HB 1049 2003
1	CHAMBER ACTION
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6	The Committee on Appropriations recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to professions; amending ss. 471.013 and
12	471.015, F.S.; revising provisions relating to the
13	examinations required to practice in this state as an
14	engineer; amending s. 471.023, F.S.; requiring
15	certification of any business organization offering
16	engineering services to the public; amending s. 471.033,
17	F.S.; revising provisions relating to disciplinary
18	penalties to increase the administrative fine and
19	authorize the imposition of restitution; amending s.
20	471.038, F.S.; revising duties of the Board of
21	Professional Engineers, the Florida Engineers Management
22	Corporation, and the Department of Business and
23	Professional Regulation with respect to regulation of the
24	practice of engineering; providing that the president of
25	the management corporation shall be selected by the
26	management corporation and shall serve as executive
27	director of the board, subject to approval of the board;
28	eliminating the position of contract administrator;
29	revising the submission date for the annual status report;
30	restricting the requirement of posting a performance bond
31	to certain persons not employed by the management
32	corporation; revising duties and authority to investigate
33	complaints and prosecute cases; amending s. 287.055, F.S.;
34	exempting state agencies from the on-line procurement of
35	professional services and from the payment of fees
36	required pursuant thereto; providing an effective date.
37
38	Be It Enacted by the Legislature of the State of Florida:
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40	Section 1. Subsection (1) of section 471.013, Florida
41	Statutes, is amended to read:
42	471.013 Examinations; prerequisites.--
43	(1)(a) A person shall be entitled to take an examination
44	for the purpose of determining whether she or he is qualified to
45	practice in this state as an engineer if the person is of good
46	moral character and:
47	1. Is a graduate from an approved engineering curriculum
48	of 4 years or more in a school, college, or university which has
49	been approved by the board and has a record of 4 years of active
50	engineering experience of a character indicating competence to
51	be in responsible charge of engineering;
52	2. Is a graduate of an approved engineering technology
53	curriculum of 4 years or more in a school, college, or
54	university within the State University System, having been
55	enrolled or having graduated prior to July 1, 1979, and has a
56	record of 4 years of active engineering experience of a
57	character indicating competence to be in responsible charge of
58	engineering; or
59	3. Has, in lieu of such education and experience
60	requirements, 10 years or more of active engineering work of a
61	character indicating that the applicant is competent to be
62	placed in responsible charge of engineering. However, this
63	subparagraph does not apply unless such person notifies the
64	department before July 1, 1984, that she or he was engaged in
65	such work on July 1, 1981.
66
67	The board shall adopt rules providing for the review and
68	approval of schools or colleges and the courses of study in
69	engineering in such schools and colleges. The rules shall be
70	based on the educational requirements for engineering as defined
71	in s. 471.005. The board may adopt rules providing for the
72	acceptance of the approval and accreditation of schools and
73	courses of study by a nationally accepted accreditation
74	organization.
75	(b) A person shall be entitled to take the fundamentalsan
76	examination for the purpose of determining whether she or he is
77	qualified to practice in this state as an engineer intern if she
78	or he is in the final year of, or is a graduate of, an approved
79	engineering curriculum in a school, college, or university
80	approved by the board.
81	(c) A person shall not be entitled to take the principles
82	and practice part of theexamination until that person has
83	successfully completed the fundamentals examination.
84	(d) On or after October 1, 1992, every applicant who is
85	qualified to take either the fundamentals examination or the
86	principles and practiceany part of theexamination shall be
87	allowed to take either examinationany one partfive times,
88	notwithstanding the number of times that either examinationpart
89	has been previously failed. If an applicant fails eitherany
90	part of the examination taken after October 1, 1992,five times,
91	the board shall require the applicant to complete additional
92	college-level education courses in the areas of deficiency, as
93	determined by the board, as a condition of future eligibility to
94	take thattheexamination.
95	Section 2. Subsections (1), (3), and (5) of section
96	471.015, Florida Statutes, are amended to read:
97	471.015 Licensure.--
98	(1) The management corporation shall issue a license to
99	any applicant who the board certifies is qualified to practice
100	engineering and who has passed the fundamentals examination and
101	the principles and practicelicensingexamination.
102	(3) The board shall certify as qualified for a license by
103	endorsement an applicant who:
104	(a) Qualifies to take the fundamentals examination and the
105	principles and practiceexamination as set forth in s. 471.013,
106	has passed a United States national, regional, state, or
107	territorial licensing examination that is substantially
108	equivalent to the fundamentals examination and the principles
109	and practiceexamination required by s. 471.013, and has
110	satisfied the experience requirements set forth in s. 471.013;
111	or
112	(b) Holds a valid license to practice engineering issued
113	by another state or territory of the United States, if the
114	criteria for issuance of the license were substantially the same
115	as the licensure criteria that existed in this state at the time
116	the license was issued.
117	(5)(a) The board shall deem that an applicant who seeks
118	licensure by endorsement has passed an examination substantially
119	equivalent to part I of the fundamentalsengineeringexamination
120	when such applicant:
121	1. Has held a valid professional engineer's license in
122	another state for 15 years and has had 20 years of continuous
123	professional-level engineering experience;
124	2. Has received a doctorate degree in engineering from an
125	institution that has an undergraduate engineering degree program
126	which is accredited by the Accreditation Board for Engineering
127	Technology; or
128	3. Has received a doctorate degree in engineering and has
129	taught engineering full time for at least 3 years, at the
130	baccalaureate level or higher, after receiving that degree.
131	(b) The board shall deem that an applicant who seeks
132	licensure by endorsement has passed an examination substantially
133	equivalent to the fundamentals examination and the principles
134	and practicepart I and part II of the engineeringexamination
135	when such applicant has held a valid professional engineer's
136	license in another state for 25 years and has had 30 years of
137	continuous professional-level engineering experience.
138	Section 3. Section 471.023, Florida Statutes, is amended
139	to read:
140	471.023 Certification of business organizations
141	partnerships and corporations.--
142	(1) The practice of, or the offer to practice, engineering
143	by licensees through a business organization, including any
144	partnership, corporation, business trust, or other legal entity,
145	corporation or partnershipoffering engineering services to the
146	public or by a business organization, including any partnership,
147	corporation, business trust, or other legal entity,corporation
148	or partnershipoffering said services to the public through
149	licensees under this chapter as agents, employees, officers, or
150	partners is permitted only if the business organizationfirm
151	possesses a certification issued by the management corporation
152	pursuant to qualification by the board, subject to the
153	provisions of this chapter. One or more of the principal
154	officers of the business organizationcorporationor one or more
155	partners, if the business organization is aof the partnership,
156	and all personnel of the business organizationcorporation or
157	partnershipwho act in its behalf as engineers in this state
158	shall be licensed as provided by this chapter. All final
159	drawings, specifications, plans, reports, or documents involving
160	practices licensed under this chapter which are prepared or
161	approved for the use of the business organizationcorporation or
162	partnershipor for public record within the state shall be dated
163	and shall bear the signature and seal of the licensee who
164	prepared or approved them. Nothing in this section shall be
165	construed to mean that a license to practice engineering shall
166	be held by a business organizationcorporation. Nothing herein
167	prohibits business organizationscorporations and partnerships
168	from joining together to offer engineering services to the
169	public, provided each business organizationcorporation or
170	partnership otherwise meets the requirements of this section. No
171	business organizationcorporation or partnershipshall be
172	relieved of responsibility for the conduct or acts of its
173	agents, employees, or officers by reason of its compliance with
174	this section, nor shall any individual practicing engineering be
175	relieved of responsibility for professional services performed
176	by reason of his or her employment or relationship with a
177	business organizationcorporation or partnership.
178	(2) For the purposes of this section, a certificate of
179	authorization shall be required for a business organization
180	corporation, partnership, association,or person practicing
181	under a fictitious name, offering engineering services to the
182	public. However, when an individual is practicing engineering in
183	his or her own given name, he or she shall not be required to be
184	licensed under this section.
185	(3) The fact that a licensed engineer practices through a
186	business organizationcorporation or partnershipshall not
187	relieve the licensee from personal liability for negligence,
188	misconduct, or wrongful acts committed by him or her.
189	Partnerships and all partners shall be jointly and severally
190	liable for the negligence, misconduct, or wrongful acts
191	committed by their agents, employees, or partners while acting
192	in a professional capacity. Any officer, agent, or employee of a
193	business organization other than a partnershipcorporationshall
194	be personally liable and accountable only for negligent acts,
195	wrongful acts, or misconduct committed by him or her or
196	committed by any person under his or her direct supervision and
197	control, while rendering professional services on behalf of the
198	business organizationcorporation. The personal liability of a
199	shareholder or owner of a business organizationcorporation, in
200	his or her capacity as shareholder or owner, shall be no greater
201	than that of a shareholder-employee of a corporation
202	incorporated under chapter 607. The business organization
203	corporationshall be liable up to the full value of its property
204	for any negligent acts, wrongful acts, or misconduct committed
205	by any of its officers, agents, or employees while they are
206	engaged on behalf of the business organizationcorporationin
207	the rendering of professional services.
208	(4) Each certification of authorization shall be renewed
209	every 2 years. Each business organizationpartnership and
210	corporationcertified under this section shall notify the board
211	within 1 month of any change in the information contained in the
212	application upon which the certification is based.
213	(5) Disciplinary action against a business organization
214	corporation or partnershipshall be administered in the same
215	manner and on the same grounds as disciplinary action against a
216	licensed engineer.
217	Section 4. Section 471.033, Florida Statutes, is amended
218	to read:
219	471.033 Disciplinary proceedings.--
220	(1) The following acts constitute grounds for which the
221	disciplinary actions in subsection (3) may be taken:
222	(a) Violating any provision of s. 455.227(1), s. 471.025,
223	or s. 471.031, or any other provision of this chapter or rule of
224	the board or department.
225	(b) Attempting to procure a license to practice
226	engineering by bribery or fraudulent misrepresentations.
227	(c) Having a license to practice engineering revoked,
228	suspended, or otherwise acted against, including the denial of
229	licensure, by the licensing authority of another state,
230	territory, or country, for any act that would constitute a
231	violation of this chapter or chapter 455.
232	(d) Being convicted or found guilty of, or entering a plea
233	of nolo contendere to, regardless of adjudication, a crime in
234	any jurisdiction which directly relates to the practice of
235	engineering or the ability to practice engineering.
236	(e) Making or filing a report or record that the licensee
237	knows to be false, willfully failing to file a report or record
238	required by state or federal law, willfully impeding or
239	obstructing such filing, or inducing another person to impede or
240	obstruct such filing. Such reports or records include only those
241	that are signed in the capacity of a licensed engineer.
242	(f) Advertising goods or services in a manner that is
243	fraudulent, false, deceptive, or misleading in form or content.
244	(g) Engaging in fraud or deceit, negligence, incompetence,
245	or misconduct, in the practice of engineering.
246	(h) Violating chapter 455.
247	(i) Practicing on a revoked, suspended, inactive, or
248	delinquent license.
249	(j) Affixing or permitting to be affixed his or her seal,
250	name, or digital signature to any final drawings,
251	specifications, plans, reports, or documents that were not
252	prepared by him or her or under his or her responsible
253	supervision, direction, or control.
254	(k) Violating any order of the board or department
255	previously entered in a disciplinary hearing.
256	(2) The board shall specify, by rule, what acts or
257	omissions constitute a violation of subsection (1).
258	(3) When the board finds any person guilty of any of the
259	grounds set forth in subsection (1), it may enter an order
260	imposing one or more of the following penalties:
261	(a) Denial of an application for licensure.
262	(b) Revocation or suspension of a license.
263	(c) Imposition of an administrative fine not to exceed
264	$5,000$1,000for each count or separate offense.
265	(d) Issuance of a reprimand.
266	(e) Placement of the licensee on probation for a period of
267	time and subject to such conditions as the board may specify.
268	(f) Restriction of the authorized scope of practice by the
269	licensee.
270	(g) Restitution.
271	(4) The management corporation shall reissue the license
272	of a disciplined engineer or business upon certification by the
273	board that the disciplined person has complied with all of the
274	terms and conditions set forth in the final order.
275	Section 5. Section 471.038, Florida Statutes, is amended
276	to read:
277	471.038 Florida Engineers Management Corporation.--
278	(1) This section may be cited as the "Florida Engineers
279	Management Corporation Act."
280	(2) The purpose of this section is to create a public-
281	private partnership by providing that a single nonprofit
282	corporation be established to provide administrative,
283	investigative, and prosecutorial services to the board and that
284	no additional nonprofit corporation be created for these
285	purposes.
286	(3) The Florida Engineers Management Corporation is
287	created to provide administrative, investigative, and
288	prosecutorial services to the board in accordance with the
289	provisions of chapter 455 and this chapter. The management
290	corporation may hire staff as necessary to carry out its
291	functions. Such staff are not public employees for the purposes
292	of chapter 110 or chapter 112, except that the board of
293	directors and the staff are subject to the provisions of s.
294	112.061. The provisions of s. 768.28 apply to the management
295	corporation, which is deemed to be a corporation primarily
296	acting as an instrumentality of the state, but which is not an
297	agency within the meaning of s. 20.03(11). The management
298	corporation shall:
299	(a) Be a Florida corporation not for profit, incorporated
300	under the provisions of chapter 617.
301	(b) Provide administrative, investigative, and
302	prosecutorial services to the board in accordance with the
303	provisions of chapter 455, this chapter, and the contract
304	required by this section.
305	(c) Receive, hold, and administer property and make only
306	prudent expenditures directly related to the responsibilities of
307	the board, and in accordance with the contract required by this
308	section.
309	(d) Be approved by the board and the department to operate
310	for the benefit of the board and in the best interest of the
311	state.
312	(e) Operate under a fiscal year that begins on July 1 of
313	each year and ends on June 30 of the following year.
314	(f) Have a seven-member board of directors, five of whom
315	are to be appointed by the board and must be registrants
316	regulated by the board and two of whom are to be appointed by
317	the secretary and must be laypersons not regulated by the board.
318	All initial appointments shall expire on October 31, 2000.
319	Current members may be appointed to one additional term that
320	complies with the provisions of this paragraph. Two members
321	shall be appointed for 2 years, three members shall be appointed
322	for 3 years, and two members shall be appointed for 4 years. One
323	layperson shall be appointed to a 3-year term and one layperson
324	shall be appointed to a 4-year term. Thereafter,All
325	appointments shall be for 4-year terms. No newmember shall
326	serve more than two consecutive terms. Failure to attend three
327	consecutive meetings shall be deemed a resignation from the
328	board, and the vacancy shall be filled by a new appointment.
329	(g) Select its officers in accordance with its bylaws. The
330	members of the board of directors who were appointed by the
331	board may be removed by the board, with the concurrence of the
332	department, for the same reasons that a board member may be
333	removed.
334	(h) Select the president of the management corporation,
335	who shall also serve as the executive director of the board,
336	subject to approval of the board.
337	(i)(h)Use a portion of the interest derived from the
338	management corporation account to offset the costs associated
339	with the use of credit cards for payment of fees by applicants
340	or licensees.
341	(j)(i) Operate under aan annualwritten contract with the
342	department which is approved by the board. The contract must
343	provide for, but is not limited to:
344	1. Approval of the articles of incorporation and bylaws of
345	the management corporation by the department and the board.
346	1.2.Submission by the management corporation of an annual
347	budget that complies with board rules for approval by the board
348	and the department.
349	2.3.Annual certification by the board and the department
350	that the management corporation is complying with the terms of
351	the contract in a manner consistent with the goals and purposes
352	of the board and in the best interest of the state. This
353	certification must be reported in the board's minutes. The
354	contract must also provide for methods and mechanisms to resolve
355	any situation in which the certification process determines
356	noncompliance.
357	4. Employment by the department of a contract
358	administrator to actively supervise the administrative,
359	investigative, and prosecutorial activities of the management
360	corporation to ensure compliance with the contract and the
361	provisions of chapter 455 and this chapter and to act as a
362	liaison for the department, the board, and the management
363	corporation to ensure the effective operation of the management
364	corporation.
365	3.5.Funding of the management corporation through
366	appropriations allocated to the regulation of professional
367	engineers from the Professional Regulation Trust Fund.
368	4.6.The reversion to the board, or the state if the board
369	ceases to exist, of moneys, records, data, and property held in
370	trust by the management corporation for the benefit of the
371	board, if the management corporation is no longer approved to
372	operate for the board or the board ceases to exist. All records
373	and data in a computerized database shall be returned to the
374	department in a form that is compatible with the computerized
375	database of the department.
376	5.7.The securing and maintaining by the management
377	corporation, during the term of the contract and for all acts
378	performed during the term of the contract, of all liability
379	insurance coverages in an amount to be approved by the board
380	departmentto defend, indemnify, and hold harmless the
381	management corporation and its officers and employees, the
382	department and its employees, and the state against all claims
383	arising from state and federal laws. Such insurance coverage
384	must be with insurers qualified and doing business in the state.
385	The management corporation must provide proof of insurance to
386	the department. The department and its employees and the state
387	are exempt from and are not liable for any sum of money which
388	represents a deductible, which sums shall be the sole
389	responsibility of the management corporation. Violation of this
390	subparagraph shall be grounds for terminating the contract.
391	6.8.Payment by the management corporation, out of its
392	allocated budget, to the department of all costs of
393	representation by the board counsel, including salary and
394	benefits, travel, and any other compensation traditionally paid
395	by the department to other board counsels.
396	7.9.Payment by the management corporation, out of its
397	allocated budget, to the department of all costs incurred by the
398	management corporation or the board for the Division of
399	Administrative Hearings of the Department of Management Services
400	and any other cost for utilization of these state services.
401	8.10.Payment by the management corporation, out of its
402	allocated budget, to the department of reasonableallcosts
403	associated with the contract monitoradministrator of the
404	department, including salary and benefits, travel, and other
405	related costs traditionally paid to state employees.
406	(k)(j)Provide for an annual financial audit of its
407	financial accounts and records by an independent certified
408	public accountant. The annual audit report shall include a
409	management letter in accordance with s. 11.45 and a detailed
410	supplemental schedule of expenditures for each expenditure
411	category. The annual audit report must be submitted to the
412	board, the department, and the Auditor General for review.
413	(l)(k) Provide for persons not employed by the management
414	corporation who arecharged with the responsibility of receiving
415	and depositing fee and fine revenues to have a faithful
416	performance bond in such an amount and according to such terms
417	as shall be determined in the contract.
418	(m)(l)Submit to the secretary, the board, and the
419	Legislature, on or before OctoberJanuary1 of each year, a
420	report on the status of the corporation which includes, but is
421	not limited to, information concerning the programs and funds
422	that have been transferred to the corporation. The report must
423	include: the number of license applications received; the number
424	approved and denied and the number of licenses issued; the
425	number of examinations administered and the number of applicants
426	who passed or failed the examination; the number of complaints
427	received; the number determined to be legally sufficient; the
428	number dismissed; the number determined to have probable cause;
429	the number of administrative complaints issued and the status of
430	the complaints; and the number and nature of disciplinary
431	actions taken by the board.
432	(n)(m) Develop, and submit towiththe department,
433	performance standards and measurable outcomes for the board to
434	adopt by rule in order to facilitate efficient and cost-
435	effective regulation.
436	(4) The management corporation may not exercise any
437	authority specifically assigned to the board under chapter 455
438	or this chapter, including determining probable cause to pursue
439	disciplinary action against a licensee, taking final action on
440	license applications or in disciplinary cases, or adopting
441	administrative rules under chapter 120.
442	(5) Notwithstanding the provisions of ss. 455.228,
443	455.2281, and 455.32, the duties and authority of the department
444	to receive complaints and to investigate and deter the
445	unlicensed practice of engineering are delegated to the board.
446	The board may use funds in its unlicensed activity account
447	established under s. 455.2281 to perform its duties relating to
448	unlicensed activity.
449	(6)(5)The department shall retain the independent
450	authority to open or, investigate, or prosecuteany cases or
451	complaints, as necessary to protect the public health, safety,
452	or welfare. In addition, the department may request that the
453	management corporation prosecute such cases andshall retain
454	sole authority to issue emergency suspension or restriction
455	orders pursuant to s. 120.60 and to prosecute unlicensed
456	activity cases pursuant to ss. 455.228 and 455.2281.
457	(7)(6)Management corporation records are public records
458	subject to the provisions of s. 119.07(1) and s. 24(a), Art. I
459	of the State Constitution; however, public records exemptions
460	set forth in ss. 455.217 and 455.229 for records created or
461	maintained by the department shall apply to records created or
462	maintained by the management corporation. In addition, all
463	meetings of the board of directors are open to the public in
464	accordance with s. 286.011 and s. 24(b), Art. I of the State
465	Constitution. The exemptions set forth in s. 455.225, relating
466	to complaints and information obtained pursuant to an
467	investigation by the department, shall apply to such records
468	created or obtained by the management corporation only until an
469	investigation ceases to be active. For the purposes of this
470	subsection, an investigation is considered active so long as the
471	management corporation or any law enforcement or administrative
472	agency is proceeding with reasonable dispatch and has a
473	reasonable, good faith belief that it may lead to the filing of
474	administrative, civil, or criminal proceedings. An investigation
475	ceases to be active when the case is dismissed prior to a
476	finding of probable cause and the board has not exercised its
477	option to pursue the case or 10 days after the board makes a
478	determination regarding probable cause. All information,
479	records, and transcriptions regarding a complaint that has been
480	determined to be legally sufficient to state a claim within the
481	jurisdiction of the board become available to the public when
482	the investigation ceases to be active, except information that
483	is otherwise confidential or exempt from s. 119.07(1). However,
484	in response to an inquiry about the licensure status of an
485	individual, the management corporation shall disclose the
486	existence of an active investigation if the nature of the
487	violation under investigation involves the potential for
488	substantial physical or financial harm to the public. The board
489	shall designate by rule those violations that involve the
490	potential for substantial physical or financial harm. The
491	department and the board shall have access to all records of the
492	management corporation, as necessary to exercise their authority
493	to approve and supervise the contract.
494	(8)(7)The management corporation is the sole source and
495	depository for the records of the board, including all
496	historical information and records. The management corporation
497	shall maintain those records in accordance with the guidelines
498	of the Department of State and shall not destroy any records
499	prior to the limits imposed by the Department of State.
500	(9)(8)The board shall provide by rule for the procedures
501	the management corporation must follow to ensure that all
502	licensure examinations are secure while under the responsibility
503	of the management corporation and that there is an appropriate
504	level of monitoring during the licensure examinations.
505	Section 6. Paragraph (f) is added to subsection (3) of
506	section 287.055, Florida Statutes, to read:
507	287.055 Acquisition of professional architectural,
508	engineering, landscape architectural, or surveying and mapping
509	services; definitions; procedures; contingent fees prohibited;
510	penalties.--
511	(3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.--
512	(f) The provisions of s. 287.057(23) are not applicable to
513	the procurement of professional services by an agency, and firms
514	providing professional services are exempt from the payment of
515	any fees required pursuant to that subsection.
516	Section 7. This act shall take effect October 1, 2003.