Senate Bill 2448
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Florida Senate - 1999 SB 2448
By Senator Casas
39-1151-99
1 A bill to be entitled
2 An act relating to the regulation of
3 professions; amending s. 11.62, F.S.; revising
4 considerations regarding decisions by the
5 Legislature to regulate professions; amending
6 s. 455.201, F.S.; prohibiting the adoption of
7 any regulation that creates certain
8 unreasonable effects on job creation or
9 retention; creating s. 455.2123, F.S.;
10 authorizing the use of distance learning for
11 continuing education courses; creating s.
12 455.2124, F.S.; authorizing the proration of
13 continuing education requirements; amending s.
14 455.213, F.S.; requiring fingerprint cards to
15 accompany certain applications; amending s.
16 455.225, F.S.; providing for the issuance of a
17 notice of noncompliance to certain licensees
18 who fail to comply with continuing education
19 requirements; providing for the department to
20 petition for a determination of probable cause;
21 amending s. 455.517, F.S.; prohibiting the
22 adoption of certain unreasonably restrictive
23 standards or regulations; requiring legislative
24 review of proposals to increase certain
25 regulations of professions; providing an
26 effective date.
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28 Be It Enacted by the Legislature of the State of Florida:
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30 Section 1. Subsections (3) and (4) of section 11.62,
31 Florida Statutes, are amended to read:
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1 11.62 Legislative review of proposed regulation of
2 unregulated functions.--
3 (3) In determining whether to regulate a profession or
4 occupation, the Legislature shall consider the following
5 factors:
6 (a) Whether the unregulated practice of the profession
7 or occupation will substantially harm or endanger the public
8 health, safety, or welfare and whether the potential for harm
9 is recognizable and not remote;
10 (b) Whether the practice of the profession or
11 occupation requires specialized skill or training, and whether
12 that skill or training is readily measurable or quantifiable
13 so that examination or training requirements would reasonably
14 assure initial and continuing professional or occupational
15 ability;
16 (c) Whether the regulation will have an unreasonable
17 effect on the job creation or job retention in the state or
18 will place unreasonable restrictions on the ability of
19 individuals who seek to practice or who are practicing a
20 profession or occupation to find employment;
21 (d)(c) Whether the public is or can be effectively
22 protected by other means; and
23 (e)(d) Whether the overall cost-effectiveness and
24 economic impact of the proposed regulation, including the
25 indirect costs to consumers, will be favorable.
26 (4) The proponents of legislation that provides for
27 the regulation of a profession or occupation not already
28 expressly subject to state regulation shall provide, upon
29 request, the following information in writing to the state
30 agency that is proposed to have jurisdiction over the
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1 regulation and to the legislative committees to which the
2 legislation is referred:
3 (a) The number of individuals or businesses that would
4 be subject to the regulation;
5 (b) The name of each association that represents
6 members of the profession or occupation, together with a copy
7 of its codes of ethics or conduct;
8 (c) Documentation of the nature and extent of the harm
9 to the public caused by the unregulated practice of the
10 profession or occupation, including a description of any
11 complaints that have been lodged against persons who have
12 practiced the profession or occupation in this state during
13 the preceding 3 years;
14 (d) A list of states that regulate the profession or
15 occupation, and the dates of enactment of each law providing
16 for such regulation and a copy of each law;
17 (e) A list and description of state and federal laws
18 that have been enacted to protect the public with respect to
19 the profession or occupation and a statement of the reasons
20 why these laws have not proven adequate to protect the public;
21 (f) A description of the voluntary efforts made by
22 members of the profession or occupation to protect the public
23 and a statement of the reasons why these efforts are not
24 adequate to protect the public;
25 (g) A copy of any federal legislation mandating
26 regulation;
27 (h) An explanation of the reasons why other types of
28 less restrictive regulation would not effectively protect the
29 public;
30 (i) The cost, availability, and appropriateness of
31 training and examination requirements;
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1 (j)(i) The cost of regulation, including the indirect
2 cost to consumers, and the method proposed to finance the
3 regulation;
4 (k) The cost imposed on applicants or practitioners or
5 on employers of applicants or practitioners as a result of the
6 regulation;
7 (l)(j) The details of any previous efforts in this
8 state to implement regulation of the profession or occupation;
9 and
10 (m)(k) Any other information the agency or the
11 committee considers relevant to the analysis of the proposed
12 legislation.
13 Section 2. Subsection (4) of section 455.201, Florida
14 Statutes, is amended to read:
15 455.201 Professions and occupations regulated by
16 department; legislative intent; requirements.--
17 (4)(a) Neither the department nor any No board may,
18 nor the department, shall create unreasonably restrictive and
19 extraordinary standards that deter qualified persons from
20 entering the various professions. Neither the department nor
21 any No board may, nor the department, shall take any action
22 that which tends to create or maintain an economic condition
23 that unreasonably restricts competition, except as
24 specifically provided by law.
25 (b) Neither the department nor any board may create a
26 regulation that has an unreasonable effect on job creation or
27 job retention in this state or that places unreasonable
28 restrictions on the ability of individuals who seek to
29 practice or who are practicing a given profession or
30 occupation to find employment.
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1 (c) The Legislature shall evaluate proposals to
2 increase regulation of professions or occupations that are
3 currently regulated to determine their effect on job creation
4 or retention and job opportunities.
5 Section 3. Section 455.2123, Florida Statutes, is
6 created to read:
7 455.2123 Continuing Education.--Boards, or the
8 department when there is no board, may by rule provide that
9 distance learning may be used to satisfy continuing education
10 requirements.
11 Section 4. Section 455.2124, Florida Statutes, is
12 created to read:
13 455.2124 Proration of Education.--A board, or the
14 department when there is no board, may:
15 (1) Prorate continuing education for new licensees by
16 requiring half of the required continuing education for any
17 applicant who becomes licensed with more than half of the
18 renewal period remaining and no continuing education for any
19 applicant who becomes licensed with half or less than half of
20 the renewal period remaining; or
21 (2) Require no continuing education until the first
22 full renewal cycle of the licensee.
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24 These options shall also apply when continuing education is
25 first required or when the number of hours is increased.
26 Section 5. Subsection (10) is added to section
27 455.213, Florida Statutes, 1998 Supplement, to read:
28 455.213 General licensing provisions.--
29 (10) For any profession requiring fingerprints as part
30 of the registration, certification, or licensing process or
31 for any profession requiring proof of good moral character, a
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1 fingerprint card containing the fingerprints of the applicant
2 must accompany all applications for registration, licensure,
3 and certification. The fingerprint card shall be forwarded to
4 the Division of Criminal Justice Information Systems within
5 the Department of Law Enforcement and to the Federal Bureau of
6 Investigation in order to determine whether the applicant has
7 a criminal history record. The information obtained shall be
8 used to determine whether the applicant is statutorily
9 qualified for registration, licensure, or certification.
10 Section 6. Subsections (3) and (4) of section 455.225,
11 Florida Statutes, 1998 Supplement, are amended to read:
12 455.225 Disciplinary proceedings.--Disciplinary
13 proceedings for each board shall be within the jurisdiction of
14 the department.
15 (3)(a) As an alternative to the provisions of
16 subsections (1) and (2), when a complaint is received, the
17 department may provide a licensee with a notice of
18 noncompliance for an initial offense of a minor violation. A
19 violation is a minor violation if it does not demonstrate a
20 serious inability to practice the profession, result in
21 economic or physical harm to a person, or adversely affect the
22 public health, safety, or welfare or create a significant
23 threat of such harm. Each board, or the department if there is
24 no board, shall establish by rule those violations which are
25 minor violations under this provision. Failure of a licensee
26 to take action in correcting the violation within 15 days
27 after notice may result in the institution of regular
28 disciplinary proceedings.
29 (b) The department may issue a notice of noncompliance
30 for an initial offense of a minor violation, notwithstanding a
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1 board's failure to designate a particular minor violation by
2 rule as provided in paragraph (a).
3 (c) When a licensee is charged with failure to comply
4 with continuing-education requirements, the department's or
5 board's, as appropriate, initial response may only be to issue
6 a notice of noncompliance, including granting the licensee a
7 reasonable time to comply. However, if the department finds
8 that the licensee's failure to comply was done knowingly, the
9 department or board, as appropriate, may levy any other
10 penalty otherwise available to it under the circumstances.
11 This paragraph does not apply to any licensee whose failure to
12 comply with continuing-education requirements is not grounds
13 for discipline but whose compliance is only a prerequisite for
14 renewal.
15 (4) The determination as to whether probable cause
16 exists shall be made by majority vote of a probable cause
17 panel of the board, or by the department, as appropriate. Each
18 regulatory board shall provide by rule that the determination
19 of probable cause shall be made by a panel of its members or
20 by the department. Each board may provide by rule for multiple
21 probable cause panels composed of at least two members. Each
22 board may provide by rule that one or more members of the
23 panel or panels may be a former board member. The length of
24 term or repetition of service of any such former board member
25 on a probable cause panel may vary according to the direction
26 of the board when authorized by board rule. Any probable cause
27 panel must include one of the board's former or present
28 consumer members, if one is available, willing to serve, and
29 is authorized to do so by the board chair. Any probable cause
30 panel must include a present board member. Any probable cause
31 panel must include a former or present professional board
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1 member. However, any former professional board member serving
2 on the probable cause panel must hold an active valid license
3 for that profession. All proceedings of the panel are exempt
4 from s. 286.011 until 10 days after probable cause has been
5 found to exist by the panel or until the subject of the
6 investigation waives his or her privilege of confidentiality.
7 The probable cause panel may make a reasonable request, and
8 upon such request the department shall provide such additional
9 investigative information as is necessary to the determination
10 of probable cause. A request for additional investigative
11 information shall be made within 15 days from the date of
12 receipt by the probable cause panel of the investigative
13 report of the department. The probable cause panel or the
14 department, as may be appropriate, shall make its
15 determination of probable cause within 30 days after receipt
16 by it of the final investigative report of the department. The
17 secretary may grant extensions of the 15-day and the 30-day
18 time limits. In lieu of a finding of probable cause, the
19 probable cause panel, or the department when there is no
20 board, may issue a letter of guidance to the subject. If,
21 within the 30-day time limit, as may be extended, the probable
22 cause panel does not make a determination regarding the
23 existence of probable cause or does not issue a letter of
24 guidance in lieu of a finding of probable cause, the
25 department, for disciplinary cases under its jurisdiction,
26 must make a determination regarding the existence of probable
27 cause within 10 days after the expiration of the time limit.
28 If the probable cause panel finds no probable cause, the
29 department may petition within 10 days for a determination of
30 the existence of probable cause, pursuant to s. 120.574. Such
31 proceedings must be held confidential, as provided in s.
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1 455.225(10). The administrative law judge's order shall
2 constitute final action regarding the existence of probable
3 cause. If the probable cause panel finds that probable cause
4 exists, it shall direct the department to file a formal
5 complaint against the licensee. The department shall follow
6 the directions of the probable cause panel regarding the
7 filing of a formal complaint. If directed to do so, the
8 department shall file a formal complaint against the subject
9 of the investigation and prosecute that complaint pursuant to
10 chapter 120. However, the department may decide not to
11 prosecute the complaint if it finds that probable cause had
12 been improvidently found by the panel. In such cases, the
13 department shall refer the matter to the board. The board may
14 then file a formal complaint and prosecute the complaint
15 pursuant to chapter 120. The department shall also refer to
16 the board any investigation or disciplinary proceeding not
17 before the Division of Administrative Hearings pursuant to
18 chapter 120 or otherwise completed by the department within 1
19 year after the filing of a complaint. The department, for
20 disciplinary cases under its jurisdiction, must establish a
21 uniform reporting system to quarterly refer to each board the
22 status of any investigation or disciplinary proceeding that is
23 not before the Division of Administrative Hearings or
24 otherwise completed by the department within 1 year after the
25 filing of the complaint. A probable cause panel or a board
26 may retain independent legal counsel, employ investigators,
27 and continue the investigation as it deems necessary; all
28 costs thereof shall be paid from the Professional Regulation
29 Trust Fund. All proceedings of the probable cause panel are
30 exempt from s. 120.525.
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1 Section 7. Subsection (4) of section 455.517, Florida
2 Statutes, is amended to read:
3 455.517 Professions and occupations regulated by
4 department; legislative intent; requirements.--
5 (4)(a) Neither No board, nor the department nor any
6 board may, shall create unreasonably restrictive and
7 extraordinary standards that deter qualified persons from
8 entering the various professions. Neither No board, nor the
9 department nor any board may, shall take any action that which
10 tends to create or maintain an economic condition that
11 unreasonably restricts competition, except as specifically
12 provided by law.
13 (b) Neither the department nor any board may create a
14 regulation that has an unreasonable effect on job creation or
15 job retention in this state or that places unreasonable
16 restrictions on the ability of individuals who seek to
17 practice or who are practicing a profession or occupation to
18 find employment.
19 (c) The Legislature shall evaluate proposals to
20 increase regulation of professions or occupations to determine
21 their effect on job creation or retention and employment
22 opportunities.
23 Section 8. This act shall take effect upon becoming a
24 law.
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2 SENATE SUMMARY
3 Revises numerous provisions related to the Department of
Business and Professional Regulation. Revises
4 considerations regarding legislative decisions to
regulate professions. Prohibits the adoption of
5 regulations that create certain unreasonable effects on
job creation or retention. Authorizes the use of distance
6 learning for continuing education courses; authorizes the
proration of such course requirements. Requires
7 fingerprint cards to accompany certain applications.
Authorizes the issuance of a notice of noncompliance for
8 certain continuing education requirement violations.
Provides for the department to petition for a
9 determination of probable cause. Requires legislative
review of proposals to increase certain regulation of
10 professions. (See bill for details.)
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