House Bill 1479

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    Florida House of Representatives - 1999                HB 1479

        By Representative Brown






  1                      A bill to be entitled

  2         An act relating to notices of noncompliance;

  3         amending s. 120.695, F.S.; providing that

  4         notices of noncompliance apply to violations of

  5         regulatory provisions of an agency found in

  6         rule or statute; eliminating obsolete

  7         provisions relating to review and designation

  8         of agency rules for notice issuance purposes;

  9         providing exemptions from applicability of the

10         section; creating s. 120.696, F.S.; providing

11         for classification of disciplinary actions as

12         active or inactive; providing for the periodic

13         clearing of minor violations from the

14         disciplinary record; providing rulemaking

15         authority; amending s. 455.225, F.S.; providing

16         for classification of disciplinary actions by

17         the Department of Business and Professional

18         Regulation as active or inactive; providing for

19         the periodic clearing of minor violations from

20         the disciplinary record; providing rulemaking

21         authority; providing an effective date.

22

23  Be It Enacted by the Legislature of the State of Florida:

24

25         Section 1.  Section 120.695, Florida Statutes, is

26  amended to read:

27         120.695  Notice of noncompliance.--

28         (1)  It is the policy of the state that the purpose of

29  regulation is to protect the public by attaining compliance

30  with the policies established by the Legislature. Fines and

31  other penalties may be provided in order to ensure assure

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    Florida House of Representatives - 1999                HB 1479

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  1  compliance; however, the collection of fines and the

  2  imposition of penalties are intended to be secondary to the

  3  primary goal of attaining compliance with an agency's

  4  regulatory provisions rules. It is the intent of the

  5  Legislature that an agency charged with enforcing regulatory

  6  provisions rules shall issue a notice of noncompliance as its

  7  first response to a minor violation of a regulatory provision

  8  rule in any instance in which it is reasonable to assume that

  9  the violator was unaware of the regulatory provision rule or

10  unclear as to how to comply with it.

11         (2)(a)  Each agency shall issue a notice of

12  noncompliance as a first response to a minor violation of a

13  rule. A "notice of noncompliance" is a notification by the

14  agency charged with enforcing the rule issued to the person or

15  business subject to the regulatory provision rule. A notice of

16  noncompliance may not be accompanied with a fine or other

17  disciplinary penalty. It must identify the specific regulatory

18  provision found in rule or statute rule that is being

19  violated, provide information on how to comply with it the

20  rule, and specify a reasonable time for the violator to comply

21  with the rule. A rule is agency action that regulates a

22  business, occupation, or profession, or regulates a person

23  operating a business, occupation, or profession, and that, if

24  not complied with, may result in a disciplinary penalty.

25         (b)  Each agency shall review all of its rules and

26  designate those for which a violation would be a minor

27  violation and for which a notice of noncompliance must be the

28  first enforcement action taken against a person or business

29  subject to regulation. A violation of a rule is a minor

30  violation if it does not result in economic or physical harm

31  to a person or adversely affect the public health, safety, or

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    Florida House of Representatives - 1999                HB 1479

    521-164-99






  1  welfare or create a significant threat of such harm. If an

  2  agency under the direction of a cabinet officer mails to each

  3  licensee a notice of the designated rules at the time of

  4  licensure and at least annually thereafter, the provisions of

  5  paragraph (a) may be exercised at the discretion of the

  6  agency. Such notice shall include a subject-matter index of

  7  the rules and information on how the rules may be obtained.

  8         (c)  The agency's review and designation must be

  9  completed by December 1, 1995; each agency under the direction

10  of the Governor shall make a report to the Governor, and each

11  agency under the joint direction of the Governor and Cabinet

12  shall report to the Governor and Cabinet by January 1, 1996,

13  on which of its rules have been designated as rules the

14  violation of which would be a minor violation.

15         (d)  The Governor or the Governor and Cabinet, as

16  appropriate pursuant to paragraph (c), may evaluate the review

17  and designation effects of each agency and may apply a

18  different designation than that applied by the agency.

19         (3)(e)  This section does not apply to the Department

20  of Revenue, criminal law, or the regulation of law enforcement

21  personnel or teachers.

22         (f)  Designation pursuant to this section is not

23  subject to challenge under this chapter.

24         Section 2.  Section 120.696, Florida Statutes, is

25  created to read:

26         120.696  Classification of disciplinary actions.--

27         (1)  The legislative intent of this subsection is to

28  clear minor violations from the disciplinary record of any

29  person or business after a set period of time. A person or

30  business may petition the appropriate agency to review a

31  disciplinary incident to determine whether the specific

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    Florida House of Representatives - 1999                HB 1479

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  1  violation meets the standard of a minor violation as set forth

  2  in s. 120.695(2). If the circumstances of the violation meet

  3  that standard, and 2 years have passed since the issuance of a

  4  final order imposing discipline, the agency shall reclassify

  5  that violation as inactive, so long as the person or business

  6  has not been disciplined for a subsequent violation of the

  7  same nature. Once the agency has reclassified the violation as

  8  inactive, it shall no longer be considered as part of the

  9  disciplinary record of that person or business, and the person

10  or business may lawfully deny or fail to acknowledge the

11  incident as a disciplinary action. The agency has authority to

12  adopt rules to implement this subsection.

13         (2)  Each agency shall by January 1, 2000, establish a

14  schedule under which each disciplinary action taken against a

15  person or business shall remain active or become inactive. The

16  agency shall establish varying reclassification schedules for

17  each type of violation, according to the severity of the

18  violation. After the expiration of the set period of time, as

19  determined by agency rule, the agency shall reclassify the

20  violation as an inactive disciplinary action, provided the

21  person or business has not been disciplined for a subsequent

22  violation of the same nature. Once the agency has reclassified

23  such a violation as inactive, the person or business may

24  lawfully deny or fail to acknowledge the incident as a

25  disciplinary action. The agency has authority to adopt rules

26  to implement this subsection.

27         Section 3.  Subsection (3) of section 455.225, Florida

28  Statutes, 1998 Supplement, is amended to read:

29         455.225  Disciplinary proceedings.--Disciplinary

30  proceedings for each board shall be within the jurisdiction of

31  the department.

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    Florida House of Representatives - 1999                HB 1479

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  1         (3)(a)  As an alternative to the provisions of

  2  subsections (1) and (2), when a complaint is received, the

  3  department may provide a licensee with a notice of

  4  noncompliance for an initial offense of a minor violation. A

  5  violation is a minor violation if it does not demonstrate an a

  6  serious inability to practice the profession, result in

  7  economic or physical harm to a person, or adversely affect the

  8  public health, safety, or welfare or create a significant

  9  threat of such harm. Each board, or the department if there is

10  no board, shall establish by rule those violations which are

11  minor violations under this provision. Failure of a licensee

12  to take action in correcting the violation within 15 days

13  after notice may result in the institution of regular

14  disciplinary proceedings.

15         (b)  The department may issue a notice of noncompliance

16  for an initial offense of a minor violation, notwithstanding a

17  board's failure to designate a particular minor violation by

18  rule as provided in paragraph (a).

19         (c)  The legislative intent of this paragraph is to

20  clear minor violations from a licensee's disciplinary record

21  after a set period of time. A licensee may petition the

22  department to review a disciplinary incident to determine

23  whether the specific violation meets the standard of a minor

24  violation as set forth in paragraph (a). If the circumstances

25  of the violation meet that standard, and 2 years have passed

26  since the issuance of a final order imposing discipline, the

27  agency shall reclassify that violation as inactive, so long as

28  the licensee has not been disciplined for a subsequent

29  violation of the same nature. Once the department has

30  reclassified the violation as inactive, it shall no longer be

31  considered as part of the licensee's disciplinary record, and

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    Florida House of Representatives - 1999                HB 1479

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  1  the licensee may lawfully deny or fail to acknowledge the

  2  incident as a disciplinary action. The department has

  3  authority to adopt rules to implement this paragraph.

  4         Section 4.  This act shall take effect July 1, 1999.

  5

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  7                          HOUSE SUMMARY

  8
      Revises provisions of the Administrative Procedure Act
  9    relating to notices of noncompliance. Provides that
      notices of noncompliance apply to violations of
10    regulatory provisions of an agency found in rule or
      statute. Eliminates obsolete provisions relating to
11    review of agency rules and designation of those for which
      a notice of noncompliance would be the first enforcement
12    action. Exempts the Department of Revenue and criminal
      law from applicability of such notice provisions.
13    Provides for classification of disciplinary actions as
      active or inactive, and provides for the periodic
14    clearing of minor violations that have become inactive
      from the disciplinary record. Applies such classification
15    provisions specifically to the disciplinary proceedings
      of the Department of Business and Professional
16    Regulation.

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