The Florida Senate

457.109  Disciplinary actions; grounds; action by the board.--

(1)  The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

(a)  Attempting to obtain, obtaining, or renewing a license to practice acupuncture by bribery, by fraudulent misrepresentations, or through an error of the department.

(b)  Having a license to practice acupuncture 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, in any jurisdiction of a crime which directly relates to the practice of acupuncture or to the ability to practice acupuncture. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

(d)  False, deceptive, or misleading advertising or advertising which claims that acupuncture is useful in curing any disease.

(e)  Advertising, practicing, or attempting to practice under a name other than one's own.

(f)  Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the department.

(g)  Aiding, assisting, procuring, employing, or advising any unlicensed person to practice acupuncture contrary to this chapter or to a rule of the department.

(h)  Failing to perform any statutory or legal obligation placed upon a licensed acupuncturist.

(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 shall include only those which are signed in the capacity as a licensed acupuncturist.

(j)  Exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her acupuncturist.

(k)  Making deceptive, untrue, or fraudulent representations in the practice of acupuncture or employing a trick or scheme in the practice of acupuncture when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community.

(l)  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.

(m)  Failing to keep written medical records justifying the course of treatment of the patient.

(n)  Exercising influence on the patient to exploit the patient for the financial gain of the licensee or of a third party.

(o)  Being unable to practice acupuncture 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, upon a finding of the secretary or the secretary's designee that probable cause exists to believe that the licensee is unable to serve as an acupuncturist 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 an acupuncturist. The licensee against whom the petition is filed shall not be named or identified by initials in any public court record or document, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. An acupuncturist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of acupuncture with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the department shall be used against an acupuncturist in any other proceeding.

(p)  Gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent similar acupuncturist as being acceptable under similar conditions and circumstances.

(q)  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.

(r)  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.

(s)  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.

(t)  Conspiring with another 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.

(u)  Fraud or deceit or gross negligence, incompetence, or misconduct in the operation of a course of study.

(v)  Failing to comply with state, county, or municipal regulations or reporting requirements relating to public health and the control of contagious and infectious diseases.

(w)  Failing to comply with any rule of the board relating to health and safety, including, but not limited to, the sterilization of needles and equipment and the disposal of potentially infectious materials.

(2)  When the board finds any person guilty of any of the 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)  Restriction of practice.

(d)  Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

(e)  Issuance of a reprimand.

(f)  Placement of the acupuncturist on probation for a period of time and subject to such conditions as the board may specify.

(3)  The department shall not reinstate the license of an acupuncturist, or cause a license to be issued to a person it has deemed to be unqualified, until such time as the board is satisfied that he or she has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of acupuncture.

History.--ss. 1, 2, ch. 80-375; ss. 4, 6, ch. 81-227; ss. 2, 3, ch. 81-318; s. 43, ch. 83-329; ss. 9, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 197, ch. 97-103; s. 12, ch. 97-264.

Note.--Former s. 468.325.