House Bill hb0005B

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    Florida House of Representatives - 2001                 HB 5-B

        By Representative Mayfield






  1                      A bill to be entitled

  2         An act relating to the State Board of Nonpublic

  3         Career Education; amending s. 246.203, F.S.,

  4         relating to definitions; including flight

  5         training schools and fixed based operators in

  6         the definition of "school" for purposes of

  7         regulation and licensure; creating s. 246.2155,

  8         F.S.; requiring each flight training school and

  9         fixed based operator licensed by the board to

10         collect and maintain specified information

11         about its students; requiring specified scores

12         on the Test of English as a Foreign Language;

13         providing penalties for violation or failure to

14         comply; amending s. 246.216, F.S.; removing an

15         exemption from licensure for a flight training

16         school or fixed based operator regulated by the

17         Federal Aviation Administration or other

18         agency; reenacting s. 246.201 and ss.

19         246.205-246.215 and ss. 246.217-246.231, F.S.,

20         relating to the regulation and licensure of

21         nonpublic postsecondary career schools by the

22         State Board of Nonpublic Career Education, to

23         incorporate the amendments to ss. 246.203 and

24         246.216, F.S., and the creation of s. 246.2155,

25         F.S.; providing an effective date.

26  

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

28  

29         Section 1.  Section 246.203, Florida Statutes, is

30  amended to read:

31  

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  1         246.203  Definitions; ss. 246.201-246.231.--As used in

  2  ss. 246.201-246.231, unless the context otherwise requires:

  3         (1)  "School" means any nonpublic postsecondary

  4  noncollegiate career educational institution, association,

  5  corporation, person, partnership, or organization of any type,

  6  including any flight training school or fixed based operator,

  7  that:

  8         (a)  Offers to provide or provides any postsecondary

  9  program of instruction, course, or class through the student's

10  personal attendance, in the presence of an instructor, in a

11  classroom, clinical, or other practicum setting or through

12  correspondence or other distance learning; and

13         (b)  Represents, directly or by implication, that the

14  instruction will qualify the student for employment in any

15  occupation whose practice in this state does not require a

16  degree, as defined in s. 246.021(5); and

17         (c)  Receives remuneration from the student or any

18  other source on the enrollment of a student or on the number

19  of students enrolled; or

20         (d)  Offers to award or awards a diploma, as defined in

21  subsection (6), regardless of whether or not it engages in the

22  activities described in paragraph (a), paragraph (b), or

23  paragraph (c).

24         (2)  "Business, management, trade, technical, or career

25  education" means any instruction which prepares a person for

26  employment in an occupation listed in the latest dictionary of

27  occupational titles issued by the United States Department of

28  Labor or declared by that department to be eligible for such

29  listing or which is indicated by a school as leading to

30  employment in an occupation.

31  

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  1         (3)  "Out-of-state school" or "school outside the

  2  state" means any school for which the place of instruction or

  3  legal place of residence or the place of evaluation of

  4  instruction or work by correspondence is not within the legal

  5  boundaries of the state.

  6         (4)  "Instruction" means the dissemination of knowledge

  7  or practice which signifies, purports to signify, or is

  8  generally taken to signify the preparation or education of a

  9  person generally or specifically for further understanding,

10  study, skill, or training.

11         (5)  "Agent" means a person employed by or representing

12  a school within or outside the state to procure Florida

13  students, enrollees, or subscribers by solicitation in any

14  form, made at a place or places other than the office or legal

15  place of business of a school.

16         (6)  "Diploma" means a specialized associate degree,

17  certificate, transcript, report, document, or title or

18  designation, mark, appellation, or series of letters, numbers,

19  or words which signifies, purports to signify, or is generally

20  taken to signify satisfactory completion of the requirements

21  of an educational, technical, or vocational program of study,

22  training, or course except degrees as defined in s. 246.021.

23         (7)  "Board" means the State Board of Nonpublic Career

24  Education.

25         (8)  "Governmental," refers to schools provided,

26  operated, and supported by federal, state, or county

27  governments or any of their political subdivisions.

28         (9)  "Accreditation" means accredited status awarded to

29  a school by an accrediting agency which is recognized by the

30  United States Department of Education.

31  

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  1         Section 2.  Section 246.2155, Florida Statutes, is

  2  created to read:

  3         246.2155  Flight training schools and fixed based

  4  operators.--

  5         (1)  Each flight training school and fixed based

  6  operator required to be licensed by the State Board of

  7  Nonpublic Career Education pursuant to ss. 246.201-246.231

  8  shall collect and maintain copies of the following information

  9  about its students in order to receive and retain its license

10  from the board:

11         (a)  Visa: F1 (4-Year Student Visa); J1 (24-Month

12  Exchange Visitor Visa); and M1 (1-Year Student Visa).

13         (b)  Passport issue page and photo identification.

14         (c)  Date-stamped Page of Entry.

15         (d)  Stamped I-20 mn (Certificate of Eligibility for

16  Nonimmigrant for 1-Year Student Visa)/IAP 66 (U.S. State

17  Department Exchange Program Services Certificate of

18  Eligibility for Exchange Visitor Status).

19         (e)  I94 Department of Justice Departure Record Card.

20         (f)  FAA Medical Certificate and, if applicable, Flight

21  Certificate.

22         (g)  Test scores on the Test of English as a Foreign

23  Language (TOEFL) required pursuant to subsection (2).

24         (h)  A bank letter, on bank stationery, stating that

25  the necessary funds are available for training and living

26  expenses for the student while training at the flight school

27  or fixed based operator.

28  

29  Each flight school and fixed based operator shall keep these

30  records for 4 years after the student's departure from the

31  school or operator.

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  1         (2)  In order to determine that the English proficiency

  2  of each student is adequate, each flight training school and

  3  fixed based operator shall require of its students, except for

  4  students from countries where English is the only official

  5  language, a score of 550 or above on the Test of English as a

  6  Foreign Language (TOEFL).

  7         (3)  Notwithstanding the provisions of s. 246.231, any

  8  person who violates or fails to comply with the provisions of

  9  this section:

10         (a)  For the first conviction, commits a felony of the

11  second degree, punishable as provided in s. 775.082 or s.

12  775.083.

13         (b)  For a second or subsequent conviction, commits a

14  felony of the first degree, punishable as provided in s.

15  775.082 or s. 775.083.

16         (c)  May have his or her license revoked.

17         Section 3.  Section 246.216, Florida Statutes, is

18  amended to read:

19         246.216  Exemption from licensure.--

20         (1)  A person or entity which otherwise fits the

21  definition of school in s. 246.203(1) shall be exempt from

22  licensure if it meets the criteria specified in this section

23  and applies to the board for a statement of exemption. The

24  board shall issue a statement of exemption if it determines,

25  based on all available information, that the applicant meets

26  the following criteria:

27         (a)  The entity is a church or religious organization

28  whose programs of instruction include:

29         1.  A religious modifier in the title of the program,

30  immediately preceding the name of the occupation to which the

31  instruction relates, and in the title of the diploma.

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  1         2.  No representation, directly or by implication, that

  2  individuals who successfully complete the program will be

  3  qualified to be employed in the field to which the training

  4  relates by an employer other than a church or religious

  5  organization.

  6         3.  No students who receive state or federal financial

  7  aid to pursue the program;

  8         (b)  The person or entity, except for a flight training

  9  school or a fixed based operator, is regulated by an the

10  Federal Aviation Administration, another agency of the Federal

11  Government, or an agency of the state whose regulatory laws

12  are similar in nature and purpose to those of the board and

13  require minimum educational standards, for at least

14  curriculum, instructors, and academic progress and provide

15  protection against fraudulent, deceptive, and substandard

16  education practices;

17         (c)  The person or entity offers only examination

18  preparation courses provided that:

19         1.  A diploma as defined in s. 246.203(6) is not

20  awarded.

21         2.  The courses do not include state licensing

22  examinations in occupations for which state laws do not

23  require a licensee to have a bachelor's degree or higher

24  academic or professional degree;

25         (d)  The person or entity is:

26         1.  An employer who offers training and trains only its

27  own bona fide employees;

28         2.  A trade or professional association or a group of

29  employers in the same or related business who in writing agree

30  to offer training and to train only individuals who are bona

31  

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  1  fide employees of an employer who is a member of the

  2  association or a party to the written agreement; or

  3         3.  An independent contractor engaged by any of the

  4  foregoing by written contract to provide the training on its

  5  behalf exclusively to individuals who are selected by the

  6  employer, association, or group which engaged the contractor

  7  and who are bona fide employees thereof.

  8  

  9  For purposes of this paragraph, a bona fide employee is an

10  individual who works for salary or wages paid by the employer

11  in at least the minimum amount required by law;

12         (e)  The entity is a labor union or group of labor

13  unions which offers training to, and trains only, individuals

14  who are dues-paying members of a participating labor union; or

15  the person or entity is an independent contractor engaged by

16  the labor union or group of labor unions, by written contract,

17  to provide the training on its behalf exclusively to

18  individuals who are selected by the labor union or group of

19  labor unions which engaged the contractor and who are

20  dues-paying members thereof;

21         (f)  The person or entity offers only continuing

22  education programs to individuals who engage in an occupation

23  or profession whose practitioners are subject to licensure,

24  certification, or registration by a state agency which

25  recognizes the programs for continuing education purposes and

26  provides a written statement of such recognition; or

27         (g)  The person or entity offers a program of

28  instruction whose objective is not occupational, but is

29  avocational and only for personal enrichment and which:

30         1.  Prior to enrollment, gives to each enrollee, and

31  maintains a record copy of, a written statement which states

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  1  substantially the following: "This program is not designed or

  2  intended to qualify its participants and graduates for

  3  employment in (the field to which the training pertains).  It

  4  is intended solely for the avocation, personal enrichment, and

  5  enjoyment of its participants."

  6         2.  Makes no other verbal or written statements which

  7  negate the written statement required in subparagraph 1. by

  8  stating or implying that persons who enroll in or complete the

  9  program have any more substantial likelihood of getting

10  employment in the field to which the training pertains than

11  persons who do not.

12         3.  Maintains and makes available to the board, upon

13  request, records which demonstrate that each enrollee received

14  the statement required by subparagraph 1. prior to

15  enrollment.

16  

17  To be eligible for the statement of exemption, the applicant

18  must maintain records documenting its qualification for

19  exemption. A person or entity which is exempt pursuant to this

20  subsection and which is also a licensee for programs which do

21  not qualify for exemption may not include in the catalog,

22  contract, or advertising relating to its licensed program any

23  reference to its unlicensed programs.  This restriction does

24  not apply to a licensee which voluntarily becomes licensed to

25  offer programs which would otherwise qualify for exemption.

26         (2)  The board shall revoke a statement of exemption if

27  it determines, based on all available information, that the

28  entity does not meet the criteria required in subsection (1)

29  because of the following:

30         (a)  There has been a material change in circumstances

31  or in the law;

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  1         (b)  The statement was erroneously issued as a result

  2  of false or misleading information provided by the applicant

  3  or other source;

  4         (c)  There was a misunderstanding by the board of the

  5  information which it had considered; or

  6         (d)  New information has been received.

  7  

  8  Probable cause proceedings do not apply to the foregoing board

  9  decisions.

10         (3)  The board may invoke the remedies provided in s.

11  246.227 when no application for a statement of exemption is

12  pending; in conjunction with, or subsequent to, its notice of

13  denial of an application; or in conjunction with, or

14  subsequent to, its notice of revocation. The filing of a civil

15  action pursuant to s. 246.227 shall have the effect of

16  suspending administrative proceedings under this section

17  unless the board takes a voluntary dismissal without prejudice

18  in a judicial case. An order of the court which determines or

19  renders moot an issue presented in suspended administrative

20  proceedings shall be grounds for dismissal of the

21  administrative proceeding as to that issue.

22         Section 4.  For the purpose of incorporating the

23  amendments to ss. 246.203 and 246.216, Florida Statutes, and

24  the creation of s. 246.2155, Florida Statutes, ss. 246.201,

25  246.205, 246.207, 246.211, 246.213, 246.215, 246.217, 246.219,

26  246.220, 246.222, 246.2235, 246.225, 246.226, 246.2265,

27  246.227, 246.228, 246.229, and 246.231, Florida Statutes, are

28  reenacted to read:

29         246.201  Legislative intent.--

30         (1)  Sections 246.201-246.231 shall provide for the

31  protection of the health, education, and welfare of the

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  1  citizens of Florida and shall facilitate and promote the

  2  acquisition of a minimum satisfactory career education by all

  3  the citizens of this state.  It shall be in the interest of,

  4  and essential to, the public health and welfare that the state

  5  create the means whereby all nonpublic postsecondary career

  6  schools as defined in s. 246.203(1) shall satisfactorily meet

  7  minimum educational standards and fair consumer practices.

  8         (2)  A common practice in our society is to use

  9  diplomas and degrees for many purposes.  Some of these

10  purposes are:  for employers to judge the qualifications of

11  prospective employees; for public and nonpublic professional

12  groups, vocational groups, educational agencies, governmental

13  agencies, and educational institutions to determine the

14  qualifications for admission to, and continuation of,

15  educational goals, occupational goals, professional

16  affiliations, or occupational affiliations; and for public and

17  professional assessment of the extent of competency of

18  individuals engaged in a wide range of activities within our

19  society.

20         (3)  Because of the common use of diplomas and degrees,

21  the minimum legal requirements provided by ss. 246.201-246.231

22  for the establishment and operation of nonpublic postsecondary

23  career schools shall protect the individual student from

24  deceptive, fraudulent, or substandard education; protect such

25  schools; and protect the citizens of Florida holding diplomas

26  or degrees.

27         246.205  State Board of Nonpublic Career Education.--

28         (1)  There shall be established in the Department of

29  Education a State Board of Nonpublic Career Education.  The

30  board shall be assigned to the Department of Education only

31  for the purpose of payroll, procurement, and related

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  1  administrative functions which shall be exercised by the head

  2  of the department.  The board shall independently exercise the

  3  other powers, duties, and functions prescribed by law.  The

  4  board shall include nine members, appointed by the Governor as

  5  follows:

  6         (a)  One from a business school;

  7         (b)  One from a technical school;

  8         (c)  One from a home study school;

  9         (d)  One from a nonpublic school;

10         (e)  Four from business and industry; and

11         (f)  An administrator of vocational-technical education

12  from a public school district or community college.

13         (2)  Each of the members shall be appointed by the

14  Governor, subject to confirmation by the Senate, for a term of

15  3 years.  Of the original members appointed by the Governor,

16  three shall serve for terms of 1 year, three shall serve for

17  terms of 2 years, and three shall serve for terms of 3 years.

18  Of the appointive members from the nonpublic postsecondary

19  career schools, each shall have occupied executive or

20  managerial positions in a nonpublic postsecondary career

21  school in this state for at least 5 years.  All members shall

22  be residents of this state.  In the event of a vacancy on the

23  board caused other than by the expiration of a term, the

24  Governor shall appoint a successor to serve the unexpired

25  term.

26         (3)  The board shall meet at the call of its chair, at

27  the request of a majority of its membership, at the request of

28  the department, or at such times as may be prescribed by its

29  rules.

30  

31  

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  1         (4)  Board members shall be paid travel and subsistence

  2  expenses as provided by law while performing their duties

  3  under this act.

  4         (5)  Each board member is accountable to the Governor

  5  for the proper performance of the duties of his or her office.

  6  The Governor shall cause to be investigated any complaint or

  7  unfavorable report received concerning an action of the board

  8  or any member and shall take appropriate action thereon.  The

  9  Governor may remove from office any member for malfeasance,

10  misfeasance, neglect of duty, incompetence, permanent

11  inability to perform official duties, or pleading guilty or

12  nolo contendere to, or being found guilty of, a criminal

13  offense.

14         246.207  Powers and duties of board.--

15         (1)  The board shall:

16         (a)  Hold such meetings as are necessary to administer

17  efficiently the provisions of ss. 246.201-246.231.

18         (b)  Select annually a chairperson and a vice

19  chairperson.

20         (c)  Make rules for its own government.

21         (d)  Prescribe and recommend to the State Board of

22  Education rules to implement ss. 246.201-246.231.

23         (e)  Administer ss. 246.201-246.231 and execute such

24  rules adopted pursuant thereto by the State Board of Education

25  for the establishment and operation of nonpublic postsecondary

26  career schools as defined in s. 246.203(1).

27         (f)  Appoint, on the recommendation of its chairperson,

28  executives, deputies, clerks, and employees of the board.

29         (g)  Maintain a record of its proceedings.

30         (h)  Cooperate with other state and federal agencies in

31  administering ss. 246.201-246.231.

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  1         (i)  Prepare an annual budget.

  2         (j)  Transmit all fees, donations, and other receipts

  3  of money to the Institutional Assessment Trust Fund.

  4         (k)  Transmit to the Governor, the Speaker of the House

  5  of Representatives, the President of the Senate, the minority

  6  leader of the Senate, and the minority leader of the House of

  7  Representatives on July 1, 1987, and each succeeding year an

  8  annual report which shall include, but not be limited to:

  9         1.  A detailed accounting of all funds received and

10  expended.

11         2.  The number of complaints received and investigated,

12  by type.

13         3.  The number of findings of probable cause.

14         4.  A description of disciplinary actions taken, by

15  statutory classification.

16         5.  A description of all administrative hearings and

17  court actions.

18         6.  A description of the board's major activities

19  during the previous year.

20         (l)  Assure that no school that has met board

21  requirements established by law or rule be made to operate

22  without a current license due to scheduling of board meetings

23  or application procedures for license renewal.

24         (m)  Cause to be investigated criminal justice

25  information, as defined in s. 943.045, for each owner,

26  administrator, and agent employed by a school applying for

27  licensure or renewal of licensure.

28         (n)  Serve as a central agency for collection and

29  distribution of current information regarding institutions

30  licensed by the board.

31  

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  1         1.  The data collected by the board shall include

  2  information relating to the school administration, calendar

  3  system, admissions requirements, student costs and financial

  4  obligations, financial aid information, refund policy,

  5  placement services, number of full-time and part-time faculty,

  6  student enrollment and demographic figures, programs, and

  7  off-campus programs.  Other information shall be collected in

  8  response to specific needs or inquiries. Financial information

  9  of a strictly proprietary, commercial nature is excluded from

10  this requirement.

11         2.  The data collected by the board must also include

12  the data for the career education program evaluation reports

13  required by s. 239.233 for each school that chooses to provide

14  public information under s. 239.245.

15         3.  The board shall provide to each participating

16  institution annually the format, definitions, and instructions

17  for submitting the required information.

18         4.  The data submitted by each institution shall be

19  accompanied by a letter of certification signed by the chief

20  administrative officer of the institution, affirming that the

21  information submitted is accurate.

22         5.  A summary of the data collected by the board shall

23  be included in the annual report to the Governor, the Speaker

24  of the House of Representatives and the President of the

25  Senate, the minority leader of the Senate, and the minority

26  leader of the House of Representatives.  The information

27  collected by the board may also be used by the Department of

28  Education for such purposes as statewide master planning,

29  state financial aid programs, and publishing directories, by

30  the Legislature, and to respond to consumer inquiries received

31  by the board.

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  1         (o)  Establish and publicize the procedures for

  2  receiving and responding to complaints from students, faculty,

  3  and others about schools or programs licensed by the board and

  4  shall keep records of such complaints in order to determine

  5  their frequency and nature for specific institutions of higher

  6  education.  With regard to any written complaint alleging a

  7  violation of any provision of ss. 246.201-246.231 or any rule

  8  promulgated pursuant thereto, the board shall periodically

  9  notify, in writing, the person who filed the complaint of the

10  status of the investigation, whether probable cause has been

11  found, and the status of any administrative action, civil

12  action, or appellate action, and if the board has found that

13  probable cause exists, it shall notify, in writing, the party

14  complained against of the results of the investigation and

15  disposition of the complaint.  The findings of the probable

16  cause panel, if a panel is established, shall not be disclosed

17  until the information is no longer confidential.

18         (2)  The board may:

19         (a)  Sue or be sued.

20         (b)  Enter into contracts with the Federal Government,

21  other departments of the state, or individuals.

22         (c)  Receive bequests and gifts, which shall be used

23  only for the purpose stated by the person making such bequest.

24         (d)  Appoint committees to assist in developing

25  standards or in determining the qualifications which shall be

26  met in a given field of endeavor.

27         (e)  Issue a license to any school subject to ss.

28  246.201-246.231 which is exempted from the licensing and

29  regulatory requirements of ss. 246.201-246.231, upon voluntary

30  application for such license and upon payment of the

31  appropriate fee as set forth in s. 246.219.

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  1         (f)  With the approval of the State Board of Education,

  2  establish and operate a branch office in the southeastern part

  3  of the state where the concentration of licensed schools

  4  renders such an office economically feasible.

  5         (g)  Establish and administer a statewide,

  6  fee-supported financial program through which funds will be

  7  available to complete the training of a student who enrolls in

  8  a nonpublic school that terminates a program or ceases

  9  operation before the student has completed his or her program

10  of study or for repayment of a loan made under the federal

11  Family Educational Loan Program. The financial program is

12  named the Student Protection Fund.  The board is authorized to

13  assess a fee from the institutions within its jurisdiction for

14  such purpose.  The board shall assess a licensed school an

15  additional fee for its eligibility for the Student Protection

16  Fund.  Any school that participates in the federal Family

17  Educational Loan Program is eligible and must pay the

18  additional fee.  If a licensed school terminates a program

19  before all students complete it, the board shall also assess

20  that school a fee adequate to pay the full cost to the Student

21  Protection Fund of repaying the federal loans of its students.

22  The fund shall consist entirely of fees assessed to licensed

23  schools and shall not be funded under any circumstances by

24  public funds, nor shall the board make payments or be

25  obligated to make payments in excess of the assessments

26  actually received from licensed schools and deposited in the

27  Institutional Assessment Trust Fund to the credit of the

28  Student Protection Fund.  The board shall identify students

29  who may be eligible for repayment of their loans and notify

30  them in writing of the availability of the Student Protection

31  Fund.  At each board meeting, the board shall consider the

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  1  need for and shall make required assessments, shall review the

  2  collection status of unpaid assessments and take all necessary

  3  steps to collect them, and shall review all moneys in the fund

  4  and expenses incurred since the last reporting period.  This

  5  review must include administrative expenses, moneys received,

  6  and payments made to students or to lending institutions.

  7  Staff of the board must immediately inform the board upon

  8  learning of the closing of a licensed school or the

  9  termination of a program which could expose the fund to

10  liability.  The Student Protection Fund must be actuarially

11  sound, periodically audited, and reviewed to determine if

12  additional fees must be charged to schools eligible to

13  participate in the fund.  The board may authorize pro rata

14  payments from the fund directly to the lender.  The pro rata

15  refund shall be computed as outlined in the Higher Education

16  Act of 1965.

17         246.211  Expenditures.--The State Treasurer shall pay

18  out all moneys and funds provided for in ss. 246.201-246.231

19  upon proper warrant issued by the Comptroller drawn upon

20  vouchers approved by the board for all lawful purposes

21  necessary for the administration of ss. 246.201-246.231.

22         246.213  Power of State Board of Education.--

23         (1)  The State Board of Education, acting on the

24  recommendation of the State Board of Nonpublic Career

25  Education, shall adopt minimum standards for schools and other

26  rules pursuant to ss. 120.536(1) and 120.54 to implement ss.

27  246.201-246.231.

28         (2)(a)  The minimum educational standards for the

29  licensing of schools shall include, but not be limited to:

30  name of school, purpose, administrative organization,

31  educational program and curricula, finances, financial

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  1  stability, faculty, library, student personnel services,

  2  physical plant and facilities, publications, and disclosure

  3  statements about the status of the institution in relation to

  4  professional certification and licensure.

  5         (b)  Rules of the State Board of Education shall

  6  require that nonpublic schools administer an entry-level test

  7  of basic skills to each student who enrolls in a nondegree

  8  program of at least 450 clock hours, or the credit hour

  9  equivalent, which purports to prepare such student for

10  employment. The State Board of Nonpublic Career Education

11  shall designate examinations authorized for use for

12  entry-level testing purposes. State Board of Education rules

13  shall require that applicable schools provide students who are

14  deemed to lack a minimal level of basic skills with a

15  structured program of basic skills instruction. No student

16  shall be granted a diploma, as defined in s. 246.203, until he

17  or she has demonstrated mastery of basic skills. Exceptional

18  students, as defined in s. 228.041, may be exempted from the

19  provisions of this paragraph. The State Board of Education

20  shall identify means through which students who are capable of

21  demonstrating mastery of basic skills may be exempted from the

22  provisions of this paragraph.

23         (c)  The State Board of Nonpublic Career Education may

24  request that schools within its jurisdiction provide the board

25  all documents associated with institutional accreditation.

26  The board shall solicit from schools which provide such

27  documents only such additional information undisclosed in the

28  accreditation documents provided.  The board may conduct a

29  comprehensive study of a school that fails to provide all

30  documents associated with its institutional accreditation.

31  The cost of such study shall be borne by the institution.

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  1  Standards imposed by the board shall not be constrained in

  2  quality or quantity to those imposed by the respective

  3  accrediting body.

  4         (d)  The State Board of Nonpublic Career Education

  5  shall recommend to the State Board of Education minimum

  6  placement standards for institutions that conduct programs

  7  that prepare students for employment.

  8         (3)  The minimum requirements for the licensing of

  9  agents shall include: name, residential and business

10  addresses, background training, institution or institutions to

11  be represented, and demonstrated knowledge of statutes and

12  rules related to the authority granted to agents and the

13  limitations imposed upon such authority.  No employee of a

14  nonpublic school shall solicit prospective students for

15  enrollment in such school until that employee is licensed by

16  the State Board of Nonpublic Career Education as an agent.

17         (4)  The State Board of Nonpublic Career Education

18  shall adopt criteria for specialized associate degrees,

19  diplomas, certificates, or other educational credentials that

20  will be recognized in licensed schools.  The State Board of

21  Nonpublic Career Education shall adopt a common definition for

22  each credential.  To determine the level of a nonpublic

23  institution's vocational program or to establish criteria for

24  a specialized degree, the board shall use procedures developed

25  pursuant to s. 239.205, which requires the Department of

26  Education to determine the level of each public degree career

27  education program.

28         246.215  License required.--

29         (1)  No nonpublic postsecondary career school required

30  to be licensed pursuant to ss. 246.201-246.231 shall be

31  operated or established within the state until such school

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  1  makes application and obtains a license or authorization from

  2  the board.  Each nonpublic school that seeks licensure shall

  3  first submit articles of incorporation to the Department of

  4  State. After the Department of State approves such articles

  5  and verifies that the articles indicate the corporation is a

  6  postsecondary school within the meaning and intent of s.

  7  246.203, the corporation shall apply for licensure by the

  8  board within 60 days of approval of the articles.  Department

  9  of State approval of the articles of incorporation shall not

10  constitute authorization to operate the nonpublic school.  The

11  Department of State shall immediately transmit approved

12  articles of incorporation for nonpublic schools to the board.

13         (2)  No agent shall solicit any prospective student for

14  enrollment in a nonpublic school until both the agent and the

15  school are appropriately licensed or otherwise authorized by

16  the board.

17         (3)  No nonpublic postsecondary career school required

18  to be licensed pursuant to ss. 246.201-246.231 shall advertise

19  in any manner until such school is granted an appropriate

20  license by the board, nor shall any licensed school advertise

21  in any manner while such school is under an injunction against

22  operating, soliciting students, or offering diplomas.

23         (4)  No license granted by the board shall be

24  transferable to another nonpublic postsecondary career school

25  or to another agent, nor shall school licensure transfer upon

26  a change in ownership of the institution.

27         (5)  Each license granted by the board shall delineate

28  the specific nondegree programs that the nonpublic school is

29  authorized to offer. No such school shall conduct a program

30  unless express authority is granted in its license.

31  

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  1         (6)  A diploma program offered by a nonpublic junior

  2  college, college, or university must be licensed by the board,

  3  notwithstanding the fact that such institution is concurrently

  4  subject to the jurisdiction of the State Board of Independent

  5  Colleges and Universities, if such program does the following:

  6         (a)  The program qualifies a student for employment or

  7  engagement in an occupation whose practice in this state does

  8  not require a degree.

  9         (b)  The program awards a diploma, as defined in s.

10  246.203(6), for successful completion, including any program

11  that is organized to give students an option of exiting at a

12  specified point and receiving a diploma, or continuing and

13  receiving a degree, as defined in s. 246.021(5).

14         246.217  License period and renewals.--

15         (1)  All license applications shall be submitted on

16  notarized forms prepared and furnished by the board.

17         (2)  Each new nonpublic school approved by the board

18  shall be issued a temporary or provisional license valid for a

19  maximum of 1 year. Staff of the board shall conduct a site

20  visit and evaluation within the first 6 months of operation of

21  an institution issued such a license.

22         (3)(a)  A nonpublic school that seeks renewal of

23  licensure upon completion of the term of the temporary or

24  provisional license may apply for a regular license.  The

25  board shall adopt rules for the provision of regular annual

26  licensure and regular biennial licensure.  The requirements

27  for each such form of regular licensure shall be incorporated

28  into the rules of the board.

29         (b)  The board may renew a provisional or regular

30  license as a provisional license for specific purposes

31  enumerated by the board. Redesignation from regular to

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  1  provisional licensure shall not require disciplinary

  2  proceedings pursuant to s. 246.226.

  3         (4)(a)  The board may extend a license for a maximum of

  4  4 months.  The fees for any license so extended shall be

  5  prorated. The board may also extend a provisional license for

  6  a maximum of 1 additional year to an institution that cannot

  7  comply with licensure requirements based on extenuating

  8  circumstances.  The affected institution shall be responsible

  9  for demonstrating that it has made a good faith effort to meet

10  the requirements of the board.  The board shall be responsible

11  for determining institutional compliance with such

12  requirements.

13         (b)  A license which is in effect at the time that a

14  nonpublic school is served with an administrative complaint or

15  a notice of denial of license renewal shall be deemed to

16  remain in effect, subject to s. 246.2265, until final agency

17  action is taken. If an administrative complaint is served at

18  the time the application for license renewal is filed with the

19  board, the license shall be deemed to remain in effect,

20  subject to s. 246.2265, until final agency action is taken.

21         (5)  The board shall adopt rules regarding amended

22  licensure for institutions that seek to modify existing

23  courses or programs of study, to add one or more new courses

24  or programs of study, or to expand educational programs.  A

25  nonpublic school licensed pursuant to ss. 246.201-246.231

26  shall receive approval for an amended license prior to

27  implementation of such modification.

28         246.219  License fees.--

29         (1)  Each initial application for a license to operate

30  a nonpublic postsecondary career school shall be accompanied

31  by a license fee of not less than $500, and each application

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  1  for the renewal of such license shall be accompanied by an

  2  annual license fee of at least $300, provided that the fee for

  3  a biennial license shall be at least $600.  A fee shall be

  4  charged for a supplementary application for the approval of

  5  any additional field or course of instruction.  Such fees

  6  shall be delineated, by rule, by the board.

  7         (2)  Fees for agents representing schools shall be at

  8  least $50 for the initial license and at least $25 for renewal

  9  of the license, excluding the cost of obtaining criminal

10  justice information.  Applicants shall bear the cost of

11  obtaining such information.

12         (3)  The board shall adopt rules establishing a charge

13  of at least $250 for a delinquent application for license

14  renewal.

15         (4)  All license fees shall be transmitted by the board

16  through the Department of Education to be deposited in the

17  Institutional Assessment Trust Fund created by s. 246.31.

18         246.220  Surety bonds or insurance.--Surety bonds or

19  insurance shall not be required of any school licensed by the

20  State Board of Nonpublic Career Education, except as may be

21  required by the board to insure the train-out of projected or

22  currently enrolled students, issuance of refunds to projected

23  or currently enrolled students, payment of liabilities to the

24  Student Protection Fund, or for the retrieval or safekeeping

25  of student records.

26         246.222  School administrator training.--

27         (1)  The board is authorized to ensure that the

28  administrators of licensed schools are qualified to conduct

29  the operations of their respective positions and to require

30  such administrators to receive continuing education and

31  training as adopted by rule of the board.  The positions for

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  1  which the board may review qualifications and require

  2  continuing education and training may include the positions of

  3  school director, director of education or training, placement

  4  director, admissions director, and financial aid director.

  5         (2)  The training of each administrator shall be the

  6  type of training necessary to assure compliance with board

  7  statutes and rules and with those of other state or federal

  8  agencies in relation to the responsibilities of the respective

  9  positions.

10         (3)  The board shall adopt general qualifications for

11  each of the respective positions and establish guidelines for

12  the minimum amount and type of continuing education and

13  training to be required.  The continuing education and

14  training may be provided by the board, appropriate state or

15  federal agencies, or professional organizations familiar with

16  the requirements of the particular administrative positions.

17  The actual curriculums should be left to the discretion of

18  those agencies and organizations.

19         (4)  Evidence of the administrator's compliance with

20  the continuing education and training requirements established

21  by the board may be included in the initial and renewal

22  application forms provided by the board. Actual records of the

23  continuing education and training received by administrators

24  shall be maintained at the school and available for inspection

25  at all times.

26         (5)  Qualifications of administrators in their

27  respective fields, as well as continuing education and

28  training, may be established by the board as a condition of an

29  application for licensure by a new school or for renewal of a

30  license.

31         246.2235  School closings.--

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  1         (1)  The intent of ss. 246.201-246.231 is to provide

  2  for the protection of the health, education, and welfare of

  3  the citizens of Florida. The Legislature finds that the

  4  actions of school owners and operators in closing licensed

  5  schools and not providing for the proper train-out or

  6  appropriate refund of fees paid by students constitutes a

  7  serious detriment to the educational delivery system in the

  8  state.  The Legislature further finds that measures need to be

  9  taken to prevent such closures without proper train-outs or

10  refunds and to prohibit school owners who have unlawfully

11  closed a school from operating a similar licensed school in

12  the state. Furthermore, the Legislature finds that when a

13  licensed school ceases operation, it is essential that student

14  records be immediately conveyed to or placed within control of

15  the state. The opportunity for students to continue their

16  education or otherwise be able to assess and provide

17  documentation of their educational status is for the board to

18  have control over all student records upon closure of the

19  school.

20         (2)  Upon closure of a licensed institution, all

21  student records shall become property of the state and shall

22  be conveyed to the board office or to another location

23  designated by the board or its executive director. Copies of

24  records shall be made available to bankruptcy trustees, upon

25  request, and to the student. Confidentiality of the records

26  shall be maintained, to the extent required by law.  Any

27  school owner, director, or administrator who knowingly

28  destroys, abandons, or fails to convey or provide for the

29  safekeeping of school and student records is subject to the

30  board's seeking civil penalties in an amount not to exceed

31  $10,000 from each individual.  The board is authorized to use

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  1  moneys in the Student Protection Fund to facilitate the

  2  retrieval or safekeeping of records at a school that has

  3  closed.

  4         (3)  A licensed school, through its owners, directors,

  5  and administrators, is required to immediately notify the

  6  board in writing of the closure of the school.  Furthermore,

  7  such owners, directors, and administrators must organize an

  8  orderly closure of the school, including, but not limited to,

  9  the train-out of its students.  An owner, director, or

10  administrator who fails to notify the board immediately of the

11  school closure, or fails to organize the orderly closure of

12  the school and train-out of the students, is guilty of a

13  misdemeanor of the second degree, punishable as provided in s.

14  775.082 or s. 775.083.

15         (4)  The board may conduct an investigation to

16  determine if an applicant for a new school license, or the

17  school's owners, directors, or administrators, either closed a

18  school previously, failed to train-out students or issue

19  appropriate refunds, or had its license to operate a school in

20  this state or an out-of-state school revoked or denied.

21         (5)  Any person convicted of crime relating to the

22  unlawful operation or management of a school shall not be

23  eligible for a license to own, operate, or manage, or be a

24  registered agent for, a licensed school in this state, or be a

25  director or officer in a corporation owning or operating a

26  licensed school.  Such person shall not be allowed to operate

27  or serve in a management or supervisory position in a licensed

28  school.

29         (6)  The board is authorized to deny an application for

30  a new school license if the board determines that the

31  applicant, its owners, officers, directors, or administrators

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  1  were previously operating a school in this or in another state

  2  contrary to the health, education, and welfare of the citizens

  3  of that state. Factors which may be considered by the board

  4  include, but are not limited to, the denial or revocation of a

  5  school license, prior criminal or civil administrative

  6  proceedings regarding the operation and management of a

  7  school, other types of criminal proceedings involving fraud,

  8  deceit, dishonesty, or moral turpitude, failure of the school

  9  to be properly closed, including training-out or providing for

10  the train-out of its students, and failure to issue

11  appropriate refunds, if any.  The board may require an

12  applicant, its owners, officers, directors, or administrators

13  to provide the board with information under oath regarding the

14  prior operation of a school and criminal justice information,

15  the cost of which shall be borne by the applicant in addition

16  to the other license fees.

17         (7)  The board is authorized to refer matters it deems

18  appropriate to the Department of Legal Affairs or the state

19  attorney for investigation and prosecution.

20         246.225  No tax exemptions.--The granting of a license

21  or accreditation under ss. 246.201-246.231 shall not be

22  considered an accreditation for the purpose of tax exemption

23  under state law.

24         246.226  Disciplinary proceedings.--

25         (1)(a)  The board shall cause to be investigated any

26  suspected violation of a provision of ss. 246.201-246.231 or

27  rule of the board.  Regardless of the source of information

28  regarding the violation, an investigation may be continued

29  until it is completed and an investigative report is presented

30  to a probable cause panel of the board.

31  

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  1         (b)  Any institution or individual that is the subject

  2  of an investigation by the board shall be notified by the

  3  board of the investigation and the substance of the complaint

  4  that prompted the investigation. Notification may be withheld

  5  upon the recommendation of the executive director and

  6  concurrence of the chair of the board if both parties agree

  7  that notification would impede the investigation.  The board

  8  may also withhold notification to a person under investigation

  9  for an act which constitutes a criminal offense.

10         (2)  The board shall investigate complaints in a timely

11  manner. The complaint and all information obtained by the

12  board during the resultant investigation shall be confidential

13  and exempt from the provisions of s. 119.07(1) for a maximum

14  of 10 days after the probable cause panel declares a finding

15  of probable cause. The board may provide information obtained

16  pursuant to this subsection to any law enforcement or

17  regulatory agency.  The board may utilize consultants who

18  possess expertise or specialized knowledge regarding the

19  substance of the investigation.  Any such consultants shall be

20  subject to the provisions of this subsection.  A consultant so

21  utilized shall prepare and submit an investigative report that

22  contains the investigative findings and recommendations

23  concerning the existence of probable cause to the probable

24  cause panel.  The probable cause panel may request additional

25  investigative information within 15 days of receipt of an

26  investigative report. The panel shall make its determination

27  of probable cause no later than 30 days after it receives the

28  final investigative report.

29         (3)  The determination of probable cause shall be made

30  by a majority vote of the probable cause panel.  The panel

31  shall be composed pursuant to board rule.  The proceedings of

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  1  such panel shall be exempt from the provisions of ss. 120.525

  2  and 286.011 until the panel declares a finding of probable

  3  cause. After the panel declares a finding of probable cause,

  4  the board may issue an administrative complaint and prosecute

  5  such complaint pursuant to the provisions of chapter 120.

  6         (4)  The board members who did not serve on the

  7  probable cause panel shall review the recommended order of the

  8  administrative law judge and shall issue a final order for

  9  each such hearing.  Such order shall constitute final agency

10  action.

11         (5)  Upon written request by an informant, the board

12  shall notify the informant of the status of an investigation,

13  civil action, or administrative proceeding.  The findings of

14  the probable cause panel shall not be disclosed until the

15  information is no longer confidential.

16         (6)  A privilege against civil liability is granted to

17  any informant or any witness who provides information in good

18  faith for an investigation or proceeding conducted pursuant to

19  this section.

20         (7)  The board may deny initial licensure, renewal

21  licensure, or amended licensure on the basis of all

22  information available to the board. Such actions shall not be

23  considered disciplinary and shall not require probable cause

24  proceedings.

25         246.2265  Additional regulatory powers while

26  disciplinary proceedings are pending; cease and desist

27  orders.--

28         (1)  The board may, in conjunction with an

29  administrative complaint or notice of denial of licensure,

30  issue cease and desist orders for the purpose of protecting

31  the health, safety, and welfare of students, prospective

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  1  students, and the general public.  Such orders may be

  2  mandatory or prohibitory in form and may order a nonpublic

  3  postsecondary career institution, officer, employee, or agent

  4  to:

  5         (a)  Cease and desist from specified conduct which

  6  relates to acts or omissions stated in the administrative

  7  complaint or notice of denial of licensure; or

  8         (b)  Cease and desist from failing to engage in

  9  specified conduct which is necessary to achieve or preserve

10  the regulatory purposes of ss. 246.201-246.231.

11         (2)  Cease and desist orders may include, but not be

12  limited to, orders to:

13         (a)  Cease the enrollment of new students or limit

14  enrollment to those students who can be adequately served

15  within the current facilities of the institution by the

16  current officers and employees, or to limit enrollment to

17  those students who meet more restrictive admissions standards.

18         (b)  Modify curricula or methods of instruction, as

19  needed, to ensure that currently enrolled students receive the

20  education or training of the type and quality represented in

21  the institutional catalog.

22         (c)  Cease from advertising, to advertise only with

23  prior approval of the board, or to publish or broadcast

24  corrective or clarifying advertising, as needed, to overcome

25  the effects of previous allegedly deceptive or misleading

26  advertising.

27         (3)  Cease and desist orders issued pursuant to this

28  section shall take effect immediately upon issuance and shall

29  remain in effect until the board takes final agency action.  A

30  cease and desist order shall be reviewable at the request of

31  

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  1  the institution, officer, employee, or agent to whom it is

  2  directed as follows:

  3         (a)  If formal proceedings have been requested and the

  4  matter has been referred to the Division of Administrative

  5  Hearings, a motion to abate or modify the cease and desist

  6  order may be filed with the division.  Any interlocutory order

  7  of the presiding administrative law judge shall be binding on

  8  the parties until final agency action is taken by the board.

  9         (b)  If informal proceedings before the board have been

10  requested, the board may, at any regular board meeting,

11  consider and determine a request from the affected party to

12  abate or modify the cease and desist order.

13         (c)  If a party is aggrieved by a cease and desist

14  order after seeking to have the order abated or modified

15  pursuant to paragraph (a) or paragraph (b), the party may seek

16  interlocutory judicial review by the appropriate district

17  court of appeal pursuant to the applicable rules of appellate

18  procedure.

19         (4)  The executive director of the board, with the

20  approval of the chair of the board, may issue and deliver a

21  cease and desist order to a nonpublic postsecondary career

22  institution.

23         246.227  Injunctive relief; unlicensed operation of a

24  school; cease and desist notice; civil penalty.--

25         (1)  The board may obtain an injunction or take any

26  action it deems necessary against any school or agent in

27  violation of ss. 246.201-246.231, but no such proceedings and

28  no orders issued therein or as a result thereof shall bar the

29  imposition of any other penalties which may be imposed for the

30  violation of this act.

31  

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  1         (2)  An unlicensed nonpublic postsecondary career

  2  institution required to be licensed pursuant to ss.

  3  246.201-246.231 that advertises or causes advertisements to be

  4  made public through which students are solicited for

  5  enrollment or are offered diplomas shall be in violation of

  6  the provisions of ss. 246.201-246.231.  A licensed nonpublic

  7  postsecondary career institution that is under temporary or

  8  permanent injunction against operating or offering diplomas

  9  that advertises or causes advertisements to be made public

10  through which students are solicited for enrollment or are

11  offered diplomas shall be in violation of such injunctive

12  order upon presentation to the court of the advertisement.

13         (3)  The executive director of the board, with the

14  approval of the chair of the board, may issue and deliver a

15  cease and desist order to any nonpublic postsecondary career

16  institution or agent required to be licensed pursuant to ss.

17  246.201-246.231 that is not so licensed.  The board may file,

18  in the name of the state, a proceeding which seeks issuance of

19  an injunction against any person in violation of any provision

20  of such order.

21         (4)  In addition to or in lieu of any remedy provided

22  in this section, the board may seek the imposition of a civil

23  penalty through the circuit court for any violation for which

24  the board may issue a notice to cease and desist under this

25  section. The civil penalty shall be no less than $500 and no

26  more than $5,000 for each offense.  The court may also award

27  to the prevailing party court costs and reasonable attorney's

28  fees and, in the event the board prevails, may also award

29  reasonable costs of investigation.

30         246.228  Grounds for disciplinary action; action by the

31  board.--

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  1         (1)  The following acts shall constitute grounds for

  2  which the disciplinary actions specified in subsection (2) may

  3  be taken:

  4         (a)  Attempting to obtain, obtaining, or renewing a

  5  license to operate a school by bribery, by fraudulent

  6  misrepresentation, or through an error of the board.

  7         (b)  Having a license to operate a school revoked,

  8  suspended, or otherwise acted against, including the denial of

  9  licensure, by the licensing authority of another state,

10  territory, or country.

11         (c)  Pleading nolo contendere to or being found guilty,

12  regardless of adjudication, of a crime in any jurisdiction.

13         (d)  Aiding, assisting, procuring, or advising any

14  unlicensed person to operate a school contrary to this chapter

15  or to a rule of the board.

16         (e)  Delegating professional responsibilities to a

17  person when the licensee delegating such responsibilities

18  knows or has reason to know that such person is not qualified

19  by training, experience, or licensure to perform them.

20         (f)  Violating any provision of this section or rule of

21  the board, the penalty for which is a disciplinary action set

22  forth in subsection (2), or any lawful order of the board

23  previously entered in a disciplinary hearing or failing to

24  comply with a lawfully issued subpoena of the board.

25         (g)  Conspiring with another licensee or with any other

26  person to commit an act, or committing an act, which would

27  tend to coerce, intimidate, or preclude another licensee from

28  lawfully advertising his or her services.

29         (h)  False, deceptive, or misleading advertising.

30         (i)  Committing other acts prohibited by rule of the

31  board.

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    Florida House of Representatives - 2001                 HB 5-B

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  1         (2)  The board shall enter a final order either

  2  dismissing the complaint or imposing one or more of the

  3  following penalties:

  4         (a)  Denial of an application for licensure.

  5         (b)  Revocation or suspension of a license.

  6         (c)  Imposition of an administrative fine of no less

  7  than $100 and no more than $1,000 for each count or separate

  8  offense. Such fine shall be deposited in the Institutional

  9  Assessment Trust Fund pursuant to s. 246.31.

10         (d)  Placement of the licensee on probation for a

11  period of time and subject to such conditions as the board may

12  specify.

13         (e)  Issuance of a written reprimand to the school.

14  Such reprimand shall be posted in a prominent place at the

15  school for such period of time as the board may specify.

16         246.229  Enforcement.--The Department of Legal Affairs

17  or the state attorney shall have authority to enforce ss.

18  246.201-246.231.

19         246.231  Penalties.--Any person who violates or fails

20  to comply with ss. 246.201-246.231 or any of the rules

21  promulgated thereunder:

22         (1)  For the first conviction, is guilty of a

23  misdemeanor of the second degree, punishable as provided in s.

24  775.082 or s. 775.083.

25         (2)  For a second or subsequent conviction, is guilty

26  of a misdemeanor of the first degree, punishable as provided

27  in s. 775.082 or s. 775.083.

28         (3)  May have his or her license revoked.

29         Section 5.  This act shall take effect upon becoming a

30  law.

31  

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    Florida House of Representatives - 2001                 HB 5-B

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

  2                          HOUSE SUMMARY

  3  
      Expands the definition of "school" to include flight
  4    training schools and fixed based operators for purposes
      of regulation and licensure of nonpublic postsecondary
  5    career schools by the State Board of Nonpublic Career
      Education. Requires flight training schools and fixed
  6    based operators licensed by the board to collect and
      maintain specified information about their students.
  7    Requires specified scores on the Test of English as a
      Foreign Language. Provides penalties for violation or
  8    failure to comply. Removes an exemption from licensure
      for a flight training school or fixed based operator
  9    regulated by the Federal Aviation Administration or other
      agency.
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