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.

27

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

29

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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    Florida Senate - 1999                                  SB 2448
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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.

23

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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  1            *****************************************

  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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