Florida Senate - 2020                                    SB 1404
       By Senator Perry
       8-00930A-20                                           20201404__
    1                        A bill to be entitled                      
    2         An act relating to the Department of Financial
    3         Services; amending s. 20.121, F.S.; specifying powers
    4         and duties of the Division of Public Assistance Fraud;
    5         amending s. 497.101, F.S.; revising provisions
    6         relating to membership of the Board of Funeral,
    7         Cemetery, and Consumer Services; deleting a
    8         requirement for the department to adopt certain rules;
    9         creating s. 497.1411, F.S.; defining terms; providing
   10         for permanent disqualification of applicants for
   11         licensure under ch. 497, F.S., for certain offenses;
   12         providing for disqualifying periods for applicants for
   13         certain offenses; requiring the department to adopt
   14         rules; providing for calculation of disqualifying
   15         periods; providing conditions for licensure after
   16         completion of a disqualifying period; providing for
   17         the effect of a pardon or clemency; providing for
   18         exemptions from disqualification in certain
   19         circumstances; providing procedures for consideration
   20         of applications for such exemptions; providing
   21         construction; amending s. 497.157, F.S.; prohibiting
   22         persons from acting as or advertising themselves as
   23         being funeral directors, embalmers, direct disposers,
   24         or preneed sales agents unless they are so licensed;
   25         prohibiting persons from engaging in certain
   26         activities requiring licensure without holding
   27         required licenses; providing criminal penalties;
   28         amending s. 552.081, F.S.; revising the definition of
   29         the term “two-component explosives” for the purpose of
   30         regulation by the Division of State Fire Marshal;
   31         amending s. 553.7921, F.S.; authorizing a contractor
   32         repairing certain existing fire alarm systems to begin
   33         work after filing an application for a required permit
   34         but before receiving the permit; providing
   35         construction; amending s. 633.416, F.S.; providing
   36         that certain persons serving as volunteer firefighters
   37         may serve as a regular or permanent firefighter for a
   38         limited period, subject to certain restrictions;
   39         amending s. 843.08, F.S.; prohibiting false
   40         personation of personnel or representatives of the
   41         Division of Investigative and Forensic Services;
   42         providing criminal penalties; amending s. 943.045,
   43         F.S.; revising the definition of the term “criminal
   44         justice agency” to include the investigations
   45         component of the department which investigates certain
   46         crimes; providing an effective date.
   48  Be It Enacted by the Legislature of the State of Florida:
   50         Section 1. Paragraph (f) of subsection (2) of section
   51  20.121, Florida Statutes, is amended to read:
   52         20.121 Department of Financial Services.—There is created a
   53  Department of Financial Services.
   54         (2) DIVISIONS.—The Department of Financial Services shall
   55  consist of the following divisions and office:
   56         (f) The Division of Public Assistance Fraud, which shall
   57  function as a criminal justice agency for purposes of ss.
   58  943.045-943.08. The division shall conduct investigations
   59  pursuant to s. 414.411 within or outside of this state as it
   60  deems necessary. If, during an investigation, the division has
   61  reason to believe that any criminal law of this state has or may
   62  have been violated, it shall refer any records tending to show
   63  such violation to state or federal law enforcement or
   64  prosecutorial agencies and shall provide investigative
   65  assistance to those agencies as required.
   66         Section 2. Subsections (1), (2), (3), (6), and (8) of
   67  section 497.101, Florida Statutes, are amended to read:
   68         497.101 Board of Funeral, Cemetery, and Consumer Services;
   69  membership; appointment; terms.—
   70         (1) The Board of Funeral, Cemetery, and Consumer Services
   71  is created within the Department of Financial Services and shall
   72  consist of 10 members, 9 of whom shall be appointed by the
   73  Governor from nominations made by the Chief Financial Officer
   74  and confirmed by the Senate. The Chief Financial Officer shall
   75  nominate one to three persons for each of the nine vacancies on
   76  the board, and the Governor shall fill each vacancy on the board
   77  by appointing one of the three persons nominated by the Chief
   78  Financial Officer to fill that vacancy. If the Governor objects
   79  to each of the three nominations for a vacancy, she or he shall
   80  inform the Chief Financial Officer in writing. Upon notification
   81  of an objection by the Governor, the Chief Financial Officer
   82  shall submit one to three additional nominations for that
   83  vacancy until the vacancy is filled. One member must be the
   84  State Health Officer or her or his designee.
   85         (2) Two members of the board shall be funeral directors
   86  licensed under part III of this chapter who are associated with
   87  a funeral establishment. One member of the board shall be a
   88  funeral director licensed under part III of this chapter who is
   89  associated with a funeral establishment licensed under part III
   90  of this chapter that has a valid preneed license issued pursuant
   91  to this chapter and who owns or operates a cinerator facility
   92  approved under chapter 403 and licensed under part VI of this
   93  chapter. Two members of the board shall be persons whose primary
   94  occupation is associated with a cemetery company licensed
   95  pursuant to this chapter. Two Three members of the board shall
   96  be consumers who are residents of the state, have never been
   97  licensed as funeral directors or embalmers, are not connected
   98  with a cemetery or cemetery company licensed pursuant to this
   99  chapter, and are not connected with the death care industry or
  100  the practice of embalming, funeral directing, or direct
  101  disposition. One of the two consumer members shall be at least
  102  60 years of age, and one shall be licensed as a certified public
  103  accountant under chapter 473. One member of the board shall be a
  104  consumer who is a resident of this state; is licensed as a
  105  certified public accountant under chapter 473; has never been
  106  licensed as a funeral director or embalmer; is not a principal
  107  or employee of any licensee licensed under this chapter; and
  108  does not otherwise have control, as defined in s. 497.005, over
  109  any licensee licensed under this chapter. One member of the
  110  board shall be a principal of a monument establishment licensed
  111  under this chapter as a monument builder. One member shall be
  112  the State Health Officer or her or his designee. There shall not
  113  be two or more board members who are principals or employees of
  114  the same company or partnership or group of companies or
  115  partnerships under common control.
  116         (3) Board members shall be appointed for terms of 4 years,
  117  and the State Health Officer shall serve as long as that person
  118  holds that office. The designee of the State Health Officer
  119  shall serve at the pleasure of the Governor. When the terms of
  120  the initial board members expire, the Chief Financial Officer
  121  shall stagger the terms of the successor members as follows: one
  122  funeral director, one cemetery representative, the monument
  123  builder, and one consumer member shall be appointed for terms of
  124  2 years, and the remaining members shall be appointed for terms
  125  of 4 years. All subsequent terms shall be for 4 years.
  126         (6) The headquarters and records of the board shall be in
  127  the Division of Funeral, Cemetery, and Consumer Services of the
  128  Department of Financial Services in the City of Tallahassee. The
  129  board may be contacted through the Division of Funeral,
  130  Cemetery, and Consumer Services of the Department of Financial
  131  Services in the City of Tallahassee. The Chief Financial Officer
  132  shall annually appoint from among the board members a chair and
  133  vice chair of the board. The board shall meet at least every 6
  134  months, and more often as necessary. Special meetings of the
  135  board shall be convened upon the direction of the Chief
  136  Financial Officer. A quorum is necessary for the conduct of
  137  business by the board. Unless otherwise provided by law, a
  138  majority of the board members eligible to vote shall constitute
  139  a quorum for the purpose of conducting its business six board
  140  members shall constitute a quorum for the conduct of the board’s
  141  business.
  142         (8)The department shall adopt rules establishing forms by
  143  which persons may apply for membership on the board and
  144  procedures for applying for such membership. Such forms shall
  145  require disclosure of the existence and nature of all current
  146  and past employments by or contracts with, and direct or
  147  indirect affiliations or interests in, any entity or business
  148  that at any time was licensed by the board or by the former
  149  Board of Funeral and Cemetery Services or the former Board of
  150  Funeral Directors and Embalmers or that is or was otherwise
  151  involved in the death care industry, as specified by department
  152  rule.
  153         Section 3. Section 497.1411, Florida Statutes, is created
  154  to read:
  155         497.1411Disqualification of applicants and licensees;
  156  penalties against licensees; rulemaking.—
  157         (1)For purposes of this section, the term:
  158         (a)“Applicant” means an individual applying for licensure
  159  or relicensure under this chapter, and an officer, a director, a
  160  majority owner, a partner, a manager, or other person who
  161  manages or controls an entity applying for licensure or
  162  relicensure under this chapter.
  163         (b)“Felony of the first degree” and “capital felony”
  164  include all felonies designated as such in this state at the
  165  time of the commission of the offense, as well as any offense in
  166  another jurisdiction that is substantially similar to an offense
  167  so designated in this state.
  168         (c)“Financial services business” means any financial
  169  activity regulated by the department, the Office of Insurance
  170  Regulation, or the Office of Financial Regulation.
  171         (2)An applicant who has been found guilty of or has
  172  pleaded guilty or nolo contendere to any of the following
  173  crimes, regardless of adjudication, is permanently barred from
  174  licensure under this chapter:
  175         (a)A felony of the first degree.
  176         (b)A capital felony.
  177         (c)A felony money laundering offense.
  178         (d)A felony embezzlement.
  179         (3)An applicant who has been found guilty of or has
  180  pleaded guilty or nolo contendere to a crime not included in
  181  subsection (2), regardless of adjudication, is subject to:
  182         (a)A 10-year disqualifying period for all felonies
  183  involving moral turpitude that are not specifically included in
  184  the permanent bar contained in subsection (2).
  185         (b)A 5-year disqualifying period for all felonies to which
  186  neither the permanent bar in subsection (2) nor the 10-year
  187  disqualifying period in paragraph (a) applies.
  188         (c)A 5-year disqualifying period for all misdemeanors
  189  directly related to the financial services business.
  190         (4)The department shall adopt rules to administer this
  191  section. The rules must provide for additional disqualifying
  192  periods due to the commitment of multiple crimes and may include
  193  other factors reasonably related to the applicant’s criminal
  194  history. The rules shall provide for mitigating and aggravating
  195  factors. However, mitigation may not result in a period of
  196  disqualification of less than 5 years and may not mitigate the
  197  disqualifying periods in paragraphs (3)(b) and (c).
  198         (5)For purposes of this section, a disqualifying period
  199  begins upon the applicant’s final release from supervision or
  200  upon completion of the applicant’s criminal sentence. The
  201  department may not issue a license to an applicant unless all
  202  related fines, court costs and fees, and court-ordered
  203  restitution have been paid.
  204         (6)After the disqualifying period has expired, the burden
  205  is on the applicant to demonstrate that he or she has been
  206  rehabilitated, does not pose a risk to the public, is fit and
  207  trustworthy to engage in business regulated by this chapter, and
  208  is otherwise qualified for licensure.
  209         (7)Notwithstanding subsections (2) and (3), upon a grant
  210  of a pardon or the restoration of civil rights pursuant to
  211  chapter 940 and s. 8, Art. IV of the State Constitution with
  212  respect to a finding of guilt or a plea under subsection (2) or
  213  subsection (3), or such pardon or the restoration of civil
  214  rights under the laws of another jurisdiction with respect to a
  215  conviction in that jurisdiction, such finding or plea no longer
  216  bars or disqualifies the applicant from licensure under this
  217  chapter; however, such a pardon or restoration of civil rights
  218  does not require the department to award such license.
  219         (8)(a)The Board of Funeral, Cemetery, and Consumer
  220  Services may grant an exemption from disqualification to any
  221  person disqualified from licensure under this section because of
  222  a criminal record if:
  223         1.The applicant has paid in full any fee, fine, fund,
  224  lien, civil judgment, restitution, or cost of prosecution
  225  imposed by the court as part of the judgment and sentence for
  226  any disqualifying offense; and
  227         2.At least 5 years have elapsed since the applicant
  228  completed or has been lawfully released from confinement,
  229  supervision, or nonmonetary condition imposed by the court for a
  230  disqualifying offense.
  231         (b)For the board to grant an exemption under this
  232  subsection, the applicant must clearly and convincingly
  233  demonstrate that he or she would not pose a risk to persons or
  234  property if licensed under this chapter, evidence of which must
  235  include, but need not be limited to, facts and circumstances
  236  surrounding the disqualifying offense, the time that has elapsed
  237  since the offense, the nature of the offense and harm caused to
  238  the victim, the applicant’s history before and after the
  239  offense, and any other evidence or circumstances indicating that
  240  the applicant will not present a danger if licensed or
  241  certified.
  242         (c)The board has discretion whether to grant or deny an
  243  exemption under this subsection. The board’s decision is subject
  244  to chapter 120, except that a formal proceeding under s.
  245  120.57(1) is available only if there are disputed issues of
  246  material fact that the department relied upon in reaching its
  247  decision.
  248         Section 4. Present subsections (2) through (5) of section
  249  497.157, Florida Statutes, are redesignated as subsections (4)
  250  through (7), respectively, new subsections (2) and (3) and
  251  subsection (8) are added to that section, and present subsection
  252  (3) of that section is amended, to read:
  253         497.157 Unlicensed practice; remedies concerning violations
  254  by unlicensed persons.—
  255         (2)A person may not be, act as, or advertise or hold
  256  himself or herself out to be a funeral director, embalmer, or
  257  direct disposer unless he or she is currently licensed by the
  258  department.
  259         (3)A person may not be, act as, or advertise or hold
  260  himself or herself out to be a preneed sales agent unless he or
  261  she is currently licensed by the department and appointed by a
  262  preneed main licensee for which they are executing preneed
  263  contracts.
  264         (5)(3) Where the department determines that an emergency
  265  exists regarding any violation of this chapter by any unlicensed
  266  person or entity, the department may issue and serve an
  267  immediate final order upon such unlicensed person or entity, in
  268  accordance with s. 120.569(2)(n). Such an immediate final order
  269  may impose such prohibitions and requirements as are reasonably
  270  necessary to protect the public health, safety, and welfare, and
  271  shall be effective when served.
  272         (a) For the purpose of enforcing such an immediate final
  273  order, the department may file an emergency or other proceeding
  274  in the circuit courts of the state seeking enforcement of the
  275  immediate final order by injunctive or other order of the court.
  276  The court shall issue its injunction or other order enforcing
  277  the immediate final order pending administrative resolution of
  278  the matter under subsection (4) (2), unless the court determines
  279  that such action would work a manifest injustice under the
  280  circumstances. Venue for judicial actions under this paragraph
  281  shall be, at the election of the department, in the courts of
  282  Leon County, or in a county where the respondent resides or has
  283  a place of business.
  284         (b) After serving an immediate final order to cease and
  285  desist upon any person or entity, the department shall within 10
  286  days issue and serve upon the same person or entity an
  287  administrative complaint as set forth in subsection (4) (2),
  288  except that, absent order of a court to the contrary, the
  289  immediate final order shall be effective throughout the pendency
  290  of proceedings under subsection (4) (2).
  291         (8)Any person who is not licensed under this chapter and
  292  who engages in activity requiring licensure under this chapter
  293  commits a felony of the third degree, punishable as provided in
  294  s. 775.082, s. 775.083, or s. 775.084.
  295         Section 5. Subsection (13) of section 552.081, Florida
  296  Statutes, is amended to read:
  297         552.081 Definitions.—As used in this chapter:
  298         (13) “Two-component explosives” means any two inert
  299  components which, when mixed, become capable of detonation by
  300  any detonator a No. 6 blasting cap, and shall be classified as a
  301  Class “A” explosive when so mixed.
  302         Section 6. Present subsection (2) of section 553.7921,
  303  Florida Statutes, is redesignated as subsection (3), a new
  304  subsection (2) is added to that section, and subsection (1) of
  305  that section is amended, to read:
  306         553.7921 Fire alarm permit application to local enforcement
  307  agency.—
  308         (1) A contractor must file a Uniform Fire Alarm Permit
  309  Application as provided in subsection (3) (2) with the local
  310  enforcement agency and must receive the fire alarm permit
  311  before:
  312         (a) installing or replacing a fire alarm, if the local
  313  enforcement agency requires a plan review for the installation
  314  or replacement; or
  315         (b) Repairing an existing alarm system that was previously
  316  permitted by the local enforcement agency if the local
  317  enforcement agency requires a fire alarm permit for the repair.
  318         (2) If the local enforcement agency requires a fire alarm
  319  permit to repair an existing alarm system that was previously
  320  permitted by the local enforcement agency, a contractor may
  321  begin work after filing a Uniform Fire Alarm Permit Application
  322  as provided in subsection (3). A fire alarm repaired pursuant to
  323  this subsection may not be considered compliant until the
  324  required permit is issued and the local enforcement agency
  325  approves the repair.
  326         Section 7. Subsection (1) of section 633.416, Florida
  327  Statutes, is amended to read:
  328         633.416 Firefighter employment and volunteer firefighter
  329  service; saving clause.—
  330         (1) A fire service provider may not employ an individual
  331  to:
  332         (a) Extinguish fires for the protection of life or property
  333  or to supervise individuals who perform such services unless the
  334  individual holds a current and valid Firefighter Certificate of
  335  Compliance. However, a person who is currently serving as a
  336  volunteer firefighter and holds a volunteer firefighter
  337  certificate of completion with a fire service provider, who is
  338  then employed as a regular or permanent firefighter by such fire
  339  service provider, may function, for a period of 1 year under the
  340  direct supervision of an individual holding a valid firefighter
  341  certificate of compliance, in the same capacity in which he or
  342  she acted as a volunteer firefighter, provided that he or she
  343  has completed all training required by the volunteer
  344  organization. Under no circumstance can this period extend
  345  beyond 1 year either collectively or consecutively from the
  346  start of employment to obtain a Firefighter Certificate of
  347  Compliance; or
  348         (b) Serve as the administrative and command head of a fire
  349  service provider for a period in excess of 1 year unless the
  350  individual holds a current and valid Firefighter Certificate of
  351  Compliance or Special Certificate of Compliance.
  352         Section 8. Section 843.08, Florida Statutes, is amended to
  353  read:
  354         843.08 False personation.—A person who falsely assumes or
  355  pretends to be a firefighter, a sheriff, an officer of the
  356  Florida Highway Patrol, an officer of the Fish and Wildlife
  357  Conservation Commission, an officer of the Department of
  358  Environmental Protection, a fire or arson investigator of the
  359  Department of Financial Services, an officer of the Department
  360  of Financial Services, any personnel or representative of the
  361  Division of Investigative and Forensic Services, an officer of
  362  the Department of Corrections, a correctional probation officer,
  363  a deputy sheriff, a state attorney or an assistant state
  364  attorney, a statewide prosecutor or an assistant statewide
  365  prosecutor, a state attorney investigator, a coroner, a police
  366  officer, a lottery special agent or lottery investigator, a
  367  beverage enforcement agent, a school guardian as described in s.
  368  30.15(1)(k), a security officer licensed under chapter 493, any
  369  member of the Florida Commission on Offender Review or any
  370  administrative aide or supervisor employed by the commission,
  371  any personnel or representative of the Department of Law
  372  Enforcement, or a federal law enforcement officer as defined in
  373  s. 901.1505, and takes upon himself or herself to act as such,
  374  or to require any other person to aid or assist him or her in a
  375  matter pertaining to the duty of any such officer, commits a
  376  felony of the third degree, punishable as provided in s.
  377  775.082, s. 775.083, or s. 775.084. However, a person who
  378  falsely personates any such officer during the course of the
  379  commission of a felony commits a felony of the second degree,
  380  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  381  If the commission of the felony results in the death or personal
  382  injury of another human being, the person commits a felony of
  383  the first degree, punishable as provided in s. 775.082, s.
  384  775.083, or s. 775.084.
  385         Section 9. Paragraph (f) is added to subsection (11) of
  386  section 943.045, Florida Statutes, to read:
  387         943.045 Definitions; ss. 943.045-943.08.—The following
  388  words and phrases as used in ss. 943.045-943.08 shall have the
  389  following meanings:
  390         (11) “Criminal justice agency” means:
  391         (f)The investigations component of the Department of
  392  Financial Services which investigates the crimes of fraud and
  393  official misconduct in all public assistance given to residents
  394  of the state or provided to others by the state.
  395         Section 10. This act shall take effect July 1, 2020.