon the department’s approval of any such new owner or operator.
(3) No license shall be valid to protect any business transacted under any name other than that designated in the license, unless consent is first obtained from the department, unless written consent of the surety or sureties on the original bond required by s. 468.408 is filed with the department, and unless the license is returned to the department for the recording thereon of such changes. A charge of $25 shall be made by the department for the recording of authorization for each change of name or change of location.
(4) No license issued under this part shall be assignable.
History.—ss. 4, 15, ch. 86-292; s. 3, ch. 87-325; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 23, ch. 94-119; s. 50, ch. 2003-399; s. 40, ch. 2004-269; s. 14, ch. 2006-2.
468.405 Qualification for talent agency license.—
(1) Each person designated in an application under this part as an owner or operator shall be of good moral character as determined by the department.
(2) In addition to the foregoing qualification, each application shall show whether or not the agency, any person, or any owner of the agency is financially interested in any other business of like nature and, if so, shall specify such interest or interests.
History.—ss. 5, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429.
468.406 Fees to be charged by talent agencies; rates; display.—
(1) Each applicant for a license shall file with the application an itemized schedule of maximum fees, charges, and commissions which it intends to charge and collect for its services. This schedule may thereafter be raised only by filing with the department an amended or supplemental schedule at least 30 days before the change is to become effective. The schedule shall be posted in a conspicuous place in each place of business of the agency and shall be printed in not less than a 30-point boldfaced type, except that an agency that uses written contracts containing maximum fee schedules need not post such schedules.
(2) All money collected by a talent agency from an employer for the benefit of an artist shall be paid to the artist, less the talent agency’s fee, within 5 business days after the receipt of such money by the talent agency. No talent agency is required to pay money to an artist until the talent agency receives payment from the employer or buyer.
History.—ss. 6, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 24, ch. 94-119.
468.407 License; content; posting.—
(1) The talent agency license shall be valid for the biennial period in which issued and shall be in such form as may be determined by the department, but shall at least specify the name under which the applicant is to operate, the address of the place of business, the expiration date of the license, the full names and titles of the owner and the operator, and the number of the license.
(2) The talent agency license shall at all times be displayed conspicuously in the place of business in such manner as to be open to the view of the public and subject to the inspection of all duly authorized officers of the state and county.
(3) If a licensee desires to cancel his or her license, he or she must notify the department and forthwith return to the department the license so canceled. No license fee may be refunded upon cancellation of the license.
History.—ss. 7, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 25, ch. 94-119; s. 308, ch. 97-103.
468.408 Bond required.—
(1) There shall be filed with the department for each talent agency license a bond in the form of a surety by a reputable company engaged in the bonding business and authorized to do business in this state. The bond shall be for the penal sum of $5,000, with one or more sureties to be approved by the department, and be conditioned that the applicant conform to and not violate any of the duties, terms, conditions, provisions, or requirements of this part.
(a) If any person is aggrieved by the misconduct of any talent agency, the person may maintain an action in his or her own name upon the bond of the agency in any court having jurisdiction of the amount claimed. All such claims shall be assignable, and the assignee shall be entitled to the same remedies, upon the bond of the agency or otherwise, as the person aggrieved would have been entitled to if such claim had not been assigned. Any claim or claims so assigned may be enforced in the name of such assignee.
(b) The bonding company shall notify the department of any claim against such bond, and a copy of such notice shall be sent to the talent agency against which the claim is made.
(2) Any remedies provided in this section shall not be exclusive of any other remedy. This relief shall be cumulative to any other remedies the aggrieved person may have.
History.—ss. 8, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 309, ch. 97-103.
468.409 Records required to be kept.—Each talent agency shall keep on file the application, registration, or contract of each artist. In addition, such file must include the name and address of each artist, the amount of the compensation received, and all attempts to procure engagements for the artist. No such agency or employee thereof shall knowingly make any false entry in applicant files or receipt files. Each card or document in such files shall be preserved for a period of 1 year after the date of the last entry thereon. Records required under this section shall be readily available for inspection by the department during reasonable business hours at the talent agency’s principal office. A talent agency must provide the department with true copies of the records in the manner prescribed by the department.
History.—ss. 9, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 26, ch. 94-119; s. 6, ch. 2009-195.
468.410 Prohibition against registration fees; referral.—
(1) A talent agency may not charge a registration fee.
(2) No talent agency shall, as a condition to registering or obtaining employment for any applicant or artist, require the applicant or artist to subscribe to, purchase, or attend any publication, postcard service, advertisement, resume service, photography service, school, acting school, workshop, acting workshop, or video or audiotapes.
(3) A talent agency shall give each applicant a copy of a contract, within 24 hours after the contract’s execution, which lists the services to be provided and the fees to be charged. The contract shall state that the talent agency is regulated by the department and shall list the address and telephone number of the department.
History.—ss. 10, 15, ch. 86-292; s. 2, ch. 90-202; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 27, ch. 94-119; s. 7, ch. 2009-195.
468.411 Labor disputes; statements required.—No talent agency shall knowingly send any person who has received a motion picture or videotape engagement or any other engagement to any place where a strike, lockout, or other labor dispute is in active progress, without first notifying that person of such conditions.
History.—ss. 11, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429.
468.412 Talent agency regulations; prohibited acts.—
(1) A talent agency shall maintain a record sheet for each booking. This shall be the only required record of placement and shall be kept for a period of 1 year after the date of the last entry in the buyer’s file.
(2) Each talent agency shall keep records in which shall be entered:
(a) The name and address of each artist employing such talent agency;
(b) The amount of fees received from each such artist;
(c) The employment in which each such artist is engaged at the time of employing such talent agency and the amount of compensation of the artist in such employment, if any, and the employments subsequently secured by such artist during the term of the contract between the artist and the talent agency and the amount of compensation received by the artist pursuant thereto; and
(d) Other information which the department may require from time to time.
(3) All books, records, and other papers kept pursuant to this act by any talent agency shall be open at all reasonable hours to the inspection of the department and its agents. Each talent agency shall furnish to the department, upon request, a true copy of such books, records, and papers, or any portion thereof, and shall make such reports as the department may prescribe from time to time.
(4) Each talent agency shall post in a conspicuous place in the office of such talent agency a printed copy of this part and of the rules adopted under this part. Such copies shall also contain the name and address of the officer charged with enforcing this part. The department shall furnish to talent agencies printed copies of any statute or rule required to be posted under this subsection.
(5)(a) No talent agency may knowingly issue a contract for employment containing any term or condition which, if complied with, would be in violation of law, or attempt to fill an order for help to be employed in violation of law.
(b) A talent agency must advise an artist, in writing, that the artist has a right to rescind a contract for employment within the first 3 business days after the contract’s execution. Any engagement procured by the talent agency for the artist during the first 3 business days of the contract remains commissionable to the talent agency.
(6) No talent agency may publish or cause to be published any false, fraudulent, or misleading information, representation, notice, or advertisement. All advertisements of a talent agency by means of card, circulars, or signs, and in newspapers and other publications, and all letterheads, receipts, and blanks shall be printed and contain the licensed name, department license number, and address of the talent agency and the words “talent agency.” No talent agency may give any false information or make any false promises or representations concerning an engagement or employment to any applicant who applies for an engagement or employment.
(7) No talent agency may send or cause to be sent any person as an employee to any house of ill fame, to any house or place of amusement for immoral purposes, to any place resorted to for the purposes of prostitution, to any place for the modeling or photographing of a minor in the nude in the absence of written permission from the minor’s parents or legal guardians, the character of which places the talent agency could have ascertained upon reasonable inquiry.
(8) No talent agency, without the written consent of the artist, may divide fees with anyone, including, but not limited to, an agent or other employee of an employer, a buyer, a casting director, a producer, a director, or any venue that uses entertainment. For purposes of this subsection, to “divide fees” includes the sharing among two or more persons of those fees charged to an artist for services performed on behalf of that artist, the total amount of which fees exceeds the amount that would have been charged to the artist by the talent agency alone.
(9) If a talent agency collects from an artist a fee or expenses for obtaining employment for the artist, and the artist fails to procure such employment, or the artist fails to be paid for such employment if procured, such talent agency shall, upon demand therefor, repay to the artist the fee and expenses so collected. Unless repayment thereof is made within 48 hours after demand therefor, the talent agency shall pay to the artist an additional sum equal to the amount of the fee.
(10) Each talent agency must maintain a permanent office and must maintain regular operating hours at that office.
(11) A talent agency may assign an engagement contract to another talent agency licensed in this state only if the artist agrees in writing to the assignment. The assignment must occur, and written notice of the assignment must be given to the artist, within 30 days after the artist agrees in writing to the assignment.
History.—ss. 12, 15, ch. 86-292; s. 2, ch. 89-66; s. 3, ch. 90-202; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 28, ch. 94-119; s. 8, ch. 2009-195.
468.413 Legal requirements; penalties.—
(1) Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:
(a) Owning or operating, or soliciting business as, a talent agency in this state without first procuring a license from the department.
(b) Obtaining or attempting to obtain a license by means of fraud, misrepresentation, or concealment.
(2) Each of the following acts constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083:
(a) Relocating a business as a talent agency, or operating under any name other than that designated on the license, unless written notification is given to the department and to the surety or sureties on the original bond, and unless the license is returned to the department for the recording thereon of such changes.
(b) Assigning or attempting to assign a license issued under this part.
(c) Failing to show on a license application whether or not the agency or any owner of the agency is financially interested in any other business of like nature and, if so, failing to specify such interest or interests.
(d) Failing to maintain the records required by s. 468.409 or knowingly making false entries in such records.
(e) Requiring as a condition to registering or obtaining employment or placement for any applicant that the applicant subscribe to, purchase, or attend any publication, postcard service, advertisement, resume service, photography service, school, acting school, workshop, or acting workshop.
(f) Failing to give each applicant a copy of a contract which lists the services to be provided and the fees to be charged, which states that the talent agency is regulated by the department, and which lists the address and telephone number of the department.
(g) Failing to maintain a record sheet as required by s. 468.412(1).
(h) Knowingly sending or causing to be sent any artist to a prospective employer or place of business, the character or operation of which employer or place of business the talent agency knows to be in violation of the laws of the United States or of this state.
(3) The court may, in addition to other punishment provided for in subsection (2), suspend or revoke the license of any licensee under this part who has been found guilty of any misdemeanor listed in subsection (2).
(4) In the event the department or any state attorney shall have probable cause to believe that a talent agency or other person has violated any provision of subsection (1), an action may be brought by the department or any state attorney to enjoin such talent agency or any person from continuing such violation, or engaging therein or doing any acts in furtherance thereof, and for such other relief as to the court seems appropriate. In addition to this remedy, the department may assess a penalty against any talent agency or any person in an amount not to exceed $5,000.
History.—ss. 13, 15, ch. 86-292; s. 7, ch. 89-66; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429; s. 29, ch. 94-119; s. 141, ch. 94-218; s. 9, ch. 2009-195.
468.414 Collection and deposit of moneys; appropriation.—Proceeds from the fines, fees, and penalties imposed pursuant to this part shall be deposited in the Professional Regulation Trust Fund, created by s. 215.37.
History.—ss. 14, 15, ch. 86-292; s. 63, ch. 91-137; s. 13, ch. 91-156; s. 4, ch. 91-429.
468.415 Sexual misconduct in the operation of a talent agency.—The talent agent-artist relationship is founded on mutual trust. Sexual misconduct in the operation of a talent agency means violation of the talent agent-artist relationship through which the talent agent uses the relationship to induce or attempt to induce the artist to engage or attempt to engage in sexual activity. Sexual misconduct is prohibited in the operation of a talent agency. If any agent, owner, or operator of a licensed talent agency is found to have committed sexual misconduct in the operation of a talent agency, the agency license shall be permanently revoked. Such agent, owner, or operator shall be permanently disqualified from present and future licensure as owner or operator of a Florida talent agency.
History.—ss. 3, 4, ch. 89-66; ss. 63, 65, ch. 91-137; ss. 13, 15, ch. 91-156; s. 4, ch. 91-429.
COMMUNITY ASSOCIATION MANAGEMENT
468.431 Definitions.
468.4315 Regulatory Council of Community Association Managers.
468.432 Licensure of community association managers and community association management firms; exceptions.
468.433 Licensure by examination.
468.4336 Renewal of license.
468.4337 Continuing education.
468.4338 Reactivation; continuing education.
468.435 Fees; establishment; disposition.
468.436 Disciplinary proceedings.
468.4365 Availability of disciplinary records and proceedings.
468.437 Penalties.
468.438 Timeshare management firms.
468.431 Definitions.—As used in this part:
(1) “Community association” means a residential homeowners’ association in which membership is a condition of ownership of a unit in a planned unit development, or of a lot for a home or a mobile home, or of a townhouse, villa, condominium, cooperative, or other residential unit which is part of a residential development scheme and which is authorized to impose a fee which may become a lien on the parcel.
(2) “Community association management” means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and when the association or associations served contain more than 10 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision and control of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part.
(3) “Community association management firm” means a corporation, limited liability company, partnership, trust, association, sole proprietorship, or other similar organization engaging in the business of community association management for the purpose of providing any of the services described in subsection (2).
(4) “Community association manager” means a natural person who is licensed pursuant to this part to perform community association management services.
(5) “Council” means the Regulatory Council of Community Association Managers.
(6) “Department” means the Department of Business and Professional Regulation.
History.—ss. 7, 14, ch. 87-343; s. 1, ch. 89-155; s. 4, ch. 91-429; s. 142, ch. 94-218; s. 1, ch. 94-350; s. 2, ch. 96-291; s. 1, ch. 2008-28.
468.4315 Regulatory Council of Community Association Managers.—
(1) The Regulatory Council of Community Association Managers is created within the department and shall consist of seven members appointed by the Governor and confirmed by the Senate.
(a) Five members of the council shall be licensed community association managers, one of whom may be a community association manager employed by a timeshare managing entity as described in ss. 468.438 and 721.13, who have held an active license for at least 5 years. The remaining two council members shall be residents of this state, must not be or ever have been connected with the business of community association management, and shall not be prohibited from serving because the member is or has been a resident or board member of a community association.
(b) The Governor shall appoint members for terms of 4 years. Such members shall serve until their successors are appointed. Members’ service on the council shall begin upon appointment and shall continue until their successors are appointed.
(2) The council may adopt rules relating to the licensure examination, continuing education requirements, continuing education providers, fees, and professional practice standards to assist the department in carrying out the duties and authorities conferred upon the department by this part.
(3) To the extent the council is authorized to exercise functions otherwise exercised by a board pursuant to chapter 455, the provisions of chapter 455 and s. 20.165 relating to regulatory boards shall apply, including, but not limited to, provisions relating to board rules and the accountability and liability of board members. All proceedings and actions of the council are subject to the provisions of chapter 120. In addition, the provisions of chapter 455 and s. 20.165 shall apply to the department in carrying out the duties and authorities conferred upon the department by this part.
(4) The council may establish a public education program relating to professional community association management.
(5) Members of the council shall serve without compensation but are entitled to receive per diem and travel expenses pursuant to s. 112.061 while carrying out business approved by the council.
(6) The responsibilities of the council shall include, but not be limited to:
(a) Receiving input regarding issues of concern with respect to community association management and recommendations for changes in applicable laws.
(b) Reviewing, evaluating, and advising the division concerning revisions and adoption of rules affecting community association management.
(c) Recommending improvements, if needed, in the education programs offered by the division.
History.—ss. 10, 14, ch. 87-343; s. 4, ch. 91-429; s. 3, ch. 94-350; s. 3, ch. 96-291; s. 87, ch. 98-166; s. 162, ch. 99-251; s. 2, ch. 99-350; s. 146, ch. 2000-160; s. 2, ch. 2008-28.
Note.—Former s. 468.434.
468.432 Licensure of community association managers and community association management firms; exceptions.—
(1) A person shall not manage or hold herself or himself out to the public as being able to manage a community association in this state unless she or he is licensed by the department in accordance with the provisions of this part. However, nothing in this part prohibits any person licensed in this state under any other law or court rule from engaging in the profession for which she or he is licensed.
(2) As of January 1, 2009, a community association management firm or other similar organization responsible for the management of more than 10 units or a budget of $100,000 or greater shall not engage or hold itself out to the public as being able to engage in the business of community association management in this state unless it is licensed by the department as a community association management firm in accordance with the provisions of this part.
(a) A community association management firm or other similar organization desiring to be licensed as a community association management firm shall apply to the department on a form approved by the department, together with the application and licensure fees required by s. 468.435(1)(a) and (c). Each community association management firm applying for licensure under this subsection must be actively registered and authorized to do business in this state.
(b) Each applicant shall designate on its application a licensed community association manager who shall be required to respond to all inquiries from and investigations by the department or division.
(c) Each licensed community association management firm shall notify the department within 30 days after any change of information contained in the application upon which licensure is based.
(d) Community association management firm licenses shall expire on September 30 of odd-numbered years and shall be renewed every 2 years. An application for renewal shall be accompanied by the renewal fee as required by s. 468.435(1)(d).
(e) The department shall license each applicant whom the department certifies as meeting the requirements of this subsection.
(f) If the license of at least one individual active community association manager member is not in force, the license of the community association management firm or other similar organization is canceled automatically during that time.
(g) Any community association management firm or other similar organization agrees by being licensed that it will employ only licensed persons in the direct provision of community association management services as described in s. 468.431(3).
History.—ss. 8, 14, ch. 87-343; s. 2, ch. 89-155; s. 4, ch. 91-429; s. 4, ch. 96-291; s. 1114, ch. 97-103; s. 3, ch. 2008-28; s. 58, ch. 2009-21.
468.433 Licensure by examination.—
(1) A person desiring to be licensed as a community association manager shall apply to the department to take the licensure examination. Each applicant must file a complete set of fingerprints that have been taken by an authorized law enforcement officer, which set of fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The cost of processing shall be borne by the applicant.
(2) The department shall examine each applicant who is at least 18 years of age, who has successfully completed all prelicensure education requirements, and who the department certifies is of good moral character.
(a) Good moral character means a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.
(b) The department may refuse to certify an applicant only if:
1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a community association manager;
2. The finding by the department of lack of good moral character is supported by clear and convincing evidence; or
3. The applicant is found to have provided management services requiring licensure without the requisite license.
(c) When an applicant is found to be unqualified for a license because of a lack of good moral character, the department shall furnish the applicant a statement containing its findings, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to a rehearing and appeal.
(d) The council shall establish by rule the required amount of prelicensure education, which shall consist of not more than 24 hours of in-person instruction by a department-approved provider and which shall cover all areas of the examination specified in subsection (3). Such instruction shall be completed within 12 months prior to the date of the examination. Prelicensure education providers shall be considered continuing education providers for purposes of establishing provider approval fees. A licensee shall not be required to comply with the continuing education requirements of s. 468.4337 prior to the first license renewal. The department shall, by rule, set standards for exceptions to the requirement of in-person instruction in cases of hardship or disability.
(3) The council shall approve an examination for licensure. The examination must demonstrate that the applicant has a fundamental knowledge of state and federal laws relating to the operation of all types of community associations and state laws relating to corporations and nonprofit corporations, proper preparation of community association budgets, proper procedures for noticing and conducting community association meetings, insurance matters relating to community associations, and management skills.
(4) The department shall issue a license to practice in this state as a community association manager to any qualified applicant who successfully completes the examination in accordance with this section and pays the appropriate fee.
History.—ss. 9, 14, ch. 87-343; s. 3, ch. 89-155; s. 4, ch. 91-429; s. 2, ch. 94-350; s. 5, ch. 96-291; s. 19, ch. 2000-356; s. 4, ch. 2008-28.
468.4336 Renewal of license.—
(1) The department shall renew a license upon receipt of the renewal application and fee and upon proof of compliance with the continuing education requirements of s. 468.4337.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
History.—s. 6, ch. 96-291.
468.4337 Continuing education.—The department may not renew a license until the licensee submits proof that the licensee has completed the requisite hours of continuing education. No more than 10 hours of continuing education annually shall be required for renewal of a license. The number of hours, criteria, and course content shall be approved by the council by rule.
History.—s. 7, ch. 96-291.
468.4338 Reactivation; continuing education.—The council shall prescribe by rule continuing education requirements for reactivating a license. The continuing education requirements for reactivating a license may not exceed 10 classroom hours for each year the license was inactive.
History.—s. 8, ch. 96-291.
468.435 Fees; establishment; disposition.—
(1) The council shall, by rule, establish fees for the described purposes and within the ranges specified in this section:
(a) Application fee: not less than $25, or more than $50.
(b) Examination fee: not less than $25, or more than $100.
(c) Initial license fee: not less than $25, or more than $100.
(d) Renewal of license fee: not less than $25, or more than $100.
(e) Delinquent license fee: not less than $25, or more than $50.
(f) Inactive license fee: not less than $10, or more than $25.
(2) Until the council adopts rules establishing fees under subsection (1), the lower amount in each range shall apply.
(3) Fees collected under this section shall be deposited to the credit of the Professional Regulation Trust Fund.
(4) The council shall establish fees that are adequate to fund the cost to implement the provisions of this part. Fees shall be based on the department estimates of the revenue required to implement this part and the provisions of law with respect to the regulation of community association managers.
History.—ss. 11, 14, ch. 87-343; s. 4, ch. 91-429; s. 9, ch. 96-291.
468.436 Disciplinary proceedings.—
(1) The department shall investigate complaints and allegations of a violation of this part, chapter 455, or any rule adopted thereunder, filed against community association managers or firms and forwarded from other divisions under the Department of Business and Professional Regulation. After a complaint is received, the department shall conduct its inquiry with due regard to the interests of the affected parties. Within 30 days after receipt of a complaint, the department shall acknowledge the complaint in writing and notify the complainant whether or not the complaint is within the jurisdiction of the department and whether or not additional information is needed by the department from the complainant. The department shall conduct an investigation and shall, within 90 days after receipt of the original complaint or of a timely request for additional information, take action upon the complaint. However, the failure to complete the investigation within 90 days does not prevent the department from continuing the investigation, accepting or considering evidence obtained or received after 90 days, or taking administrative action if reasonable cause exists to believe that a violation of this part, chapter 455, or a rule of the department has occurred. If an investigation is not completed within the time limits established in this subsection, the department shall, on a monthly basis, notify the complainant in writing of the status of the investigation. When reporting its action to the complainant, the department shall inform the complainant of any right to a hearing pursuant to ss. 120.569 and 120.57.
(2) The following acts constitute grounds for which the disciplinary actions in subsection (4) may be taken:
(a) Violation of any provision of s. 455.227(1).
(b)1. Violation of any provision of this part.
2. Violation of any lawful order or rule rendered or adopted by the department or the council.
3. Being convicted of or pleading nolo contendere to a felony in any court in the United States.
4. Obtaining a license or certification or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts.
5. Committing acts of gross misconduct or gross negligence in connection with the profession.
6. Contracting, on behalf of an association, with any entity in which the licensee has a financial interest that is not disclosed.
(3) The council shall specify by rule the acts or omissions that constitute a violation of subsection (2).
(4) When the department finds any community association manager or firm guilty of any of the grounds set forth in subsection (2), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure.
(b) Revocation or suspension of a license.
(c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the community association manager on probation for a period of time and subject to such conditions as the department specifies.
(f) Restriction of the authorized scope of practice by the community association manager.
(5) The department may reissue the license of a disciplined community association manager or firm upon certification by the department that the disciplined person or firm has complied with all of the terms and conditions set forth in the final order.
History.—ss. 12, 14, ch. 87-343; s. 4, ch. 89-155; s. 4, ch. 91-429; s. 4, ch. 94-350; s. 10, ch. 96-291; s. 5, ch. 2008-28; s. 50, ch. 2009-195; s. 42, ch. 2010-106.
468.4365 Availability of disciplinary records and proceedings.—Notwithstanding s. 455.225, any complaint or record maintained by the Department of Business and Professional Regulation pursuant to the discipline of a licensed community association manager and any proceeding held by the department to discipline a licensed community association manager shall remain open and available to the public.
History.—s. 11, ch. 96-291.
468.437 Penalties.—Any person who violates any of the provisions of this part shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 13, 14, ch. 87-343; s. 4, ch. 91-429.
468.438 Timeshare management firms.—
(1) The provisions of this section apply only to community association management performed by a management firm acting as managing entity of a timeshare plan pursuant to chapter 721.
(2) A timeshare management firm shall only be required to employ at least one individual licensed under this part at each noncontiguous geographic location at which the management firm provides community association management. No other person providing community association management on behalf of such management firms shall be required to hold a license pursuant to this part, provided that any community association management provided pursuant to this section must be performed under the direct supervision and control of a licensed community association manager. A community association manager licensed pursuant to this part and employed by a timeshare management firm pursuant to this section assumes responsibility for all community association management performed by unlicensed persons employed by the timeshare management firm.
History.—s. 6, ch. 94-350.
ATHLETE AGENTS
468.451 Legislative findings and intent.
468.452 Definitions.
468.453 Licensure required; qualifications; license nontransferable; service of process; temporary license; license or application from another state.
468.4535 Exceptions.
468.4536 Renewal of licensure.
468.454 Contracts.
468.456 Prohibited acts.
468.4561 Unlicensed activity; penalties for violations.
468.45615 Provision of illegal inducements to athletes prohibited; penalties; license suspension.
468.4562 Civil action by institution.
468.4565 Business records requirement.
468.457 Rulemaking authority.
468.451 Legislative findings and intent.—The Legislature finds that dishonest or unscrupulous practices by agents who solicit representation of student athletes can cause significant harm to student athletes and the academic institutions for which they play. It is the intent of the Legislature to protect the interests of student athletes and academic institutions by regulating the activities of athlete agents.
History.—s. 1, ch. 88-229; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 1, ch. 95-307.
468.452 Definitions.—For purposes of this part, the term:
(1) “Agent contract” means a contract or agreement in which a student athlete authorizes an athlete agent to represent the student in the marketing of the student’s athletic ability or athletic reputation.
(2) “Athlete agent” means a person who, directly or indirectly, recruits or solicits a student athlete to enter into an agent contract, or who, for any type of financial gain, procures, offers, promises, or attempts to obtain employment or promotional fees or benefits for a student athlete with a professional sports team or as a professional athlete, or with any promoter who markets or attempts to market the student athlete’s athletic ability or athletic reputation. This term includes all employees and other persons acting on behalf of an athlete agent who participate in the activities included under this subsection. The term does not include a spouse, parent, sibling, grandparent, or guardian of the student athlete or an individual acting solely on behalf of a professional sports team or professional sports organization.
(3) “Contact” means communication between an athlete agent and a student athlete, by whatever means, directly or indirectly, for the purpose of entering or soliciting entry into an agent contract.
(4) “Department” means the Department of Business and Professional Regulation.
(5) “Student athlete” means any student who:
(a) Resides in Florida, has informed, in writing, a college or university of the student’s intent to participate in that school’s intercollegiate athletics, or who does participate in that school’s intercollegiate athletics and is eligible to do so; or
(b) Does not reside in Florida, but has informed, in writing, a college or university in Florida of the student’s intent to participate in that school’s intercollegiate athletics, or who does participate in that school’s intercollegiate athletics and is eligible to do so.
(6) “Financial services” means the counseling on or the making or execution of investment and other financial decisions by the agent on behalf of the student athlete.
(7) “Participation” means practicing, competing, or otherwise representing a college or university in intercollegiate athletics.
History.—s. 2, ch. 88-229; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 30, ch. 94-119; s. 2, ch. 95-307; s. 1, ch. 2002-24.
468.453 Licensure required; qualifications; license nontransferable; service of process; temporary license; license or application from another state.—
(1) Any person who practices as an athlete agent in this state must be licensed pursuant to this part.
(2) A person shall be licensed as an athlete agent if the applicant:
(a) Is at least 18 years of age.
(b) Is of good moral character.
(c) Has completed the application form and remitted an application fee not to exceed $500, an active licensure fee not to exceed $2,000, and all other applicable fees provided for in this part or in chapter 455.
(d) Has submitted to the department a fingerprint card for a criminal history records check. The fingerprint card shall be forwarded to the Division of Criminal Justice Information Systems within the Department of Law Enforcement for purposes of processing the fingerprint card to determine if the applicant has a criminal history record. The fingerprint card shall also be forwarded to the Federal Bureau of Investigation for purposes of processing the fingerprint card to determine if the applicant has a criminal history record. The information obtained by the processing of the fingerprint card by the Florida Department of Law Enforcement and the Federal Bureau of Investigation shall be sent to the department for the purpose of determining if the applicant is statutorily qualified for licensure.
(e) Has not in any jurisdiction, within the preceding 5 years, been convicted or found guilty of or entered a plea of nolo contendere for, regardless of adjudication, a crime which relates to the applicant’s practice or ability to practice as an athlete agent.
(3) An unlicensed individual may act as an athlete agent if:
(a) A student athlete or person acting on the athlete’s behalf initiates communication with the individual; and
(b) Within 7 days after an initial act as an athlete agent, the individual submits an application for licensure.
(4) A license issued to an athlete agent is not transferable.
(5) By acting as an athlete agent in this state, a nonresident individual appoints the department as the individual’s agent for service of process in any civil action related to the individual’s acting as an athlete agent.
(6) The department may issue a temporary license while an application for licensure is pending. If the department issues a notice of intent to deny the license application, the initial temporary license expires and may not be extended during any proceeding or administrative or judicial review.
(7)(a) An individual who has submitted an application and holds a certificate, registration, or license as an athlete agent in another state may submit a copy of the application and certificate, registration, or license from the other state in lieu of submitting an application in the form prescribed pursuant to this section. The department must accept the application and the certificate from the other state as an application for registration in this state if the application in the other state:
1. Was submitted in the other state within 6 months next preceding the submission of the application in this state and the applicant certifies that the information contained in the application is current;
2. Contains information substantially similar to or more comprehensive than that required in an application submitted in this state; and
3. Was signed by the applicant under penalty of perjury.
(b) An applicant applying under this subsection must meet all other requirements for licensure as provided by this part.
History.—s. 3, ch. 88-229; s. 42, ch. 89-162; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 143, ch. 94-218; s. 3, ch. 95-307; s. 88, ch. 98-166; s. 140, ch. 99-251; s. 147, ch. 2000-160; s. 2, ch. 2002-24.
468.4535 Exceptions.—This part does not apply when a student is ineligible to participate in a particular intercollegiate sport unless:
(1) The student athlete’s eligibility to participate is restored in that particular sport; or
(2) The student is or becomes eligible to participate in a different intercollegiate sport, in which case this part shall apply for the different intercollegiate sport.
History.—s. 4, ch. 95-307.
468.4536 Renewal of licensure.—The department shall renew a license pursuant to procedures provided for in s. 455.203.
History.—s. 5, ch. 95-307.
468.454 Contracts.—
(1) An agent contract must be in a record, signed or otherwise authenticated by the parties.
(2) An agent contract must state:
(a) The amount and method of calculating the consideration to be paid by the student athlete for services to be provided by the athlete agent and any other consideration the agent has received or will receive from any other source under the contract;
(b) The name of any person not listed in the licensure application who will be compensated because the student athlete signed the agent contract;
(c) A description of any expenses that the student athlete agrees to reimburse;
(d) A description of the services to be provided to the student athlete;
(e) The duration of the contract; and
(f) The date of execution.
(3) An agent contract must contain, in close proximity to the signature of the student athlete, a conspicuous notice in boldface type in capital letters stating:
WARNING TO STUDENT ATHLETE
IF YOU SIGN THE CONTRACT:
1. YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT ATHLETE IN YOUR SPORT;
2. IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THE CONTRACT, YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND
3. YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. HOWEVER, CANCELLATION OF THIS CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.
(4) An agent contract that does not conform to this section is voidable by the student athlete. If a student athlete voids an agent contract, the student athlete is not required to pay any consideration or return any consideration received from the athlete agent to induce the student athlete to enter into the contract.
(5) The athlete agent shall give a record of the signed or authenticated agent contract to the student athlete at the time of execution.
(6) Within 72 hours after entering into an agent contract or before the next scheduled athletic event in which the student athlete may participate, whichever occurs first, the athlete agent must give notice in a record of the existence of the contract to the athletic director of the educational institution at which the student athlete is enrolled or the athlete agent has reasonable grounds to believe the student athlete intends to enroll.
(7) Within 72 hours after entering into an agent contract or before the next athletic event in which the student athlete may participate, whichever occurs first, the student athlete must inform the athletic director of the educational institution at which the student athlete is enrolled that he or she has entered into an agent contract.
(8) A student athlete may cancel an agent contract by giving notice of the cancellation to the athlete agent in a record within 14 days after the contract is signed.
(9) A student athlete may not waive the right to cancel an agent contract.
(10) If a student athlete cancels an agent contract, the student athlete is not required to pay any consideration or return any consideration received from the athlete agent to induce the student athlete to enter into the contract.
(11) An athlete agent shall not enter into an agent contract that purports to or takes effect at a future time after the student athlete no longer has remaining eligibility to participate in intercollegiate athletics. Such a contract is void and unenforceable.
(12) An agent contract between a student athlete and a person not licensed under this part is void and unenforceable.
History.—ss. 4, 5, 6, ch. 88-229; s. 1, ch. 89-296; s. 99, ch. 91-224; s. 4, ch. 91-429; s. 6, ch. 95-307; s. 3, ch. 2002-24.
468.456 Prohibited acts.—
(1) The following acts shall be grounds for the disciplinary actions provided for in subsection (3):
(a) A violation of any law relating to the practice as an athlete agent including, but not limited to, violations of this part and chapter 455 and any rules promulgated thereunder.
(b) Failure to account for or to pay, within a reasonable time, not to exceed 30 days, assets belonging to another which have come into the control of the athlete agent in the course of conducting business as an athlete agent.
(c) Any conduct as an athlete agent which demonstrates bad faith or dishonesty.
(d) Commingling money or property of another person with the athlete agent’s money or property. Every athlete agent shall maintain a separate trust or escrow account in an insured bank or savings and loan association located in this state in which shall be deposited all proceeds received for another person through the athlete agent.
(e) Accepting as a client a student athlete referred by and in exchange for any consideration made to an employee of or a coach for a college or university located in this state.
(f) Offering anything of value to any person to induce a student athlete to enter into an agreement by which the agent will represent the student athlete. However, negotiations regarding the agent’s fee shall not be considered an inducement.
(g) Knowingly providing financial benefit from the licensee’s conduct of business as an athlete agent to another athlete agent whose license to practice as an athlete agent is suspended or has been permanently revoked within the previous 5 years.
(h) Committing mismanagement or misconduct as an athlete agent which causes financial harm to a student athlete or college or university.
(i) Failing to include the athlete agent’s name and license number in any advertising related to the business of an athlete agent. Advertising shall not include clothing or other novelty items.
(j) Publishing or causing to be published false or misleading information or advertisements, or giving any false information or making false promises to a student athlete concerning employment or financial services.
(k) Violating or aiding and abetting another person to violate the rules of the athletic conference or collegiate athletic association governing a student athlete or student athlete’s college or university.
(l) Having contact, as prohibited by this part, with a student athlete.
(m) Postdating agent contracts.
(n) Having an athlete agent certification acted against by a professional athletic club or association.
(o) Being employed to illegally recruit or solicit student athletes by being utilized by or otherwise collaborating with a person known to have been convicted or found guilty of, or to have entered a plea of nolo contendere to, a violation of s. 468.45615, regardless of adjudication.
(2) This part does not prohibit an athlete agent from:
(a) Sending to a student athlete written materials provided that the athlete agent simultaneously sends an identical copy of such written materials to the athletic director, or the director’s designee, of the college or university in which the student athlete is enrolled or to which the student athlete has provided a written intent to participate in intercollegiate athletics; and
(b) Otherwise contacting a student athlete, provided that the student athlete initiates the contact with the athlete agent and the athlete agent gives prior notice, as provided for by rule of the department, to the college or university in which the student athlete is enrolled or to which the student athlete has provided a written intent to participate in intercollegiate athletics.
(3) When the department finds any person guilty of any of the prohibited acts set forth in subsection (1), the department may enter an order imposing one or more of the penalties provided for in s. 455.227, and an administrative fine not to exceed $25,000 for each separate offense. In addition to any other penalties or disciplinary actions provided for in this part, the department shall suspend or revoke the license of any athlete agent licensed under this part who violates paragraph (1)(f) or paragraph (1)(o) or s. 468.45615.
History.—s. 8, ch. 88-229; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 7, ch. 95-307; s. 89, ch. 98-166; s. 148, ch. 2000-160; s. 69, ch. 2000-356; s. 4, ch. 2002-24.
468.4561 Unlicensed activity; penalties for violations.—No person shall conduct business as an athlete agent unless such person holds an active license pursuant to this part, and no person shall knowingly aid or abet another person to conduct business as an unlicensed athlete agent. For purposes of this section, “aid or abet” means to actively assist in the recruitment or solicitation of a student athlete. Violation of this section shall be a felony of the third degree, punishable as provided in ss. 775.082, 775.083, 775.084, 775.089, and 775.091.
History.—s. 8, ch. 95-307.
468.45615 Provision of illegal inducements to athletes prohibited; penalties; license suspension.—
(1) Any person who violates s. 468.456(1)(f) is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, s. 775.089, or s. 775.091.
(2)(a) Regardless of whether adjudication is withheld, any person convicted or found guilty of, or entering a plea of nolo contendere to, the violation described in subsection (1) shall not employ, utilize, or otherwise collaborate with a licensed or unlicensed athlete agent in Florida to illegally recruit or solicit student athletes. Any person who violates the provisions of this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, s. 775.089, or s. 775.091.
(b) Regardless of whether adjudication is withheld, any person who knowingly actively assists in the illegal recruitment or solicitation of student athletes for a person who has been convicted or found guilty of, or entered a plea of nolo contendere to, a violation of this section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, s. 775.089, or s. 775.091.
(3) In addition to any other penalties provided in this section, the court may suspend the license of the person pending the outcome of any administrative action against the person by the department.
(4)(a) An athlete agent, with the intent to induce a student athlete to enter into an agent contract, may not:
1. Give any materially false or misleading information or make a materially false promise or representation;
2. Furnish anything of value to a student athlete before the student athlete enters into the agent contract; or
3. Furnish anything of value to any individual other than the student athlete or another athlete agent.
(b) An athlete agent may not intentionally:
1. Initiate contact with a student athlete unless licensed under this part;
2. Refuse or fail to retain or permit inspection of the records required to be retained by s. 468.4565;
3. Provide materially false or misleading information in an application for licensure;
4. Predate or postdate an agent contract;
5. Fail to give notice of the existence of an agent contract as required by s. 468.454(6); or
6. Fail to notify a student athlete before the student athlete signs or otherwise authenticates an agent contract for a sport that the signing or authentication may make the student athlete ineligible to participate as a student athlete in that sport.
(c) An athlete agent who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 70, ch. 2000-356; s. 5, ch. 2002-24.
468.4562 Civil action by institution.—
(1) A college or university may sue for damages, as provided by this section, any person who violates this part. A college or university may seek equitable relief to prevent or minimize harm arising from acts or omissions which are or would be a violation of this part.
(2) For purposes of this section, a college or university is damaged if, because of activities of the person, the college or university is penalized, disqualified, or suspended from participation in intercollegiate athletics by a national association for the promotion and regulation of intercollegiate athletics, by an intercollegiate athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions likely to be imposed by such organization and, because of that penalty, disqualification, suspension, or action the institution:
(a) Loses revenue from media coverage of a sports contest;
(b) Loses the right to grant an athletic scholarship;
(c) Loses the right to recruit an athlete;
(d) Is prohibited from participating in postseason athletic competition;
(e) Forfeits an athletic contest; or
(f) Otherwise suffers an adverse financial impact.
(3) An institution that prevails in a suit brought under this section may recover:
(a) Actual damages;
(b) Punitive damages;
(c) Treble damages;
(d) Court costs; and
(e) Reasonable attorney’s fees.
(4) A right of action under this section does not accrue until the educational institution discovers, or by the exercise of reasonable diligence would have discovered, the violation by the athlete agent or former student athlete.
(5) Any liability of the athlete agent or the former student athlete under this section is several and not joint.
(6) This part does not restrict rights, remedies, or defenses of any person under law or equity.
History.—s. 9, ch. 95-307; s. 71, ch. 2000-356; s. 6, ch. 2002-24.
468.4565 Business records requirement.—
(1) An athlete agent shall establish and maintain complete financial and business records. The athlete agent shall save each entry into a financial or business record for at least 5 years from the date of entry. These records must include:
(a) The name and address of each individual represented by the athlete agent;
(b) Any agent contract entered into by the athlete agent; and
(c) Any direct costs incurred by the athlete agent in the recruitment or solicitation of a student athlete to enter into an agent contract.
(2) The department shall have access to and shall have the right to inspect and examine the financial or business records of an athlete agent during normal business hours. Refusal or failure of an athlete agent to provide the department access to financial and business records shall be the basis for disciplinary action by the department pursuant to s. 455.225. The department may exercise its subpoena powers to obtain the financial and business records of an athlete agent.
History.—s. 12, ch. 95-307; s. 7, ch. 2002-24.
468.457 Rulemaking authority.—The department shall adopt rules necessary to administer and enforce this part.
History.—s. 9, ch. 88-229; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 13, ch. 95-307.
DIETETICS AND NUTRITION PRACTICE
468.501 Short title.
468.502 Purpose and intent.
468.503 Definitions.
468.504 License required.
468.505 Exemptions; exceptions.
468.506 Dietetics and Nutrition Practice Council.
468.507 Authority to adopt rules.
468.508 Fees.
468.509 Dietitian/nutritionist; requirements for licensure.
468.51 Nutrition counselor; renewal of licensure.
468.511 Dietitian/nutritionist; temporary permit.
468.512 License to be displayed.
468.513 Dietitian/nutritionist; licensure by endorsement.
468.514 Renewal of license.
468.515 Inactive status.
468.516 Practice requirements.
468.517 Prohibitions; penalties.
468.518 Grounds for disciplinary action.
468.501 Short title.—This part may be cited as the “Dietetics and Nutrition Practice Act.”
History.—ss. 1, 20, ch. 88-236; s. 4, ch. 91-429; s. 1, ch. 96-367.
468.502 Purpose and intent.—The Legislature finds that the practice of dietetics and nutrition or nutrition counseling by unskilled and incompetent practitioners presents a danger to the public health and safety. The Legislature further finds that it is difficult for the public to make informed choices about dietitians and nutritionists and that the consequences of wrong choices could seriously endanger the public health and safety. The sole legislative purpose in enacting this part is to ensure that every person who practices dietetics and nutrition or nutrition counseling in this state meets minimum requirements for safe practice. It is the legislative intent that any person practicing dietetics and nutrition or nutrition counseling who falls below minimum competency or who otherwise presents a danger to the public be prohibited from practicing in this state. It is also the intent of the Legislature that the practice of nutrition counseling be authorized and regulated solely within the limits expressly provided by this part and any rules adopted pursuant thereto.
History.—ss. 2, 20, ch. 88-236; s. 4, ch. 91-429; s. 2, ch. 96-367.
468.503 Definitions.—As used in this part:
(1) “Agency” means the Agency for Health Care Administration.
(2) “Board” means the Board of Medicine.
(3) “Dietetics” means the integration and application of the principles derived from the sciences of nutrition, biochemistry, food, physiology, and management and from the behavioral and social sciences to achieve and maintain a person’s health throughout the person’s life. It is an integral part of preventive, diagnostic, curative, and restorative health care of individuals, groups, or both.
(4) “Dietetics and nutrition practice” shall include assessing nutrition needs and status using appropriate data; recommending appropriate dietary regimens, nutrition support, and nutrient intake; improving health status through nutrition research, counseling, and education; and developing, implementing, and managing nutrition care systems, which includes, but is not limited to, evaluating, modifying, and maintaining appropriate standards of high quality in food and nutrition care services.
(5) “Dietetic technician” means a person who assists in the provision of dietetic and nutrition services under the supervision of a qualified professional.
(6) “Licensed dietitian/nutritionist” means a person licensed pursuant to s. 468.509.
(7) “Licensed nutrition counselor” means a person licensed pursuant to s. 468.51.
(8) “Nutrition assessment” means the evaluation of the nutrition needs of individuals or groups, using appropriate data to determine nutrient needs or status and make appropriate nutrition recommendations.
(9) “Nutrition counseling” means advising and assisting individuals or groups on appropriate nutrition intake by integrating information from the nutrition assessment.
(10) “Preprofessional experience component” means a planned and continuous supervised practice experience in dietetics or nutrition.
(11) “Registered dietitian” means an individual registered with the Commission on Dietetic Registration, the accrediting body of the American Dietetic Association.
History.—ss. 3, 20, ch. 88-236; s. 4, ch. 91-429; s. 144, ch. 94-218; s. 3, ch. 96-367.
468.504 License required.—No person may engage for remuneration in dietetics and nutrition practice or nutrition counseling or hold himself or herself out as a practitioner of dietetics and nutrition practice or nutrition counseling unless the person is licensed in accordance with the provisions of this part.
History.—ss. 4, 20, ch. 88-236; s. 4, ch. 91-429; s. 4, ch. 96-367.
468.505 Exemptions; exceptions.—
(1) Nothing in this part may be construed as prohibiting or restricting the practice, services, or activities of:
(a) A person licensed in this state under chapter 457, chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, part I of chapter 464, chapter 465, chapter 466, chapter 480, chapter 490, or chapter 491, when engaging in the profession or occupation for which he or she is licensed, or of any person employed by and under the supervision of the licensee when rendering services within the scope of the profession or occupation of the licensee.
(b) A person employed as a dietitian by the government of the United States, if the person engages in dietetics solely under direction or control of the organization by which the person is employed.
(c) A person employed as a cooperative extension home economist.
(d) A person pursuing a course of study leading to a degree in dietetics and nutrition from a program or school accredited pursuant to s. 468.509(2), if the activities and services constitute a part of a supervised course of study and if the person is designated by a title that clearly indicates the person’s status as a student or trainee.
(e) A person fulfilling the supervised experience component of s. 468.509, if the activities and services constitute a part of the experience necessary to meet the requirements of s. 468.509.
(f) Any dietitian or nutritionist from another state practicing dietetics or nutrition incidental to a course of study when taking or giving a postgraduate course or other course of study in this state, provided such dietitian or nutritionist is licensed in another jurisdiction or is a registered dietitian or holds an appointment on the faculty of a school accredited pursuant to s. 468.509(2).
(g) A person who markets or distributes food, food materials, or dietary supplements, or any person who engages in the explanation of the use and benefits of those products or the preparation of those products, if that person does not engage for a fee in dietetics and nutrition practice or nutrition counseling.
(h) A person who markets or distributes food, food materials, or dietary supplements, or any person who engages in the explanation of the use of those products or the preparation of those products, as an employee of an establishment permitted pursuant to chapter 465.
(i) An educator who is in the employ of a nonprofit organization approved by the council; a federal, state, county, or municipal agency, or other political subdivision; an elementary or secondary school; or an accredited institution of higher education the definition of which, as provided in s. 468.509(2), applies to other sections of this part, insofar as the activities and services of the educator are part of such employment.
(j) Any person who provides weight control services or related weight control products, provided the program has been reviewed by, consultation is available from, and no program change can be initiated without prior approval by a licensed dietitian/nutritionist, a dietitian or nutritionist licensed in another state that has licensure requirements considered by the council to be at least as stringent as the requirements for licensure under this part, or a registered dietitian.
(k) A person employed by a hospital licensed under chapter 395, by a nursing home licensed under part II of chapter 400, by an assisted living facility licensed under chapter 429, or by a continuing care facility certified under chapter 651, if the person is employed in compliance with the laws and rules adopted thereunder regarding the operation of its dietetic department.
(l) A person employed by a nursing facility exempt from licensing under s. 395.002(12), or a person exempt from licensing under s. 464.022.
(m) A person employed as a dietetic technician.
(2) Nothing in this part may be construed to prohibit or limit any person from the free dissemination of information, or from conducting a class or seminar or giving a speech, related to nutrition.
(3) The provisions of this part have no application to the practice of the religious tenets of any church in this state.
(4) Notwithstanding any other provision of this part, an individual registered by the Commission on Dietetic Registration of the American Dietetic Association has the right to use the title “Registered Dietitian” and the designation “R.D.”
History.—ss. 5, 20, ch. 88-236; s. 4, ch. 91-429; s. 86, ch. 92-289; s. 41, ch. 95-210; s. 5, ch. 96-367; s. 39, ch. 98-89; s. 63, ch. 98-171; s. 127, ch. 2000-153; s. 134, ch. 2000-318; s. 94, ch. 2006-197; s. 179, ch. 2007-230.
468.506 Dietetics and Nutrition Practice Council.—There is created the Dietetics and Nutrition Practice Council under the supervision of the board. The council shall consist of four persons licensed under this part and one consumer who is 60 years of age or older. Council members shall be appointed by the board. Licensed members shall be appointed based on the proportion of licensees within each of the respective disciplines. Members shall be appointed for 4-year staggered terms. In order to be eligible for appointment, each licensed member must have been a licensee under this part for at least 3 years prior to his or her appointment. No council member shall serve more than two successive terms. The board may delegate such powers and duties to the council as it may deem proper to carry out the operations and procedures necessary to effectuate the provisions of this part. However, the powers and duties delegated to the council by the board must encompass both dietetics and nutrition practice and nutrition counseling. Any time there is a vacancy on the council, any professional association composed of persons licensed under this part may recommend licensees to fill the vacancy to the board in a number at least twice the number of vacancies to be filled, and the board may appoint from the submitted list, in its discretion, any of those persons so recommended. Any professional association composed of persons licensed under this part may file an appeal regarding a council appointment with the State Surgeon General, whose decision shall be final. The board shall fix council members’ compensation and pay their expenses in the same manner as provided in s. 456.011.
History.—ss. 6, 19, 20, ch. 88-236; ss. 4, 5, ch. 91-429; s. 6, ch. 96-367; s. 91, ch. 98-166; s. 130, ch. 99-397; s. 150, ch. 2000-160; s. 94, ch. 2008-6.
468.507 Authority to adopt rules.—The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part and chapter 456 conferring duties upon it. The powers and duties of the board as set forth in this part shall in no way limit or interfere with the powers and duties of the board as set forth in chapter 458. All powers and duties of the board set forth in this part shall be supplemental and additional powers and duties to those conferred upon the board by chapter 458.
History.—ss. 7, 20, ch. 88-236; s. 4, ch. 91-429; s. 7, ch. 96-367; s. 92, ch. 98-166; s. 136, ch. 98-200; s. 151, ch. 2000-160.
468.508 Fees.—The board shall, by rule, establish fees to be paid for applications and examination, reexamination, licensing and renewal, licensure by endorsement, temporary permits, renewal, renewal of inactive licenses, reactivation of inactive licenses, recordmaking, and recordkeeping. The board shall establish fees which are adequate to administer and implement the provisions of this part.
(1) The application fee shall not exceed $100 and shall not be refundable.
(2) The examination fee shall not exceed $500 and shall be refundable if the applicant is found to be ineligible to take the licensure examination.
(3) The initial licensure fee shall not exceed $500.
(4) The fee for reexamination shall not exceed $250.
(5) The biennial renewal fee shall not exceed $500.
(6) The fee for licensure by endorsement shall not exceed $350.
(7) The fee for a temporary permit shall not exceed $200.
(8) The fee for reactivation of an inactive license shall not exceed $50.
History.—ss. 8, 20, ch. 88-236; s. 43, ch. 89-162; s. 44, ch. 89-374; s. 4, ch. 91-429; s. 8, ch. 96-367.
468.509 Dietitian/nutritionist; requirements for licensure.—
(1) Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency to take the licensure examination.
(2) The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who:
(a)1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant’s graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and
2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or
(b)1. Has an academic degree, from a foreign country, that has been validated by an accrediting agency approved by the United States Department of Education as equivalent to the baccalaureate or postbaccalaureate degree conferred by a regionally accredited college or university in the United States;
2. Has completed a major course of study in human nutrition, food and nutrition, dietetics, or food management; and
3. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board.
(3) The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian.
(4) The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section.
History.—ss. 9, 20, ch. 88-236; s. 25, ch. 91-220; s. 4, ch. 91-429; s. 27, ch. 94-310; s. 9, ch. 96-367.
468.51 Nutrition counselor; renewal of licensure.—Any person previously certified as qualified by the board and holding a license to practice as a nutrition counselor in this state which was issued during the period from July 1, 1988, to March 30, 1997, based upon documentation that the person was employed as a practitioner of nutrition counseling previous to and on April 1, 1988, shall be eligible to renew his or her license pursuant to s. 468.514.
History.—ss. 10, 20, ch. 88-236; s. 4, ch. 91-429; ss. 10, 11, ch. 96-367.
468.511 Dietitian/nutritionist; temporary permit.—
(1) A temporary permit to practice dietetics and nutrition may be issued by the board on the filing of an application, payment of a temporary permit fee, and the submission of evidence of the successful completion of the educational requirement under s. 468.509. The initial application shall be signed by the supervising licensee.
(2) A person practicing under a temporary permit shall be under the supervision and direction of a licensed dietitian/nutritionist.
(3) A temporary permit shall expire 1 year from the date of issuance.
(4) One extension of a temporary permit may be granted for good cause shown.
(5) If the board determines that an applicant is qualified to be licensed by endorsement under s. 468.513, the board may issue the applicant a temporary permit to practice dietetics and nutrition until the next board meeting at which license applications are to be considered, but not for a longer period of time.
(6) If the board determines that an applicant has not passed an examination recognized by the board and is not qualified to be licensed by endorsement, but has otherwise met all the requirements of s. 468.509 and has made application for the next scheduled examination, the board may issue the applicant a temporary permit allowing him or her to practice dietetics and nutrition under the supervision of a licensed dietitian/nutritionist until notification of the results of the examination.
History.—ss. 11, 20, ch. 88-236; s. 4, ch. 91-429; s. 12, ch. 96-367.
468.512 License to be displayed.—
(1)(a) A licensed dietitian/nutritionist may use the words “dietitian,” “licensed dietitian,” “nutritionist,” or “licensed nutritionist,” in connection with the licensee’s name or place of business, to denote licensure under this part.
(b) A licensed nutrition counselor may use the words “nutrition counselor,” “licensed nutrition counselor,” “nutritionist,” or “licensed nutritionist,” in connection with the licensee’s name or place of business, to denote licensure under this part.
(2) Each person to whom a license is issued under this part shall keep such license conspicuously displayed in his or her office, place of business, or place of employment and, whenever required, shall exhibit such license to any member or authorized representative of the board.
History.—ss. 12, 20, ch. 88-236; s. 4, ch. 91-429; s. 13, ch. 96-367.
468.513 Dietitian/nutritionist; licensure by endorsement.—
(1) The agency shall issue a license to practice dietetics and nutrition by endorsement to any applicant who the board certifies as qualified, upon receipt of a completed application and the fee specified in s. 468.508.
(2) The board shall certify as qualified for licensure by endorsement under this section any applicant who:
(a) Presents evidence satisfactory to the board that he or she is a registered dietitian; or
(b) Holds a valid license to practice dietetics or nutrition issued by another state, district, or territory of the United States, if the criteria for issuance of such license are determined by the board to be substantially equivalent to or more stringent than those of this state.
(3) The agency shall not issue a license by endorsement under this section to any applicant who is under investigation in any jurisdiction for any act which would constitute a violation of this part or chapter 456 until such time as the investigation is complete and disciplinary proceedings have been terminated.
History.—ss. 13, 20, ch. 88-236; s. 4, ch. 91-429; s. 14, ch. 96-367; s. 93, ch. 98-166; s. 152, ch. 2000-160.
468.514 Renewal of license.—
(1) The agency shall renew a license under this part upon receipt of the renewal application, fee, and proof of the successful completion of continuing education requirements as determined by the board.
(2) The agency shall adopt rules establishing a procedure for the biennial renewal of licenses under this part.
History.—ss. 14, 20, ch. 88-236; s. 4, ch. 91-429; s. 202, ch. 94-119; s. 15, ch. 96-367.
468.515 Inactive status.—
(1) A license under this part which has become inactive may be reactivated pursuant to this section.
(2) The agency shall reactivate a license under this part upon receipt of the reactivation application, fee, and proof of the successful completion of continuing education prescribed by the board.
(3) The board shall adopt rules relating to licenses under this part which have become inactive and for the reactivation of inactive licenses. The board shall prescribe, by rule, continuing education requirements for reactivating a license. The continuing education requirements for reactivating a license may not exceed 20 classroom hours for each year the license was inactive.
History.—ss. 15, 20, ch. 88-236; s. 4, ch. 91-429; s. 203, ch. 94-119; s. 16, ch. 96-367.
468.516 Practice requirements.—
(1)(a) A licensee under this part shall not implement a dietary plan for a condition for which the patient is under the active care of a physician licensed under chapter 458 or chapter 459, without the oral or written dietary order of the referring physician. In the event the licensee is unable to obtain authorization or consultation after a good faith effort to obtain it from the physician, the licensee may use professional discretion in providing nutrition services until authorization or consultation is obtained from the physician.
(b) The licensee shall refer a patient to a physician licensed under chapter 458 or chapter 459 upon the recognition of a condition within the scope of practice as authorized under chapter 458 or chapter 459, unless the patient has been referred by or is currently being treated by a physician licensed under chapter 458 or chapter 459.
(2)(a) A licensee under this part shall not implement a dietary plan for a chiropractic condition for which the patient is under the active care of a chiropractic physician licensed under chapter 460, without the oral or written dietary order of the referring chiropractic physician. In the event the licensee is unable to obtain authorization or consultation after a good faith effort to obtain it from the chiropractic physician, the licensee may use professional discretion in providing nutrition services until authorization or consultation is obtained from the chiropractic physician.
(b) The licensee shall refer a patient to a chiropractic physician licensed under chapter 460 upon the recognition of a condition within the scope of practice as authorized under chapter 460, unless the patient has been referred or is currently being treated by a chiropractic physician licensed under chapter 460.
History.—ss. 16, 20, ch. 88-236; s. 4, ch. 91-429; s. 17, ch. 96-367.
468.517 Prohibitions; penalties.—
(1) A person may not knowingly:
(a) Engage in dietetics and nutrition practice or nutrition counseling for remuneration unless the person is licensed under this part;
(b) Use the name or title “dietitian,” “licensed dietitian,” “nutritionist,” “licensed nutritionist,” “nutrition counselor,” or “licensed nutrition counselor,” or any other words, letters, abbreviations, or insignia indicating or implying that he or she is a dietitian, nutritionist, or nutrition counselor, or otherwise hold himself or herself out as such, unless the person is the holder of a valid license issued under this part;
(c) Present as his or her own the license of another;
(d) Give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a license that has been suspended, revoked, or placed on inactive or delinquent status;
(f) Employ unlicensed persons to engage in dietetics and nutrition practice or nutrition counseling; or
(g) Conceal information relative to any violation of this part.
(2) A person who violates any provision of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 17, 20, ch. 88-236; s. 100, ch. 91-224; s. 4, ch. 91-429; s. 204, ch. 94-119; s. 18, ch. 96-367.
468.518 Grounds for disciplinary action.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Violating any provision of this part, any board or agency rule adopted pursuant thereto, or any lawful order of the board or agency previously entered in a disciplinary hearing held pursuant to this part, or failing to comply with a lawfully issued subpoena of the agency. The provisions of this paragraph also apply to any order or subpoena previously issued by the Department of Health during its period of regulatory control over this part.
(b) Being unable to engage in dietetics and nutrition practice or nutrition counseling with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
1. A licensee whose license is suspended or revoked pursuant to this paragraph shall, at reasonable intervals, be given an opportunity to demonstrate that he or she can resume the competent practice of dietetics and nutrition or nutrition counseling with reasonable skill and safety to patients.
2. Neither the record of the proceeding nor the orders entered by the board in any proceeding under this paragraph may be used against a licensee in any other proceeding.
(c) Attempting to procure or procuring a license to practice dietetics and nutrition or nutrition counseling by fraud or material misrepresentation of material fact.
(d) Having a license to practice dietetics and nutrition or nutrition counseling revoked, suspended, or otherwise acted against, including the denial of licensure by the licensing authority of another state, district, territory, or country.
(e) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dietetics and nutrition or nutrition counseling or the ability to practice dietetics and nutrition or nutrition counseling.
(f) Making or filing a report or record that the licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records include only those that are signed in the capacity of a licensed dietitian/nutritionist or licensed nutrition counselor.
(g) Advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content.
(h) Committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of dietetics and nutrition or nutrition counseling.
(i) Practicing with a revoked, suspended, inactive, or delinquent license.
(j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice or nutrition counseling.
(k) Failing to maintain acceptable standards of practice as set forth by the board and the council in rules adopted pursuant to this part.
(l) Engaging directly or indirectly in the dividing, transferring, assigning, rebating, or refunding of fees received for professional services, or profiting by means of a credit or other valuable consideration, such as an unearned commission, discount, or gratuity, with any person referring a patient or with any relative or business associate of the referring person. Nothing in this part prohibits the members of any regularly and properly organized business entity that is composed of licensees under this part and recognized under the laws of this state from making any division of their total fees among themselves as they determine necessary.
(m) Advertising, by or on behalf of a licensee under this part, any method of assessment or treatment which is experimental or without generally accepted scientific validation.
(n) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The agency shall reissue the license of a disciplined dietitian/nutritionist or nutrition counselor upon certification by the board that the disciplined dietitian/nutritionist or nutrition counselor has complied with all of the terms and conditions set forth in the final order.
History.—ss. 18, 20, ch. 88-236; s. 4, ch. 91-429; s. 205, ch. 94-119; s. 19, ch. 96-367; s. 94, ch. 98-166; s. 41, ch. 2001-277; s. 17, ch. 2005-240.
EMPLOYEE LEASING COMPANIES
468.520 Definitions.
468.521 Board of Employee Leasing Companies; membership; appointments; terms.
468.522 Rules of the board.
468.523 Applicability of s. 20.165 and ch. 455.
468.524 Application for license.
468.5245 Change of ownership.
468.525 License requirements.
468.526 License required; fees.
468.527 Licensure and license renewal.
468.5275 Registration and exemption of de minimis operations.
468.528 Delinquent licenses.
468.529 Licensee’s insurance; employment tax; benefit plans.
468.530 License, contents; posting.
468.531 Prohibitions; penalties.
468.532 Discipline.
468.533 Collected fees.
468.534 Application.
468.535 Investigations; audits; review.
468.520 Definitions.—As used in this part:
(1) “Applicant” means a business or individual seeking to be licensed under this part.
(2) “Board” means the Board of Employee Leasing Companies.
(3) “Department” means the Department of Business and Professional Regulation.
(4) “Employee leasing” means an arrangement whereby a leasing company assigns its employees to a client and allocates the direction of and control over the leased employees between the leasing company and the client. The term does not include the following:
(a) A temporary help arrangement, whereby an organization hires its own employees and assigns them to a client to support or supplement the client’s workforce in special work situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects.
(b) An arrangement in which an organization employs only one category of employees and assigns them to a client to perform a function inherent to that category and which function is separate and divisible from the primary business of the client.
(c) A facilities staffing arrangement, whereby an organization assigns its employees to staff, in whole or in part, a specific client function or functions, on an ongoing, indefinite basis, provided that the total number of individuals assigned by that organization under such arrangements comprises no more than 50 percent of the workforce at a client’s worksite and provided further that no more than 20 percent of the individuals assigned to staff a particular client function were employed by the client immediately preceding the commencement of the arrangement.
(d) An arrangement in which an organization assigns its employees only to a commonly controlled company or group of companies as defined in s. 414 of the Internal Revenue Code and in which the organization does not hold itself out to the public as an employee leasing company.
(e) A home health agency licensed under chapter 400, unless otherwise engaged in business as an employee leasing company.
(f) A health care services pool licensed under s. 400.980, unless otherwise engaged in business as an employee leasing company.
(5) “Employee leasing company” means a sole proprietorship, partnership, corporation, or other form of business entity engaged in employee leasing.
(6) “Client company” means a person or entity which contracts with an employee leasing company and is provided employees pursuant to that contract.
(7) “Controlling person” means:
(a) Any natural person who possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of any employee leasing company, including, but not limited to:
1. Direct or indirect control of 50 percent or more of the voting securities of the employee leasing company; or
2. The general power to endorse any negotiable instrument payable to or on behalf of the employee leasing company or to cause the direction of the management or policies of any employee leasing company; or
(b) Any natural person employed, appointed, or authorized by an employee leasing company to enter into a contractual relationship with a client company on behalf of the employee leasing company.
History.—ss. 2, 17, ch. 91-93; s. 4, ch. 91-429; s. 31, ch. 94-119; s. 145, ch. 94-218; s. 104, ch. 2000-349.
468.521 Board of Employee Leasing Companies; membership; appointments; terms.—
(1) The Board of Employee Leasing Companies is created within the Department of Business and Professional Regulation and shall consist of seven members to be appointed by the Governor and confirmed by the Senate.
(2) Five members of the board shall be chosen from individuals already engaged in the employee leasing industry and must be licensed pursuant to this part. One of the licensed members must be in an employee leasing company that has an annual gross Florida payroll for its leased employees which is among the smallest 20 percent of licensed employee leasing companies in the state at the time of the member’s appointment and each reappointment. The remaining two board members shall be residents of this state and must not be, or ever have been, connected with the business of employee leasing.
(3) The Governor shall appoint members for terms of 4 years, and such members shall serve until their successors are appointed. The members’ service on the board shall begin upon appointment and shall continue until their successors are appointed.
History.—ss. 3, 17, ch. 91-93; s. 4, ch. 91-429; s. 32, ch. 94-119; s. 146, ch. 94-218.
468.522 Rules of the board.—The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part. Every licensee shall be governed and controlled by this part and the rules adopted by the board.
History.—ss. 4, 17, ch. 91-93; s. 4, ch. 91-429; s. 33, ch. 94-119; s. 137, ch. 98-200.
468.523 Applicability of s. 20.165 and ch. 455.—All provisions of s. 20.165 and chapter 455 relating to activities of regulatory boards shall apply.
History.—ss. 5, 17, ch. 91-93; s. 4, ch. 91-429; s. 34, ch. 94-119; s. 95, ch. 98-166; s. 153, ch. 2000-160.
468.524 Application for license.—
(1) Each employee leasing company and each controlling person required to be licensed shall file with the department a complete written application accompanied by a nonrefundable application fee not to exceed $250. Each employee leasing company and employee leasing company group application must list on the application each owner who has an interest of 10 percent or more in the company.
(2) The board may require information and certifications necessary to determine that the applicant is of good moral character and meets other licensure requirements of this part.
(3) An application for licensure of an employee leasing company group that qualifies for group licensure must contain the information required by this section for each member of the group.
(4) An applicant or licensee is ineligible to reapply for a license for a period of 1 year following final agency action on the denial or revocation of a license applied for or issued under this part. This time restriction does not apply to administrative denials or revocations entered because:
(a) The applicant or licensee has made an inadvertent error or omission on the application;
(b) The experience documented to the board was insufficient at the time of the previous application;
(c) The department is unable to complete the criminal background investigation because of insufficient information from the Florida Department of Law Enforcement, the Federal Bureau of Investigation, or any other applicable law enforcement agency;
(d) The applicant or licensee has failed to submit required fees; or
(e) An applicant or licensed employee leasing company has been deemed ineligible for a license because of the lack of good moral character of an individual or individuals when such individual or individuals are no longer employed in a capacity that would require their licensing under this part.
History.—ss. 6, 17, ch. 91-93; s. 4, ch. 91-429; s. 35, ch. 94-119.
468.5245 Change of ownership.—
(1) A license or registration issued to any entity under this part may not be transferred or assigned. The board shall adopt rules to provide for a licensee’s or registrant’s change of name or location.
(2) A person or entity that seeks to purchase or acquire control of an employee leasing company or group licensed or registered under this part must first apply to the board for a certificate of approval for the proposed change of ownership. However, prior approval is not required if, at the time the purchase or acquisition occurs, a controlling person of the employee leasing company or group maintains a controlling person license under this part. Notification must be provided to the board within 30 days after the purchase or acquisition of such company in the manner prescribed by the board.
(3) Any application that is submitted to the board under this section shall be deemed approved if the board has not approved the application or rejected the application, and provided the applicant with the basis for a rejection, within 90 days after the receipt of the completed application.
(4) The board shall establish filing fees for a change-of-ownership application in accordance with s. 468.524(1).
History.—s. 36, ch. 94-119; s. 1, ch. 2010-126.
468.525 License requirements.—
(1) Each controlling person licensed by the department shall:
(a) Be at least 18 years of age.
(b) Be of good moral character.
(c) Have the education, managerial, or business experience to successfully operate or be a controlling person of an employee leasing company.
(2)(a) As used in this part, “good moral character” means a personal history of honesty, trustworthiness, fairness, a good reputation for fair dealings, and respect for the rights of others and for the laws of this state and nation. A thorough background investigation of the individual’s good moral character shall be instituted by the department. Such investigation shall require:
1. The submission of fingerprints, for processing through appropriate law enforcement agencies, by the applicant and the examination of police records by the board.
2. Such other investigation of the individual as the board may deem necessary.
(b) The board may deny an application for licensure or renewal citing lack of good moral character. Conviction of a crime within the last 7 years shall not automatically bar any applicant or licensee from obtaining a license or continuing as a licensee. The board shall consider the type of crime committed, the crime’s relevancy to the employee leasing industry, the length of time since the conviction and any other factors deemed relevant by the board.
(3) Each employee leasing company licensed by the department shall have a registered agent for service of process in this state and at least one licensed controlling person. In addition, each licensed employee leasing company shall comply with the following requirements:
(a) The employment relationship with workers provided by the employee leasing company to a client company shall be established by written agreement between the leasing company and the client, and written notice of that relationship shall be given by the employee leasing company to each worker who is assigned to perform services at the client company’s worksite.
(b) An applicant for an initial employee leasing company license shall have a tangible accounting net worth of not less than $50,000.
(c) An applicant for initial or renewal license of an employee leasing company license or employee leasing company group shall have an accounting net worth or shall have guaranties, letters of credit, or other security acceptable to the board in sufficient amounts to offset any deficiency. A guaranty will not be acceptable to satisfy this requirement unless the applicant submits sufficient evidence to satisfy the board that the guarantor has adequate resources to satisfy the obligation of the guaranty.
(d) Each employee leasing company shall maintain an accounting net worth and positive working capital, as determined in accordance with generally accepted accounting principles, or shall have guaranties, letters of credit, or other security acceptable to the board in sufficient amounts to offset any deficiency. A guaranty will not be acceptable to satisfy this requirement unless the licensee submits sufficient evidence, as defined by rule, that the guarantor has adequate resources to satisfy the obligation of the guaranty. In determining the amount of working capital, a licensee shall include adequate reserves for all taxes and insurance, including plans of self-insurance or partial self-insurance for claims incurred but not paid and for claims incurred but not reported. Compliance with the requirements of this paragraph is subject to verification by department or board audit.
(e) Each employee leasing company or employee leasing company group shall submit annual financial statements audited by an independent certified public accountant, with the application and within 120 days after the end of each fiscal year, in a manner and time prescribed by the board, provided however, that any employee leasing company or employee leasing company group with gross Florida payroll of less than $2.5 million during any fiscal year may submit financial statements reviewed by an independent certified public accountant for that year.
(f) The licensee shall notify the department or board in writing within 30 days after any change in the application or status of the license.
(g) Each employee leasing company or employee leasing company group shall maintain accounting and employment records relating to all employee leasing activities for a minimum of 3 calendar years.
(4) The employee leasing company’s contractual arrangements with its client companies shall satisfy the following conditions, whereby the leasing company:
(a) Reserves a right of direction and control over leased employees assigned to the client’s location. However, a client may retain such sufficient direction and control over the leased employees as is necessary to conduct the client’s business and without which the client would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with any applicable licensure, regulatory, or statutory requirement of the client.
(b) Assumes responsibility for the payment of wages to the leased employees without regard to payments by the client to the leasing company.
(c) Assumes full responsibility for the payment of payroll taxes and collection of taxes from payroll on leased employees.
(d) Retains authority to hire, terminate, discipline, and reassign the leased employees. However, the client company may have the right to accept or cancel the assignment of any leased employee.
(e) Retains a right of direction and control over management of safety, risk, and hazard control at the worksite or sites affecting its leased employees, including:
1. Responsibility for performing safety inspections of client equipment and premises.
2. Responsibility for the promulgation and administration of employment and safety policies.
3. Responsibility for the management of workers’ compensation claims, claims filings, and related procedures.
(f) Has given written notice of the relationship between the employee leasing company and the client company to each leased employee it assigns to perform services at the client’s worksite.
History.—ss. 7, 17, ch. 91-93; s. 4, ch. 91-429; s. 37, ch. 94-119; s. 20, ch. 2000-356.
468.526 License required; fees.—
(1) An employee leasing company or controlling person may not engage in business in this state without first obtaining a license from the department.
(2) Two or more, but not more than five, employee leasing companies that are majority owned by the same ultimate parent, entity, or persons may be licensed as an employee leasing company group. An employee leasing company group may satisfy the reporting and financial requirements of this licensing law on a consolidated basis. As a condition of licensure as an employee leasing company group, each company that is a member of the group shall guarantee payment of all financial obligations of each other member.
(3) Each employee leasing company and employee leasing company group licensee shall pay to the department upon the initial issuance of a license and upon each renewal thereafter a license fee not to exceed $2,500 to be established by the board. In addition to the license fee, the board shall establish an annual assessment for each employee leasing company and each employee leasing company group sufficient to cover all costs for regulation of the profession pursuant to this chapter, chapter 455, and any other applicable provisions of law. The annual assessment shall:
(a) Be due and payable upon initial licensure and subsequent renewals thereof and 1 year before the expiration of any licensure period; and
(b) Be based on a fixed percentage, variable classes, or a combination of both, as determined by the board, of gross Florida payroll for employees leased to clients by the applicant or licensee during the period beginning five quarters before and ending one quarter before each assessment. It is the intent of the Legislature that the greater weight of total fees for licensure and assessments should be on larger companies and groups.
(4) The total licensure fee and annual assessments during a licensure period shall not exceed:
(a) Ten thousand dollars for an employee leasing company.
(b) Fourteen thousand dollars for an employee leasing company group.
(5) Each controlling person licensee shall pay to the department upon the initial issuance of a license and upon each renewal thereafter a license fee to be established by the board in an amount not to exceed $2,000.
History.—ss. 8, 17, ch. 91-93; s. 4, ch. 91-429; s. 132, ch. 92-149; s. 38, ch. 94-119; s. 96, ch. 98-166; s. 154, ch. 2000-160; s. 21, ch. 2000-356.
468.527 Licensure and license renewal.—
(1) The department shall license any applicant who the board certifies is qualified to practice employee leasing as an employee leasing company, employee leasing company group, or controlling person.
(2) Each license issued to an employee leasing company, employee leasing company group, or controlling person shall be renewed biennially. The department shall renew a license upon receipt of a renewal application and the applicable renewal fee.
History.—ss. 9, 17, ch. 91-93; s. 4, ch. 91-429; s. 39, ch. 94-119.
468.5275 Registration and exemption of de minimis operations.—
(1) An employee leasing company is exempt from the licensing requirements specified in s. 468.525 and from the fees specified in s. 468.526 if such company:
(a) Submits a properly executed request for registration and exemption on a form provided by the department;
(b) Is domiciled outside the state and is licensed or registered as an employee leasing company in its state of domicile or residence;
(c) Does not provide leased employees to a client whose business is located or domiciled in this state;
(d) Does not maintain an office in this state or solicit in any manner clients located or domiciled within this state; and
(e) Does not have more than 50 leased employees working in this state.
(2) A registration is valid for 1 year. Each registrant shall pay to the department upon initial registration, and upon each renewal thereafter, a registration fee to be established by the board in an amount not to exceed:
(a) Two hundred and fifty dollars for an employee leasing company.
(b) Five hundred dollars for an employee leasing company group.
History.—s. 40, ch. 94-119.
468.528 Delinquent licenses.—Failure to renew the license at the time of renewal and pay the appropriate fee shall result in the license becoming delinquent. Licensees have 30 days after the renewal date in which to renew their licenses and pay a late fee not to exceed $300. If payment is not received within 30 days, the license is subject to disciplinary action pursuant to s. 468.532(1)(f).
History.—ss. 10, 17, ch. 91-93; s. 4, ch. 91-429; s. 41, ch. 94-119; s. 2, ch. 2010-126.
468.529 Licensee’s insurance; employment tax; benefit plans.—
(1) A licensed employee leasing company is the employer of the leased employees, except that this provision is not intended to affect the determination of any issue arising under Pub. L. No. 93-406, the Employee Retirement Income Security Act, as amended from time to time. An employee leasing company shall be responsible for timely payment of unemployment taxes pursuant to chapter 443, and shall be responsible for providing workers’ compensation coverage pursuant to chapter 440. However, no licensed employee leasing company shall sponsor a plan of self-insurance for health benefits, except as may be permitted by the provisions of the Florida Insurance Code or, if applicable, by Pub. L. No. 93-406, the Employee Retirement Income Security Act, as amended from time to time. For purposes of this section, a “plan of self-insurance” shall exclude any arrangement where an admitted insurance carrier has issued a policy of insurance primarily responsible for the obligations of the health plan.
(2) An initial or renewal license may not be issued to any employee leasing company unless the employee leasing company first files with the board evidence of workers’ compensation coverage for all leased employees in this state. Each employee leasing company shall maintain and make available to its workers’ compensation carrier the following information:
(a) The correct name and federal identification number of each client company.
(b) A listing of all covered employees provided to each client company, by classification code.
(c) The total eligible wages by classification code and the premiums due to the carrier for the employees provided to each client company.
(3) A licensed employee leasing company shall within 30 days after initiation or termination notify its workers’ compensation insurance carrier, the Division of Workers’ Compensation of the Department of Financial Services, and the state agency providing unemployment tax collection services under contract with the Agency for Workforce Innovation through an interagency agreement pursuant to s. 443.1316 of both the initiation or the termination of the company’s relationship with any client company.
(4) An initial or renewal license may not be issued to any employee leasing company unless the employee leasing company first provides evidence to the board, as required by board rule, that the employee leasing company has paid all of the employee leasing company’s obligations for payroll, payroll-related taxes, workers’ compensation insurance, and employee benefits. All disputed amounts must be disclosed in the application.
(5) The provisions of this section are subject to verification by department or board audit.
History.—ss. 11, 17, ch. 91-93; s. 4, ch. 91-429; s. 42, ch. 94-119; s. 48, ch. 2003-36; s. 503, ch. 2003-261.
468.530 License, contents; posting.—
(1) All licenses issued pursuant to this part shall be in a form prescribed by the department.
(a) Each employee leasing company license shall specify the name under which the licensee is to operate, the address of the principal place of business, and, if applicable, the full name and title of at least one of the controlling persons of the company and the expiration date of the license.
(b) Each controlling person license shall specify the licensee’s full name and business address and the expiration date of the license. Each employee leasing company group license shall specify the foregoing information for each member of the group.
(2) Each employee leasing company license shall at all times be posted in a conspicuous place in the principal place of business of the licensee in this state. Each employee leasing company shall display, in a place that is in clear and unobstructed public view, a notice stating that the business operated at this location is licensed and regulated by the Department of Business and Professional Regulation and that any questions or complaints should be directed to the department.
(3) No license shall be valid for any person or entity who engages in the business under any name other than that specified in the license. A license issued under this part shall not be assignable, and no licensee may conduct a business under a fictitious name without prior written authorization of the board to do so. The board may not authorize the use of a name which is so similar to that of a public officer or agency, or of that used by another licensee, that the public may be confused or misled thereby. No licensee shall be permitted to conduct business under more than one name unless it has obtained a separate license. A licensee desiring to change its licensed name at any time except upon license renewal shall notify the board and pay a fee not to exceed $50 for each authorized change of name.
(4) Each employee leasing company or employee leasing company group licensed under this part shall be properly identified in all advertisements, which must include the license number, licensed business name, and other appropriate information in accordance with rules established by the board.
History.—ss. 12, 17, ch. 91-93; s. 4, ch. 91-429; s. 43, ch. 94-119; s. 147, ch. 94-218.
468.531 Prohibitions; penalties.—
(1) No person or entity shall:
(a) Practice or offer to practice as an employee leasing company, an employee leasing company group, or a controlling person unless such person or entity is licensed pursuant to this part;
(b) Practice or offer to practice as an employee leasing company or employee leasing company group unless all controlling persons thereof are licensed pursuant to this part;
(c) Use the name or title “licensed employee leasing company,” “employee leasing company,” “employee leasing company group,” “professional employer,” “professional employer organization,” “controlling person,” or words that would tend to lead one to believe that such person or entity is registered pursuant to this part, when such person or entity has not registered pursuant to this part;
(d) Present as his or her own or his or her entity’s own the license of another;
(e) Knowingly give false or forged evidence to the board or a member thereof; or
(f) Use or attempt to use a license that has been suspended or revoked.
(2) Any person or entity that violates any provision of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 13, 17, ch. 91-93; s. 4, ch. 91-429; s. 44, ch. 94-119; s. 310, ch. 97-103; s. 22, ch. 2000-356.
468.532 Discipline.—
(1) The following constitute grounds for which disciplinary action against a licensee may be taken by the board:
(a) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, bribery, fraud, or willful misrepresentation in obtaining, attempting to obtain, or renewing a license.
(b) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the operation of an employee leasing business or the ability to engage in business as an employee leasing company.
(c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, fraud, deceit, or misconduct in the classification of employees pursuant to chapter 440.
(d) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, fraud, deceit, or misconduct in the establishment or maintenance of self-insurance, be it health insurance or workers’ compensation insurance.
(e) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, fraud, deceit, or misconduct in the operation of an employee leasing company.
(f) Conducting business without an active license.
(g) Failing to maintain workers’ compensation insurance as required in s. 468.529.
(h) Transferring or attempting to transfer a license issued pursuant to this part.
(i) Violating any provision of this part or any lawful order or rule issued under the provisions of this part or chapter 455.
(j) Failing to notify the board, in writing, of any change of the primary business address or the addresses of any of the licensee’s offices in the state.
(k) Having been confined in any county jail, postadjudication, or being confined in any state or federal prison or mental institution, or when through mental disease or deterioration, the licensee can no longer safely be entrusted to deal with the public or in a confidential capacity.
(l) Having been found guilty for a second time of any misconduct that warrants suspension or being found guilty of a course of conduct or practices which shows that the licensee is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom the licensee may sustain a confidential relationship, may not safely be entrusted to the licensee.
(m) Failing to inform the board in writing within 30 days after being convicted or found guilty of, or entering a plea of nolo contendere to, any felony, regardless of adjudication.
(n) Failing to conform to any lawful order of the board.
(o) Being determined liable for civil fraud by a court in any jurisdiction.
(p) Having adverse material final action taken by any state or federal regulatory agency for violations within the scope of control of the licensee.
(q) Failing to inform the board in writing within 30 days after any adverse material final action by a state or federal regulatory agency.
(r) Failing to meet or maintain the requirements for licensure as an employee leasing company or controlling person.
(s) Engaging as a controlling person any person who is not licensed as a controlling person by the board.
(t) Attempting to obtain, obtaining, or renewing a license to practice employee leasing by bribery, misrepresentation, or fraud.
(2) When the board finds any violation of subsection (1), it may do one or more of the following:
(a) Deny an application for licensure.
(b) Permanently revoke, suspend, restrict, or not renew a license.
(c) Impose an administrative fine not to exceed $5,000 for every count or separate offense.
(d) Issue a reprimand.
(e) Place the licensee on probation for a period of time and subject to such conditions as the board may specify.
(f) Assess costs associated with investigation and prosecution.
(3) Upon revocation or suspension of a license, the licensee must immediately return to the department the license that was revoked or suspended.
(4) The board shall specify by rule the penalties for any violation of this part.
History.—ss. 14, 17, ch. 91-93; s. 4, ch. 91-429; s. 45, ch. 94-119; s. 97, ch. 98-166; s. 155, ch. 2000-160.
468.533 Collected fees.—All fees collected pursuant to this part shall be deposited into the Professional Regulation Trust Fund.
History.—ss. 15, 17, ch. 91-93; s. 4, ch. 91-429; s. 46, ch. 94-119.
468.534 Application.—Nothing in this part shall exempt any client of any employee leasing company, or any leased employee, from any other license requirements of state, local, or federal law. Any employee leased to a client company, who is licensed, registered, or certified pursuant to law, shall be deemed to be an employee of the client company for such licensure purposes, but shall remain an employee of the employee leasing company as specified in chapters 440 and 443.
History.—ss. 16, 17, ch. 91-93; s. 4, ch. 91-429; s. 47, ch. 94-119.
468.535 Investigations; audits; review.—
(1) The department may make investigations, audits, or reviews within or outside this state as it deems necessary:
(a) To determine whether a person or company has violated or is in danger of violating any provision of this part, chapter 455, or any rule or order thereunder; or
(b) To aid in the enforcement of this part or chapter 455.
(2) All material compiled by the department in any investigation, audit, review of a proposed change of ownership of an employee leasing company, or other review under this part is subject to ss. 455.225(2) and 455.229(1).
History.—s. 48, ch. 94-119; s. 98, ch. 98-166; s. 156, ch. 2000-160.
BUILDING CODE ADMINISTRATORS
AND INSPECTORS
AND INSPECTORS
468.601 Purpose.
468.602 Exemptions.
468.603 Definitions.
468.604 Responsibilities of building code administrators, plans examiners, and inspectors.
468.605 Florida Building Code Administrators and Inspectors Board.
468.606 Authority of the board.
468.607 Certification of building code administration and inspection personnel.
468.609 Administration of this part; standards for certification; additional categories of certification.
468.613 Certification by endorsement.
468.617 Joint building code inspection department; other arrangements.
468.619 Building code enforcement officials’ bill of rights.
468.621 Disciplinary proceedings.
468.627 Application; examination; renewal; fees.
468.629 Prohibitions; penalties.
468.631 Building Code Administrators and Inspectors Fund.
468.632 Prosecution of criminal violations.
468.633 Authority of local government.
468.601 Purpose.—The Legislature finds that, where building code administration and inspection personnel fail to adequately, competently, and professionally administer state or local building codes, physical and economic injury to the citizens of the state may result and, therefore, deems it necessary in the interest of public health and safety to regulate the practice of building code administration and inspection in this state.
History.—s. 24, ch. 93-166.
468.602 Exemptions.—This part does not apply to:
(1) Persons who possess a valid certificate, issued pursuant to s. 633.081, for conducting firesafety inspections, when conducting firesafety inspections.
(2) Persons currently licensed or certified to practice as an architect pursuant to chapter 481, an engineer pursuant to chapter 471, or a contractor pursuant to chapter 489, when performing any services authorized by such license or certificate.
(3) Persons acting as special inspectors for code enforcement jurisdictions while conducting special inspections not required as minimum inspections by the Florida Building Code.
History.—s. 24, ch. 93-166; s. 49, ch. 94-119; s. 7, ch. 98-287; s. 117, ch. 2000-141; s. 35, ch. 2001-186; s. 4, ch. 2001-372.
468.603 Definitions.—As used in this part:
(1) “Building code administrator” or “building official” means any of those employees of municipal or county governments with building construction regulation responsibilities who are charged with the responsibility for direct regulatory administration or supervision of plan review, enforcement, or inspection of building construction, erection, repair, addition, remodeling, demolition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. This term is synonymous with “building official” as used in the administrative chapter of the Standard Building Code and the South Florida Building Code. One person employed by each municipal or county government as a building code administrator or building official and who is so certified under this part may be authorized to perform any plan review or inspection for which certification is required by this part.
(2) “Building code inspector” means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance.
(3) “Board” means the Florida Building Code Administrators and Inspectors Board.
(4) “Department” means the Department of Business and Professional Regulation.
(5) “Certificate” means a certificate of qualification issued by the department as provided in this part.
(6) “Categories of building code inspectors” include the following:
(a) “Building inspector” means a person who is qualified to inspect and determine that buildings and structures are constructed in accordance with the provisions of the governing building codes and state accessibility laws.
(b) “Coastal construction inspector” means a person who is qualified to inspect and determine that buildings and structures are constructed to resist near-hurricane and hurricane velocity winds in accordance with the provisions of the governing building code.
(c) “Commercial electrical inspector” means a person who is qualified to inspect and determine the electrical safety of commercial buildings and structures by inspecting for compliance with the provisions of the National Electrical Code.
(d) “Residential electrical inspector” means a person who is qualified to inspect and determine the electrical safety of one and two family dwellings and accessory structures by inspecting for compliance with the applicable provisions of the governing electrical code.
(e) “Mechanical inspector” means a person who is qualified to inspect and determine that the mechanical installations and systems for buildings and structures are in compliance with the provisions of the governing mechanical code.
(f) “Plumbing inspector” means a person who is qualified to inspect and determine that the plumbing installations and systems for buildings and structures are in compliance with the provisions of the governing plumbing code.
(g) “One and two family dwelling inspector” means a person who is qualified to inspect and determine that one and two family dwellings and accessory structures are constructed in accordance with the provisions of the governing building, plumbing, mechanical, accessibility, and electrical codes.
(h) “Electrical inspector” means a person who is qualified to inspect and determine the electrical safety of commercial and residential buildings and accessory structures by inspecting for compliance with the provisions of the National Electrical Code.
(7) “Plans examiner” means a person who is qualified to determine that plans submitted for purposes of obtaining building and other permits comply with the applicable building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other applicable construction codes. Categories of plans examiners include:
(a) Building plans examiner.
(b) Plumbing plans examiner.
(c) Mechanical plans examiner.
(d) Electrical plans examiner.
(8) “Building code enforcement official” or “enforcement official” means a licensed building code administrator, building code inspector, or plans examiner.
History.—s. 24, ch. 93-166; s. 50, ch. 94-119; s. 149, ch. 94-218; s. 1, ch. 98-419; s. 12, ch. 2000-372.
468.604 Responsibilities of building code administrators, plans examiners, and inspectors.—
(1) It is the responsibility of the building code administrator or building official to administrate, supervise, direct, enforce, or perform the permitting and inspection of construction, alteration, repair, remodeling, or demolition of structures and the installation of building systems within the boundaries of their governmental jurisdiction, when permitting is required, to ensure compliance with the Florida Building Code and any applicable local technical amendment to the Florida Building Code. The building code administrator or building official shall faithfully perform these responsibilities without interference from any person. These responsibilities include:
(a) The review of construction plans to ensure compliance with all applicable sections of the code. The construction plans must be reviewed before the issuance of any building, system installation, or other construction permit. The review of construction plans must be done by the building code administrator or building official or by a person having the appropriate plans examiner license issued under this chapter.
(b) The inspection of each phase of construction where a building or other construction permit has been issued. The building code administrator or building official, or a person having the appropriate building code inspector license issued under this chapter, shall inspect the construction or installation to ensure that the work is performed in accordance with applicable sections of the code.
(2) It is the responsibility of the building code inspector to conduct inspections of construction, alteration, repair, remodeling, or demolition of structures and the installation of building systems, when permitting is required, to ensure compliance with the Florida Building Code and any applicable local technical amendment to the Florida Building Code. Each building code inspector must be licensed in the appropriate category as defined in s. 468.603. The building code inspector’s responsibilities must be performed under the direction of the building code administrator or building official without interference from any unlicensed person.
(3) It is the responsibility of the plans examiner to conduct review of construction plans submitted in the permit application to assure compliance with the Florida Building Code and any applicable local technical amendment to the Florida Building Code. The review of construction plans must be done by the building code administrator or building official or by a person licensed in the appropriate plans examiner category as defined in s. 468.603. The plans examiner’s responsibilities must be performed under the supervision and authority of the building code administrator or building official without interference from any unlicensed person.
History.—s. 2, ch. 98-419; s. 32, ch. 2000-141; s. 13, ch. 2000-372; s. 34, ch. 2001-186; s. 3, ch. 2001-372.
468.605 Florida Building Code Administrators and Inspectors Board.—
(1) There is created within the Department of Business and Professional Regulation the Florida Building Code Administrators and Inspectors Board. Members shall be appointed by the Governor, subject to confirmation by the Senate. Members shall be appointed for 4-year terms. No member shall serve more than two consecutive 4-year terms, nor serve for more than 11 years on the board. To ensure continuity of board policies, the Governor shall initially appoint one member for a 1-year term, two members for 2-year terms, two members for 3-year terms, and two members for 4-year terms.
(2) The board shall consist of nine members, as follows:
(a) One member who is an architect licensed pursuant to chapter 481, an engineer licensed pursuant to chapter 471, or a contractor licensed pursuant to chapter 489.
(b) Two members serving as building code administrators.
(c) Two members serving as building code inspectors.
(d) One member serving as a plans examiner.
(e) One member who is a representative of a city or a charter county.
(f) Two consumer members who are not, and have never been, members of a profession regulated under this part, chapter 481, chapter 471, or chapter 489. One of the consumer members must be a person with a disability or a representative of an organization which represents persons with disabilities.
None of the board members described in paragraph (a) or paragraph (f) may be an employee of a municipal, county, or state governmental agency.
History.—s. 24, ch. 93-166; s. 51, ch. 94-119; s. 150, ch. 94-218; s. 3, ch. 98-419; s. 128, ch. 2000-153; s. 14, ch. 2000-372.
468.606 Authority of the board.—The board is authorized to:
(1) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part.
(2) Certify individuals as being qualified under the provisions of this part to be building code administrators, plans examiners, and building code inspectors.
History.—s. 24, ch. 93-166; s. 138, ch. 98-200.
468.607 Certification of building code administration and inspection personnel.—The board shall issue a certificate to any individual whom the board determines to be qualified, within such class and level as provided in this part and with such limitations as the board may place upon it. No person may be employed by a state agency or local governmental authority to perform the duties of a building code administrator, plans examiner, or building code inspector after October 1, 1993, without possessing the proper valid certificate issued in accordance with the provisions of this part. Any person who acts as an inspector and plans examiner under s. 1013.37 while conducting activities authorized by certification under that section is certified to continue to conduct inspections for a local enforcement agency until the person’s UBCI certification expires, after which time such person must possess the proper valid certificate issued in accordance with this part.
History.—s. 24, ch. 93-166; s. 33, ch. 2000-141; s. 15, ch. 2000-372; s. 1015, ch. 2002-387.
468.609 Administration of this part; standards for certification; additional categories of certification.—
(1) Except as provided in this part, any person who desires to be certified shall apply to the board, in writing upon forms approved and furnished by the board, to take the certification examination.
(2) A person may take the examination for certification as a building code inspector or plans examiner pursuant to this part if the person:
(a) Is at least 18 years of age.
(b) Is of good moral character.
(c) Meets eligibility requirements according to one of the following criteria:
1. Demonstrates 5 years’ combined experience in the field of construction or a related field, building code inspection, or plans review corresponding to the certification category sought;
2. Demonstrates a combination of postsecondary education in the field of construction or a related field and experience which totals 4 years, with at least 1 year of such total being experience in construction, building code inspection, or plans review;
3. Demonstrates a combination of technical education in the field of construction or a related field and experience which totals 4 years, with at least 1 year of such total being experience in construction, building code inspection, or plans review;
4. Currently holds a standard certificate as issued by the board and satisfactorily completes a building code inspector or plans examiner training program of not less than 200 hours in the certification category sought. The board shall establish by rule criteria for the development and implementation of the training programs; or
5. Demonstrates a combination of the completion of an approved training program in the field of building code inspection or plan review and a minimum of 2 years’ experience in the field of building code inspection, plan review, fire code inspections and fire plans review of new buildings as a firesafety inspector certified under s. 633.081(2), or construction. The approved training portion of this requirement shall include proof of satisfactory completion of a training program of not less than 300 hours which is approved by the board in the chosen category of building code inspection or plan review in the certification category sought with not less than 20 hours of instruction in state laws, rules, and ethics relating to professional standards of practice, duties, and responsibilities of a certificateholder. The board shall coordinate with the Building Officials Association of Florida, Inc., to establish by rule the development and implementation of the training program.
(3) A person may take the examination for certification as a building code administrator pursuant to this part if the person:
(a) Is at least 18 years of age.
(b) Is of good moral character.
(c) Meets eligibility requirements according to one of the following criteria:
1. Demonstrates 10 years’ combined experience as an architect, engineer, plans examiner, building code inspector, registered or certified contractor, or construction superintendent, with at least 5 years of such experience in supervisory positions; or
2. Demonstrates a combination of postsecondary education in the field of construction or related field, no more than 5 years of which may be applied, and experience as an architect, engineer, plans examiner, building code inspector, registered or certified contractor, or construction superintendent which totals 10 years, with at least 5 years of such total being experience in supervisory positions.
(4) No person may engage in the duties of a building code administrator, plans examiner, or building code inspector pursuant to this part after October 1, 1993, unless such person possesses one of the following types of certificates, currently valid, issued by the board attesting to the person’s qualifications to hold such position:
(a) A standard certificate.
(b) A limited certificate.
(c) A provisional certificate.
(5)(a) To obtain a standard certificate, an individual must pass an examination approved by the board which demonstrates that the applicant has fundamental knowledge of the state laws and codes relating to the construction of buildings for which the applicant has building code administration, plans examination, or building code inspection responsibilities. It is the intent of the Legislature that the examination approved for certification pursuant to this part be substantially equivalent to the examinations administered by the International Code Council.
(b) A standard certificate shall be issued to each applicant who successfully completes the examination, which certificate authorizes the individual named thereon to practice throughout the state as a building code administrator, plans examiner, or building code inspector within such class and level as is specified by the board.
(c) The board may accept proof that the applicant has passed an examination which is substantially equivalent to the board-approved examination set forth in this section.
(6)(a) A building code administrator, plans examiner, or building code inspector holding office on July 1, 1993, shall not be required to possess a standard certificate as a condition of tenure or continued employment, but shall be required to obtain a limited certificate as described in this subsection.
(b) By October 1, 1993, individuals who were employed on July 1, 1993, as building code administrators, plans examiners, or building code inspectors, who are not eligible for a standard certificate, but who wish to continue in such employment, shall submit to the board the appropriate application and certification fees and shall receive a limited certificate qualifying them to engage in building code administration, plans examination, or building code inspection in the class, at the performance level, and within the governmental jurisdiction in which such person is employed.
(c) The limited certificate shall be valid only as an authorization for the building code administrator, plans examiner, or building code inspector to continue in the position held, and to continue performing all functions assigned to that position, on July 1, 1993.
(d) A building code administrator, plans examiner, or building code inspector holding a limited certificate can be promoted to a position requiring a higher level certificate only upon issuance of a standard certificate or provisional certificate appropriate for such new position.
(e) By March 1, 2003, or 1 year after the Florida Building Code is implemented, whichever is later, individuals who were employed by an educational board, the Department of Education, or the State University System as building code administrators, plans examiners, or inspectors, who do not wish to apply for a standard certificate but who wish to continue in such employment, shall submit to the board the appropriate application and certification fees and shall receive a limited certificate qualifying such individuals to engage in building code administration, plans examination, or inspection in the class, at the performance level, and within the governmental jurisdiction in which such person is employed.
(7)(a) The board may provide for the issuance of provisional certificates valid for such period, not less than 3 years nor more than 5 years, as specified by board rule, to any newly employed or promoted building code inspector or plans examiner who meets the eligibility requirements described in subsection (2) and any newly employed or promoted building code administrator who meets the eligibility requirements described in subsection (3).
(b) No building code administrator, plans examiner, or building code inspector may have a provisional certificate extended beyond the specified period by renewal or otherwise.
(c) The board may provide for appropriate levels of provisional certificates and may issue these certificates with such special conditions or requirements relating to the place of employment of the person holding the certificate, the supervision of such person on a consulting or advisory basis, or other matters as the board may deem necessary to protect the public safety and health.
(d) A newly employed or hired person may perform the duties of a plans examiner or building code inspector for 120 days if a provisional certificate application has been submitted if such person is under the direct supervision of a certified building code administrator who holds a standard certification and who has found such person qualified for a provisional certificate. Direct supervision and the determination of qualifications may also be provided by a building code administrator who holds a limited or provisional certificate in a county having a population of fewer than 75,000 and in a municipality located within such county.
(8) Any individual applying to the board may be issued a certificate valid for multiple building code inspection classes, as deemed appropriate by the board.
(9) Certification and training classes may be developed in coordination with degree career education centers, community colleges, the State University System, or other entities offering certification and training classes.
(10) The board may by rule create categories of certification in addition to those defined in s. 468.603(6) and (7). Such certification categories shall not be mandatory and shall not act to diminish the scope of any certificate created by statute.
History.—s. 24, ch. 93-166; s. 52, ch. 94-119; s. 8, ch. 98-287; s. 4, ch. 98-419; s. 7, ch. 99-254; s. 34, ch. 2000-141; s. 16, ch. 2000-372; s. 14, ch. 2001-372; s. 3, ch. 2007-187; s. 1, ch. 2007-227; s. 10, ch. 2009-195.
468.613 Certification by endorsement.—The board shall examine other certification or training programs, as applicable, upon submission to the board for its consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements, to the extent that such examination, qualification, education, or training requirements of the applicant are determined by the board to be comparable with those established by the board.
History.—s. 24, ch. 93-166.
468.617 Joint building code inspection department; other arrangements.—
(1) Nothing in this part shall prohibit any local jurisdiction, school board, community college board, state university, or state agency from entering into and carrying out contracts with any other local jurisdiction or educational board under which the parties agree to create and support a joint building code inspection department for conforming to the provisions of this part. In lieu of a joint building code inspection department, any local jurisdiction may designate a building code inspector from another local jurisdiction to serve as a building code inspector for the purposes of this part.
(2) Nothing in this part shall prohibit local governments, school boards, community college boards, state universities, or state agencies from contracting with persons certified pursuant to this part to perform building code inspections or plan reviews. An individual or entity may not inspect or examine plans on projects in which the individual or entity designed or permitted the projects.
(3) Nothing in this part shall prohibit any county or municipal government, school board, community college board, state university, or state agency from entering into any contract with any person or entity for the provision of building code inspection services regulated under this part, and notwithstanding any other statutory provision, such county or municipal governments may enter into contracts.
(4) Nothing in this part prohibits any building code inspector, plans examiner, or building code administrator holding a limited certificate who is employed by a jurisdiction within a small county as defined in s. 339.2818 from providing building code inspection, plans review, or building code administration services to another jurisdiction within a small county.
History.—s. 24, ch. 93-166; s. 3, ch. 96-298; s. 73, ch. 96-388; s. 5, ch. 98-419; s. 35, ch. 2000-141; s. 17, ch. 2000-372; s. 2, ch. 2007-227.
468.619 Building code enforcement officials’ bill of rights.—
(1) It is the finding of the Legislature that building code enforcement officials are employed by local jurisdictions to exercise police powers of the state in the course of their duties and are in that way similar to law enforcement personnel, correctional officers, and firefighters. It is the further finding of the Legislature that building code enforcement officials are thereby sufficiently distinguishable from other professionals regulated by the department so that their circumstances merit additional specific protections in the course of disciplinary investigations and proceedings against their licenses.
(2) All enforcement officials licensed under this part shall have the rights and privileges specified in this section. Such rights are not exclusive to other rights, and an enforcement official does not forfeit any rights otherwise held under federal, state, or local law. In any instance of a conflict between a provision of this section and a provision of chapter 455, the provision of this section shall supersede the provision of chapter 455.
(3) Whenever an enforcement official is subjected to an investigative interview for possible disciplinary action by the department, such interview shall be conducted pursuant to the requirements of this subsection.
(a) The interview shall take place at a reasonable hour. If the interview is taken in person, it shall take place not more than 30 miles from where the licensee works, or at any other mutually agreeable location or time.
(b) An enforcement official may not be subjected to an interview without first receiving written notice of sufficient details of the complaint in order to be reasonably apprised of the nature of the investigation and of the substance of the allegations made. The enforcement official shall be informed prior to the interview whether the complaint originated from the department or from a consumer.
(c) At his or her request, an enforcement official under investigation shall have the right to be represented by counsel or by any other representative of his or her choice, who shall be present at such time as the enforcement official wishes during the interview.
(d) During the interview, the enforcement official may not be subjected to offensive language. No promise may be made or reward offered to the enforcement official as an inducement to answer any question.
(e) If requested by the enforcement official, the interview of an enforcement official, including notation of all recess periods, must be recorded on audio tape, or otherwise preserved in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the enforcement official, a copy of any such recording of the interview must be made available to the enforcement official no later than 72 hours following the interview, excluding holidays and weekends. The expense of the recording and transcript shall be borne by the enforcement official.
(f) If the testimony is transcribed, the transcript must be furnished to the enforcement official for examination, and shall be read to or by the enforcement official, unless waived by all parties involved. Any changes in form or substance that the enforcement official wants to make shall be listed in writing, with a statement of the reasons for making the changes. The changes shall be attached to the transcript. Any transcript of an interview with an enforcement official which is to be used in any proceeding against the enforcement official shall be sworn or affirmed to and acknowledged by the enforcement official.
(4) The investigation of a complaint against an enforcement official is subject to the time restrictions set forth in this subsection, and failure to comply with any time restriction set forth in this subsection shall result in dismissal of the complaint against the enforcement official. An investigation of a complaint against an enforcement official that was dismissed for failure to comply with a time restriction set forth in this subsection may not be reopened. However, in any instance of an additional complaint being initiated, information or investigation related to the dismissed complaint may be used.
(a) The department must inform the enforcement official of any legally sufficient complaint received, including the substance of the allegation, within 10 days after receipt of the complaint by the department.
(b) The enforcement official shall be given 30 days to respond to any legally sufficient complaint.
(c) No longer than 180 days from the date of the receipt of the complaint, the department shall submit the investigation, whether complete or not, to the probable cause panel for review. In the event the investigation is not complete, the probable cause panel shall review and instruct the department to complete the investigation within a time certain and, in no event, greater than 90 days or dismiss the complaint with prejudice.
(5) The enforcement official shall be considered an agent of the governmental entity employing him or her and as such shall be defended by that entity in any action brought by the department or the board, provided the enforcement official is working within the scope of his or her employment.
(6) An enforcement official shall not be subject to disciplinary action in regard to his or her certification for exercising his or her rights under this section.
(7) If any action taken against the enforcement official by the department or the board is found to be without merit by a court of competent jurisdiction, or if judgment in such an action is awarded to the enforcement official, the department or the board, or the assignee of the department or board, shall reimburse the enforcement official or his or her employer, as appropriate, for reasonable legal costs and reasonable attorney’s fees incurred. The amount awarded shall not exceed the limit provided in s. 120.595.
(8) An enforcement official may bring civil suit against any person, group of persons, or organization or corporation, or the head of such organization or corporation, for damages, either pecuniary or otherwise, suffered pursuant to the performance of the enforcement official’s duties or for abridgement of the enforcement official’s civil rights arising out of the enforcement official’s performance of official duties.
(9) Notwithstanding any other provision in law, while under investigation the enforcement official shall not be denied any and all the rights and privileges of a licensee in good standing.
(10) This bill of rights applies to disciplinary investigations and proceedings against licenses issued under this part and disciplinary investigations and proceedings relating to the official duties of an enforcement official. This bill of rights does not apply to disciplinary investigations and proceedings against other licenses that the enforcement official holds or disciplinary investigations and proceedings unrelated to the enforcement official’s official duties.
History.—s. 18, ch. 2000-372; s. 3, ch. 2007-227.
468.621 Disciplinary proceedings.—
(1) The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:
(a) Violating or failing to comply with any provision of this part, or a valid rule or lawful order of the board or department pursuant thereto.
(b) Obtaining certification through fraud, deceit, or perjury.
(c) Knowingly assisting any person practicing contrary to the provisions of:
1. This part; or
2. The building code adopted by the enforcement authority of that person.
(d) Having been convicted of a felony against this state or the United States, or of a felony in another state that would have been a felony had it been committed in this state.
(e) Having been convicted of a crime in any jurisdiction which directly relates to the practice of building code administration or inspection.
(f) Making or filing a report or record that the certificateholder knows to be false, or knowingly inducing another to file a false report or record, or knowingly failing to file a report or record required by state or local law, or knowingly impeding or obstructing such filing, or knowingly inducing another person to impede or obstruct such filing.
(g) Failing to properly enforce applicable building codes or permit requirements within this state which the certificateholder knows are applicable or committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property.
(h) Issuing a building permit to a contractor, or any person representing himself or herself as a contractor, without obtaining the contractor’s certificate or registration number, where such a certificate or registration is required.
(i) Failing to lawfully execute the duties and responsibilities specified in this part and ss. 553.73, 553.781, 553.79, and 553.791.
(j) Performing building code inspection services under s. 553.791 without satisfying the insurance requirements of that section.
(k) Obstructing an investigation or providing or inducing another to provide forged documents, false forensic evidence, or false testimony to a local or state board or member thereof or to a licensing investigator.
(l) Accepting labor, services, or materials at no charge or at a noncompetitive rate from any person who performs work that is under the enforcement authority of the enforcement official and who is not an immediate family member of the enforcement official. The term “immediate family member” includes a spouse, child, parent, sibling, grandparent, aunt, uncle, or first cousin of the person or the person’s spouse or any person who resides in the primary residence of the enforcement official.
(2) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for certification.
(b) Permanent revocation.
(c) Suspension of a certificate.
(d) Imposition of an administrative fine not to exceed $5,000 for each separate offense. Such fine must be rationally related to the gravity of the violation.
(e) Issuance of a reprimand.
(f) Placement of the certificateholder on probation for a period of time and subject to such conditions as the board may impose, including alteration of performance level.
(g) Satisfactory completion of continuing education.
(h) Issuance of a citation.
(3) Where a certificate is suspended, placed on probation, or has conditions imposed, the board shall reinstate the certificate of a disciplined building code administrator, plans examiner, or building code inspector upon proof the disciplined individual has complied with all terms and conditions set forth in the final order.
(4) No person may be allowed to apply for certification under this part for a minimum of 5 years after the date of revocation of any certificate issued pursuant to this part. The board may by rule establish additional criteria for certification following revocation.
History.—s. 24, ch. 93-166; s. 9, ch. 98-287; s. 8, ch. 99-254; s. 9, ch. 99-386; s. 118, ch. 2000-141; s. 19, ch. 2000-372; s. 35, ch. 2001-186; s. 4, ch. 2001-372; s. 3, ch. 2005-147; s. 2, ch. 2005-216; s. 4, ch. 2007-227.
468.627 Application; examination; renewal; fees.—
(1) The board shall establish by rule fees to be paid for application, examination, reexamination, certification and certification renewal, inactive status application, and reactivation of inactive certificates. The board may establish by rule a late renewal penalty. The board shall establish fees which are adequate, when combined with revenue generated by the provisions of s. 468.631, to ensure the continued operation of this part. Fees shall be based on department estimates of the revenue required to implement this part.
(2) The initial application fee may not exceed $25 for building code administrators, plans examiners, or building code inspectors.
(3) The initial examination fee may not exceed $150 for building code administrators, plans examiners, or building code inspectors.
(4) Employees of local government agencies having responsibility for building code inspection, building construction regulation, and enforcement of building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes shall pay no application fees or examination fees.
(5) The certificateholder shall provide proof, in a form established by board rule, that the certificateholder has completed at least 14 classroom hours of at least 50 minutes each of continuing education courses during each biennium since the issuance or renewal of the certificate, including the specialized or advanced coursework approved by the Florida Building Commission, as part of the building code training program established pursuant to s. 553.841, appropriate to the licensing category sought. A minimum of 3 of the required 14 classroom hours must be on state law, rules, and ethics relating to professional standards of practice, duties, and responsibilities of the certificateholder. The board shall by rule establish criteria for approval of continuing education courses and providers, and may by rule establish criteria for accepting alternative nonclassroom continuing education on an hour-for-hour basis.
History.—s. 24, ch. 93-166; s. 10, ch. 98-287; s. 6, ch. 98-419; s. 20, ch. 2000-372; s. 5, ch. 2007-227; s. 11, ch. 2009-195.
468.629 Prohibitions; penalties.—
(1) No person may:
(a) Falsely hold himself or herself out as a certificateholder.
(b) Falsely impersonate a certificateholder.
(c) Present as his or her own the certificate of another.
(d) Give false or forged evidence to the board or the department, or a member, an employee, or an officer thereof, for the purpose of obtaining a certificate.
(e) Use or attempt to use a certificate which has been suspended or revoked.
(f) Threaten, coerce, trick, persuade, or otherwise influence, or attempt to threaten, coerce, trick, persuade, or otherwise influence, any certificateholder to violate any provision of this part.
(g) Offer any compensation to a certificateholder in order to induce a violation of this part, a local building code or ordinance, or another law of this state.
(2) Any person who violates any provision of this part commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who violates any provision of this part after a previous conviction for such violation commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 24, ch. 93-166.
468.631 Building Code Administrators and Inspectors Fund.—
(1) This part shall be funded through a surcharge, to be assessed pursuant to s. 125.56(4) or s. 166.201 at the rate of 1.5 percent of all permit fees associated with enforcement of the Florida Building Code as defined by the uniform account criteria and specifically the uniform account code for building permits adopted for local government financial reporting pursuant to s. 218.32. The minimum amount collected on any permit issued shall be $2. The unit of government responsible for collecting permit fees pursuant to s. 125.56 or s. 166.201 shall collect such surcharge and shall remit the funds to the department on a quarterly calendar basis beginning not later than December 31, 2010, for the preceding quarter, and continuing each third month thereafter; and such unit of government shall retain 10 percent of the surcharge collected to fund the participation of building departments in the national and state building code adoption processes and to provide education related to enforcement of the Florida Building Code. There is created within the Professional Regulation Trust Fund a separate account to be known as the Building Code Administrators and Inspectors Fund, which shall deposit and disburse funds as necessary for the implementation of this part. The proceeds from this surcharge shall be allocated equally to fund the Florida Homeowners’ Construction Recovery Fund established by s. 489.140 and the functions of the Building Code Administrators and Inspectors Board.
(2) The unit of government responsible for collecting permit fees under this section shall report to the department quarterly the number of permits issued for under-roof floor space during the quarter, the total square footage for the number of permits issued for under-roof floor space during the quarter, and the calculation of the amount of funds being remitted to the department. The report shall be attested to by the officer in charge of collecting permit fees.
History.—s. 24, ch. 93-166; s. 21, ch. 2000-372; s. 11, ch. 2004-84; s. 6, ch. 2010-176.
468.632 Prosecution of criminal violations.—The department shall report any criminal violation of this part to the proper prosecuting authority for prompt prosecution.
History.—s. 24, ch. 93-166.
468.633 Authority of local government.—
(1) Nothing in this part may be construed to restrict the authority of local governments to require as a condition of employment that building code administrators, plans examiners, and building code inspectors possess qualifications beyond the requirements for certification contained in this part.
(2) The discipline of any person pursuant to s. 468.621 shall, as a matter of law, constitute just or substantial cause for discharge from employment.
(3) The certification or discipline of a local government’s employees pursuant to this part shall not be construed as a waiver of sovereign immunity by the local government.
History.—s. 24, ch. 93-166; s. 22, ch. 2000-372.
ATHLETIC TRAINERS
468.70 Legislative intent.
468.701 Definitions.
468.703 Board of Athletic Training.
468.705 Rulemaking authority.
468.707 Licensure by examination; requirements.
468.709 Fees.
468.711 Renewal of license; continuing education.
468.713 Responsibilities of athletic trainers.
468.715 Sexual misconduct.
468.717 Violations and penalties.
468.719 Disciplinary actions.
468.723 Exemptions.
468.70 Legislative intent.—It is the intent of the Legislature that athletes be assisted by persons adequately trained to recognize, prevent, and treat physical injuries sustained during athletic activities. Therefore, it is the further intent of the Legislature to protect the public by licensing and fully regulating athletic trainers.
History.—s. 320, ch. 94-119; s. 1, ch. 95-388; s. 2, ch. 2000-332.
468.701 Definitions.—As used in this part, the term:
(1) “Athlete” means a person who participates in an athletic activity.
(2) “Athletic activity” means the participation in an activity, conducted by an educational institution, a professional athletic organization, or an amateur athletic organization, involving exercises, sports, games, or recreation requiring any of the physical attributes of strength, agility, flexibility, range of motion, speed, and stamina.
(3) “Athletic injury” means an injury sustained which affects the athlete’s ability to participate or perform in athletic activity.
(4) “Athletic trainer” means a person licensed under this part.
(5) “Athletic training” means the recognition, prevention, and treatment of athletic injuries.
(6) “Board” means the Board of Athletic Training.
(7) “Department” means the Department of Health.
(8) “Direct supervision” means the physical presence of the supervisor on the premises so that the supervisor is immediately available to the trainee when needed.
(9) “Supervision” means the easy availability of the supervisor to the athletic trainer, which includes the ability to communicate by telecommunications.
History.—s. 321, ch. 94-119; s. 2, ch. 95-388; s. 99, ch. 98-166; s. 1, ch. 99-349; s. 131, ch. 99-397.
Note.—Former s. 468.71.
468.703 Board of Athletic Training.—
(1) The Board of Athletic Training is created within the department and shall consist of nine members appointed by the Governor and confirmed by the Senate.
(2) Five members of the board must be licensed athletic trainers. One member of the board must be a physician licensed under chapter 458 or chapter 459. One member of the board must be a physician licensed under chapter 460. Two members of the board shall be consumer members, each of whom must be a resident of this state who has never worked as an athletic trainer, who has no financial interest in the practice of athletic training, and who has never been a licensed health care practitioner as defined in s. 456.001(4).
(3) For the purpose of staggering terms, the Governor shall appoint the initial members of the board as follows:
(a) Three members for terms of 2 years each.
(b) Three members for terms of 3 years each.
(c) Three members for terms of 4 years each.
(4) As the terms of the members expire, the Governor shall appoint successors for terms of 4 years and such members shall serve until their successors are appointed.
(5) All provisions of chapter 456 relating to activities of the board shall apply.
(6) The board shall maintain its official headquarters in Tallahassee.
History.—s. 3, ch. 95-388; ss. 100, 245, ch. 98-166; s. 2, ch. 99-349; s. 132, ch. 99-397; s. 157, ch. 2000-160.
468.705 Rulemaking authority.—The board is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this part conferring duties upon it. The provisions of s. 456.011(5) shall apply to the board’s activity. Such rules shall include, but not be limited to, the allowable scope of practice regarding the use of equipment, procedures, and medication, requirements for a written protocol between the athletic trainer and a supervising physician, licensure requirements, licensure examination, continuing education requirements, fees, records, and reports to be filed by licensees, protocols, and any other requirements necessary to regulate the practice of athletic training.
History.—s. 323, ch. 94-119; s. 4, ch. 95-388; s. 239, ch. 98-166; s. 139, ch. 98-200; s. 3, ch. 99-349; s. 133, ch. 99-397; s. 158, ch. 2000-160.
Note.—Former s. 468.73.
468.707 Licensure by examination; requirements.—
(1) Any person desiring to be licensed as an athletic trainer shall apply to the department on a form approved by the department. The department shall license each applicant who:
(a) Has completed the application form and remitted the required fees.
(b) Is at least 21 years of age.
(c) Has obtained a baccalaureate degree from a college or university accredited by an accrediting agency recognized and approved by the United States Department of Education or the Commission on Recognition of Postsecondary Accreditation, or approved by the board.
(d) Has completed an approved athletic training curriculum from a college or university accredited by an accrediting agency recognized and approved by the United States Department of Education or the Commission on Recognition of Postsecondary Accreditation, or approved by the board.
(e) Has current certification in cardiovascular pulmonary resuscitation from the American Red Cross, the American Heart Association, or an equivalent certification as determined by the board.
(f) Has passed an examination administered or approved by the board.
(2) Pursuant to the requirements of s. 456.034, each applicant shall complete a continuing education course on human immunodeficiency virus and acquired immune deficiency syndrome as part of initial licensure.
History.—s. 5, ch. 95-388; s. 101, ch. 98-166; s. 4, ch. 99-349; s. 134, ch. 99-397; s. 159, ch. 2000-160; s. 1, ch. 2006-39.
468.709 Fees.—
(1) The board shall, by rule, establish fees for the following purposes:
(a) An application fee, not to exceed $100.
(b) An examination fee, not to exceed $200.
(c) An initial licensure fee, not to exceed $200.
(d) A biennial renewal fee, not to exceed $200.
(e) An inactive fee, not to exceed $100.
(f) A delinquent fee, not to exceed $100.
(g) A reactivation fee, not to exceed $100.
(h) A voluntary inactive fee, not to exceed $100.
(2) The board shall establish fees at a level, not to exceed the statutory fee cap, that is adequate to ensure the continued operation of the regulatory program under this part. The board shall neither set nor maintain the fees at a level that will substantially exceed this need.
History.—s. 6, ch. 95-388; s. 5, ch. 99-349; s. 135, ch. 99-397.
468.711 Renewal of license; continuing education.—
(1) The department shall renew a license upon receipt of the renewal application and fee, provided the applicant is in compliance with the provisions of this section, chapter 456, and rules promulgated pursuant thereto.
(2) The board may, by rule, prescribe continuing education requirements, not to exceed 24 hours biennially. The criteria for continuing education shall be approved by the board and shall include a current certificate in cardiovascular pulmonary resuscitation from the American Red Cross or equivalent training as determined by the board.
(3) Pursuant to the requirements of s. 456.034, each licensee shall complete a continuing education course on human immunodeficiency virus and acquired immune deficiency syndrome as part of biennial relicensure.
History.—s. 7, ch. 95-388; s. 102, ch. 98-166; s. 6, ch. 99-349; s. 136, ch. 99-397; s. 160, ch. 2000-160; s. 2, ch. 2006-39.
468.713 Responsibilities of athletic trainers.—An athletic trainer shall practice within a written protocol established between the athletic trainer and a supervising physician licensed under chapter 458, chapter 459, chapter 460, or otherwise authorized by Florida law to practice medicine or, at an athletic event, pursuant to direction from a physician licensed under chapter 458, chapter 459, chapter 460, or otherwise authorized by Florida law to practice medicine. A written protocol shall require that the athletic trainer notify the supervising physician of new injuries as soon as practicable.
History.—s. 8, ch. 95-388.
468.715 Sexual misconduct.—The athletic trainer-athlete relationship is founded on mutual trust. Sexual misconduct in the practice of athletic training means violation of the athletic trainer-athlete relationship through which the athletic trainer uses such relationship to induce or attempt to induce the athlete to engage, or to engage or attempt to engage the athlete, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the athlete. Sexual misconduct in the practice of athletic training is prohibited.
History.—s. 9, ch. 95-388.
468.717 Violations and penalties.—Each of the following acts constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083:
(1) Practicing athletic training for compensation without holding an active license under this part.
(2) Using or attempting to use an athletic trainer license that has been suspended or revoked.
(3) Knowingly employing unlicensed persons in the practice of athletic training.
(4) Obtaining or attempting to obtain an athletic trainer license by misleading statements or knowing misrepresentation.
(5) Using the title “athletic trainer” without being licensed under this part.
History.—s. 10, ch. 95-388.
468.719 Disciplinary actions.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Failing to include the athletic trainer’s name and license number in any advertising, including, but not limited to, business cards and letterhead, related to the practice of athletic training. Advertising shall not include clothing or other novelty items.
(b) Committing incompetency or misconduct in the practice of athletic training.
(c) Committing fraud or deceit in the practice of athletic training.
(d) Committing negligence, gross negligence, or repeated negligence in the practice of athletic training.
(e) While practicing athletic training, being unable to practice athletic training with reasonable skill and safety to athletes by reason of illness or use of alcohol or drugs or as a result of any mental or physical condition.
(f) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
History.—s. 11, ch. 95-388; s. 103, ch. 98-166; s. 7, ch. 99-349; s. 137, ch. 99-397; s. 161, ch. 2000-160; s. 27, ch. 2000-318; s. 42, ch. 2001-277; s. 18, ch. 2005-240.
468.723 Exemptions.—This part does not prevent or restrict:
(1) The professional practice of a licensee of the department who is acting within the scope of such practice.
(2) An athletic training student acting under the direct supervision of a licensed athletic trainer.
(3) A person from administering standard first aid treatment to an athlete.
(4) A person licensed under chapter 548, provided such person is acting within the scope of such license.
(5) A person providing personal training instruction for exercise, aerobics, or weightlifting, if the person does not represent himself or herself as able to provide “athletic trainer” services and if any recognition or treatment of injuries is limited to the provision of first aid.
History.—s. 325, ch. 94-119; s. 13, ch. 95-388; s. 313, ch. 97-103; s. 1016, ch. 2002-387; s. 3, ch. 2006-39.
Note.—Former s. 468.75.
ORTHOTICS, PROSTHETICS, AND PEDORTHICS
468.80 Definitions.
468.801 Board of Orthotists and Prosthetists; appointment; membership; terms; headquarters.
468.802 Authority to adopt rules.
468.803 License, registration, and examination requirements.
468.806 Biennial renewal of license.
468.808 Support personnel.
468.809 Prohibitions; penalties.
468.8095 Practitioner and resident identification.
468.811 Disciplinary proceedings.
468.812 Exemptions from licensure.
468.813 Use of titles.
468.80 Definitions.—As used in this part, the term:
(1) “Agency” means the Agency for Health Care Administration.
(2) “Board” means the Board of Orthotists and Prosthetists.
(3) “Department” means the Department of Health.
(4) “Internship” means a program in which a person receives clinical experience under the supervision of a licensed orthotist or prosthetist as defined by the board by rule.
(5) “Mandatory courses” means continuing education courses that the board has defined by rule and required for license issuance or renewal.
(6) “Orthosis” means any medical device used to provide support, correction, or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury, or deformity but does not include the following assistive technology devices: upper extremity adaptive equipment used to facilitate the activities of daily living, including specialized utensils, combs, and brushes; finger splints; wheelchair seating and equipment that is an integral part of the wheelchair and not worn by the patient; elastic abdominal supports that do not have metal or plastic reinforcing stays; nontherapeutic arch supports; nontherapeutic accommodative inlays and nontherapeutic accommodative footwear, regardless of method of manufacture; unmodified, over-the-counter nontherapeutic shoes; prefabricated nontherapeutic foot care products; durable medical equipment such as canes, crutches, or walkers; dental appliances; or devices implanted into the body by a physician. For purposes of this subsection, “accommodative” means designed with the primary goal of conforming to the individual’s anatomy, “inlay” means any removable material upon which the foot directly rests inside the shoe and which may be an integral design component of the shoe, and “musculoskeletal” and “neuromuscular” mean the systems of the body providing support and movement and include the skeletal, muscular, circulatory, nervous, and integumentary systems.
(7) “Orthotic fitter” means a person who is licensed to practice orthotics whose scope of practice is limited to fitting prefabricated cervical orthoses not requiring more than minor modification and not used for the treatment of cervical fractures or dislocations; custom-made and prefabricated compression garments; trusses; custom-molded and noncustom diabetic therapeutic footwear; prefabricated corset or frame-type spinal orthoses, except for those used in the treatment of vertebral fractures or scoliosis, rigid body jackets made of thermoformable materials, and “halo” devices; and prefabricated orthoses of the upper and lower extremities, except for those used in the treatment of bone fractures and open diabetic ulcers.
(8) “Orthotic fitter assistant” means a person who is licensed to practice orthotics whose scope of practice is limited to fitting, without modification, prefabricated soft cervical orthoses not used for the treatment of cervical fractures or dislocations; prefabricated soft spinal supports not used for treatment of vertebral fractures; prefabricated compression garments; trusses; and soft prefabricated orthoses for the upper and lower extremities not used in the treatment of bone fractures and open diabetic ulcers.
(9) “Orthotics” means the practice of evaluating, treatment formulating, measuring, designing, fabricating, assembling, fitting, adjusting, servicing, or providing the initial training necessary to accomplish the fitting of an orthosis or pedorthic device.
(10) “Orthotist” means a person licensed to practice orthotics pursuant to this chapter.
(11) “Pedorthic device” means therapeutic shoes, shoe modifications made for therapeutic purposes, nondynamic prosthetic fillers of the forefoot, and foot orthoses for use on the human foot limited anatomically to that part distal to the maleoli.
(12) “Pedorthics” means the practice of evaluating, treatment formulating, measuring, designing, fabricating, assembling, fitting, adjusting, servicing, or providing the initial training necessary to accomplish the fitting of a pedorthic device.
(13) “Pedorthist” means a person licensed to practice pedorthics pursuant to this chapter.
(14) “Prosthesis” means a medical device used to replace a missing appendage or other external body part, including an artificial limb, hand, or foot. It does not include surgically implanted devices or artificial eyes; dental appliances; ostomy products; or cosmetic devices such as breast prostheses, eyelashes, or wigs.
(15) “Prosthetics” means the practice of evaluating, treatment formulating, measuring, designing, fabricating, assembling, fitting, adjusting, servicing, or providing the initial training necessary to accomplish the fitting of a prosthesis.
(16) “Prosthetist” means a person licensed to practice prosthetics pursuant to this chapter.
(17) “Prosthetist-orthotist” means a person licensed to practice as a prosthetist and as an orthotist.
(18) “Resident” means a person registered to practice orthotics or prosthetics under the supervision of a licensed orthotist or prosthetist as defined by the board by rule.
(19) “Therapeutic” means designed and fabricated to provide support, correction, or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury, or deformity. It does not include devices used solely to increase comfort through the use of soft materials or spreading out of forces.
History.—s. 1, ch. 97-284; s. 1, ch. 2008-121.
468.801 Board of Orthotists and Prosthetists; appointment; membership; terms; headquarters.—
(1) The Board of Orthotists and Prosthetists is created within the Department of Health and shall consist of seven members appointed by the Governor and confirmed by the Senate.
(2) The board members must be residents of this state. Two members must be licensed practicing prosthetists with a minimum of 3 years’ clinical or practical experience, at least one of whom has attained a minimum of a bachelor’s degree; one member must be a licensed practicing orthotist with a minimum of 3 years’ clinical or practical experience who has attained a minimum of a bachelor’s degree; two members must be prosthetic or orthotic users, the parents, guardians, or spouses of prosthetic or orthotic users, or any combination of such users and nonusers who are not deriving economic benefit from the fitting or dispensing of orthotic or prosthetic devices and who have never been orthotists or prosthetists or members of a closely related profession; one member must be a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 who has extensive knowledge of orthotics or prosthetics; and one member must be a licensed practicing orthotist, orthotic fitter, or pedorthist with a minimum of 3 years’ clinical or practical experience.
(3) Members of the board shall be appointed for terms of 4 years each and shall serve until their successors are appointed. Members may be reappointed for additional terms.
(4) The provisions of chapter 456 relating to activities of regulatory boards apply to the board.
(5) The board shall maintain its official headquarters in Tallahassee.
History.—s. 2, ch. 97-284; s. 104, ch. 98-166; s. 162, ch. 2000-160; s. 2, ch. 2008-121.
468.802 Authority to adopt rules.—The board shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part, including rules relating to standards of practice for orthotists, orthotic fitters, orthotic fitter assistants, pedorthists, prosthetists, and residents.
History.—s. 3, ch. 97-284; s. 140, ch. 98-200; s. 3, ch. 2008-121.
468.803 License, registration, and examination requirements.—
(1) The department shall issue a license to practice orthotics, prosthetics, or pedorthics, or a registration for a resident to practice orthotics or prosthetics, to qualified applicants. Licenses shall be granted independently in orthotics, prosthetics, or pedorthics, but a person may be licensed in more than one such discipline, and a prosthetist-orthotist license may be granted to persons meeting the requirements for both a prosthetist and an orthotist license. Registrations shall be granted independently in orthotics or prosthetics, and a person may be registered in both fields at the same time.
(2) An applicant for registration, examination, or licensure must apply to the department on a form prescribed by the board for consideration of board approval. Each initial applicant shall submit a set of fingerprints to the department on a form and under procedures specified by the department, along with payment in an amount equal to the costs incurred by the department for state and national criminal history checks of the applicant. The department shall submit the fingerprints provided by an applicant to the Department of Law Enforcement for a statewide criminal history check, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history check of the applicant. The board shall screen the results to determine if an applicant meets licensure requirements. The board shall consider for examination, registration, or licensure each applicant who the board verifies:
(a) Has submitted the completed application and the fingerprint forms and has paid the applicable application fee, not to exceed $500, and the cost of the state and national criminal history checks. The application fee and cost of the criminal history checks shall be nonrefundable;
(b) Is of good moral character;
(c) Is 18 years of age or older; and
(d) Has completed the appropriate educational preparation.
(3) A person seeking to attain the required orthotics or prosthetics experience in this state must be approved by the board and registered as a resident by the department. Although a registration may be held in both practice fields, the board shall not approve a second registration until at least 1 year after the issuance of the first registration. Notwithstanding subsection (2), an applicant who has been approved by the board and registered by the department in one practice field may apply for registration in the second practice field without an additional state or national criminal history check during the period in which the first registration is valid. Each registration is valid for 2 years from the date of issuance unless otherwise revoked by the department upon recommendation of the board. The board shall set a registration fee not to exceed $500 to be paid by the applicant. A registration may be renewed once by the department upon recommendation of the board for a period no longer than 1 year, as such renewal is defined by the board by rule. The registration renewal fee shall not exceed one-half the current registration fee. To be considered by the board for approval of registration as a resident, the applicant must have:
(a) A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university recognized by the Commission on Accreditation of Allied Health Education Programs or, at a minimum, a bachelor’s degree from a regionally accredited college or university and a certificate in orthotics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board; or
(b) A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university recognized by the Commission on Accreditation of Allied Health Education Programs or, at a minimum, a bachelor’s degree from a regionally accredited college or university and a certificate in prosthetics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board.
(4) The department may develop and administer a state examination for an orthotist or a prosthetist license, or the board may approve the existing examination of a national standards organization. The examination must be predicated on a minimum of a baccalaureate-level education and formalized specialized training in the appropriate field. Each examination must demonstrate a minimum level of competence in basic scientific knowledge, written problem solving, and practical clinical patient management. The board shall require an examination fee not to exceed the actual cost to the board in developing, administering, and approving the examination, which fee must be paid by the applicant. To be considered by the board for examination, the applicant must have:
(a) For an examination in orthotics:
1. A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university recognized by the Commission on Accreditation of Allied Health Education Programs or, at a minimum, a bachelor’s degree from a regionally accredited college or university and a certificate in orthotics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board; and
2. An approved orthotics internship of 1 year of qualified experience, as determined by the board, or an orthotic residency program recognized by the board.
(b) For an examination in prosthetics:
1. A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university recognized by the Commission on Accreditation of Allied Health Education Programs or, at a minimum, a bachelor’s degree from a regionally accredited college or university and a certificate in prosthetics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board; and
2. An approved prosthetics internship of 1 year of qualified experience, as determined by the board, or a prosthetic residency program recognized by the board.
(5) In addition to the requirements in subsection (2), to be licensed as:
(a) An orthotist, the applicant must pay a license fee not to exceed $500 and must have:
1. A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university, or a bachelor’s degree with a certificate in orthotics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board;
2. An appropriate internship of 1 year of qualified experience, as determined by the board, or a residency program recognized by the board;
3. Completed the mandatory courses; and
4. Passed the state orthotics examination or the board-approved orthotics examination.
(b) A prosthetist, the applicant must pay a license fee not to exceed $500 and must have:
1. A Bachelor of Science or higher-level postgraduate degree in Orthotics and Prosthetics from a regionally accredited college or university, or a bachelor’s degree with a certificate in prosthetics from a program recognized by the Commission on Accreditation of Allied Health Education Programs, or its equivalent, as determined by the board;
2. An internship of 1 year of qualified experience, as determined by the board, or a residency program recognized by the board;
3. Completed the mandatory courses; and
4. Passed the state prosthetics examination or the board-approved prosthetics examination.
(c) An orthotic fitter, the applicant must pay a license fee not to exceed $500 and must have:
1. A high school diploma or its equivalent;
2. A minimum of 40 hours of training in orthotics education, as approved by the board;
3. Two years of supervised experience in orthotics acquired after completion of the required education, as approved by the board; and
4. Completed the mandatory courses.
(d) An orthotic fitter assistant, the applicant must pay a license fee not to exceed $500 and must have:
1. A high school diploma or its equivalent;
2. A minimum of 40 hours of training in orthotics education, as approved by the board; and
3. Completed the mandatory courses.
(e) A pedorthist, the applicant must pay a license fee not to exceed $500 and must have:
1. A high school diploma or its equivalent;
2. A minimum of 120 hours of training, as approved by the board;
3. An internship of 80 hours of qualified working experience, as determined by the board; and
4. Completed the mandatory courses.
History.—s. 4, ch. 97-284; s. 15, ch. 2003-2; s. 4, ch. 2008-121.
468.806 Biennial renewal of license.—
(1) The department shall renew a license upon receipt of the required documentation, renewal application, and renewal fee, not to exceed $500, as set by the board. The applicant for license renewal must submit information necessary to conduct a statewide criminal history check along with payment in an amount equal to the costs incurred by the department for a statewide criminal history check. The department shall submit the required information for a statewide criminal history check of the applicant to the Department of Law Enforcement.
(2) The board shall adopt rules establishing a procedure for the biennial license renewal.
(3) The board may by rule prescribe continuing education requirements and approve course criteria, not to exceed 30 hours biennially, as a condition for license renewal. The board shall establish by rule mandatory courses to safeguard the welfare of the public and licensed practitioners, standards and qualifications for continuing education courses, standards and qualifications for course providers, and a procedure for approving continuing education courses and providers and set a fee for continuing education course and provider approval.
History.—s. 7, ch. 97-284; s. 142, ch. 99-397; s. 5, ch. 2008-121.
468.808 Support personnel.—A person must be licensed to practice orthotics, prosthetics, or pedorthics in this state. However, a licensed orthotist, prosthetist, or pedorthist may delegate duties, not to include patient evaluation, treatment formulation, or the final fitting of a device prior to patient use, to nonlicensed support personnel. All other delegated duties must be performed under the supervision, as defined by the board by rule, of a licensed orthotist, prosthetist, or pedorthist, and the persons acting as support personnel must be identified as such by wearing an identification tag as defined by the board by rule. In such instances the supervising licensee is responsible for all acts performed by such persons.
History.—s. 9, ch. 97-284; s. 7, ch. 2008-121.
468.809 Prohibitions; penalties.—
(1) A person may not:
(a) Make a false or fraudulent statement in any application, affidavit, or statement presented to the board or in any proceeding before the board.
(b) Practice orthotics, prosthetics, or pedorthics without a license or registration issued pursuant to this part unless otherwise exempt.
(2) A person who violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 10, ch. 97-284; s. 8, ch. 2008-121.
468.8095 Practitioner and resident identification.—
(1) A licensee or person registered with the department shall post a license or registration and a recent photograph of the licensee or registrant at each facility where patients are seen by the licensee or registrant in a manner determined by the board by rule. This requirement does not extend to areas where the licensee or registrant may visit and normally does not treat patients. The posted license or registration must be valid.
(2) A licensee or person registered with the department shall post in close proximity to the posted license or registration a notice stating the department’s Consumer Services Unit address, Internet website, and telephone number. The notice shall state that a patient may file a complaint of unlicensed or substandard practice by contacting the Consumer Services Unit. A single notice may be used for multiple licensees or registrants in a facility.
(3) During patient contact, each licensee or person registered with the department shall prominently wear an identification tag or badge with the name, recent photograph, and license or registration number, as applicable, of the licensee or registrant. The size and appearance of the identification tag or badge shall be determined by the board by rule. Persons licensed in more than one practice field under this part may list both license numbers. Licensees or registrants working in facilities requiring the wearing of a specific identification tag may substitute the identification tag or badge required by this subsection with the facility’s design as determined by the board.
History.—s. 9, ch. 2008-121.
468.811 Disciplinary proceedings.—
(1) The following acts constitute grounds for denial of a registration or license or for disciplinary action, as specified in s. 456.072(2):
(a) Attempting to procure a license by fraudulent misrepresentation.
(b) Having a license to practice orthotics, prosthetics, or pedorthics revoked, suspended, or otherwise acted against, including the denial of licensure in another state or jurisdiction.
(c) Being convicted or found guilty of or pleading nolo contendere to, regardless of adjudication, in any jurisdiction, a crime that directly relates to the practice of orthotics, prosthetics, or pedorthics, including violations of federal laws or regulations regarding orthotics, prosthetics, or pedorthics.
(d) Filing a report, claim, or record that the licensee knows is false; intentionally or negligently failing to file a report, claim, or record required by state or federal law; willfully impeding or obstructing such filing; or inducing another person to impede or obstruct such filing. Such reports, claims, or records include only reports, claims, or records that are signed in a person’s capacity as a licensee under this part.
(e) Advertising goods or services in a fraudulent, false, deceptive, or misleading manner.
(f) Violation of an order of the board, agency, or department previously entered in a disciplinary hearing or failure to comply with a subpoena issued by the board, agency, or department.
(g) Practicing with a revoked, suspended, or inactive license.
(h) Gross or repeated malpractice or the failure to deliver orthotic, prosthetic, or pedorthic services with that level of care and skill which is recognized by a reasonably prudent licensed practitioner with similar professional training as being acceptable under similar conditions and circumstances.
(i) Failing to provide written notice of any applicable warranty for an orthosis, prosthesis, or pedorthic device that is provided to a patient.
(j) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(k) Making deceptive, untrue, or fraudulent representations in the licensed or unlicensed practice of orthotics, prosthetics, or pedorthics.
(l) Practicing orthotics, prosthetics, or pedorthics or practicing as an orthotic fitter or an orthotic fitter assistant without a licensed physician’s written prescription. The repair, replacement, adjustment, or servicing of any existing orthosis may be performed without an additional prescription from the patient’s physician, unless the original prescription states otherwise.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
History.—s. 11, ch. 97-284; s. 105, ch. 98-166; s. 163, ch. 2000-160; s. 27, ch. 2000-318; s. 43, ch. 2001-277; s. 19, ch. 2005-240; s. 10, ch. 2008-121.
468.812 Exemptions from licensure.—
(1) This part does not apply to:
(a) A person who is licensed under chapter 458, chapter 459, chapter 460, or chapter 461;
(b) A person performing services for the Federal Government, if the person provides orthotic, prosthetic, or pedorthic care solely under the direction or control of the organization by which that person is employed;
(c) A student, fellow, or trainee in orthotics, prosthetics, or pedorthics pursuing a course of study at a regionally accredited college or university or working in a recognized training center or research facility, provided the activities and services are part of a regular course of study under a supervisor licensed under this part;
(d) An instructor in a regionally accredited university or college, while performing regularly assigned work under the curriculum of such a school; or
(e) A person engaged exclusively in the fabrication of orthoses, pedorthic devices, or prostheses as defined in this part, provided there is no patient contact.
(2) This part does not require an additional license of, or regulate the practice of, any other licensed health care professional within the state, or prevent a qualified member of any other profession or any person employed under the supervision of such a licensed professional from doing work of a nature consistent with that person’s training, as long as the person does not hold himself or herself out to the public as a licensee under this act.
History.—s. 12, ch. 97-284; s. 123, ch. 99-397; s. 11, ch. 2008-121; s. 4, ch. 2009-202.
468.813 Use of titles.—A person must be licensed or registered under this part to represent himself or herself as a licensed or registered orthotist, prosthetist, prosthetist-orthotist, orthotic fitter, orthotic fitter assistant, pedorthist, prosthetic resident, or orthotic resident or use in connection with his or her name the words “orthotist,” “prosthetist,” “prosthetist-orthotist,” “orthotic fitter,” “orthotic fitter assistant,” “pedorthist,” or “resident” or abbreviations, titles, or insignia indicating or suggesting that he or she is able to legally provide services or devices described in this part.
History.—s. 13, ch. 97-284; s. 12, ch. 2008-121.
HOME INSPECTORS
468.83 Home inspection services licensing program; purpose.
468.831 Exemptions.
468.8311 Definitions.
468.8312 Fees.
468.8313 Examinations.
468.8314 Licensure.
468.8315 Renewal of license.
468.8316 Continuing education.
468.8317 Inactive license.
468.8318 Certification of corporations and partnerships.
468.8319 Prohibitions; penalties.
468.832 Disciplinary proceedings.
468.8321 Disclosures.
468.8322 Insurance.
468.8323 Home inspection report.
468.8324 Grandfather clause.
468.8325 Rulemaking authority.
468.83 Home inspection services licensing program; purpose.—
(1) There is created within the department the home inspection services licensing program.
(2) The Legislature recognizes that there is a need to require the licensing of home inspectors and to ensure that consumers of home inspection services can rely on the competence of home inspectors, as determined by educational and experience requirements and testing. Therefore, the Legislature deems it necessary in the interest of the public welfare to regulate home inspectors in this state.
History.—s. 2, ch. 2007-235; s. 15, ch. 2010-106; s. 7, ch. 2010-176.
468.831 Exemptions.—The following persons are not required to comply with any provision of this part:
(1) An authorized government employee of the United States, this state, or any municipality, county, or other political subdivision who is conducting home inspection services within the scope of that employment, as long as the employee does not hold out for hire to the general public or otherwise engage in home inspection services.
(2) A person acting within his or her authorized scope of practice as licensed under federal, state, or local codes or statutes, except when such person holds himself or herself out for hire to the public as a “certified home inspector,” “registered home inspector,” “licensed home inspector,” “home inspector,” “professional home inspector,” or any combination thereof stating or implying licensure under this part.
(3) An officer appointed by the court.
(4) A person performing safety inspections of utility equipment in or on a home or building or other duties conducted by or for a utility under chapter 366 or rules adopted by the Public Service Commission.
(5) A certified energy auditor performing an energy audit of any home or building or other duties conducted by or for a utility under chapter 366 or rules adopted by the Public Service Commission.
History.—s. 2, ch. 2007-235.
468.8311 Definitions.—As used in this part, the term:
(1) “Department” means the Department of Business and Professional Regulation.
(2) “Home” means any residential real property, or manufactured or modular home, which is a single-family dwelling, duplex, triplex, quadruplex, condominium unit, or cooperative unit. The term does not include the common areas of condominiums or cooperatives.
(3) “Home inspector” means any person who provides or offers to provide home inspection services for a fee or other compensation.
(4) “Home inspection services” means a limited visual examination of the following readily accessible installed systems and components of a home: the structure, electrical system, HVAC system, roof covering, plumbing system, interior components, exterior components, and site conditions that affect the structure, for the purposes of providing a written professional opinion of the condition of the home.
History.—s. 2, ch. 2007-235; s. 16, ch. 2010-106; s. 8, ch. 2010-176.
468.8312 Fees.—
(1) The department, by rule, may establish fees to be paid for applications, examination, reexamination, licensing and renewal, inactive status application and reactivation of inactive licenses, recordkeeping, and applications for providers of continuing education. The department may also establish by rule a delinquency fee. Fees shall be based on department estimates of the revenue required to implement the provisions of this part. All fees shall be remitted with the appropriate application, examination, or license.
(2) The initial application and examination fee shall not exceed $125 plus the actual per applicant cost to the department to purchase an examination, if the department chooses to purchase the examination. The examination fee shall be in an amount that covers the cost of obtaining and administering the examination and shall be refunded if the applicant is found ineligible to sit for the examination. The application fee shall be nonrefundable.
(3) The initial license fee shall not exceed $200.
(4) The biennial renewal fee shall not exceed $200.
(5) The fee for licensure by endorsement shall not exceed $200.
(6) The fee for application for inactive status or for reactivation of an inactive license shall not exceed $200.
(7) The fee for applications from providers of continuing education may not exceed $500.
History.—s. 2, ch. 2007-235; s. 17, ch. 2010-106; s. 9, ch. 2010-176.
468.8313 Examinations.—
(1) A person desiring to be licensed as a home inspector must apply to the department after he or she satisfies the examination requirements of this part.
(2) An applicant may practice in this state as a home inspector if he or she passes the required examination, is of good moral character, and completes a course of study of at least 120 hours that covers all of the following components of a home: structure, electrical system, HVAC system, roof covering, plumbing system, interior components, exterior components, and site conditions that affect the structure.
(3) The department shall review and approve courses of study in home inspection.
(4) The department may review and approve examinations by a nationally recognized entity that offers programs or sets standards that ensure competence as a home inspector.
(5)(a) “Good moral character” means a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.
(b) The department may refuse to certify an applicant for failure to satisfy this requirement only if:
1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a licensed home inspector; and
2. The finding by the department of lack of good moral character is supported by clear and convincing evidence.
(c) When an applicant is found to be unqualified for a license because of lack of good moral character, the department shall furnish the applicant a statement containing the findings of the department, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to a rehearing and appeal.
(6) An applicant for a license shall submit, together with the application, a complete set of electronic fingerprints to the department. The department shall submit the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward them to the Federal Bureau of Investigation for national processing, to determine whether the applicant has a criminal history record. The department shall review the background results to determine if an applicant meets licensure requirements. The applicant is responsible for the costs associated with processing the fingerprints. The authorized agencies or vendors shall collect such fees and pay for the processing costs due to the Department of Law Enforcement.
(7) The department may adopt rules to implement this section.
History.—s. 2, ch. 2007-235; s. 18, ch. 2010-106; s. 10, ch. 2010-176.
468.8314 Licensure.—
(1) The department shall license any applicant who the department certifies is qualified to practice home inspection services.
(2) The department shall certify for licensure any applicant who satisfies the requirements of s. 468.8313 and who has passed the licensing examination. The department may refuse to certify any applicant who has violated any of the provisions of s. 468.832.
(3) The department shall certify as qualified for a license by endorsement an applicant who is of good moral character as determined in s. 468.8313; holds a valid license to practice home inspection services in another state or territory of the United States, whose educational requirements are substantially equivalent to those required by this part; and has passed a national, regional, state, or territorial licensing examination that is substantially equivalent to the examination required by this part.
(4) The department shall not issue a license by endorsement to any applicant who is under investigation in another state for any act that would constitute a violation of this part or chapter 455 until such time as the investigation is complete and disciplinary proceedings have been terminated.
History.—s. 2, ch. 2007-235; s. 53, ch. 2010-106.
468.8315 Renewal of license.—
(1) The department shall renew a license upon receipt of the renewal application and upon certification by the department that the licensee has satisfactorily completed the continuing education requirements of s. 468.8316.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
History.—s. 2, ch. 2007-235.
468.8316 Continuing education.—
(1) The department may not renew a license until the licensee submits proof satisfactory to the department that during the 2 years prior to his or her application for renewal the licensee has completed at least 14 hours of continuing education. Criteria and course content shall be approved by the department by rule.
(2) The department may prescribe by rule additional continuing professional education hours, not to exceed 25 percent of the total hours required, for failure to complete the hours required for renewal by the end of the reestablishment period.
History.—s. 2, ch. 2007-235.
468.8317 Inactive license.—
(1) A licensee may request that his or her license be placed in an inactive status by making application to the department.
(2) A license that has become inactive may be reactivated upon application to the department. The department may prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license may not exceed 14 hours for each year the license was inactive.
(3) The department shall adopt rules relating to licenses which have become inactive and for the renewal of inactive licenses. The department shall prescribe by rule a fee not to exceed $200 for the reactivation of an inactive license and a fee not to exceed $200 for the renewal of an inactive license.
History.—s. 2, ch. 2007-235.
468.8318 Certification of corporations and partnerships.—The practice of or the offer to practice home inspection services by licensees through a corporation or partnership offering home inspection services to the public, or by a corporation or partnership offering such services to the public through licensees under this part as agents, employees, officers, or partners, is permitted subject to the provisions of this part, provided that all personnel of the corporation or partnership who act in its behalf as home inspectors in this state are licensed as provided by this part. Nothing in this section shall be construed to allow a corporation to hold a license to practice home inspection services. No corporation or partnership shall be relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing home inspection services be relieved of responsibility for professional services performed by reason of his or her employment or relationship with a corporation or partnership.
History.—s. 2, ch. 2007-235; s. 19, ch. 2010-106; s. 11, ch. 2010-176.
468.8319 Prohibitions; penalties.—
(1) A person may not:
(a) Effective July 1, 2011, practice or offer to practice home inspection services unless the person has complied with the provisions of this part.
(b) Effective July 1, 2011, use the name or title “certified home inspector,” “registered home inspector,” “licensed home inspector,” “home inspector,” “professional home inspector,” or any combination thereof unless the person has complied with the provisions of this part.
(c) Present as his or her own the license of another.
(d) Knowingly give false or forged evidence to the department or an employee thereof.
(e) Use or attempt to use a license that has been suspended or revoked.
(f) Perform or offer to perform any repairs to a home on which the inspector or the inspector’s company has prepared a home inspection report. This paragraph does not apply to:
1. A home warranty company that is affiliated with or retains a home inspector to perform repairs pursuant to a claim made under a home warranty contract.
2. A certified contractor who is classified in s. 489.105(3) as a Division I contractor. However, the department may adopt rules requiring that, if such contractor performs the home inspection and offers to perform the repairs, the contract for repairs provided to the homeowner discloses that he or she has the right to request competitive bids.
(g) Inspect any property in which the inspector or the inspector’s company has any financial or transfer interest.
(h) Offer or deliver any compensation, inducement, or reward to any broker or agent therefor for the referral of the owner of the inspected property to the inspector or the inspection company.
(i) Accept an engagement to make an omission or prepare a report in which the inspection itself, or the fee payable for the inspection, is contingent upon either the conclusions in the report, preestablished findings, or the close of escrow.
(2) Any person who is found to be in violation of any provision of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) This section does not apply to unlicensed activity as described in paragraph (1)(a), paragraph (1)(b), or s. 455.228 that occurs before July 1, 2011.
History.—s. 2, ch. 2007-235; s. 20, ch. 2010-106; s. 12, ch. 2010-176.
468.832 Disciplinary proceedings.—
(1) The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:
(a) Violation of any provision of this part or s. 455.227(1).
(b) Attempting to procure a license to practice home inspection services by bribery or fraudulent misrepresentation.
(c) Having a license to practice home inspection services revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(d) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction that directly relates to the practice of home inspection services or the ability to practice home inspection services.
(e) Making or filing a report or record that the licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those that are signed in the capacity of a licensed home inspector.
(f) Advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content.
(g) Engaging in fraud or deceit, or negligence, incompetency, or misconduct, in the practice of home inspection services.
(h) Failing to perform any statutory or legal obligation placed upon a licensed home inspector; violating any provision of this chapter, a rule of the department, or a lawful order of the department previously entered in a disciplinary hearing; or failing to comply with a lawfully issued subpoena of the department.
(i) Practicing on a revoked, suspended, inactive, or delinquent license.
(j) Failing to meet any standard of practice adopted by rule of the department.
(2) When the department finds any home inspector guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure.
(b) Revocation or suspension of a license.
(c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the home inspector on probation for a period of time and subject to such conditions as the department may specify.
(f) Restriction of the authorized scope of practice by the home inspector.
(3) In addition to any other sanction imposed under this part, in any final order that imposes sanctions, the department may assess costs related to the investigation and prosecution of the case.
History.—s. 2, ch. 2007-235; s. 123, ch. 2008-4; s. 51, ch. 2009-195; ss. 21, 43, ch. 2010-106; s. 13, ch. 2010-176.
468.8321 Disclosures.—Prior to contracting for or commencing a home inspection, a home inspector shall provide to the consumer a copy of his or her license to practice home inspection services in this state and a written disclosure that contains the scope and any exclusions of the home inspection.
History.—s. 2, ch. 2007-235.
468.8322 Insurance.—A home inspector shall maintain a commercial general liability insurance policy in an amount of not less than $300,000.
History.—s. 2, ch. 2007-235.
468.8323 Home inspection report.—Upon completion of each home inspection for compensation, the home inspector shall provide a written report prepared for the client.
(1) The home inspector shall report:
(a) On those systems and components inspected that, in the professional opinion of the inspector, are significantly deficient or are near the end of their service lives.
(b) If self-evident, a reason why the system or component reported under paragraph (a) is significantly deficient or near the end of its service life.
(c) Any systems and components that were present at the time of the inspection but were not inspected, and a reason they were not inspected.
(2) A home inspector is not required to provide estimates related to the cost of repair of an inspected property.
History.—s. 2, ch. 2007-235.
468.8324 Grandfather clause.—
1(1) A person who performs home inspection services as defined in this part may qualify for licensure by the department as a home inspector if the person submits an application to the department postmarked on or before March 1, 2011, which shows that the applicant:
(a) Is certified as a home inspector by a state or national association that requires, for such certification, successful completion of a proctored examination on home inspection services and completes at least 14 hours of verifiable education on such services; or
(b) Has at least 3 years of experience as a home inspector at the time of application and has completed 14 hours of verifiable education on home inspection services. To establish the 3 years of experience, an applicant must submit at least 120 home inspection reports prepared by the applicant.
(2) The department may investigate the validity of a home inspection report submitted under paragraph (1)(b) and, if the applicant submits a false report, may take disciplinary action against the applicant under s. 468.832(1)(e) or (g).
(3) An applicant may not qualify for licensure under this section if he or she has had a home inspector license or a license in any related field revoked at any time or suspended within the previous 5 years or has been assessed a fine that exceeds $500 within the previous 5 years. For purposes of this subsection, a license in a related field includes, but is not limited to, licensure in real estate, construction, mold-related services, or building code administration or inspection.
(4) An applicant for licensure under this section must comply with the criminal history, good moral character, and insurance requirements of this part.
History.—s. 2, ch. 2007-235; s. 22, ch. 2010-106; s. 14, ch. 2010-176.
1Note.—As amended by s. 14, ch. 2010-176. For a description of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes, “Statutory Construction.” Subsection (1) was also amended by s. 22, ch. 2010-106, and that version reads:
(1) A person who performs home inspection services as defined in this part may qualify for licensure by the department as a home inspector if the person submits his or her application to the department by March 1, 2011, whether postmarked or delivered by that date, and if the person:
(a) Is certified as a home inspector by a state or national association that requires, for such certification, successful completion of a proctored examination on home inspection services and completes at least 14 hours of verifiable education on such services; or
(b) At the time of application, has at least 3 years of experience as a home inspector and completes at least 14 hours of verifiable education on home inspection services. To establish the 3 years of experience, an applicant must submit at least 120 home inspection reports prepared by the applicant.
468.8325 Rulemaking authority.—The department shall adopt rules to administer this part.
History.—s. 23, ch. 2010-106; s. 15, ch. 2010-176.
MOLD-RELATED SERVICES
468.84 Mold-related services licensing program; legislative purpose.
468.841 Exemptions.
468.8411 Definitions.
468.8412 Fees.
468.8413 Examinations.
468.8414 Licensure.
468.8415 Renewal of license.
468.8416 Continuing education.
468.8417 Inactive license.
468.8418 Certification of partnerships and corporations.
468.8419 Prohibitions; penalties.
468.842 Disciplinary proceedings.
468.8421 Insurance.
468.8422 Contracts.
468.8423 Grandfather clause.
468.8424 Rulemaking authority.
468.84 Mold-related services licensing program; legislative purpose.—
(1) There is created within the department the mold-related services licensing program.
(2) The Legislature finds it necessary in the interest of the public safety and welfare, to prevent damage to real and personal property, to avert economic injury to the residents of this state, and to regulate persons and companies that hold themselves out to the public as qualified to perform mold-related services.
History.—s. 3, ch. 2007-235; s. 24, ch. 2010-106; s. 16, ch. 2010-176.
468.841 Exemptions.—
(1) The following persons are not required to comply with any provisions of this part relating to mold assessment:
(a) A residential property owner who performs mold assessment on his or her own property.
(b) A person who performs mold assessment on property owned or leased by the person, the person’s employer, or an entity affiliated with the person’s employer through common ownership, or on property operated or managed by the person’s employer or an entity affiliated with the person’s employer through common ownership. This exemption does not apply if the person, employer, or affiliated entity engages in the business of performing mold assessment for the public.
(c) An employee of a mold assessor while directly supervised by the mold assessor.
(d) Persons or business organizations acting within the scope of the respective licenses required under chapter 471, part I of chapter 481, chapter 482, chapter 489, or part XV of this chapter, are acting on behalf of an insurer under part VI of chapter 626, or are persons in the manufactured housing industry who are licensed under chapter 320, except when any such persons or business organizations hold themselves out for hire to the public as a “certified mold assessor,” “registered mold assessor,” “licensed mold assessor,” “mold assessor,” “professional mold assessor,” or any combination thereof stating or implying licensure under this part.
(e) An authorized employee of the United States, this state, or any municipality, county, or other political subdivision, or public or private school and who is conducting mold assessment within the scope of that employment, as long as the employee does not hold out for hire to the general public or otherwise engage in mold assessment.
(2) The following persons are not required to comply with any provisions of this part relating to mold remediation:
(a) A residential property owner who performs mold remediation on his or her own property.
(b) A person who performs mold remediation on property owned or leased by the person, the person’s employer, or an entity affiliated with the person’s employer through common ownership, or on property operated or managed by the person’s employer or an entity affiliated with the person’s employer through common ownership. This exemption does not apply if the person, employer, or affiliated entity engages in the business of performing mold remediation for the public.
(c) An employee of a mold remediator while directly supervised by the mold remediator.
(d) Persons or business organizations that are acting within the scope of the respective licenses required under chapter 471, part I of chapter 481, chapter 482, chapter 489, or part XV of this chapter, are acting on behalf of an insurer under part VI of chapter 626, or are persons in the manufactured housing industry who are licensed under chapter 320, except when any such persons or business organizations hold themselves out for hire to the public as a “certified mold remediator,” “registered mold remediator,” “licensed mold remediator,” “mold remediator,” “professional mold remediator,” or any combination thereof stating or implying licensure under this part.
(e) An authorized employee of the United States, this state, or any municipality, county, or other political subdivision, or public or private school and who is conducting mold remediation within the scope of that employment, as long as the employee does not hold out for hire to the general public or otherwise engage in mold remediation.
History.—s. 3, ch. 2007-235; s. 25, ch. 2008-240.
468.8411 Definitions.—As used in this part, the term:
(1) “Department” means the Department of Business and Professional Regulation.
(2) “Mold” means an organism of the class fungi that causes disintegration of organic matter and produces spores, and includes any spores, hyphae, and mycotoxins produced by mold.
(3) “Mold assessment” means a process performed by a mold assessor that includes the physical sampling and detailed evaluation of data obtained from a building history and inspection to formulate an initial hypothesis about the origin, identity, location, and extent of amplification of mold growth of greater than 10 square feet.
(4) “Mold assessor” means any person who performs or directly supervises a mold assessment.
(5) “Mold remediation” means the removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mold or mold-contaminated matter of greater than 10 square feet that was not purposely grown at that location; however, such removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, may not be work that requires a license under chapter 489 unless performed by a person who is licensed under that chapter or the work complies with that chapter.
(6) “Mold remediator” means any person who performs mold remediation. A mold remediator may not perform any work that requires a license under chapter 489 unless the mold remediator is also licensed under that chapter or complies with that chapter.
History.—s. 3, ch. 2007-235.
468.8412 Fees.—
(1) The department, by rule, may establish fees to be paid for application, examination, reexamination, licensing and renewal, inactive status application and reactivation of inactive licenses, and application for providers of continuing education. The department may also establish by rule a delinquency fee. Fees shall be based on department estimates of the revenue required to implement the provisions of this part. All fees shall be remitted with the application, examination, reexamination, licensing and renewal, inactive status application and reactivation of inactive licenses, and application for providers of continuing education.
(2) The application fee shall not exceed $125 and is nonrefundable. The examination fee shall not exceed $125 plus the actual per applicant cost to the department to purchase the examination, if the department chooses to purchase the examination. The examination fee shall be in an amount that covers the cost of obtaining and administering the examination and shall be refunded if the applicant is found ineligible to sit for the examination.
(3) The fee for an initial license shall not exceed $200.
(4) The fee for an initial certificate of authorization shall not exceed $200.
(5) The fee for a biennial license renewal shall not exceed $400.
(6) The fee for licensure by endorsement shall not exceed $200.
(7) The fee for application for inactive status shall not exceed $100.
(8) The fee for reactivation of an inactive license shall not exceed $200.
(9) The fee for applications from providers of continuing education may not exceed $500.
History.—s. 3, ch. 2007-235; s. 25, ch. 2010-106; s. 17, ch. 2010-176.
468.8413 Examinations.—
(1) A person desiring to be licensed as a mold assessor or mold remediator must apply to the department after satisfying the examination requirements of this part.
(2) An applicant may practice in this state as a mold assessor or mold remediator if he or she passes the required examination, is of good moral character, and completes one of the following requirements:
(a)1. For a mold remediator, at least a 2-year associate of arts degree, or the equivalent, with at least 30 semester hours in microbiology, engineering, architecture, industrial hygiene, occupational safety, or a related field of science from an accredited institution and a minimum of 1 year of documented field experience in a field related to mold remediation; or
2. A high school diploma or the equivalent with a minimum of 4 years of documented field experience in a field related to mold remediation.
(b)1. For a mold assessor, at least a 2-year associate of arts degree, or the equivalent, with at least 30 semester hours in microbiology, engineering, architecture, industrial hygiene, occupational safety, or a related field of science from an accredited institution and a minimum of 1 year of documented field experience in conducting microbial sampling or investigations; or
2. A high school diploma or the equivalent with a minimum of 4 years of documented field experience in conducting microbial sampling or investigations.
(3) The department shall review and approve courses of study in mold assessment and mold remediation.
(4)(a) Good moral character means a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.
(b) The department may refuse to certify an applicant for failure to satisfy this requirement only if:
1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a licensed mold assessor or mold remediator; and
2. The finding by the department of lack of good moral character is supported by clear and convincing evidence.
(c) When an applicant is found to be unqualified for a license because of a lack of good moral character, the department shall furnish the applicant a statement containing the findings of the department, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to a rehearing and appeal.
(5) The department may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section.
(6) An applicant for a license shall submit, together with the application, a complete set of electronic fingerprints to the department. The department shall submit the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward them to the Federal Bureau of Investigation for national processing, to determine whether the applicant has a criminal history record. The department shall review the background results to determine if an applicant meets licensure requirements. The applicant is responsible for the costs associated with processing the fingerprints. The authorized agencies or vendors shall collect such fees and pay for the processing costs due to the Department of Law Enforcement.
History.—s. 3, ch. 2007-235; s. 26, ch. 2010-106; s. 18, ch. 2010-176.
468.8414 Licensure.—
(1) The department shall license any applicant who the department certifies is qualified to practice mold assessment or mold remediation.
(2) The department shall certify for licensure any applicant who satisfies the requirements of s. 468.8413, who has passed the licensing examination, and who has documented training in water, mold, and respiratory protection. The department may refuse to certify any applicant who has violated any of the provisions of this part.
(3) The department shall certify as qualified for a license by endorsement an applicant who is of good moral character, who has the insurance coverage required under s. 468.8421, and who:
(a) Is qualified to take the examination as set forth in s. 468.8413 and has passed a certification examination offered by a nationally recognized organization that certifies persons in the specialty of mold assessment or mold remediation that has been approved by the department as substantially equivalent to the requirements of this part and s. 455.217; or
(b) Holds a valid license to practice mold assessment or mold remediation issued by another state or territory of the United States if the criteria for issuance of the license were substantially the same as the licensure criteria that is established by this part as determined by the department.
(4) The department shall not issue a license by endorsement to any applicant who is under investigation in another state for any act that would constitute a violation of this part or chapter 455 until such time as the investigation is complete and disciplinary proceedings have been terminated.
History.—s. 3, ch. 2007-235; s. 27, ch. 2010-106; s. 19, ch. 2010-176.
468.8415 Renewal of license.—
(1) The department shall renew a license upon receipt of the renewal application and fee and upon certification by the department that the licensee has satisfactorily completed the continuing education requirements of s. 468.8416.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
History.—s. 3, ch. 2007-235.
468.8416 Continuing education.—
(1) The department may not renew a license until the licensee submits proof satisfactory to it that during the 2 years prior to his or her application for renewal the licensee has completed at least 14 hours of continuing education. Criteria and course content shall be approved by the department by rule.
(2) The department may prescribe by rule additional continuing professional education hours, not to exceed 25 percent of the total hours required, for failure to complete the hours required for renewal by the end of the renewal period.
History.—s. 3, ch. 2007-235.
468.8417 Inactive license.—
(1) A licensee may request that his or her license be placed in an inactive status by making application to the department.
(2) A license that has become inactive may be reactivated upon application to the department. The department may prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license may not exceed 14 hours for each year the license was inactive.
(3) The department shall adopt rules relating to licenses that have become inactive and for the renewal of inactive licenses. The department shall prescribe by rule a fee not to exceed $200 for the reactivation of an inactive license and a fee not to exceed $200 for the renewal of an inactive license.
History.—s. 3, ch. 2007-235.
468.8418 Certification of partnerships and corporations.—The practice of or the offer to practice mold assessment or mold remediation by licensees through a corporation or partnership offering mold assessment or mold remediation to the public, or by a corporation or partnership offering such services to the public through licensees under this part as agents, employees, officers, or partners, is permitted subject to the provisions of this part. Nothing in this section shall be construed to allow a corporation to hold a license to practice mold assessment or mold remediation. No corporation or partnership shall be relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing mold assessment or mold remediation be relieved of responsibility for professional services performed by reason of his or her employment or relationship with a corporation or partnership.
History.—s. 3, ch. 2007-235; s. 28, ch. 2010-106; s. 20, ch. 2010-176.
468.8419 Prohibitions; penalties.—
(1) A person may not:
(a) Effective July 1, 2011, perform or offer to perform any mold assessment unless the mold assessor has documented training in water, mold, and respiratory protection under s. 468.8414(2).
(b) Effective July 1, 2011, perform or offer to perform any mold assessment unless the person has complied with the provisions of this part.
(c) Use the name or title “certified mold assessor,” “registered mold assessor,” “licensed mold assessor,” “mold assessor,” “professional mold assessor,” or any combination thereof unless the person has complied with the provisions of this part.
(d) Perform or offer to perform any mold remediation to a structure on which the mold assessor or the mold assessor’s company provided a mold assessment within the last 12 months. This paragraph does not apply to a certified contractor who is classified in s. 489.105(3) as a Division I contractor. However, the department may adopt rules requiring that, if such contractor performs the mold assessment and offers to perform the mold remediation, the contract for mold remediation provided to the homeowner discloses that he or she has the right to request competitive bids.
(e) Inspect for a fee any property in which the assessor or the assessor’s company has any financial or transfer interest.
(f) Accept any compensation, inducement, or reward from a mold remediator or mold remediator’s company for the referral of any business to the mold remediator or the mold remediator’s company.
(g) Offer any compensation, inducement, or reward to a mold remediator or mold remediator’s company for the referral of any business from the mold remediator or the mold remediator’s company.
(h) Accept an engagement to make an omission of the assessment or conduct an assessment in which the assessment itself, or the fee payable for the assessment, is contingent upon the conclusions of the assessment.
(2) A mold remediator, a company that employs a mold remediator, or a company that is controlled by a company that also has a financial interest in a company employing a mold remediator may not:
(a) Perform or offer to perform any mold remediation unless the remediator has documented training in water, mold, and respiratory protection under s. 468.8414(2).
(b) Perform or offer to perform any mold remediation unless the person has complied with the provisions of this part.
(c) Use the name or title “certified mold remediator,” “registered mold remediator,” “licensed mold remediator,” “mold remediator,” “professional mold remediator,” or any combination thereof unless the person has complied with the provisions of this part.
(d) Perform or offer to perform any mold assessment to a structure on which the mold remediator or the mold remediator’s company provided a mold remediation within the last 12 months. This paragraph does not apply to a certified contractor who is classified in s. 489.105(3) as a Division I contractor. However, the department may adopt rules requiring that, if such contractor performs the mold remediation and offers to perform the mold assessment, the contract for mold assessment provided to the homeowner discloses that he or she has the right to request competitive bids.
(e) Remediate for a fee any property in which the mold remediator or the mold remediator’s company has any financial or transfer interest.
(f) Accept any compensation, inducement, or reward from a mold assessor or mold assessor’s company for the referral of any business from the mold assessor or the mold assessor’s company.
(g) Offer any compensation, inducement, or reward to a mold assessor or mold assessor’s company for the referral of any business from the mold assessor or the mold assessor’s company.
(3) Any person who violates any provision of this section commits:
(a) A misdemeanor of the second degree for a first violation, punishable as provided in s. 775.082 or s. 775.083.
(b) A misdemeanor of the first degree for a second violation, punishable as provided in s. 775.082 or s. 775.083.
(c) A felony of the third degree for a third or subsequent violation, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) This section does not apply to unlicensed activity as described in 1paragraph (1)(a), 1paragraph (1)(b), or s. 455.228 that occurs before July 1, 2011.
History.—s. 3, ch. 2007-235; s. 124, ch. 2008-4; s. 29, ch. 2010-106; s. 21, ch. 2010-176.
1Note.—As amended by s. 21, ch. 2010-176; the s. 29, ch. 2010-106, version cited to “paragraphs (1)(a)-(d)” instead of “paragraph (1)(a), paragraph (1)(b).”
468.842 Disciplinary proceedings.—
(1) The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:
(a) Violation of any provision of this part or s. 455.227(1).
(b) Attempting to procure a license to practice mold assessment or mold remediation by bribery or fraudulent misrepresentations.
(c) Having a license to practice mold assessment or mold remediation revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(d) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction that directly relates to the practice of mold assessment or mold remediation or the ability to practice mold assessment or mold remediation.
(e) Making or filing a report or record that the licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those that are signed in the capacity of a registered mold assessor or mold remediator.
(f) Advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content.
(g) Engaging in fraud or deceit, or negligence, incompetency, or misconduct, in the practice of mold assessment or mold remediation.
(h) Failing to perform any statutory or legal obligation placed upon a licensed mold assessor or mold remediator; violating any provision of this chapter, a rule of the department, or a lawful order of the department previously entered in a disciplinary hearing; or failing to comply with a lawfully issued subpoena of the department.
(i) Practicing on a revoked, suspended, inactive, or delinquent license.
(j) Failing to meet any standard of practice adopted by rule of the department.
(2) When the department finds any mold assessor or mold remediator guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure.
(b) Revocation or suspension of a license.
(c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the mold assessor or mold remediator on probation for a period of time and subject to such conditions as the department may specify.
(f) Restriction of the authorized scope of practice by the mold assessor or mold remediator.
(3) In addition to any other sanction imposed under this part, in any final order that imposes sanctions, the department may assess costs related to the investigation and prosecution of the case.
History.—s. 3, ch. 2007-235; s. 125, ch. 2008-4; s. 52, ch. 2009-195; ss. 30, 44, ch. 2010-106; s. 22, ch. 2010-176.
468.8421 Insurance.—
(1) A mold assessor shall maintain general liability and errors and omissions for both preliminary and postremediation mold assessment insurance coverage of at least $1 million.
(2) A mold remediator shall maintain a general liability insurance policy in an amount of not less than $1,000,000 that includes specific coverage for mold-related claims.
History.—s. 3, ch. 2007-235; s. 31, ch. 2010-106; s. 23, ch. 2010-176.
468.8422 Contracts.—A contract to perform mold assessment or mold remediation shall be in a document or electronic record, signed or otherwise authenticated by the parties. A mold assessment contract is not required to provide estimates related to the cost of repair of an assessed property. A mold assessment contract is not required to provide estimates.
History.—s. 3, ch. 2007-235.
468.8423 Grandfather clause.—
(1) A person who performs mold assessment or mold remediation as defined in this part may qualify for licensure by the department as a mold assessor or mold remediator if the person submits his or her application to the department by March 1, 2011, whether postmarked or delivered by that date, and if the person:
(a) Is certified as a mold assessor or mold remediator by a state or national association that requires, for such certification, successful completion of a proctored examination on mold assessment or mold remediation, as applicable, and completes at least 60 hours of education on mold assessment or at least 30 hours of education on mold remediation, as applicable; or
(b) At the time of application, has at least 3 years of experience as a mold assessor or mold remediator. To establish the 3 years of experience, an applicant must submit at least 40 mold assessments or remediation invoices prepared by the applicant.
(2) The department may investigate the validity of a mold assessment or remediation invoice submitted under paragraph (1)(b) and, if the applicant submits a false assessment or invoice, may take disciplinary action against the applicant under s. 468.842(1)(e) or (g).
(3) An applicant may not qualify for licensure under this section if he or she has had a mold assessor or mold remediator license or a license in any related field revoked at any time or suspended within the previous 5 years or has been assessed a fine that exceeds $500 within the previous 5 years. For purposes of this subsection, a license in a related field includes, but is not limited to, licensure in real estate, construction, home inspection, building code administration or inspection, or indoor air quality.
(4) An applicant for licensure under this section must comply with the good moral character and insurance requirements of this part.
History.—s. 3, ch. 2007-235; s. 32, ch. 2010-106; s. 24, ch. 2010-176.
468.8424 Rulemaking authority.—The department shall adopt rules to administer this part.
History.—s. 33, ch. 2010-106; s. 25, ch. 2010-176.