The Florida Senate

497.153  Disciplinary procedures and penalties.--

(1)  JURISDICTION OF LICENSING AUTHORITY TO INVESTIGATE AND PROSECUTE.--The expiration, nonrenewal, or surrender of licensure under this chapter shall not eliminate jurisdiction in the licensing authority to investigate and prosecute for violations committed by a licensee while licensed under this chapter. The prosecution of any matter may be initiated or continued notwithstanding the withdrawal of any complaint.

(2)  DETERMINATION OF PROBABLE CAUSE.--

(a)  If the department shall determine that there is reasonable cause to believe that any licensee under this chapter is subject to disciplinary action under this chapter and is not eligible for a citation or notice of noncompliance pursuant to criteria established by the board, the department shall present the matter to a probable cause panel of the board.

(b)  Prior to submitting a matter to the probable cause panel, the licensee who is the subject of the matter shall be provided by the department with a copy of any written complaint received by the department in the matter and shall be advised that the licensee may, within 20 days after receipt of a copy of such complaint from the department, submit to the department a written response. Any response timely received by the department shall be provided by the department to the probable cause panel. Licensees may not appear in person or through a representative at any probable cause panel proceeding. This paragraph shall not apply to emergency action.

(3)  PROBABLE CAUSE PROCEEDINGS.--

(a)  The board may provide, by rule, for multiple probable cause panels composed of at least two members. The board may provide, by rule, that one or more members of the panel or panels may be a former board member. The length of term or repetition of service of any such former board member on a probable cause panel may vary according to the direction of the board when authorized by board rule. Any probable cause panel must include one of the board's former or present consumer members, if one is available and willing to serve. Any probable cause panel must include a present board member. The board shall enact rules consistent with this section specifying, according to what categories of licensure are represented on a probable cause panel, what categories of licensee cases may be presented to that panel. Former board members may be from the former Board of Funeral and Cemetery Services or the former Board of Funeral Directors and Embalmers. However, any former professional board member serving on the probable cause panel must hold an active valid license for that profession.

(b)  The probable cause panel may make a reasonable request to the department for additional investigative information, and upon such request the department shall provide such additional investigative information as is necessary to the determination of probable cause. A request for additional investigative information shall be made within 15 days after the date of receipt by the probable cause panel of the investigative report of the department. The probable cause panel shall make its determination as to the existence of probable cause within 30 days after referral of the matter to the probable cause panel by the department. The Chief Financial Officer may grant extensions of the 15-day and the 30-day time limits. If the probable cause panel does not find probable cause within the 30-day time limit, as may be extended, or if the probable cause panel finds no probable cause, the department may determine, within 10 days after the panel fails to determine probable cause or 10 days after the time limit has elapsed, that probable cause exists.

(c)  The probable cause panel may not resolve or direct resolution of a matter presented to it, by issuance of a citation or a letter of guidance or noncompliance or other informal resolution, without the concurrence of the department.

(d)  The determination as to whether probable cause exists shall be made by majority vote of the probable cause panel of the board.

(e)  If the probable cause panel finds that probable cause exists, it shall direct the department to file a formal complaint against the licensee.

(4)  ACTION AFTER PROBABLE CAUSE FOUND.--

(a)  Service of an administrative complaint may be in person by department staff or any person authorized to make service of process under the Florida Rules of Civil Procedure. Service upon a licensee may in the alternative be made by certified mail, return receipt requested, to the last known address of record provided by the licensee to the department.

(b)  If after service of the administrative complaint on a licensee the licensee does not dispute the facts alleged, the department shall present the matter to the board for final action.

(c)  The department may at any time present to the board a proposed settlement by consent order or otherwise of any matter as to which probable cause has been found. If the board accepts the proposed settlement, it may execute and file the consent order as its final order in the matter or may otherwise issue its final order in the matter. If the board does not accept such settlement, the prosecution of the matter shall be resumed. No settlement of any disciplinary matter as to which probable cause has been found may be entered into by the board prior to receipt of a recommended order of an administrative law judge without the department's concurrence.

(d)  Hearings concerning disputes as to any fact alleged in a disciplinary action shall be held before an administrative law judge of the Division of Administrative Hearings in accordance with chapter 120. The department shall present the recommended order of the administrative law judge to the board for final action.

(e)  If at any time after probable cause has been found in a matter the department shall conclude that the matter should not be further prosecuted, the department may present the matter to any probable cause panel of the board. If that probable cause panel concurs with the department, the prosecution may be terminated, without prejudice to subsequent prosecution of the same matter. If the probable cause panel does not concur with the department, the matter shall be returned to the department for continued prosecution. Upon commencement of taking of evidence in a matter before an administrative law judge, the jurisdiction of the administrative law judge may not be terminated except by order of the administrative law judge or a court of competent jurisdiction.

(f)  No disciplinary matter may come before the board for final or other action, nor shall action by the board be taken as to any disciplinary matter, except upon presentation and recommendation by the department.

(5)  PENALTIES.--

(a)  When the board finds any person to be subject to discipline under this chapter, it may enter an order imposing one or more of the following:

1.  Denial of an application for a license.

2.  Issuance of a written reprimand.

3.  Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.

4.  Restrictions on the authorized scope of practice of the licensee.

5.  Requirements that the licensee complete additional education or training as specified by the board.

6.  Imposition of an administrative fine not to exceed $5,000 for each count or separate offense; provided, a licensee may by settlement agree to a fine in excess of such $5,000 limitation.

7.  Suspension of a license. A suspension may be for such period and subject to such terms as the board shall specify in its order imposing discipline. Unless ordered otherwise by the board, during the period of suspension, the person whose license has been suspended shall continue to file all such reports, complete all continuing education, and pay all fees as required under this chapter as if the license had continued in full force. Upon expiration of the suspension period, if within such period the license has not otherwise terminated, the suspended license shall automatically be reinstated unless the board has ordered that the licensee apply for reinstatement, and the board may deny such application if the board finds that the causes of the suspension have not been resolved or that such person is otherwise not in compliance with the requirements of the order or this chapter.

8.  Revocation of licensure. The board may specify by final order on a case-by-case basis the period of time that must elapse before a revoked licensee may apply or reapply for any licensure under this chapter. The board may by order on a case-by-case basis specify that a revocation is permanent and that no future application for licensure under this chapter by the revoked person or entity shall be accepted, processed, or approved. In no event shall any person or entity who has been revoked under this section subsequently be issued the same or other licensure under this chapter unless such person shall show by clear and convincing evidence that the person or entity has been rehabilitated and otherwise qualifies for the licensure applied for.

(b)  In addition to any fine and other sanction imposed, the board may order the payment by the licensee of the reasonable costs of the department and the board associated with investigation and prosecution of the matter, and may order the licensee to make restitution as directed by board order to persons harmed by the violation.

(c)  The failure of a licensee to timely comply with a final order of the board imposing discipline shall be grounds for emergency suspension of all licensure held by the licensee under this chapter; provided, the department shall give written notice to such licensee, at least 7 days before such emergency suspension, of the department's intent to enter an emergency order of suspension and the ground therefor, and such emergency suspension shall not occur if during the 7-day period the licensee shall provide the department with evidence satisfactory to the department that the licensee was in compliance or has come into compliance with the disciplinary order. Any emergency suspension imposed shall be effective when served, and shall terminate upon notice to the licensee by the department that the department has received evidence satisfactory to the department that the licensee has come into compliance with the board's order, which notice the department shall promptly provide to the licensee upon receipt of such evidence. Notwithstanding the licensee's correction of any noncompliance with a board order, such licensee shall be liable for additional disciplinary action for failure to timely comply with an order of the board.

(d)  Any order imposing any penalty pursuant to this section shall recite the grounds upon which the penalty is based.

(6)  PROTECTION OF CUSTOMERS OF DISCIPLINED LICENSEES.--In imposing any discipline under this section the board may also impose by its order such restrictions, conditions, and requirements on the licensee and the licensee's assets and the assets of any trust under this chapter utilized by the licensee, as are reasonably necessary for the protection of persons to whom the disciplined licensee is obligated for the future performance or delivery of funeral or burial merchandise or services. The board shall have continuing jurisdiction over revoked persons and entities and their assets and related trusts under this chapter, for the purpose of and to the extent necessary for the protection of persons to whom the disciplined licensee is obligated for the future performance or delivery of funeral or burial merchandise or services, and may issue such subsequent and additional orders as from time to time the board deems necessary or advisable for such purposes. The courts of this state shall have jurisdiction to enforce the reasonable orders of the board issued for such purposes.

(7)  LIABILITY FOR AGENTS AND EMPLOYEES.--For purposes of this section, the acts or omissions of any person employed by or under contract to the licensee shall be treated as acts or omissions of the licensee. However, the board may determine that disciplinary action may be more appropriately taken against an individual licensed preneed agent or licensed branch rather than taking action against the sponsoring preneed licensee.

(8)  PUBLICATION OF DISCIPLINARY ACTION.--The department may cause notice of any disciplinary action of the board to be published in one or more newspapers of general circulation published in this state.

(9)  DETERMINATIONS NOT SUBJECT TO CHAPTER 120.--The following determinations shall not entitle any person to proceedings under chapter 120:

(a)  A determination by the department to exercise its authority under this chapter to investigate, financially examine, or inspect any person or entity; or a determination by the department concerning how to conduct such investigation, financial examination, or inspection; or a determination by the department concerning the content of any report of investigation, financial examination, or inspection.

(b)  A determination by the department that there is reasonable cause to believe that a licensee under this chapter is subject to disciplinary action under this chapter and that the matter should be presented to a probable cause panel of the board, or that the licensee is not eligible for a citation pursuant to criteria established by the board.

(c)  A determination by a probable cause panel of the board that probable cause does or does not exist, or a determination by the department under paragraph (3)(b).

(d)  A determination by the department not to offer any settlement to a licensee concerning any disciplinary matter.

History.--s. 23, ch. 2004-301; s. 91, ch. 2005-2; s. 14, ch. 2005-155.