House Bill 4119e1

CODING: Words stricken are deletions; words underlined are additions.







                                          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


                                  1

CODING: Words stricken are deletions; words underlined are additions.






                                          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

31


                                  2

CODING: Words stricken are deletions; words underlined are additions.






                                          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

31


                                  3

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  4

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  5

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  6

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  7

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  8

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  9

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  10

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  11

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  12

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4119, First Engrossed



  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


                                  13

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4119, First Engrossed



  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


                                  14

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4119, First Engrossed



  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.


                                  15

CODING: Words stricken are deletions; words underlined are additions.






                                          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


                                  16

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4119, First Engrossed



  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.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  17