2018 Florida Statutes
Powers of the department.
Powers of the department.
496.419 Powers of the department.—
(1) The department may conduct an investigation of any person or organization whenever there is an appearance, either upon complaint or otherwise, that a violation of ss. 496.401-496.424 or s. 496.426 or of any rule adopted or of any order issued pursuant thereto has been committed or is about to be committed.
(2) The department may issue and serve subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation. The department, or its duly authorized representative, may administer oaths and affirmations to any person.
(3) In the event of substantial noncompliance with a subpoena or subpoena duces tecum issued or caused to be issued by the department, the department may petition the circuit court of the county in which the person subpoenaed resides or has its principal place of business for an order requiring the subpoenaed person to appear and testify and to produce such books, accounts, records, and other documents as are specified in the subpoena duces tecum. The court may grant injunctive relief restraining the person or organization from collecting contributions and such other relief, including, but not limited to, the restraint by injunction or appointment of a receiver, or any transfer, pledge, assignment, or other disposition of the person’s or organization’s assets, or any concealment, alteration, destruction, or other disposition of subpoenaed books, accounts, records, or other documents and materials as the court deems appropriate, until the person or organization has fully complied with the subpoena or subpoena duces tecum and the department has completed its investigation or examination. The court may also order the person or organization to produce a financial statement that has been audited by an independent certified public accountant. The department is entitled to the summary procedure provided in s. 51.011. Costs incurred by the department to obtain an order granting, in whole or in part, a petition for enforcement of a subpoena or subpoena duces tecum shall be taxed against the subpoenaed person or organization, and failure to comply with such order shall be contempt of court.
(4) The department may enter an order imposing one or more of the penalties set forth in subsection (5) if the department finds that a charitable organization, sponsor, professional fundraising consultant, or professional solicitor, or an agent, servant, or employee thereof has:
(a) Violated or is operating in violation of any of the provisions of ss. 496.401-496.424 or s. 496.426 or of the rules adopted or orders issued thereunder;
(b) Made a material false statement in an application, statement, or report required to be filed under ss. 496.401-496.424 or s. 496.426;
(c) Refused or failed, or any of its principal officers has refused or failed, after notice, to produce any records of such organization or to disclose any information required to be disclosed under ss. 496.401-496.424 or s. 496.426 or the rules of the department; or
(d) Made a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the State Attorney.
(5) Upon a finding as set forth in subsection (4), the department may enter an order doing one or more of the following:
(a) Issuing a notice of noncompliance pursuant to s. 120.695;
(b) Issuing a cease and desist order that directs that the person cease and desist specified fundraising activities;
(c) Refusing to register or canceling or suspending a registration;
(d) Placing the registrant on probation for a period of time, subject to such conditions as the department may specify;
(e) Canceling an exemption granted under s. 496.406;
(f) Except as provided in paragraph (g), imposing an administrative fine not to exceed $5,000 for each act or omission that constitutes a violation of ss. 496.401-496.424 or s. 496.426 or a rule or order. With respect to a s. 501(c)(3) organization, the penalty imposed pursuant to this subsection may not exceed $500 per violation for failure to register under s. 496.405 or file for an exemption under s. 496.406(2). The penalty shall be the entire amount per violation and is not a daily penalty; and
(g) Imposing an administrative fine not to exceed $10,000 for a violation of this chapter that involves fraud or deception.
(6) Except as otherwise provided in this section, the administrative proceedings that could result in the entry of an order imposing any of the penalties specified in subsection (5) are governed by chapter 120, except that the applicable provisions and time limits specified in s. 496.405(7), s. 496.409(6), or s. 496.410(5) apply if the department determines that a registration should be refused.
(7) The department may forward an investigative report and supporting documentation of any investigation conducted pursuant to this section to the Department of Legal Affairs. The report must identify any administrative actions that are proposed or have been commenced by the department in accordance with subsection (4).
(8) The department shall report any substantiated criminal violation of ss. 496.401-496.424 or s. 496.426 to the proper prosecuting authority for prompt prosecution.
(9) All fines collected by the department under subsection (5) must be paid into the General Inspection Trust Fund.
(10) A finding of a violation of s. 496.415(3), (5), (6), (10), (12), (13), or (14) constitutes an immediate threat to the public health, safety, and welfare and is sufficient grounds for the department to issue an immediate order to cease and desist all solicitation activities. The order shall act as an immediate final order under s. 120.569(2)(n) and shall remain in effect until the violation has been remedied pursuant to this chapter.
History.—ss. 18, 26, ch. 91-208; ss. 12, 19, ch. 94-287; s. 8, ch. 95-372; s. 2, ch. 97-250; s. 4, ch. 2001-351; s. 14, ch. 2013-251; s. 18, ch. 2014-122.