House Bill 4119e1
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HB 4119, First Engrossed
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 s.
10 455.213, F.S.; requiring payment of certain
11 fees or fines prior to the board or department
12 renewing or issuing an initial license or
13 registration; amending ss. 455.209, 455.218,
14 F.S.; conforming provisions to a previous
15 administrative reorganization; creating s.
16 455.2237, F.S.; providing authority to inspect
17 and investigate records, offices, and job
18 sites; amending s. 455.225, F.S.; revising
19 probable-cause provisions; prescribing
20 authority of the department or a board in cases
21 of failure to comply with continuing-education
22 requirements; conforming provisions to a
23 previous administrative reorganization;
24 amending s. 455.2285, F.S.; conforming
25 provisions to a previous administrative
26 reorganization; amending s. 455.517, F.S.;
27 requiring the Department of Health to consider
28 the impact on jobs when creating new
29 regulation; creating section 481.222, relating
30 to architects providing building inspection
31 services; creating 471.029, relating to
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HB 4119, First Engrossed
1 engineers providing building inspection
2 services; providing effective dates.
3
4 Be It Enacted by the Legislature of the State of Florida:
5
6 Section 1. Effective October 1, 1998, subsections (3)
7 and (4) of section 11.62, Florida Statutes, are amended to
8 read:
9 11.62 Legislative review of proposed regulation of
10 unregulated functions.--
11 (3) In determining whether to regulate a profession or
12 occupation, the Legislature shall consider the following
13 factors:
14 (a) Whether the unregulated practice of the profession
15 or occupation will substantially harm or endanger the public
16 health, safety, or welfare and whether the potential for harm
17 is recognizable and not remote;
18 (b) Whether the practice of the profession or
19 occupation requires specialized skill or training, and whether
20 that skill or training is readily measurable or quantifiable
21 so that examination or training requirements would reasonably
22 assure initial and continuing professional or occupational
23 ability;
24 (c) Whether the regulation will have an unreasonable
25 effect on the job creation or job retention in the state or
26 will place unreasonable restrictions on the ability of
27 individuals who seek to practice or who are practicing a given
28 profession or occupation to find employment;
29 (d)(c) Whether the public is or can be effectively
30 protected by other means; and
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HB 4119, First Engrossed
1 (e)(d) Whether the overall cost-effectiveness and
2 economic impact of the proposed regulation, including the
3 indirect costs to consumers, will be favorable.
4 (4) The proponents of legislation that provides for
5 the regulation of a profession or occupation not already
6 expressly subject to state regulation shall provide, upon
7 request, the following information in writing to the state
8 agency that is proposed to have jurisdiction over the
9 regulation and to the legislative committees to which the
10 legislation is referred:
11 (a) The number of individuals or businesses that would
12 be subject to the regulation;
13 (b) The name of each association that represents
14 members of the profession or occupation, together with a copy
15 of its codes of ethics or conduct;
16 (c) Documentation of the nature and extent of the harm
17 to the public caused by the unregulated practice of the
18 profession or occupation, including a description of any
19 complaints that have been lodged against persons who have
20 practiced the profession or occupation in this state during
21 the preceding 3 years;
22 (d) A list of states that regulate the profession or
23 occupation, and the dates of enactment of each law providing
24 for such regulation and a copy of each law;
25 (e) A list and description of state and federal laws
26 that have been enacted to protect the public with respect to
27 the profession or occupation and a statement of the reasons
28 why these laws have not proven adequate to protect the public;
29 (f) A description of the voluntary efforts made by
30 members of the profession or occupation to protect the public
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HB 4119, First Engrossed
1 and a statement of the reasons why these efforts are not
2 adequate to protect the public;
3 (g) A copy of any federal legislation mandating
4 regulation;
5 (h) An explanation of the reasons why other types of
6 less restrictive regulation would not effectively protect the
7 public;
8 (i) The cost, availability, and appropriateness of
9 training and examination requirements;
10 (j)(i) The cost of regulation, including the indirect
11 cost to consumers, and the method proposed to finance the
12 regulation;
13 (k) The cost imposed on applicants or practitioners or
14 on employers of applicants or practitioners as a result of the
15 regulation;
16 (l)(j) The details of any previous efforts in this
17 state to implement regulation of the profession or occupation;
18 and
19 (m)(k) Any other information the agency or the
20 committee considers relevant to the analysis of the proposed
21 legislation.
22 Section 2. Effective October 1, 1998, subsection (4)
23 of section 455.201, Florida Statutes, is amended to read:
24 455.201 Professions and occupations regulated by
25 department; legislative intent; requirements.--
26 (4)(a) Neither No board, nor the department nor any
27 board may, shall create unreasonably restrictive and
28 extraordinary standards that deter qualified persons from
29 entering the various professions. Neither No board, nor the
30 department nor any board may, shall take any action that which
31 tends to create or maintain an economic condition that
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HB 4119, First Engrossed
1 unreasonably restricts competition, except as specifically
2 provided by law.
3 (b) Neither the department nor any board may create a
4 regulation that has an unreasonable effect on job creation or
5 job retention in the state or that places unreasonable
6 restrictions on the ability of individuals who seek to
7 practice or who are practicing a given profession or
8 occupation to find employment.
9 (c) The Legislature shall evaluate proposals to
10 increase regulation of professions or occupations that are
11 already regulated to determine their effect on job creation or
12 retention and job opportunities.
13 Section 3. Section 455.2035, Florida Statutes, is
14 created to read:
15 455.2035 Rulemaking authority.--The department may
16 adopt rules pursuant to ss. 120.54 and 120.536(1) to implement
17 the regulatory requirements of any profession within the
18 department's jurisdiction which does not have a governing
19 board.
20 Section 4. Subsection (2) of section 455.209, Florida
21 Statutes, is amended to read:
22 455.209 Accountability and liability of board
23 members.--
24 (2) Each board member and each former board member
25 serving on a probable cause panel shall be exempt from civil
26 liability for any act or omission when acting in the member's
27 official capacity, and the department, or the Department of
28 Legal Affairs shall defend any such member in any action
29 against any board or member of a board arising from any such
30 act or omission. In addition, the department or the Department
31 of Legal Affairs may defend the member's company or business
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HB 4119, First Engrossed
1 in any action against the company or business if the
2 department or the Department of Legal Affairs determines that
3 the actions from which the suit arises are actions taken by
4 the member in the member's official capacity and were not
5 beyond the member's statutory authority. In providing such
6 defense, the department, the agency, or the Department of
7 Legal Affairs may employ or utilize the legal services of
8 outside counsel.
9 Section 5. Subsection (1) of section 455.213, Florida
10 Statutes, is amended and a new subsection (10) is added to
11 said section to read:
12 455.213 General licensing provisions.--
13 (1) Any person desiring to be licensed shall apply to
14 the department in writing. The application for licensure shall
15 be made on a form prepared and furnished by the department and
16 include the applicant's social security number. The
17 application shall be supplemented as needed to reflect any
18 material change in any circumstance or condition stated in the
19 application which takes place between the initial filing of
20 the application and the final grant or denial of the license
21 and which might affect the decision of the department agency.
22 In order to further the economic development goals of the
23 state, and notwithstanding any law to the contrary, the
24 department may enter into an agreement with the county tax
25 collector for the purpose of appointing the county tax
26 collector as the department's agent to accept applications for
27 licenses and applications for renewals of licenses. The
28 agreement must specify the time within which the tax collector
29 must forward any applications and accompanying application
30 fees to the department. In cases where a person applies or
31 schedules directly with a national examination organization or
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HB 4119, First Engrossed
1 examination vendor to take an examination required for
2 licensure, any organization- or vendor-related fees associated
3 with the examination may be paid directly to the organization
4 or vendor.
5 (10) The board, or the department when there is no
6 board, shall not issue or renew a license to any applicant or
7 licensee that the board, or the department when there is no
8 board, has assessed a fine, interest, or costs associated with
9 investigation and prosecution until the applicant or licensee
10 has paid in full such fine, interest, or costs associated with
11 investigation and prosecution, or until the applicant or
12 licensee complies with or satisfies all terms and conditions
13 of the final order.
14 Section 6. Subsection (6) of section 455.218, Florida
15 Statutes, is amended to read:
16 455.218 Foreign-trained professionals; special
17 examination and license provisions.--
18 (6) The department, for its boards, shall not issue an
19 initial license to, or renew a license of, any applicant or
20 licensee who is under investigation or prosecution in any
21 jurisdiction for an action which would constitute a violation
22 of this part or the professional practice acts administered by
23 the department or agency and the boards until such time as the
24 investigation or prosecution is complete, at which time the
25 provisions of the professional practice acts shall apply.
26 Section 7. Section 455.2237, Florida Statutes, is
27 created to read:
28 455.2237 Authority to inspect.--Any board, or the
29 department when there is no board, may by rule authorize
30 inspections and investigations of records, offices, or job
31 sites at times when a licensee or the employee or agent of the
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HB 4119, First Engrossed
1 licensee, or any person suspected of unlicensed activity, is
2 performing an activity regulated by this chapter or the
3 applicable practice act. Such rule may establish more
4 definitively the times and conditions of inspections and
5 investigations and may authorize such inspections and
6 investigations only to the extent necessary to determine
7 whether a person is in compliance with the provisions of this
8 chapter or of the regulated practice acts or any rule
9 promulgated thereunder, to aid in the enforcement of the
10 provisions of this chapter or of the regulated practice acts
11 or any rule adopted thereunder, or to determine if any of the
12 provisions of this chapter or of the regulated practice acts,
13 or any rule adopted thereunder, is being or has been violated.
14 Section 8. Subsections (2), (3), (4), and (9) of
15 section 455.225, Florida Statutes, are amended to read:
16 455.225 Disciplinary proceedings.--Disciplinary
17 proceedings for each board shall be within the jurisdiction of
18 the department.
19 (2) The department shall allocate sufficient and
20 adequately trained staff to expeditiously and thoroughly
21 determine legal sufficiency and investigate all legally
22 sufficient complaints. For purposes of this section, it is the
23 intent of the Legislature that the term "expeditiously" means
24 that the agency, for disciplinary cases under its
25 jurisdiction, shall complete the report of its initial
26 investigative findings and recommendations concerning the
27 existence of probable cause within 6 months after its receipt
28 of the complaint. The failure of the agency, for disciplinary
29 cases under its jurisdiction, to comply with the time limits
30 of this section while investigating a complaint against a
31 licensee constitutes harmless error in any subsequent
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HB 4119, First Engrossed
1 disciplinary action unless a court finds that either the
2 fairness of the proceeding or the correctness of the action
3 may have been impaired by a material error in procedure or a
4 failure to follow prescribed procedure. When its investigation
5 is complete and legally sufficient, the department shall
6 prepare and submit to the probable cause panel of the
7 appropriate regulatory board the investigative report of the
8 department. The report shall contain the investigative
9 findings and the recommendations of the department concerning
10 the existence of probable cause. At any time after legal
11 sufficiency is found, the department may dismiss any case, or
12 any part thereof, if the department determines that there is
13 insufficient evidence to support the prosecution of
14 allegations contained therein. The department shall provide a
15 detailed report to the appropriate probable cause panel prior
16 to dismissal of any case or part thereof, and to the subject
17 of the complaint after dismissal of any case or part thereof,
18 under this section. For cases dismissed prior to a finding of
19 probable cause, such report is confidential and exempt from s.
20 119.07(1). The probable cause panel shall have access, upon
21 request, to the investigative files pertaining to a case prior
22 to dismissal of such case. If the department dismisses a case,
23 the probable cause panel may retain independent legal counsel,
24 employ investigators, and continue the investigation and
25 prosecution of the case as it deems necessary.
26 (3)(a) As an alternative to the provisions of
27 subsections (1) and (2), when a complaint is received, the
28 department may provide a licensee with a notice of
29 noncompliance for an initial offense of a minor violation. A
30 violation is a minor violation if it does not demonstrate a
31 serious inability to practice the profession, result in
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HB 4119, First Engrossed
1 economic or physical harm to a person, or adversely affect the
2 public health, safety, or welfare or create a significant
3 threat of such harm. Each board, or the department if there is
4 no board, shall establish by rule those violations which are
5 minor violations under this provision. Failure of a licensee
6 to take action in correcting the violation within 15 days
7 after notice may result in the institution of regular
8 disciplinary proceedings.
9 (b) The department may issue a notice of noncompliance
10 for an initial offense of a minor violation, notwithstanding a
11 board's failure to designate a particular minor violation by
12 rule as provided in paragraph (a).
13 (c) In any instance in which a licensee is charged
14 with failure to comply with continuing-education requirements,
15 the department's or board's, as appropriate, initial response
16 may only be to issue a notice of noncompliance, including
17 granting the licensee a reasonable time to comply. However,
18 if the department finds that the licensee's failure to comply
19 was done knowingly, the department or board, as appropriate,
20 may levy any other penalty otherwise available to it under the
21 circumstances. This paragraph does not apply to any licensee
22 for which failure to comply with continuing-education
23 requirements is not grounds for discipline but is instead only
24 a prerequisite for renewal.
25 (4) The determination as to whether probable cause
26 exists shall be made by majority vote of a probable cause
27 panel of the board, or the department, as appropriate. Each
28 regulatory board shall provide by rule that the determination
29 of probable cause shall be made by a panel of its members or
30 by the department. Each board may provide by rule for multiple
31 probable cause panels composed of at least two members. Each
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HB 4119, First Engrossed
1 board may provide by rule that one or more members of the
2 panel or panels may be a former board member. The length of
3 term or repetition of service of any such former board member
4 on a probable cause panel may vary according to the direction
5 of the board when authorized by board rule. Any probable cause
6 panel must include one of the board's former or present
7 consumer members, if one is available, willing to serve, and
8 is authorized to do so by the board chair. Any probable cause
9 panel must include a present board member. Any probable cause
10 panel must include a former or present professional board
11 member. However, any former professional board member serving
12 on the probable cause panel must hold an active valid license
13 for that profession. All proceedings of the panel are exempt
14 from s. 286.011 until 10 days after probable cause has been
15 found to exist by the panel or until the subject of the
16 investigation waives his or her privilege of confidentiality.
17 The probable cause panel may make a reasonable request, and
18 upon such request the department shall provide such additional
19 investigative information as is necessary to the determination
20 of probable cause. A request for additional investigative
21 information shall be made within 15 days from the date of
22 receipt by the probable cause panel of the investigative
23 report of the department. The probable cause panel or the
24 department, as may be appropriate, shall make its
25 determination of probable cause within 30 days after receipt
26 by it of the final investigative report of the department. The
27 secretary may grant extensions of the 15-day and the 30-day
28 time limits. In lieu of a finding of probable cause, the
29 probable cause panel, or the department when there is no
30 board, may issue a letter of guidance to the subject. If,
31 within the 30-day time limit, as may be extended, the probable
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HB 4119, First Engrossed
1 cause panel does not make a determination regarding the
2 existence of probable cause or does not issue a letter of
3 guidance in lieu of a finding of probable cause, the
4 department agency, for disciplinary cases under its
5 jurisdiction, must make a determination regarding the
6 existence of probable cause within 10 days after the
7 expiration of the time limit. In addition, if the probable
8 cause panel finds no probable cause, the department may
9 determine within 10 days thereafter that probable cause
10 exists. If the probable cause panel finds that probable cause
11 exists, it shall direct the department to file a formal
12 complaint against the licensee. The department shall follow
13 the directions of the probable cause panel regarding the
14 filing of a formal complaint. If directed to do so, the
15 department shall file a formal complaint against the subject
16 of the investigation and prosecute that complaint pursuant to
17 chapter 120. However, the department may decide not to
18 prosecute the complaint if it finds that probable cause had
19 been improvidently found by the panel. In such cases, the
20 department shall refer the matter to the board. The board may
21 then file a formal complaint and prosecute the complaint
22 pursuant to chapter 120. The department shall also refer to
23 the board any investigation or disciplinary proceeding not
24 before the Division of Administrative Hearings pursuant to
25 chapter 120 or otherwise completed by the department within 1
26 year after the filing of a complaint. The department agency,
27 for disciplinary cases under its jurisdiction, must establish
28 a uniform reporting system to quarterly refer to each board
29 the status of any investigation or disciplinary proceeding
30 that is not before the Division of Administrative Hearings or
31 otherwise completed by the department or agency within 1 year
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1 after the filing of the complaint. Annually, the agency, for
2 disciplinary cases under its jurisdiction if there is no
3 board, or each board must establish a plan to reduce or
4 otherwise close any investigation or disciplinary proceeding
5 that is not before the Division of Administrative Hearings or
6 otherwise completed by the agency within 1 year after the
7 filing of the complaint. A probable cause panel or a board
8 may retain independent legal counsel, employ investigators,
9 and continue the investigation as it deems necessary; all
10 costs thereof shall be paid from the Professional Regulation
11 Trust Fund. All proceedings of the probable cause panel are
12 exempt from s. 120.525.
13 (9)(a) The department shall periodically notify the
14 person who filed the complaint of the status of the
15 investigation, whether probable cause has been found, and the
16 status of any civil action or administrative proceeding or
17 appeal.
18 (b) In any disciplinary case under the jurisdiction of
19 the Agency for Health Care Administration for which probable
20 cause has been found, the Agency for Health Care
21 Administration shall provide to the person who filed the
22 complaint a copy of the administrative complaint, including:
23 1. A written explanation of how an administrative
24 complaint is resolved by the disciplinary process.
25 2. A written explanation of how and when the person
26 may participate in the disciplinary process.
27 3. A written notice of any hearing before the Division
28 of Administrative Hearings or the regulatory board at which
29 final agency action is taken.
30 (c) In any disciplinary case for which probable cause
31 is not found, the Agency for Health Care Administration shall
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1 so inform the person who filed the complaint and notify that
2 person that he or she may, within 60 days, provide any
3 additional information to the probable cause panel which may
4 be relevant to the decision. In any administrative proceeding
5 under s. 120.57, the person who filed the disciplinary
6 complaint shall have the right to present oral or written
7 communication relating to the alleged disciplinary violations
8 or to the appropriate penalty.
9 Section 9. Section 455.2285, Florida Statutes, is
10 amended to read:
11 455.2285 Annual report concerning finances,
12 administrative complaints, disciplinary actions, and
13 recommendations.--The department is directed to prepare and
14 submit a report to the President of the Senate and Speaker of
15 the House of Representatives by November 1 of each year. In
16 addition to finances and any other information the Legislature
17 may require, the report shall include statistics and relevant
18 information, profession by profession, detailing:
19 (1) The revenues, expenditures, and cash balances for
20 the prior year, and a review of the adequacy of existing fees.
21 (2) The number of complaints received and
22 investigated.
23 (3) The number of findings of probable cause made.
24 (4) The number of findings of no probable cause made.
25 (5) The number of administrative complaints filed.
26 (6) The disposition of all administrative complaints.
27 (7) A description of disciplinary actions taken.
28 (8) A description of any effort by the department
29 agency, for any disciplinary cases under its jurisdiction, to
30 reduce or otherwise close any investigation or disciplinary
31 proceeding not before the Division of Administrative Hearings
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1 under chapter 120 or otherwise not completed within 1 year
2 after the initial filing of a complaint under this chapter.
3 (9) The status of the development and implementation
4 of rules providing for disciplinary guidelines pursuant to s.
5 455.2273.
6 (10) Such recommendations for administrative and
7 statutory changes necessary to facilitate efficient and
8 cost-effective operation of the department and the various
9 boards.
10 Section 10. Effective October 1, 1998, subsection (4)
11 of section 455.517, Florida Statutes, is amended to read:
12 455.517 Professions and occupations regulated by
13 department; legislative intent; requirements.--
14 (4)(a) Neither No board, nor the department nor any
15 board may, shall create unreasonably restrictive and
16 extraordinary standards that deter qualified persons from
17 entering the various professions. Neither No board, nor the
18 department nor any board may, shall take any action that which
19 tends to create or maintain an economic condition that
20 unreasonably restricts competition, except as specifically
21 provided by law.
22 (b) Neither the department nor any board may create a
23 regulation that has an unreasonable effect on job creation or
24 job retention in the state or that places unreasonable
25 restrictions on the ability of individuals who seek to
26 practice or who are practicing a profession or occupation to
27 find employment.
28 (c) The Legislature shall evaluate proposals to
29 increase regulation of professions or occupations to determine
30 their effect on job creation or retention and employment
31 opportunities.
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HB 4119, First Engrossed
1 Section 11. Section 481.222, Florida Statutes, is
2 created to read:
3 481.222 Architects performing building code inspector
4 duties.--Notwithstanding any other provision of this part, a
5 person currently licensed to practice as an architect under
6 this part may provide building inspection services described
7 in s. 468.603(6) and (7) to a local government or state agency
8 upon its request, without being certified by the Board of
9 Building Code Administrators and Inspectors under part XIII of
10 chapter 468. When performing these building inspection
11 services, the architect is subject to the disciplinary
12 guidelines of this part and s. 468.621(1)(c)-(g). The
13 complaint processing, investigation, and discipline shall be
14 conducted by the Board of Architecture and Interior Design
15 rather than the Board of Building Code Administrators and
16 Inspectors. An architect may not perform plans review as an
17 employee of a local government upon any job that the architect
18 or the architect's company designed.
19 Section 12. Section 471.029, Florida Statutes, is
20 created to read:
21 471.029 Professional engineers performing building
22 code inspector duties.--Notwithstanding any other provision of
23 this part, a person currently licensed to practice as a
24 professional engineer under this part may provide building
25 inspection services described in s. 468.603(6) and (7) to a
26 local government or state agency upon its request, without
27 being certified by the Board of Building Code Administrators
28 and Inspectors under part XIII of chapter 468. When
29 performing these building inspection services, the
30 professional engineer is subject to the disciplinary
31 guidelines of this chapter and s. 468.621(1)(c)-(g). The
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1 complaint processing, investigation, and discipline shall be
2 conducted by the Board of Professional Engineers rather than
3 the Board of Building code Administrators and Inspectors. A
4 professional engineer may not perform plans review as an
5 employee of a local government upon any job that the
6 professional engineer or the professional engineer's company
7 designed.
8 Section 13. Except as otherwise provided in this act,
9 this act shall take effect upon becoming a law.
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