Senate Bill 0220c1

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    Florida Senate - 2000                            CS for SB 220

    By the Committee on Regulated Industries





    315-1853-00

  1                      A bill to be entitled

  2         An act relating to the Florida Engineers

  3         Management Corporation; amending s. 471.038,

  4         F.S., the "Florida Engineers Management

  5         Corporation Act"; providing purpose; providing

  6         for per diem and travel expenses for the board

  7         of directors and staff of the management

  8         corporation; providing for termination of

  9         initial appointments and for new appointments

10         to the board of directors; revising powers and

11         duties of the management corporation; providing

12         additional requirements of the contract between

13         the management corporation and the Department

14         of Business and Professional Regulation;

15         changing the submission date of the management

16         corporation's annual status report; specifying

17         that meetings of the board of directors are

18         open to the public as provided by law;

19         providing for maintenance of board records by

20         the management corporation; providing

21         rulemaking authority to the board to ensure the

22         security of examinations; eliminating a

23         provision requiring the Office of Program

24         Policy Analysis and Government Accountability

25         to conduct performance audits at the request of

26         the Joint Legislative Auditing Committee;

27         abrogating the repeal of s. 471.038, F.S., the

28         "Florida Engineers Management Corporation Act,"

29         notwithstanding s. 5, ch. 97-312, Laws of

30         Florida; amending s. 471.005, F.S.; providing

31         definitions; revising cross-references;

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  1         amending s. 471.0035, F.S.; conforming

  2         cross-references; amending ss. 471.011,

  3         471.015, 471.017, 471.021, 471.023, 471.033,

  4         F.S.; transferring to the management

  5         corporation duties of the department relating

  6         to issuance, reissuance, and renewal of

  7         licenses, certifications, and temporary

  8         registrations and to purchase of the licensure

  9         examination; revising cross-references;

10         providing an effective date.

11

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

13

14         Section 1.  Section 471.038, Florida Statutes, is

15  amended to read:

16         471.038  Florida Engineers Management Corporation.--

17         (1)  This section may be cited as the "Florida

18  Engineers Management Corporation Act."

19         (2)  As used in this section, the term:

20         (a)  "Board" means the Board of Professional Engineers.

21         (b)  "Board of directors" means the board of directors

22  of the Florida Engineers Management Corporation.

23         (c)  "Corporation" means the Florida Engineers

24  Management Corporation.

25         (d)  "Department" means the Department of Business and

26  Professional Regulation.

27         (e)  "Secretary" means the Secretary of Business and

28  Professional Regulation.

29         (2)(3)(a)  It is the finding of the Legislature that

30  the privatization of certain functions that are performed by

31  the department for the board will encourage greater

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  1  operational and economic efficiency and, therefore, will

  2  benefit regulated persons and the public.

  3         (b)  The purpose of this section is to create a

  4  public-private partnership by providing It is the intent of

  5  the Legislature that a single nonprofit corporation be

  6  established to provide administrative, investigative, and

  7  prosecutorial services to the board and that no additional

  8  nonprofit corporation be created for these purposes.

  9         (c)  It is further the intent of the Legislature that

10  the corporation assume, by July 1, 1998, all duties assigned

11  to it.

12         (3)(4)  The Florida Engineers Management Corporation is

13  created to provide administrative, investigative, and

14  prosecutorial services to the board in accordance with the

15  provisions of part I of chapter 455 and this chapter. The

16  management corporation may hire staff as necessary to carry

17  out its functions. Such staff are not public employees for the

18  purposes of chapter 110 or chapter 112, except that the board

19  of directors and the staff are subject to the provisions of s.

20  112.061. The provisions of s. 768.28 apply to the management

21  corporation, which is deemed to be a corporation primarily

22  acting as an instrumentality of the state, but which is not an

23  agency within the meaning of s. 20.03(11). The management

24  corporation shall:

25         (a)  Be a Florida corporation not for profit,

26  incorporated under the provisions of chapter 617.

27         (b)  Provide administrative, investigative, and

28  prosecutorial services to the board in accordance with the

29  provisions of part I of chapter 455, and this chapter, and the

30  contract required by this section.

31

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  1         (c)  Receive, hold, and administer property and make

  2  only prudent expenditures directly related to the

  3  responsibilities for the benefit of the board, and in

  4  accordance with the contract required by this section.

  5         (d)  Be approved by the board and the department to

  6  operate for the benefit of the board and in the best interest

  7  of the state.

  8         (e)  Operate under a fiscal year that begins on July 1

  9  of each year and ends on June 30 of the following year.

10         (f)  Have a seven-member board of directors, five of

11  whom are to be appointed by the board and must be registrants

12  regulated by the board and two of whom are to be appointed by

13  the secretary and must be laypersons not regulated by the

14  board. All initial appointments shall expire on October 31,

15  2000. Current members may be appointed to one additional term

16  that complies with the provisions of this paragraph. Two

17  members shall be appointed for 2 years, three members shall be

18  appointed for 3 years, and two members shall be appointed for

19  4 years. One layperson shall be appointed to a 3-year term and

20  one layperson shall be appointed to a 4-year term. Thereafter,

21  all appointments shall be for 4-year terms. No new member

22  shall serve more than two consecutive terms. Failure to attend

23  three consecutive meetings shall be deemed a resignation from

24  the board, and the vacancy shall be filled by a new

25  appointment.

26         (g)  The corporation shall Select its officers in

27  accordance with its bylaws. The members of the board of

28  directors may be removed by the board, with the concurrence of

29  the department, for the same reasons that a board member may

30  be removed.

31

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  1         (h)  Use a portion of the interest derived from the

  2  management corporation account to offset the costs associated

  3  with the use of credit cards for payment of fees by applicants

  4  or licensees.

  5         (i)(g)  Operate under an annual a written contract with

  6  the department which is approved by the board and renewed

  7  annually. The initial contract must be entered into no later

  8  than March 1, 1998. The contract must provide for, but is not

  9  limited to:

10         1.  Approval of the articles of incorporation and

11  bylaws of the management corporation by the department and the

12  board.

13         2.  Submission by the management corporation of an

14  annual budget that complies with board rules for approval by

15  the board and the department.

16         3.  Annual certification by the board and the

17  department that the management corporation is complying with

18  the terms of the contract in a manner consistent with the

19  goals and purposes of the board and in the best interest of

20  the state. This certification must be reported in the board's

21  minutes. The contract must also provide for methods and

22  mechanisms to resolve any situation in which the certification

23  process determines noncompliance.

24         4.  Employment by the department of a contract

25  administrator to actively supervise the administrative,

26  investigative, and prosecutorial activities of the management

27  corporation to ensure compliance with the contract and the

28  provisions of part I of chapter 455 and this chapter and to

29  act as a liaison for the department, the board, and the

30  management corporation to ensure the effective operation of

31  the management corporation.

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  1         5.  Funding of the management corporation through

  2  appropriations allocated to the regulation of professional

  3  engineers from the Professional Regulation Trust Fund.

  4         6.  The reversion to the board, or the state if the

  5  board ceases to exist, of moneys, records, data, and property

  6  held in trust by the management corporation for the benefit of

  7  the board, if the management corporation is no longer approved

  8  to operate for the board or the board ceases to exist. All

  9  records and data in a computerized database shall be returned

10  to the department in a form that is compatible with the

11  computerized database of the department.

12         7.  The securing and maintaining by the management

13  corporation, during the term of the contract and for all acts

14  performed during the term of the contract, of all liability

15  insurance coverages in an amount to be approved by the

16  department to defend, indemnify, and hold harmless the

17  management corporation and its officers and employees, the

18  department and its employees, and the state against all claims

19  arising from state and federal laws. Such insurance coverage

20  must be with insurers qualified and doing business in the

21  state. The management corporation must provide proof of

22  insurance to the department. The department and its employees

23  and the state are exempt from and are not liable for any sum

24  of money which represents a deductible, which sums shall be

25  the sole responsibility of the management corporation.

26  Violation of this subparagraph shall be grounds for

27  terminating the contract.

28         8.  Payment by the management corporation, out of its

29  allocated budget, to the department of all costs of

30  representation by the board counsel, including salary and

31

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  1  benefits, travel, and any other compensation traditionally

  2  paid by the department to other board counsels.

  3         9.  Payment by the management corporation, out of its

  4  allocated budget, to the department of all costs incurred by

  5  the management corporation or the board for the Division of

  6  Administrative Hearings of the Department of Management

  7  Services and any other cost for utilization of these state

  8  services.

  9         10.  Payment by the management corporation, out of its

10  allocated budget, to the department of all costs associated

11  with the contract administrator of the department, including

12  salary and benefits, travel, and other related costs

13  traditionally paid to state employees.

14         (j)(h)  Provide for an annual financial and compliance

15  audit of its financial accounts and records by an independent

16  certified public accountant in accordance with generally

17  accepted government auditing standards conjunction with the

18  Auditor General. The annual audit report shall include a

19  detailed supplemental schedule of expenditures for each

20  expenditure category and a management letter. The annual audit

21  report must be submitted to the board, and the department, and

22  the Auditor General for review and approval. Copies of the

23  audit must be submitted to the secretary and the Legislature

24  together with any other information requested by the

25  secretary, the board, or the Legislature.

26         (k)(i)  Submit to the secretary, the board, and the

27  Legislature, on or before October January 1 of each year, a

28  report on the status of the management corporation which

29  includes, but is not limited to, information concerning the

30  programs and funds that have been transferred to the

31  management corporation. The report must include: the number of

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  1  license applications received; the number approved and denied

  2  and the number of licenses issued; the number of examinations

  3  administered and the number of applicants who passed or failed

  4  the examination; the number of complaints received; the number

  5  determined to be legally sufficient; the number dismissed; the

  6  number determined to have probable cause; the number of

  7  administrative complaints issued and the status of the

  8  complaints; and the number and nature of disciplinary actions

  9  taken by the board.

10         (l)  In order to facilitate efficient and

11  cost-effective regulation, develop, with the department,

12  performance standards and measurable outcomes for the board to

13  adopt by rule.

14         (4)(5)  The management corporation may not exercise any

15  authority specifically assigned to the board under part I of

16  chapter 455 or this chapter, including determining probable

17  cause to pursue disciplinary action against a licensee, taking

18  final action on license applications or in disciplinary cases,

19  or adopting administrative rules under chapter 120.

20         (5)(6)  The department shall retain the independent

21  authority to open, investigate, or prosecute any cases or

22  complaints, as necessary to protect the public health, safety,

23  or welfare. In addition, the department shall retain sole

24  authority to issue emergency suspension or restriction orders

25  pursuant to s. 120.60 and to prosecute unlicensed activity

26  cases pursuant to ss. 455.228 and 455.2281.

27         (6)(7)  Management corporation records are public

28  records subject to the provisions of s. 119.07(1) and s.

29  24(a), Art. I of the State Constitution; however, public

30  records exemptions set forth in ss. 455.217 and 455.229 for

31  records created or maintained by the department shall apply to

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  1  records created or maintained by the management corporation.

  2  In addition, all meetings of the board of directors are open

  3  to the public in accordance with s. 286.011 and s. 24(b), Art.

  4  I of the State Constitution. The exemptions set forth in s.

  5  455.225, relating to complaints and information obtained

  6  pursuant to an investigation by the department, shall apply to

  7  such records created or obtained by the management corporation

  8  only until an investigation ceases to be active. For the

  9  purposes of this subsection, an investigation is considered

10  active so long as the management corporation or any law

11  enforcement or administrative agency is proceeding with

12  reasonable dispatch and has a reasonable, good faith belief

13  that it may lead to the filing of administrative, civil, or

14  criminal proceedings. An investigation ceases to be active

15  when the case is dismissed prior to a finding of probable

16  cause and the board has not exercised its option to pursue the

17  case or 10 days after the board makes a determination

18  regarding probable cause. All information, records, and

19  transcriptions regarding a complaint that has been determined

20  to be legally sufficient to state a claim within the

21  jurisdiction of the board become available to the public when

22  the investigation ceases to be active, except information that

23  is otherwise confidential or exempt from s. 119.07(1).

24  However, in response to an inquiry about the licensure status

25  of an individual, the management corporation shall disclose

26  the existence of an active investigation if the nature of the

27  violation under investigation involves the potential for

28  substantial physical or financial harm to the public. The

29  board shall designate by rule those violations that involve

30  the potential for substantial physical or financial harm. The

31  department and the board shall have access to all records of

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  1  the management corporation, as necessary to exercise their

  2  authority to approve and supervise the contract.

  3         (7)  The management corporation is the sole source and

  4  depository for the records of the board, including all

  5  historical information and records. The management corporation

  6  shall maintain those records in accordance with the guidelines

  7  of the Department of State and shall not destroy any records

  8  prior to the limits imposed by the Department of State.

  9         (8)  The board shall provide by rule for the procedures

10  the management corporation must follow to ensure that all

11  licensure examinations are secure while under the

12  responsibility of the management corporation and that there is

13  an appropriate level of monitoring during the licensure

14  examinations. The Office of Program Policy Analysis and

15  Governmental Accountability within the Office of the Auditor

16  General shall conduct a performance audit of the corporation

17  for the period beginning January 1, 1998, through January 1,

18  2000, and thereafter at the request of the Joint Legislative

19  Auditing Committee.

20         Section 2.  Notwithstanding section 5 of chapter

21  97-312, Laws of Florida, section 471.038, Florida Statutes,

22  shall not stand repealed on October 1, 2000, as scheduled by

23  such law, but section 471.038, Florida Statutes, as amended by

24  this act, is revived and readopted.

25         Section 3.  Section 471.005, Florida Statutes, is

26  amended to read:

27         471.005  Definitions.--As used in this chapter ss.

28  471.001-471.037, the term:

29         (1)  "Board" means the Board of Professional Engineers.

30         (2)  "Board of directors" means the board of directors

31  of the Florida Engineers Management Corporation.

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  1         (3)(2)  "Certificate of authorization" means a license

  2  to practice engineering issued by the management corporation

  3  department to a corporation or partnership.

  4         (4)(3)  "Department" means the Department of Business

  5  and Professional Regulation.

  6         (5)(4)  "Engineer" includes the terms "professional

  7  engineer" and "registered engineer" and means a person who is

  8  registered to engage in the practice of engineering under this

  9  chapter ss. 471.001-471.037.

10         (6)(5)  "Engineer intern" means a person who has

11  graduated from, or is in the final year of, an engineering

12  curriculum approved by the board and has passed the

13  fundamentals of engineering examination as provided by rules

14  adopted by the board.

15         (7)(6)  "Engineering" includes the term "professional

16  engineering" and means any service or creative work, the

17  adequate performance of which requires engineering education,

18  training, and experience in the application of special

19  knowledge of the mathematical, physical, and engineering

20  sciences to such services or creative work as consultation,

21  investigation, evaluation, planning, and design of engineering

22  works and systems, planning the use of land and water,

23  teaching of the principles and methods of engineering design,

24  engineering surveys, and the inspection of construction for

25  the purpose of determining in general if the work is

26  proceeding in compliance with drawings and specifications, any

27  of which embraces such services or work, either public or

28  private, in connection with any utilities, structures,

29  buildings, machines, equipment, processes, work systems,

30  projects, and industrial or consumer products or equipment of

31  a mechanical, electrical, hydraulic, pneumatic, or thermal

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  1  nature, insofar as they involve safeguarding life, health, or

  2  property; and includes such other professional services as may

  3  be necessary to the planning, progress, and completion of any

  4  engineering services.  A person who practices any branch of

  5  engineering; who, by verbal claim, sign, advertisement,

  6  letterhead, or card, or in any other way, represents himself

  7  or herself to be an engineer or, through the use of some other

  8  title, implies that he or she is an engineer or that he or she

  9  is registered under this chapter ss. 471.001-471.037; or who

10  holds himself or herself out as able to perform, or does

11  perform, any engineering service or work or any other service

12  designated by the practitioner which is recognized as

13  engineering shall be construed to practice or offer to

14  practice engineering within the meaning and intent of this

15  chapter ss. 471.001-471.037.

16         (8)(7)  "License" means the registration of engineers

17  or certification of businesses to practice engineering in this

18  state.

19         (9)  "Management corporation" means the Florida

20  Engineers Management Corporation.

21         (10)  "Secretary" means the Secretary of Business and

22  Professional Regulation.

23         Section 4.  Section 471.0035, Florida Statutes, is

24  amended to read:

25         471.0035  Instructors in postsecondary educational

26  institutions; exemption from registration requirement.--For

27  the sole purpose of teaching the principles and methods of

28  engineering design, notwithstanding the provisions of s.

29  471.005(7)(6), a person employed by a public postsecondary

30  educational institution, or by an independent postsecondary

31  educational institution licensed or exempt from licensure

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  1  pursuant to the provisions of chapter 246, is not required to

  2  register under the provisions of this chapter ss.

  3  471.001-471.037 as a registered engineer.

  4         Section 5.  Subsection (2) of section 471.011, Florida

  5  Statutes, is amended to read:

  6         471.011  Fees.--

  7         (2)  The initial application and examination fee shall

  8  not exceed $125 plus the actual per applicant cost to the

  9  management corporation department to purchase the examination

10  from the National Council of Examiners for Engineering and

11  Surveying Engineering Examiners or a similar national

12  organization.  The examination fee shall be in an amount which

13  covers the cost of obtaining and administering the examination

14  and shall be refunded if the applicant is found ineligible to

15  sit for the examination. The application fee shall be

16  nonrefundable.

17         Section 6.  Subsections (1) and (4) of section 471.015,

18  Florida Statutes, are amended to read:

19         471.015  Licensure.--

20         (1)  The management corporation department shall issue

21  a license to any applicant who the board certifies is

22  qualified to practice engineering and who has passed the

23  licensing examination.

24         (4)  The management corporation department shall not

25  issue a license by endorsement to any applicant who is under

26  investigation in another state for any act that would

27  constitute a violation of this chapter ss. 471.001-471.037 or

28  of part I of chapter 455 until such time as the investigation

29  is complete and disciplinary proceedings have been terminated.

30         Section 7.  Subsection (1) of section 471.017, Florida

31  Statutes, is amended to read:

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  1         471.017  Renewal of license.--

  2         (1)  The management corporation department shall renew

  3  a license upon receipt of the renewal application and fee.

  4         Section 8.  Subsections (1) and (2) of section 471.021,

  5  Florida Statutes, are amended to read:

  6         471.021  Engineers and firms of other states; temporary

  7  certificates to practice in Florida.--

  8         (1)  Upon approval of the board and payment of the fee

  9  set in s. 471.011, the management corporation department shall

10  issue grant a temporary registration for work on one specified

11  project in this state for a period not to exceed 1 year to an

12  engineer holding a certificate to practice in another state,

13  provided Florida registrants are similarly permitted to engage

14  in work in such state and provided that the engineer be

15  qualified for licensure by endorsement.

16         (2)  Upon approval by the board and payment of the fee

17  set in s. 471.011, the management corporation department shall

18  issue grant a temporary certificate of authorization for work

19  on one specified project in this state for a period not to

20  exceed 1 year to an out-of-state corporation, partnership, or

21  firm, provided one of the principal officers of the

22  corporation, one of the partners of the partnership, or one of

23  the principals in the fictitiously named firm has obtained a

24  temporary certificate of registration in accordance with

25  subsection (1).

26         Section 9.  Subsection (1) of section 471.023, Florida

27  Statutes, is amended to read:

28         471.023  Certification of partnerships and

29  corporations.--

30         (1)  The practice of, or the offer to practice,

31  engineering by registrants through a corporation or

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  1  partnership offering engineering services to the public or by

  2  a corporation or partnership offering said services to the

  3  public through registrants under this chapter ss.

  4  471.001-471.037 as agents, employees, officers, or partners is

  5  permitted only if the firm possesses a certification issued by

  6  the management corporation department pursuant to

  7  qualification by the board, subject to the provisions of this

  8  chapter ss. 471.001-471.037.  One or more of the principal

  9  officers of the corporation or one or more partners of the

10  partnership and all personnel of the corporation or

11  partnership who act in its behalf as engineers in this state

12  shall be registered as provided by this chapter ss.

13  471.001-471.037.  All final drawings, specifications, plans,

14  reports, or documents involving practices registered under

15  this chapter ss. 471.001-471.037 which are prepared or

16  approved for the use of the corporation or partnership or for

17  public record within the state shall be dated and shall bear

18  the signature and seal of the registrant who prepared or

19  approved them. Nothing in this section shall be construed to

20  mean that a certificate of registration to practice

21  engineering shall be held by a corporation.  Nothing herein

22  prohibits corporations and partnerships from joining together

23  to offer engineering services to the public, provided each

24  corporation or partnership otherwise meets the requirements of

25  this section. No corporation or partnership shall be relieved

26  of responsibility for the conduct or acts of its agents,

27  employees, or officers by reason of its compliance with this

28  section, nor shall any individual practicing engineering be

29  relieved of responsibility for professional services performed

30  by reason of his or her employment or relationship with a

31  corporation or partnership.

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  1         Section 10.  Subsection (4) of section 471.033, Florida

  2  Statutes, is amended to read:

  3         471.033  Disciplinary proceedings.--

  4         (4)  The management corporation department shall

  5  reissue the license of a disciplined engineer or business upon

  6  certification by the board that the disciplined person has

  7  complied with all of the terms and conditions set forth in the

  8  final order.

  9         Section 11.  This act shall take effect July 1, 2000.

10

11          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
12                         Senate Bill 220

13

14  The Committee Substitute:

15  -     Subjects the Corporation's board of directors and staff
          to the travel and per diem provisions of s. 112.061,
16        F.S.

17  -     Requires that the Corporation pay the Department of
          Business and Professional Regulation (Department) for
18        specified costs associated with the regulatory services.

19  -     Requires the Corporation to develop, in conjunction with
          the Department, performance standards and measurable
20        outcomes, which the Board is to adopt by rule.

21  -     Transfers to the Corporation the duties of the
          Department relating to issuance, reissuance, and renewal
22        of licenses, certifications, and temporary registrations
          and to purchase of the licensure examination.
23
    -     Requires the Board to provide by rule the security
24        procedures, which the Corporation is to follow to ensure
          the security of licensure examinations.
25
    -     Establishes and phases in staggered terms for the
26        Corporation's Board of Directors.

27

28

29

30

31

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