Senate Bill 2076c1
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Florida Senate - 1998 CS for SB 2076
By the Committee on Regulated Industries and Senator Clary
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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; creating s. 455.2237, F.S.;
13 providing authority to inspect and investigate
14 records, offices, and job sites; amending s.
15 455.225, F.S.; revising probable-cause
16 provisions; prescribing authority of the
17 department or a board in cases of failure to
18 comply with continuing-education requirements;
19 conforming provisions to a previous
20 administrative reorganization; amending s.
21 455.2285, F.S.; conforming provisions to a
22 previous administrative reorganization;
23 amending s. 455.517, F.S.; requiring the
24 Department of Health to consider the impact on
25 jobs when creating new regulation; providing
26 effective dates.
27
28 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. Section 455.2237, Florida Statutes, is
12 created to read:
13 455.2237 Authority to inspect.--Any board, or the
14 department when there is no board, may by rule authorize
15 inspections and investigations of records, offices, or job
16 sites at times when a licensee or the employee or agent of the
17 licensee, or any person suspected of unlicensed activity, is
18 performing an activity regulated by this chapter or the
19 applicable practice act. Such rule may establish more
20 definitively the times and conditions of inspections and
21 investigations and may authorize such inspections and
22 investigations only to the extent necessary to determine
23 whether a person is in compliance with the provisions of this
24 chapter or of the regulated practice acts or any rule
25 promulgated thereunder, to aid in the enforcement of the
26 provisions of this chapter or of the regulated practice acts
27 or any rule adopted thereunder, or to determine if any of the
28 provisions of this chapter or of the regulated practice acts,
29 or any rule adopted thereunder, is being or has been violated.
30 Section 8. Subsections (2), (3), (4), and (9) of
31 section 455.225, Florida Statutes, are amended to read:
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1 455.225 Disciplinary proceedings.--Disciplinary
2 proceedings for each board shall be within the jurisdiction of
3 the department.
4 (2) The department shall allocate sufficient and
5 adequately trained staff to expeditiously and thoroughly
6 determine legal sufficiency and investigate all legally
7 sufficient complaints. For purposes of this section, it is the
8 intent of the Legislature that the term "expeditiously" means
9 that the agency, for disciplinary cases under its
10 jurisdiction, shall complete the report of its initial
11 investigative findings and recommendations concerning the
12 existence of probable cause within 6 months after its receipt
13 of the complaint. The failure of the agency, for disciplinary
14 cases under its jurisdiction, to comply with the time limits
15 of this section while investigating a complaint against a
16 licensee constitutes harmless error in any subsequent
17 disciplinary action unless a court finds that either the
18 fairness of the proceeding or the correctness of the action
19 may have been impaired by a material error in procedure or a
20 failure to follow prescribed procedure. When its investigation
21 is complete and legally sufficient, the department shall
22 prepare and submit to the probable cause panel of the
23 appropriate regulatory board the investigative report of the
24 department. The report shall contain the investigative
25 findings and the recommendations of the department concerning
26 the existence of probable cause. At any time after legal
27 sufficiency is found, the department may dismiss any case, or
28 any part thereof, if the department determines that there is
29 insufficient evidence to support the prosecution of
30 allegations contained therein. The department shall provide a
31 detailed report to the appropriate probable cause panel prior
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1 to dismissal of any case or part thereof, and to the subject
2 of the complaint after dismissal of any case or part thereof,
3 under this section. For cases dismissed prior to a finding of
4 probable cause, such report is confidential and exempt from s.
5 119.07(1). The probable cause panel shall have access, upon
6 request, to the investigative files pertaining to a case prior
7 to dismissal of such case. If the department dismisses a case,
8 the probable cause panel may retain independent legal counsel,
9 employ investigators, and continue the investigation and
10 prosecution of the case as it deems necessary.
11 (3)(a) As an alternative to the provisions of
12 subsections (1) and (2), when a complaint is received, the
13 department may provide a licensee with a notice of
14 noncompliance for an initial offense of a minor violation. A
15 violation is a minor violation if it does not demonstrate a
16 serious inability to practice the profession, result in
17 economic or physical harm to a person, or adversely affect the
18 public health, safety, or welfare or create a significant
19 threat of such harm. Each board, or the department if there is
20 no board, shall establish by rule those violations which are
21 minor violations under this provision. Failure of a licensee
22 to take action in correcting the violation within 15 days
23 after notice may result in the institution of regular
24 disciplinary proceedings.
25 (b) The department may issue a notice of noncompliance
26 for an initial offense of a minor violation, notwithstanding a
27 board's failure to designate a particular minor violation by
28 rule as provided in paragraph (a).
29 (c) In any instance in which a licensee is charged
30 with failure to comply with continuing-education requirements,
31 the department's or board's, as appropriate, initial response
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1 may only be to issue a notice of noncompliance, including
2 granting the licensee a reasonable time to comply. However,
3 if the department finds that the licensee's failure to comply
4 was done knowingly, the department or board, as appropriate,
5 may levy any other penalty otherwise available to it under the
6 circumstances. This paragraph does not apply to any licensee
7 for which failure to comply with continuing-education
8 requirements is not grounds for discipline but is instead only
9 a prerequisite for renewal.
10 (4) The determination as to whether probable cause
11 exists shall be made by majority vote of a probable cause
12 panel of the board, or the department, as appropriate. Each
13 regulatory board shall provide by rule that the determination
14 of probable cause shall be made by a panel of its members or
15 by the department. Each board may provide by rule for multiple
16 probable cause panels composed of at least two members. Each
17 board may provide by rule that one or more members of the
18 panel or panels may be a former board member. The length of
19 term or repetition of service of any such former board member
20 on a probable cause panel may vary according to the direction
21 of the board when authorized by board rule. Any probable cause
22 panel must include one of the board's former or present
23 consumer members, if one is available, willing to serve, and
24 is authorized to do so by the board chair. Any probable cause
25 panel must include a present board member. Any probable cause
26 panel must include a former or present professional board
27 member. However, any former professional board member serving
28 on the probable cause panel must hold an active valid license
29 for that profession. All proceedings of the panel are exempt
30 from s. 286.011 until 10 days after probable cause has been
31 found to exist by the panel or until the subject of the
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1 investigation waives his or her privilege of confidentiality.
2 The probable cause panel may make a reasonable request, and
3 upon such request the department shall provide such additional
4 investigative information as is necessary to the determination
5 of probable cause. A request for additional investigative
6 information shall be made within 15 days from the date of
7 receipt by the probable cause panel of the investigative
8 report of the department. The probable cause panel or the
9 department, as may be appropriate, shall make its
10 determination of probable cause within 30 days after receipt
11 by it of the final investigative report of the department. The
12 secretary may grant extensions of the 15-day and the 30-day
13 time limits. In lieu of a finding of probable cause, the
14 probable cause panel, or the department when there is no
15 board, may issue a letter of guidance to the subject. If,
16 within the 30-day time limit, as may be extended, the probable
17 cause panel does not make a determination regarding the
18 existence of probable cause or does not issue a letter of
19 guidance in lieu of a finding of probable cause, the
20 department agency, for disciplinary cases under its
21 jurisdiction, must make a determination regarding the
22 existence of probable cause within 10 days after the
23 expiration of the time limit. In addition, if the probable
24 cause panel finds no probable cause, the department may
25 determine within 10 days thereafter that probable cause
26 exists. If the probable cause panel finds that probable cause
27 exists, it shall direct the department to file a formal
28 complaint against the licensee. The department shall follow
29 the directions of the probable cause panel regarding the
30 filing of a formal complaint. If directed to do so, the
31 department shall file a formal complaint against the subject
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1 of the investigation and prosecute that complaint pursuant to
2 chapter 120. However, the department may decide not to
3 prosecute the complaint if it finds that probable cause had
4 been improvidently found by the panel. In such cases, the
5 department shall refer the matter to the board. The board may
6 then file a formal complaint and prosecute the complaint
7 pursuant to chapter 120. The department shall also refer to
8 the board any investigation or disciplinary proceeding not
9 before the Division of Administrative Hearings pursuant to
10 chapter 120 or otherwise completed by the department within 1
11 year after the filing of a complaint. The department agency,
12 for disciplinary cases under its jurisdiction, must establish
13 a uniform reporting system to quarterly refer to each board
14 the status of any investigation or disciplinary proceeding
15 that is not before the Division of Administrative Hearings or
16 otherwise completed by the department or agency within 1 year
17 after the filing of the complaint. Annually, the agency, for
18 disciplinary cases under its jurisdiction if there is no
19 board, or each board must establish a plan to reduce or
20 otherwise close any investigation or disciplinary proceeding
21 that is not before the Division of Administrative Hearings or
22 otherwise completed by the agency within 1 year after the
23 filing of the complaint. A probable cause panel or a board
24 may retain independent legal counsel, employ investigators,
25 and continue the investigation as it deems necessary; all
26 costs thereof shall be paid from the Professional Regulation
27 Trust Fund. All proceedings of the probable cause panel are
28 exempt from s. 120.525.
29 (9)(a) The department shall periodically notify the
30 person who filed the complaint of the status of the
31 investigation, whether probable cause has been found, and the
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1 status of any civil action or administrative proceeding or
2 appeal.
3 (b) In any disciplinary case under the jurisdiction of
4 the Agency for Health Care Administration for which probable
5 cause has been found, the Agency for Health Care
6 Administration shall provide to the person who filed the
7 complaint a copy of the administrative complaint, including:
8 1. A written explanation of how an administrative
9 complaint is resolved by the disciplinary process.
10 2. A written explanation of how and when the person
11 may participate in the disciplinary process.
12 3. A written notice of any hearing before the Division
13 of Administrative Hearings or the regulatory board at which
14 final agency action is taken.
15 (c) In any disciplinary case for which probable cause
16 is not found, the Agency for Health Care Administration shall
17 so inform the person who filed the complaint and notify that
18 person that he or she may, within 60 days, provide any
19 additional information to the probable cause panel which may
20 be relevant to the decision. In any administrative proceeding
21 under s. 120.57, the person who filed the disciplinary
22 complaint shall have the right to present oral or written
23 communication relating to the alleged disciplinary violations
24 or to the appropriate penalty.
25 Section 9. Section 455.2285, Florida Statutes, is
26 amended to read:
27 455.2285 Annual report concerning finances,
28 administrative complaints, disciplinary actions, and
29 recommendations.--The department is directed to prepare and
30 submit a report to the President of the Senate and Speaker of
31 the House of Representatives by November 1 of each year. In
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1 addition to finances and any other information the Legislature
2 may require, the report shall include statistics and relevant
3 information, profession by profession, detailing:
4 (1) The revenues, expenditures, and cash balances for
5 the prior year, and a review of the adequacy of existing fees.
6 (2) The number of complaints received and
7 investigated.
8 (3) The number of findings of probable cause made.
9 (4) The number of findings of no probable cause made.
10 (5) The number of administrative complaints filed.
11 (6) The disposition of all administrative complaints.
12 (7) A description of disciplinary actions taken.
13 (8) A description of any effort by the department
14 agency, for any disciplinary cases under its jurisdiction, to
15 reduce or otherwise close any investigation or disciplinary
16 proceeding not before the Division of Administrative Hearings
17 under chapter 120 or otherwise not completed within 1 year
18 after the initial filing of a complaint under this chapter.
19 (9) The status of the development and implementation
20 of rules providing for disciplinary guidelines pursuant to s.
21 455.2273.
22 (10) Such recommendations for administrative and
23 statutory changes necessary to facilitate efficient and
24 cost-effective operation of the department and the various
25 boards.
26 Section 10. Effective October 1, 1998, subsection (4)
27 of section 455.517, Florida Statutes, is amended to read:
28 455.517 Professions and occupations regulated by
29 department; legislative intent; requirements.--
30 (4)(a) Neither No board, nor the department nor any
31 board may, shall create unreasonably restrictive and
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1 extraordinary standards that deter qualified persons from
2 entering the various professions. Neither No board, nor the
3 department nor any board may, shall take any action that which
4 tends to create or maintain an economic condition that
5 unreasonably restricts competition, except as specifically
6 provided by law.
7 (b) Neither the department nor any board may create a
8 regulation that has an unreasonable effect on job creation or
9 job retention in the state or that places unreasonable
10 restrictions on the ability of individuals who seek to
11 practice or who are practicing a profession or occupation to
12 find employment.
13 (c) The Legislature shall evaluate proposals to
14 increase regulation of professions or occupations to determine
15 their effect on job creation or retention and employment
16 opportunities.
17 Section 11. Except as otherwise provided in this act,
18 this act shall take effect upon becoming a law.
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20 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
21 SB 2076
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23 Deletes authority for the Department of Business and
Professional Regulation to charge a $50 fee for inspections
24 required by law.
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