Senate Bill 2076
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Florida Senate - 1998 SB 2076
By Senator Clary
7-1105-98
1 A bill to be entitled
2 An act relating to professional regulation;
3 amending s. 11.62, F.S.; adding criteria for
4 evaluating new regulation; amending s. 455.201,
5 F.S.; requiring the Department of Business and
6 Professional Regulation to consider the impact
7 on jobs when considering new regulation;
8 creating s. 455.2035, F.S.; providing the
9 department rulemaking authority; amending ss.
10 455.209, 455.213, 455.218, F.S.; conforming
11 provisions to a previous administrative
12 reorganization; amending s. 455.219, F.S.;
13 providing inspection fee authority; creating s.
14 455.2237, F.S.; providing authority to inspect
15 and investigate records, offices, and job
16 sites; amending s. 455.225, F.S.; revising
17 probable-cause provisions; prescribing
18 authority of the department or a board in cases
19 of failure to comply with continuing-education
20 requirements; conforming provisions to a
21 previous administrative reorganization;
22 amending s. 455.2285, F.S.; conforming
23 provisions to a previous administrative
24 reorganization; amending s. 455.517, F.S.;
25 requiring the Department of Health to consider
26 the impact on jobs when creating new
27 regulation; providing effective dates.
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29 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Effective October 1, 1998, subsections (3)
2 and (4) of section 11.62, Florida Statutes, are amended to
3 read:
4 11.62 Legislative review of proposed regulation of
5 unregulated functions.--
6 (3) In determining whether to regulate a profession or
7 occupation, the Legislature shall consider the following
8 factors:
9 (a) Whether the unregulated practice of the profession
10 or occupation will substantially harm or endanger the public
11 health, safety, or welfare and whether the potential for harm
12 is recognizable and not remote;
13 (b) Whether the practice of the profession or
14 occupation requires specialized skill or training, and whether
15 that skill or training is readily measurable or quantifiable
16 so that examination or training requirements would reasonably
17 assure initial and continuing professional or occupational
18 ability;
19 (c) Whether the regulation will have an unreasonable
20 effect on the job creation or job retention in the state or
21 will place unreasonable restrictions on the ability of
22 individuals who seek to practice or who are practicing a given
23 profession or occupation to find employment;
24 (d)(c) Whether the public is or can be effectively
25 protected by other means; and
26 (e)(d) Whether the overall cost-effectiveness and
27 economic impact of the proposed regulation, including the
28 indirect costs to consumers, will be favorable.
29 (4) The proponents of legislation that provides for
30 the regulation of a profession or occupation not already
31 expressly subject to state regulation shall provide, upon
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1 request, the following information in writing to the state
2 agency that is proposed to have jurisdiction over the
3 regulation and to the legislative committees to which the
4 legislation is referred:
5 (a) The number of individuals or businesses that would
6 be subject to the regulation;
7 (b) The name of each association that represents
8 members of the profession or occupation, together with a copy
9 of its codes of ethics or conduct;
10 (c) Documentation of the nature and extent of the harm
11 to the public caused by the unregulated practice of the
12 profession or occupation, including a description of any
13 complaints that have been lodged against persons who have
14 practiced the profession or occupation in this state during
15 the preceding 3 years;
16 (d) A list of states that regulate the profession or
17 occupation, and the dates of enactment of each law providing
18 for such regulation and a copy of each law;
19 (e) A list and description of state and federal laws
20 that have been enacted to protect the public with respect to
21 the profession or occupation and a statement of the reasons
22 why these laws have not proven adequate to protect the public;
23 (f) A description of the voluntary efforts made by
24 members of the profession or occupation to protect the public
25 and a statement of the reasons why these efforts are not
26 adequate to protect the public;
27 (g) A copy of any federal legislation mandating
28 regulation;
29 (h) An explanation of the reasons why other types of
30 less restrictive regulation would not effectively protect the
31 public;
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1 (i) The cost, availability, and appropriateness of
2 training and examination requirements;
3 (j)(i) The cost of regulation, including the indirect
4 cost to consumers, and the method proposed to finance the
5 regulation;
6 (k) The cost imposed on applicants or practitioners or
7 on employers of applicants or practitioners as a result of the
8 regulation;
9 (l)(j) The details of any previous efforts in this
10 state to implement regulation of the profession or occupation;
11 and
12 (m)(k) Any other information the agency or the
13 committee considers relevant to the analysis of the proposed
14 legislation.
15 Section 2. Effective October 1, 1998, subsection (4)
16 of section 455.201, Florida Statutes, is amended to read:
17 455.201 Professions and occupations regulated by
18 department; legislative intent; requirements.--
19 (4)(a) Neither No board, nor the department nor any
20 board may, shall create unreasonably restrictive and
21 extraordinary standards that deter qualified persons from
22 entering the various professions. Neither No board, nor the
23 department nor any board may, shall take any action that which
24 tends to create or maintain an economic condition that
25 unreasonably restricts competition, except as specifically
26 provided by law.
27 (b) Neither the department nor any board may create a
28 regulation that has an unreasonable effect on job creation or
29 job retention in the state or that places unreasonable
30 restrictions on the ability of individuals who seek to
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1 practice or who are practicing a given profession or
2 occupation to find employment.
3 (c) The Legislature shall evaluate proposals to
4 increase regulation of professions or occupations that are
5 already regulated to determine their effect on job creation or
6 retention and job opportunities.
7 Section 3. Section 455.2035, Florida Statutes, is
8 created to read:
9 455.2035 Rulemaking authority.--The department may
10 adopt rules pursuant to chapter 120 to implement the
11 regulatory requirements of any profession within the
12 department's jurisdiction which does not have a governing
13 board.
14 Section 4. Subsection (2) of section 455.209, Florida
15 Statutes, is amended to read:
16 455.209 Accountability and liability of board
17 members.--
18 (2) Each board member and each former board member
19 serving on a probable cause panel shall be exempt from civil
20 liability for any act or omission when acting in the member's
21 official capacity, and the department, or the Department of
22 Legal Affairs shall defend any such member in any action
23 against any board or member of a board arising from any such
24 act or omission. In addition, the department or the Department
25 of Legal Affairs may defend the member's company or business
26 in any action against the company or business if the
27 department or the Department of Legal Affairs determines that
28 the actions from which the suit arises are actions taken by
29 the member in the member's official capacity and were not
30 beyond the member's statutory authority. In providing such
31 defense, the department, the agency, or the Department of
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1 Legal Affairs may employ or utilize the legal services of
2 outside counsel.
3 Section 5. Subsection (1) of section 455.213, Florida
4 Statutes, is amended to read:
5 455.213 General licensing provisions.--
6 (1) Any person desiring to be licensed shall apply to
7 the department in writing. The application for licensure shall
8 be made on a form prepared and furnished by the department and
9 include the applicant's social security number. The
10 application shall be supplemented as needed to reflect any
11 material change in any circumstance or condition stated in the
12 application which takes place between the initial filing of
13 the application and the final grant or denial of the license
14 and which might affect the decision of the department agency.
15 In order to further the economic development goals of the
16 state, and notwithstanding any law to the contrary, the
17 department may enter into an agreement with the county tax
18 collector for the purpose of appointing the county tax
19 collector as the department's agent to accept applications for
20 licenses and applications for renewals of licenses. The
21 agreement must specify the time within which the tax collector
22 must forward any applications and accompanying application
23 fees to the department. In cases where a person applies or
24 schedules directly with a national examination organization or
25 examination vendor to take an examination required for
26 licensure, any organization- or vendor-related fees associated
27 with the examination may be paid directly to the organization
28 or vendor.
29 Section 6. Subsection (6) of section 455.218, Florida
30 Statutes, is amended to read:
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1 455.218 Foreign-trained professionals; special
2 examination and license provisions.--
3 (6) The department, for its boards, shall not issue an
4 initial license to, or renew a license of, any applicant or
5 licensee who is under investigation or prosecution in any
6 jurisdiction for an action which would constitute a violation
7 of this part or the professional practice acts administered by
8 the department or agency and the boards until such time as the
9 investigation or prosecution is complete, at which time the
10 provisions of the professional practice acts shall apply.
11 Section 7. Subsection (8) is added to section 455.219,
12 Florida Statutes, to read:
13 455.219 Fees; receipts; disposition; periodic
14 management reports.--
15 (8) Unless otherwise provided by law, the board, or
16 the department if there is no board, may charge an inspection
17 fee for facility inspections required by law to be performed
18 periodically, which fee shall be set to approximate the
19 estimated average cost of an inspection, but shall not exceed
20 $50.
21 Section 8. Section 455.2237, Florida Statutes, is
22 created to read:
23 455.2237 Authority to inspect.--Any board, or the
24 department when there is no board, may by rule authorize
25 inspections and investigations of records, offices, or job
26 sites at times when a licensee or the employee or agent of the
27 licensee, or any person suspected of unlicensed activity, is
28 performing an activity regulated by this chapter or the
29 applicable practice act. Such rule may establish more
30 definitively the times and conditions of inspections and
31 investigations and may authorize such inspections and
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1 investigations only to the extent necessary to determine
2 whether a person is in compliance with the provisions of this
3 chapter or of the regulated practice acts or any rule
4 promulgated thereunder, to aid in the enforcement of the
5 provisions of this chapter or of the regulated practice acts
6 or any rule adopted thereunder, or to determine if any of the
7 provisions of this chapter or of the regulated practice acts,
8 or any rule adopted thereunder, is being or has been violated.
9 Section 9. Subsections (2), (3), (4), and (9) of
10 section 455.225, Florida Statutes, are amended to read:
11 455.225 Disciplinary proceedings.--Disciplinary
12 proceedings for each board shall be within the jurisdiction of
13 the department.
14 (2) The department shall allocate sufficient and
15 adequately trained staff to expeditiously and thoroughly
16 determine legal sufficiency and investigate all legally
17 sufficient complaints. For purposes of this section, it is the
18 intent of the Legislature that the term "expeditiously" means
19 that the agency, for disciplinary cases under its
20 jurisdiction, shall complete the report of its initial
21 investigative findings and recommendations concerning the
22 existence of probable cause within 6 months after its receipt
23 of the complaint. The failure of the agency, for disciplinary
24 cases under its jurisdiction, to comply with the time limits
25 of this section while investigating a complaint against a
26 licensee constitutes harmless error in any subsequent
27 disciplinary action unless a court finds that either the
28 fairness of the proceeding or the correctness of the action
29 may have been impaired by a material error in procedure or a
30 failure to follow prescribed procedure. When its investigation
31 is complete and legally sufficient, the department shall
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1 prepare and submit to the probable cause panel of the
2 appropriate regulatory board the investigative report of the
3 department. The report shall contain the investigative
4 findings and the recommendations of the department concerning
5 the existence of probable cause. At any time after legal
6 sufficiency is found, the department may dismiss any case, or
7 any part thereof, if the department determines that there is
8 insufficient evidence to support the prosecution of
9 allegations contained therein. The department shall provide a
10 detailed report to the appropriate probable cause panel prior
11 to dismissal of any case or part thereof, and to the subject
12 of the complaint after dismissal of any case or part thereof,
13 under this section. For cases dismissed prior to a finding of
14 probable cause, such report is confidential and exempt from s.
15 119.07(1). The probable cause panel shall have access, upon
16 request, to the investigative files pertaining to a case prior
17 to dismissal of such case. If the department dismisses a case,
18 the probable cause panel may retain independent legal counsel,
19 employ investigators, and continue the investigation and
20 prosecution of the case as it deems necessary.
21 (3)(a) As an alternative to the provisions of
22 subsections (1) and (2), when a complaint is received, the
23 department may provide a licensee with a notice of
24 noncompliance for an initial offense of a minor violation. A
25 violation is a minor violation if it does not demonstrate a
26 serious inability to practice the profession, result in
27 economic or physical harm to a person, or adversely affect the
28 public health, safety, or welfare or create a significant
29 threat of such harm. Each board, or the department if there is
30 no board, shall establish by rule those violations which are
31 minor violations under this provision. Failure of a licensee
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1 to take action in correcting the violation within 15 days
2 after notice may result in the institution of regular
3 disciplinary proceedings.
4 (b) The department may issue a notice of noncompliance
5 for an initial offense of a minor violation, notwithstanding a
6 board's failure to designate a particular minor violation by
7 rule as provided in paragraph (a).
8 (c) In any instance in which a licensee is charged
9 with failure to comply with continuing-education requirements,
10 the department's or board's, as appropriate, initial response
11 may only be to issue a notice of noncompliance, including
12 granting the licensee a reasonable time to comply. However,
13 if the department finds that the licensee's failure to comply
14 was done knowingly, the department or board, as appropriate,
15 may levy any other penalty otherwise available to it under the
16 circumstances. This paragraph does not apply to any licensee
17 for which failure to comply with continuing-education
18 requirements is not grounds for discipline but is instead only
19 a prerequisite for renewal.
20 (4) The determination as to whether probable cause
21 exists shall be made by majority vote of a probable cause
22 panel of the board, or the department, as appropriate. Each
23 regulatory board shall provide by rule that the determination
24 of probable cause shall be made by a panel of its members or
25 by the department. Each board may provide by rule for multiple
26 probable cause panels composed of at least two members. Each
27 board may provide by rule that one or more members of the
28 panel or panels may be a former board member. The length of
29 term or repetition of service of any such former board member
30 on a probable cause panel may vary according to the direction
31 of the board when authorized by board rule. Any probable cause
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1 panel must include one of the board's former or present
2 consumer members, if one is available, willing to serve, and
3 is authorized to do so by the board chair. Any probable cause
4 panel must include a present board member. Any probable cause
5 panel must include a former or present professional board
6 member. However, any former professional board member serving
7 on the probable cause panel must hold an active valid license
8 for that profession. All proceedings of the panel are exempt
9 from s. 286.011 until 10 days after probable cause has been
10 found to exist by the panel or until the subject of the
11 investigation waives his or her privilege of confidentiality.
12 The probable cause panel may make a reasonable request, and
13 upon such request the department shall provide such additional
14 investigative information as is necessary to the determination
15 of probable cause. A request for additional investigative
16 information shall be made within 15 days from the date of
17 receipt by the probable cause panel of the investigative
18 report of the department. The probable cause panel or the
19 department, as may be appropriate, shall make its
20 determination of probable cause within 30 days after receipt
21 by it of the final investigative report of the department. The
22 secretary may grant extensions of the 15-day and the 30-day
23 time limits. In lieu of a finding of probable cause, the
24 probable cause panel, or the department when there is no
25 board, may issue a letter of guidance to the subject. If,
26 within the 30-day time limit, as may be extended, the probable
27 cause panel does not make a determination regarding the
28 existence of probable cause or does not issue a letter of
29 guidance in lieu of a finding of probable cause, the
30 department agency, for disciplinary cases under its
31 jurisdiction, must make a determination regarding the
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1 existence of probable cause within 10 days after the
2 expiration of the time limit. In addition, if the probable
3 cause panel finds no probable cause, the department may
4 determine within 10 days thereafter that probable cause
5 exists. If the probable cause panel finds that probable cause
6 exists, it shall direct the department to file a formal
7 complaint against the licensee. The department shall follow
8 the directions of the probable cause panel regarding the
9 filing of a formal complaint. If directed to do so, the
10 department shall file a formal complaint against the subject
11 of the investigation and prosecute that complaint pursuant to
12 chapter 120. However, the department may decide not to
13 prosecute the complaint if it finds that probable cause had
14 been improvidently found by the panel. In such cases, the
15 department shall refer the matter to the board. The board may
16 then file a formal complaint and prosecute the complaint
17 pursuant to chapter 120. The department shall also refer to
18 the board any investigation or disciplinary proceeding not
19 before the Division of Administrative Hearings pursuant to
20 chapter 120 or otherwise completed by the department within 1
21 year after the filing of a complaint. The department agency,
22 for disciplinary cases under its jurisdiction, must establish
23 a uniform reporting system to quarterly refer to each board
24 the status of any investigation or disciplinary proceeding
25 that is not before the Division of Administrative Hearings or
26 otherwise completed by the department or agency within 1 year
27 after the filing of the complaint. Annually, the agency, for
28 disciplinary cases under its jurisdiction if there is no
29 board, or each board must establish a plan to reduce or
30 otherwise close any investigation or disciplinary proceeding
31 that is not before the Division of Administrative Hearings or
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1 otherwise completed by the agency within 1 year after the
2 filing of the complaint. A probable cause panel or a board
3 may retain independent legal counsel, employ investigators,
4 and continue the investigation as it deems necessary; all
5 costs thereof shall be paid from the Professional Regulation
6 Trust Fund. All proceedings of the probable cause panel are
7 exempt from s. 120.525.
8 (9)(a) The department shall periodically notify the
9 person who filed the complaint of the status of the
10 investigation, whether probable cause has been found, and the
11 status of any civil action or administrative proceeding or
12 appeal.
13 (b) In any disciplinary case under the jurisdiction of
14 the Agency for Health Care Administration for which probable
15 cause has been found, the Agency for Health Care
16 Administration shall provide to the person who filed the
17 complaint a copy of the administrative complaint, including:
18 1. A written explanation of how an administrative
19 complaint is resolved by the disciplinary process.
20 2. A written explanation of how and when the person
21 may participate in the disciplinary process.
22 3. A written notice of any hearing before the Division
23 of Administrative Hearings or the regulatory board at which
24 final agency action is taken.
25 (c) In any disciplinary case for which probable cause
26 is not found, the Agency for Health Care Administration shall
27 so inform the person who filed the complaint and notify that
28 person that he or she may, within 60 days, provide any
29 additional information to the probable cause panel which may
30 be relevant to the decision. In any administrative proceeding
31 under s. 120.57, the person who filed the disciplinary
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1 complaint shall have the right to present oral or written
2 communication relating to the alleged disciplinary violations
3 or to the appropriate penalty.
4 Section 10. Section 455.2285, Florida Statutes, is
5 amended to read:
6 455.2285 Annual report concerning finances,
7 administrative complaints, disciplinary actions, and
8 recommendations.--The department is directed to prepare and
9 submit a report to the President of the Senate and Speaker of
10 the House of Representatives by November 1 of each year. In
11 addition to finances and any other information the Legislature
12 may require, the report shall include statistics and relevant
13 information, profession by profession, detailing:
14 (1) The revenues, expenditures, and cash balances for
15 the prior year, and a review of the adequacy of existing fees.
16 (2) The number of complaints received and
17 investigated.
18 (3) The number of findings of probable cause made.
19 (4) The number of findings of no probable cause made.
20 (5) The number of administrative complaints filed.
21 (6) The disposition of all administrative complaints.
22 (7) A description of disciplinary actions taken.
23 (8) A description of any effort by the department
24 agency, for any disciplinary cases under its jurisdiction, to
25 reduce or otherwise close any investigation or disciplinary
26 proceeding not before the Division of Administrative Hearings
27 under chapter 120 or otherwise not completed within 1 year
28 after the initial filing of a complaint under this chapter.
29 (9) The status of the development and implementation
30 of rules providing for disciplinary guidelines pursuant to s.
31 455.2273.
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1 (10) Such recommendations for administrative and
2 statutory changes necessary to facilitate efficient and
3 cost-effective operation of the department and the various
4 boards.
5 Section 11. Effective October 1, 1998, subsection (4)
6 of section 455.517, Florida Statutes, is amended to read:
7 455.517 Professions and occupations regulated by
8 department; legislative intent; requirements.--
9 (4)(a) Neither No board, nor the department nor any
10 board may, shall create unreasonably restrictive and
11 extraordinary standards that deter qualified persons from
12 entering the various professions. Neither No board, nor the
13 department nor any board may, shall take any action that which
14 tends to create or maintain an economic condition that
15 unreasonably restricts competition, except as specifically
16 provided by law.
17 (b) Neither the department nor any board may create a
18 regulation that has an unreasonable effect on job creation or
19 job retention in the state or that places unreasonable
20 restrictions on the ability of individuals who seek to
21 practice or who are practicing a profession or occupation to
22 find employment.
23 (c) The Legislature shall evaluate proposals to
24 increase regulation of professions or occupations to determine
25 their effect on job creation or retention and employment
26 opportunities.
27 Section 12. Except as otherwise provided in this act,
28 this act shall take effect upon becoming a law.
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2 SENATE SUMMARY
3 Requires the Department of Business and Professional
Regulation and the Department of Health to consider the
4 effect on jobs in the state in determining whether to
regulate a profession or occupation. Provides additional
5 criteria, including the effect on job creation and job
retention, training and examination requirements, and
6 costs resulting from the regulation. Authorizes the
Department of Business and Professional Regulation to
7 adopt rules to implement regulatory requirements.
Authorizes the department to charge an inspection fee.
8 Authorizes inspections and investigations of records,
offices, and job sites. Revises procedures for
9 conducting disciplinary proceedings.
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