House Bill hb0005Bc1

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    Florida House of Representatives - 2001              CS/HB 5-B

        By the Committee on Workforce & Technical Skills and
    Representatives Mayfield, Bennett, Cantens, Crow, Brummer,
    Sorensen, Barreiro, Bowen and Evers




  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 provide to the board specified

11         information about its students; requiring

12         specified scores on the Test of English as a

13         Foreign Language; amending s. 246.215, F.S.;

14         clarifying language relating to licensure by

15         the state board; amending s. 246.216, F.S.;

16         removing an exemption from licensure for a

17         flight training school or fixed based operator

18         regulated by the Federal Aviation

19         Administration or other agency; reenacting s.

20         246.201 and ss. 246.205-246.213 and ss.

21         246.217-246.231, F.S., relating to the

22         regulation and licensure of nonpublic

23         postsecondary career schools by the State Board

24         of Nonpublic Career Education, to incorporate

25         the amendments to ss. 246.203, 246.215, and

26         246.216, F.S., and the creation of s. 246.2155,

27         F.S.; providing an effective date.

28

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

30

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  1         Section 1.  Section 246.203, Florida Statutes, is

  2  amended to read:

  3         246.203  Definitions; ss. 246.201-246.231.--As used in

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

  5         (1)  "School" means any nonpublic postsecondary

  6  noncollegiate career educational institution, association,

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

  8  including any flight training school or fixed based operator,

  9  that:

10         (a)  Offers to provide or provides any postsecondary

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

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

13  classroom, clinical, or other practicum setting or through

14  correspondence or other distance learning; and

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

16  instruction will qualify the student for employment in any

17  occupation whose practice in this state does not require a

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

19         (c)  Receives remuneration from the student or any

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

21  of students enrolled; or

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

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

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

25  paragraph (c).

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

27  education" means any instruction which prepares a person for

28  employment in an occupation listed in the latest dictionary of

29  occupational titles issued by the United States Department of

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

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

  2  employment in an occupation.

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

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

  5  legal place of residence or the place of evaluation of

  6  instruction or work by correspondence is not within the legal

  7  boundaries of the state.

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

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

10  generally taken to signify the preparation or education of a

11  person generally or specifically for further understanding,

12  study, skill, or training.

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

14  a school within or outside the state to procure Florida

15  students, enrollees, or subscribers by solicitation in any

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

17  place of business of a school.

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

19  certificate, transcript, report, document, or title or

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

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

22  taken to signify satisfactory completion of the requirements

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

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

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

26  Education.

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

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

29  governments or any of their political subdivisions.

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

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

  3  United States Department of Education.

  4         Section 2.  Section 246.2155, Florida Statutes, is

  5  created to read:

  6         246.2155  Flight training schools and fixed based

  7  operators.--

  8         (1)(a)  Each flight training school and fixed based

  9  operator required to be licensed by the State Board of

10  Nonpublic Career Education pursuant to ss. 246.201-246.231

11  shall collect and provide to the board copies of the following

12  documents on all students as part of the licensing process:

13         1.  Visa: M-1 (1-year student visa); J-1 (2-year

14  exchange visitor visa); and F-1 (4-year student visa).

15         2.  Passport issue page, date-stamped page of entry,

16  and photograph identification.

17         3.  Stamped I-20 MN form (Certificate of Eligibility

18  for an M-1 visa) or a stamped IAP-66 form (Certificate of

19  Eligibility for a J-1 visa).

20         4.  I-94 Department of Justice Immigration and

21  Naturalization Service Arrival and Departure Record Card.

22         5.  Federal Aviation Administration Medical Certificate

23  and, if applicable, Flight Certificate.

24         6.  Test scores on the Test of English as a Foreign

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

26         7.  Official birth certificate.

27         8.  Driver's license.

28         9.  Social security card.

29         (b)  Each international student with a visa shall

30  provide the flight training school or fixed based operator all

31  documentation provided to the visa issuing office

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  1  demonstrating the student's ability to cover the expenses for

  2  flight training instruction.

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

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

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

  6  students whose native language is English, a score of 550 or

  7  above on the Test of English as a Foreign Language (TOEFL).

  8         Section 3.  Section 246.215, Florida Statutes, is

  9  amended to read:

10         246.215  License required.--

11         (1)  A No nonpublic postsecondary career school defined

12  in s. 246.203(1) must be licensed by the State Board of

13  Nonpublic Career Education and shall not required to be

14  licensed pursuant to ss. 246.201-246.231 shall be operated or

15  established within the state until such school makes

16  application and obtains a license or authorization from the

17  board.  Each nonpublic school that seeks licensure shall first

18  submit articles of incorporation to the Department of State.

19  After the Department of State approves such articles and

20  verifies that the articles indicate the corporation is a

21  postsecondary school within the meaning and intent of s.

22  246.203, the corporation shall apply for licensure by the

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

24  of State approval of the articles of incorporation shall not

25  constitute authorization to operate the nonpublic school.  The

26  Department of State shall immediately transmit approved

27  articles of incorporation for nonpublic schools to the board.

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

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

30  school are appropriately licensed or otherwise authorized by

31  the board.

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  1         (3)  No nonpublic postsecondary career school required

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

  3  in any manner until such school is granted an appropriate

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

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

  6  operating, soliciting students, or offering diplomas.

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

  8  transferable to another nonpublic postsecondary career school

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

10  a change in ownership of the institution.

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

12  the specific nondegree programs that the nonpublic school is

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

14  unless express authority is granted in its license.

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

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

17  notwithstanding the fact that such institution is concurrently

18  subject to the jurisdiction of the State Board of Independent

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

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

21  engagement in an occupation whose practice in this state does

22  not require a degree.

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

24  246.203(6), for successful completion, including any program

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

26  specified point and receiving a diploma, or continuing and

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

28         Section 4.  Section 246.216, Florida Statutes, is

29  amended to read:

30         246.216  Exemption from licensure.--

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

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

  3  licensure if it meets the criteria specified in this section

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

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

  6  based on all available information, that the applicant meets

  7  the following criteria:

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

  9  whose programs of instruction include:

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

11  immediately preceding the name of the occupation to which the

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

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

14  individuals who successfully complete the program will be

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

16  relates by an employer other than a church or religious

17  organization.

18         3.  No students who receive state or federal financial

19  aid to pursue the program;

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

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

22  Federal Aviation Administration, another agency of the Federal

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

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

25  require minimum educational standards, for at least

26  curriculum, instructors, and academic progress and provide

27  protection against fraudulent, deceptive, and substandard

28  education practices;

29         (c)  The person or entity offers only examination

30  preparation courses provided that:

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

  2  awarded.

  3         2.  The courses do not include state licensing

  4  examinations in occupations for which state laws do not

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

  6  academic or professional degree;

  7         (d)  The person or entity is:

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

  9  own bona fide employees;

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

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

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

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

14  association or a party to the written agreement; or

15         3.  An independent contractor engaged by any of the

16  foregoing by written contract to provide the training on its

17  behalf exclusively to individuals who are selected by the

18  employer, association, or group which engaged the contractor

19  and who are bona fide employees thereof.

20

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

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

23  in at least the minimum amount required by law;

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

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

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

27  the person or entity is an independent contractor engaged by

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

29  to provide the training on its behalf exclusively to

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

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  1  labor unions which engaged the contractor and who are

  2  dues-paying members thereof;

  3         (f)  The person or entity offers only continuing

  4  education programs to individuals who engage in an occupation

  5  or profession whose practitioners are subject to licensure,

  6  certification, or registration by a state agency which

  7  recognizes the programs for continuing education purposes and

  8  provides a written statement of such recognition; or

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

10  instruction whose objective is not occupational, but is

11  avocational and only for personal enrichment and which:

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

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

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

15  intended to qualify its participants and graduates for

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

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

18  enjoyment of its participants."

19         2.  Makes no other verbal or written statements which

20  negate the written statement required in subparagraph 1. by

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

22  program have any more substantial likelihood of getting

23  employment in the field to which the training pertains than

24  persons who do not.

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

26  request, records which demonstrate that each enrollee received

27  the statement required by subparagraph 1. prior to

28  enrollment.

29

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

31  must maintain records documenting its qualification for

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

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

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

  4  contract, or advertising relating to its licensed program any

  5  reference to its unlicensed programs.  This restriction does

  6  not apply to a licensee which voluntarily becomes licensed to

  7  offer programs which would otherwise qualify for exemption.

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

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

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

11  because of the following:

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

13  or in the law;

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

15  of false or misleading information provided by the applicant

16  or other source;

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

18  information which it had considered; or

19         (d)  New information has been received.

20

21  Probable cause proceedings do not apply to the foregoing board

22  decisions.

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

24  246.227 when no application for a statement of exemption is

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

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

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

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

29  suspending administrative proceedings under this section

30  unless the board takes a voluntary dismissal without prejudice

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

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  1  renders moot an issue presented in suspended administrative

  2  proceedings shall be grounds for dismissal of the

  3  administrative proceeding as to that issue.

  4         Section 5.  For the purpose of incorporating the

  5  amendments to ss. 246.203, 246.215, and 246.216, Florida

  6  Statutes, and the creation of s. 246.2155, Florida Statutes,

  7  ss. 246.201, 246.205, 246.207, 246.211, 246.213, 246.217,

  8  246.219, 246.220, 246.222, 246.2235, 246.225, 246.226,

  9  246.2265, 246.227, 246.228, 246.229, and 246.231, Florida

10  Statutes, are reenacted to read:

11         246.201  Legislative intent.--

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

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

14  citizens of Florida and shall facilitate and promote the

15  acquisition of a minimum satisfactory career education by all

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

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

18  create the means whereby all nonpublic postsecondary career

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

20  minimum educational standards and fair consumer practices.

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

22  diplomas and degrees for many purposes.  Some of these

23  purposes are:  for employers to judge the qualifications of

24  prospective employees; for public and nonpublic professional

25  groups, vocational groups, educational agencies, governmental

26  agencies, and educational institutions to determine the

27  qualifications for admission to, and continuation of,

28  educational goals, occupational goals, professional

29  affiliations, or occupational affiliations; and for public and

30  professional assessment of the extent of competency of

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  1  individuals engaged in a wide range of activities within our

  2  society.

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

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

  5  for the establishment and operation of nonpublic postsecondary

  6  career schools shall protect the individual student from

  7  deceptive, fraudulent, or substandard education; protect such

  8  schools; and protect the citizens of Florida holding diplomas

  9  or degrees.

10         246.205  State Board of Nonpublic Career Education.--

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

12  Education a State Board of Nonpublic Career Education.  The

13  board shall be assigned to the Department of Education only

14  for the purpose of payroll, procurement, and related

15  administrative functions which shall be exercised by the head

16  of the department.  The board shall independently exercise the

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

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

19  follows:

20         (a)  One from a business school;

21         (b)  One from a technical school;

22         (c)  One from a home study school;

23         (d)  One from a nonpublic school;

24         (e)  Four from business and industry; and

25         (f)  An administrator of vocational-technical education

26  from a public school district or community college.

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

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

29  3 years.  Of the original members appointed by the Governor,

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

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

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  1  Of the appointive members from the nonpublic postsecondary

  2  career schools, each shall have occupied executive or

  3  managerial positions in a nonpublic postsecondary career

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

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

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

  7  Governor shall appoint a successor to serve the unexpired

  8  term.

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

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

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

12  rules.

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

14  expenses as provided by law while performing their duties

15  under this act.

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

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

18  The Governor shall cause to be investigated any complaint or

19  unfavorable report received concerning an action of the board

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

21  Governor may remove from office any member for malfeasance,

22  misfeasance, neglect of duty, incompetence, permanent

23  inability to perform official duties, or pleading guilty or

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

25  offense.

26         246.207  Powers and duties of board.--

27         (1)  The board shall:

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

29  efficiently the provisions of ss. 246.201-246.231.

30         (b)  Select annually a chairperson and a vice

31  chairperson.

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  1         (c)  Make rules for its own government.

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

  3  Education rules to implement ss. 246.201-246.231.

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

  5  rules adopted pursuant thereto by the State Board of Education

  6  for the establishment and operation of nonpublic postsecondary

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

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

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

10         (g)  Maintain a record of its proceedings.

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

12  administering ss. 246.201-246.231.

13         (i)  Prepare an annual budget.

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

15  of money to the Institutional Assessment Trust Fund.

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

17  of Representatives, the President of the Senate, the minority

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

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

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

21         1.  A detailed accounting of all funds received and

22  expended.

23         2.  The number of complaints received and investigated,

24  by type.

25         3.  The number of findings of probable cause.

26         4.  A description of disciplinary actions taken, by

27  statutory classification.

28         5.  A description of all administrative hearings and

29  court actions.

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

31  during the previous year.

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

  2  requirements established by law or rule be made to operate

  3  without a current license due to scheduling of board meetings

  4  or application procedures for license renewal.

  5         (m)  Cause to be investigated criminal justice

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

  7  administrator, and agent employed by a school applying for

  8  licensure or renewal of licensure.

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

10  distribution of current information regarding institutions

11  licensed by the board.

12         1.  The data collected by the board shall include

13  information relating to the school administration, calendar

14  system, admissions requirements, student costs and financial

15  obligations, financial aid information, refund policy,

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

17  student enrollment and demographic figures, programs, and

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

19  response to specific needs or inquiries. Financial information

20  of a strictly proprietary, commercial nature is excluded from

21  this requirement.

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

23  the data for the career education program evaluation reports

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

25  public information under s. 239.245.

26         3.  The board shall provide to each participating

27  institution annually the format, definitions, and instructions

28  for submitting the required information.

29         4.  The data submitted by each institution shall be

30  accompanied by a letter of certification signed by the chief

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  1  administrative officer of the institution, affirming that the

  2  information submitted is accurate.

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

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

  5  of the House of Representatives and the President of the

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

  7  leader of the House of Representatives.  The information

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

  9  Education for such purposes as statewide master planning,

10  state financial aid programs, and publishing directories, by

11  the Legislature, and to respond to consumer inquiries received

12  by the board.

13         (o)  Establish and publicize the procedures for

14  receiving and responding to complaints from students, faculty,

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

16  shall keep records of such complaints in order to determine

17  their frequency and nature for specific institutions of higher

18  education.  With regard to any written complaint alleging a

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

20  promulgated pursuant thereto, the board shall periodically

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

22  status of the investigation, whether probable cause has been

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

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

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

26  complained against of the results of the investigation and

27  disposition of the complaint.  The findings of the probable

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

29  until the information is no longer confidential.

30         (2)  The board may:

31         (a)  Sue or be sued.

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

  2  other departments of the state, or individuals.

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

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

  5         (d)  Appoint committees to assist in developing

  6  standards or in determining the qualifications which shall be

  7  met in a given field of endeavor.

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

  9  246.201-246.231 which is exempted from the licensing and

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

11  application for such license and upon payment of the

12  appropriate fee as set forth in s. 246.219.

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

14  establish and operate a branch office in the southeastern part

15  of the state where the concentration of licensed schools

16  renders such an office economically feasible.

17         (g)  Establish and administer a statewide,

18  fee-supported financial program through which funds will be

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

20  a nonpublic school that terminates a program or ceases

21  operation before the student has completed his or her program

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

23  Family Educational Loan Program. The financial program is

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

25  assess a fee from the institutions within its jurisdiction for

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

27  additional fee for its eligibility for the Student Protection

28  Fund.  Any school that participates in the federal Family

29  Educational Loan Program is eligible and must pay the

30  additional fee.  If a licensed school terminates a program

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

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

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

  3  The fund shall consist entirely of fees assessed to licensed

  4  schools and shall not be funded under any circumstances by

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

  6  obligated to make payments in excess of the assessments

  7  actually received from licensed schools and deposited in the

  8  Institutional Assessment Trust Fund to the credit of the

  9  Student Protection Fund.  The board shall identify students

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

11  them in writing of the availability of the Student Protection

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

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

14  collection status of unpaid assessments and take all necessary

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

16  and expenses incurred since the last reporting period.  This

17  review must include administrative expenses, moneys received,

18  and payments made to students or to lending institutions.

19  Staff of the board must immediately inform the board upon

20  learning of the closing of a licensed school or the

21  termination of a program which could expose the fund to

22  liability.  The Student Protection Fund must be actuarially

23  sound, periodically audited, and reviewed to determine if

24  additional fees must be charged to schools eligible to

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

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

27  refund shall be computed as outlined in the Higher Education

28  Act of 1965.

29         246.211  Expenditures.--The State Treasurer shall pay

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

31  upon proper warrant issued by the Comptroller drawn upon

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  1  vouchers approved by the board for all lawful purposes

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

  3         246.213  Power of State Board of Education.--

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

  5  recommendation of the State Board of Nonpublic Career

  6  Education, shall adopt minimum standards for schools and other

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

  8  246.201-246.231.

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

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

11  name of school, purpose, administrative organization,

12  educational program and curricula, finances, financial

13  stability, faculty, library, student personnel services,

14  physical plant and facilities, publications, and disclosure

15  statements about the status of the institution in relation to

16  professional certification and licensure.

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

18  require that nonpublic schools administer an entry-level test

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

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

21  equivalent, which purports to prepare such student for

22  employment. The State Board of Nonpublic Career Education

23  shall designate examinations authorized for use for

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

25  shall require that applicable schools provide students who are

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

27  structured program of basic skills instruction. No student

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

29  or she has demonstrated mastery of basic skills. Exceptional

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

31  provisions of this paragraph. The State Board of Education

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  1  shall identify means through which students who are capable of

  2  demonstrating mastery of basic skills may be exempted from the

  3  provisions of this paragraph.

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

  5  request that schools within its jurisdiction provide the board

  6  all documents associated with institutional accreditation.

  7  The board shall solicit from schools which provide such

  8  documents only such additional information undisclosed in the

  9  accreditation documents provided.  The board may conduct a

10  comprehensive study of a school that fails to provide all

11  documents associated with its institutional accreditation.

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

13  Standards imposed by the board shall not be constrained in

14  quality or quantity to those imposed by the respective

15  accrediting body.

16         (d)  The State Board of Nonpublic Career Education

17  shall recommend to the State Board of Education minimum

18  placement standards for institutions that conduct programs

19  that prepare students for employment.

20         (3)  The minimum requirements for the licensing of

21  agents shall include: name, residential and business

22  addresses, background training, institution or institutions to

23  be represented, and demonstrated knowledge of statutes and

24  rules related to the authority granted to agents and the

25  limitations imposed upon such authority.  No employee of a

26  nonpublic school shall solicit prospective students for

27  enrollment in such school until that employee is licensed by

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

29         (4)  The State Board of Nonpublic Career Education

30  shall adopt criteria for specialized associate degrees,

31  diplomas, certificates, or other educational credentials that

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

  2  Nonpublic Career Education shall adopt a common definition for

  3  each credential.  To determine the level of a nonpublic

  4  institution's vocational program or to establish criteria for

  5  a specialized degree, the board shall use procedures developed

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

  7  Education to determine the level of each public degree career

  8  education program.

  9         246.217  License period and renewals.--

10         (1)  All license applications shall be submitted on

11  notarized forms prepared and furnished by the board.

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

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

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

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

16  an institution issued such a license.

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

18  licensure upon completion of the term of the temporary or

19  provisional license may apply for a regular license.  The

20  board shall adopt rules for the provision of regular annual

21  licensure and regular biennial licensure.  The requirements

22  for each such form of regular licensure shall be incorporated

23  into the rules of the board.

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

25  license as a provisional license for specific purposes

26  enumerated by the board. Redesignation from regular to

27  provisional licensure shall not require disciplinary

28  proceedings pursuant to s. 246.226.

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

30  4 months.  The fees for any license so extended shall be

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

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

  2  comply with licensure requirements based on extenuating

  3  circumstances.  The affected institution shall be responsible

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

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

  6  for determining institutional compliance with such

  7  requirements.

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

  9  nonpublic school is served with an administrative complaint or

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

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

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

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

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

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

16         (5)  The board shall adopt rules regarding amended

17  licensure for institutions that seek to modify existing

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

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

20  nonpublic school licensed pursuant to ss. 246.201-246.231

21  shall receive approval for an amended license prior to

22  implementation of such modification.

23         246.219  License fees.--

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

25  a nonpublic postsecondary career school shall be accompanied

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

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

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

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

30  charged for a supplementary application for the approval of

31

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  1  any additional field or course of instruction.  Such fees

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

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

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

  5  of the license, excluding the cost of obtaining criminal

  6  justice information.  Applicants shall bear the cost of

  7  obtaining such information.

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

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

10  renewal.

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

12  through the Department of Education to be deposited in the

13  Institutional Assessment Trust Fund created by s. 246.31.

14         246.220  Surety bonds or insurance.--Surety bonds or

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

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

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

18  currently enrolled students, issuance of refunds to projected

19  or currently enrolled students, payment of liabilities to the

20  Student Protection Fund, or for the retrieval or safekeeping

21  of student records.

22         246.222  School administrator training.--

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

24  administrators of licensed schools are qualified to conduct

25  the operations of their respective positions and to require

26  such administrators to receive continuing education and

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

28  which the board may review qualifications and require

29  continuing education and training may include the positions of

30  school director, director of education or training, placement

31  director, admissions director, and financial aid director.

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

  2  type of training necessary to assure compliance with board

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

  4  agencies in relation to the responsibilities of the respective

  5  positions.

  6         (3)  The board shall adopt general qualifications for

  7  each of the respective positions and establish guidelines for

  8  the minimum amount and type of continuing education and

  9  training to be required.  The continuing education and

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

11  federal agencies, or professional organizations familiar with

12  the requirements of the particular administrative positions.

13  The actual curriculums should be left to the discretion of

14  those agencies and organizations.

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

16  the continuing education and training requirements established

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

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

19  continuing education and training received by administrators

20  shall be maintained at the school and available for inspection

21  at all times.

22         (5)  Qualifications of administrators in their

23  respective fields, as well as continuing education and

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

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

26  license.

27         246.2235  School closings.--

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

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

30  the citizens of Florida. The Legislature finds that the

31  actions of school owners and operators in closing licensed

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

  2  appropriate refund of fees paid by students constitutes a

  3  serious detriment to the educational delivery system in the

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

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

  6  refunds and to prohibit school owners who have unlawfully

  7  closed a school from operating a similar licensed school in

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

  9  licensed school ceases operation, it is essential that student

10  records be immediately conveyed to or placed within control of

11  the state. The opportunity for students to continue their

12  education or otherwise be able to assess and provide

13  documentation of their educational status is for the board to

14  have control over all student records upon closure of the

15  school.

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

17  student records shall become property of the state and shall

18  be conveyed to the board office or to another location

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

20  records shall be made available to bankruptcy trustees, upon

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

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

23  school owner, director, or administrator who knowingly

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

25  safekeeping of school and student records is subject to the

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

27  $10,000 from each individual.  The board is authorized to use

28  moneys in the Student Protection Fund to facilitate the

29  retrieval or safekeeping of records at a school that has

30  closed.

31

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

  2  and administrators, is required to immediately notify the

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

  4  such owners, directors, and administrators must organize an

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

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

  7  administrator who fails to notify the board immediately of the

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

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

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

11  775.082 or s. 775.083.

12         (4)  The board may conduct an investigation to

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

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

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

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

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

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

19  unlawful operation or management of a school shall not be

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

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

22  director or officer in a corporation owning or operating a

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

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

25  school.

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

27  a new school license if the board determines that the

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

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

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

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

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

  2  school license, prior criminal or civil administrative

  3  proceedings regarding the operation and management of a

  4  school, other types of criminal proceedings involving fraud,

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

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

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

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

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

10  to provide the board with information under oath regarding the

11  prior operation of a school and criminal justice information,

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

13  to the other license fees.

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

15  appropriate to the Department of Legal Affairs or the state

16  attorney for investigation and prosecution.

17         246.225  No tax exemptions.--The granting of a license

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

19  considered an accreditation for the purpose of tax exemption

20  under state law.

21         246.226  Disciplinary proceedings.--

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

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

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

25  regarding the violation, an investigation may be continued

26  until it is completed and an investigative report is presented

27  to a probable cause panel of the board.

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

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

30  board of the investigation and the substance of the complaint

31  that prompted the investigation. Notification may be withheld

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  1  upon the recommendation of the executive director and

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

  3  that notification would impede the investigation.  The board

  4  may also withhold notification to a person under investigation

  5  for an act which constitutes a criminal offense.

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

  7  manner. The complaint and all information obtained by the

  8  board during the resultant investigation shall be confidential

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

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

11  of probable cause. The board may provide information obtained

12  pursuant to this subsection to any law enforcement or

13  regulatory agency.  The board may utilize consultants who

14  possess expertise or specialized knowledge regarding the

15  substance of the investigation.  Any such consultants shall be

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

17  utilized shall prepare and submit an investigative report that

18  contains the investigative findings and recommendations

19  concerning the existence of probable cause to the probable

20  cause panel.  The probable cause panel may request additional

21  investigative information within 15 days of receipt of an

22  investigative report. The panel shall make its determination

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

24  final investigative report.

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

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

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

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

29  and 286.011 until the panel declares a finding of probable

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

31

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  1  the board may issue an administrative complaint and prosecute

  2  such complaint pursuant to the provisions of chapter 120.

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

  4  probable cause panel shall review the recommended order of the

  5  administrative law judge and shall issue a final order for

  6  each such hearing.  Such order shall constitute final agency

  7  action.

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

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

10  civil action, or administrative proceeding.  The findings of

11  the probable cause panel shall not be disclosed until the

12  information is no longer confidential.

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

14  any informant or any witness who provides information in good

15  faith for an investigation or proceeding conducted pursuant to

16  this section.

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

18  licensure, or amended licensure on the basis of all

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

20  considered disciplinary and shall not require probable cause

21  proceedings.

22         246.2265  Additional regulatory powers while

23  disciplinary proceedings are pending; cease and desist

24  orders.--

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

26  administrative complaint or notice of denial of licensure,

27  issue cease and desist orders for the purpose of protecting

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

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

30  mandatory or prohibitory in form and may order a nonpublic

31

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  1  postsecondary career institution, officer, employee, or agent

  2  to:

  3         (a)  Cease and desist from specified conduct which

  4  relates to acts or omissions stated in the administrative

  5  complaint or notice of denial of licensure; or

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

  7  specified conduct which is necessary to achieve or preserve

  8  the regulatory purposes of ss. 246.201-246.231.

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

10  limited to, orders to:

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

12  enrollment to those students who can be adequately served

13  within the current facilities of the institution by the

14  current officers and employees, or to limit enrollment to

15  those students who meet more restrictive admissions standards.

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

17  needed, to ensure that currently enrolled students receive the

18  education or training of the type and quality represented in

19  the institutional catalog.

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

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

22  corrective or clarifying advertising, as needed, to overcome

23  the effects of previous allegedly deceptive or misleading

24  advertising.

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

26  section shall take effect immediately upon issuance and shall

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

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

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

30  directed as follows:

31

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

  2  matter has been referred to the Division of Administrative

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

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

  5  of the presiding administrative law judge shall be binding on

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

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

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

  9  consider and determine a request from the affected party to

10  abate or modify the cease and desist order.

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

12  order after seeking to have the order abated or modified

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

14  interlocutory judicial review by the appropriate district

15  court of appeal pursuant to the applicable rules of appellate

16  procedure.

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

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

19  cease and desist order to a nonpublic postsecondary career

20  institution.

21         246.227  Injunctive relief; unlicensed operation of a

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

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

24  action it deems necessary against any school or agent in

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

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

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

28  violation of this act.

29         (2)  An unlicensed nonpublic postsecondary career

30  institution required to be licensed pursuant to ss.

31  246.201-246.231 that advertises or causes advertisements to be

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  1  made public through which students are solicited for

  2  enrollment or are offered diplomas shall be in violation of

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

  4  postsecondary career institution that is under temporary or

  5  permanent injunction against operating or offering diplomas

  6  that advertises or causes advertisements to be made public

  7  through which students are solicited for enrollment or are

  8  offered diplomas shall be in violation of such injunctive

  9  order upon presentation to the court of the advertisement.

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

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

12  cease and desist order to any nonpublic postsecondary career

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

14  246.201-246.231 that is not so licensed.  The board may file,

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

16  an injunction against any person in violation of any provision

17  of such order.

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

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

20  penalty through the circuit court for any violation for which

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

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

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

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

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

26  reasonable costs of investigation.

27         246.228  Grounds for disciplinary action; action by the

28  board.--

29         (1)  The following acts shall constitute grounds for

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

31  be taken:

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    Florida House of Representatives - 2001              CS/HB 5-B

    613-135-01






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

  2  license to operate a school by bribery, by fraudulent

  3  misrepresentation, or through an error of the board.

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

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

  6  licensure, by the licensing authority of another state,

  7  territory, or country.

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

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

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

11  unlicensed person to operate a school contrary to this chapter

12  or to a rule of the board.

13         (e)  Delegating professional responsibilities to a

14  person when the licensee delegating such responsibilities

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

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

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

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

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

20  previously entered in a disciplinary hearing or failing to

21  comply with a lawfully issued subpoena of the board.

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

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

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

25  lawfully advertising his or her services.

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

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

28  board.

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

30  dismissing the complaint or imposing one or more of the

31  following penalties:

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CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001              CS/HB 5-B

    613-135-01






  1         (a)  Denial of an application for licensure.

  2         (b)  Revocation or suspension of a license.

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

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

  5  offense. Such fine shall be deposited in the Institutional

  6  Assessment Trust Fund pursuant to s. 246.31.

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

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

  9  specify.

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

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

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

13         246.229  Enforcement.--The Department of Legal Affairs

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

15  246.201-246.231.

16         246.231  Penalties.--Any person who violates or fails

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

18  promulgated thereunder:

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

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

21  775.082 or s. 775.083.

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

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

24  in s. 775.082 or s. 775.083.

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

26         Section 6.  This act shall take effect upon becoming a

27  law.

28

29

30

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CODING: Words stricken are deletions; words underlined are additions.