Florida Senate - 2020                             CS for SB 1404
       By the Committee on Banking and Insurance; and Senator Perry
       597-02425-20                                          20201404c1
    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; creating s. 633.217, F.S.; prohibiting
   36         certain acts to influence a firesafety inspector into
   37         violating certain laws; prohibiting a firesafety
   38         inspector from knowingly and willfully accepting an
   39         attempt to influence him or her into violating certain
   40         laws; amending s. 633.416, F.S.; providing that
   41         certain persons serving as volunteer firefighters may
   42         serve as a regular or permanent firefighter for a
   43         limited period, subject to certain restrictions;
   44         amending s. 843.08, F.S.; prohibiting false
   45         personation of personnel or representatives of the
   46         Division of Investigative and Forensic Services;
   47         providing criminal penalties; amending s. 943.045,
   48         F.S.; revising the definition of the term “criminal
   49         justice agency” to include the investigations
   50         component of the department which investigates certain
   51         crimes; providing an effective date.
   53  Be It Enacted by the Legislature of the State of Florida:
   55         Section 1. Paragraph (f) of subsection (2) of section
   56  20.121, Florida Statutes, is amended to read:
   57         20.121 Department of Financial Services.—There is created a
   58  Department of Financial Services.
   59         (2) DIVISIONS.—The Department of Financial Services shall
   60  consist of the following divisions and office:
   61         (f) The Division of Public Assistance Fraud, which shall
   62  function as a criminal justice agency for purposes of ss.
   63  943.045-943.08. The division shall conduct investigations
   64  pursuant to s. 414.411 within or outside of this state as it
   65  deems necessary. If, during an investigation, the division has
   66  reason to believe that any criminal law of this state has or may
   67  have been violated, it shall refer any records tending to show
   68  such violation to state or federal law enforcement or
   69  prosecutorial agencies and shall provide investigative
   70  assistance to those agencies as required.
   71         Section 2. Subsections (1), (2), (3), (6), and (8) of
   72  section 497.101, Florida Statutes, are amended to read:
   73         497.101 Board of Funeral, Cemetery, and Consumer Services;
   74  membership; appointment; terms.—
   75         (1) The Board of Funeral, Cemetery, and Consumer Services
   76  is created within the Department of Financial Services and shall
   77  consist of 10 members, 9 of whom shall be appointed by the
   78  Governor from nominations made by the Chief Financial Officer
   79  and confirmed by the Senate. The Chief Financial Officer shall
   80  nominate one to three persons for each of the nine vacancies on
   81  the board, and the Governor shall fill each vacancy on the board
   82  by appointing one of the three persons nominated by the Chief
   83  Financial Officer to fill that vacancy. If the Governor objects
   84  to each of the three nominations for a vacancy, she or he shall
   85  inform the Chief Financial Officer in writing. Upon notification
   86  of an objection by the Governor, the Chief Financial Officer
   87  shall submit one to three additional nominations for that
   88  vacancy until the vacancy is filled. One member must be the
   89  State Health Officer or her or his designee.
   90         (2) Two members of the board shall be funeral directors
   91  licensed under part III of this chapter who are associated with
   92  a funeral establishment. One member of the board shall be a
   93  funeral director licensed under part III of this chapter who is
   94  associated with a funeral establishment licensed under part III
   95  of this chapter that has a valid preneed license issued pursuant
   96  to this chapter and who owns or operates a cinerator facility
   97  approved under chapter 403 and licensed under part VI of this
   98  chapter. Two members of the board shall be persons whose primary
   99  occupation is associated with a cemetery company licensed
  100  pursuant to this chapter. Two Three members of the board shall
  101  be consumers who are residents of the state, have never been
  102  licensed as funeral directors or embalmers, are not connected
  103  with a cemetery or cemetery company licensed pursuant to this
  104  chapter, and are not connected with the death care industry or
  105  the practice of embalming, funeral directing, or direct
  106  disposition. One of the two consumer members shall be at least
  107  60 years of age, and one shall be licensed as a certified public
  108  accountant under chapter 473. One member of the board shall be a
  109  consumer who is a resident of this state; is licensed as a
  110  certified public accountant under chapter 473; has never been
  111  licensed as a funeral director or embalmer; is not a principal
  112  or employee of any licensee licensed under this chapter; and
  113  does not otherwise have control, as defined in s. 497.005, over
  114  any licensee licensed under this chapter. One member of the
  115  board shall be a principal of a monument establishment licensed
  116  under this chapter as a monument builder. One member shall be
  117  the State Health Officer or her or his designee. There shall not
  118  be two or more board members who are principals or employees of
  119  the same company or partnership or group of companies or
  120  partnerships under common control.
  121         (3) Board members shall be appointed for terms of 4 years,
  122  and the State Health Officer shall serve as long as that person
  123  holds that office. The designee of the State Health Officer
  124  shall serve at the pleasure of the Governor. When the terms of
  125  the initial board members expire, the Chief Financial Officer
  126  shall stagger the terms of the successor members as follows: one
  127  funeral director, one cemetery representative, the monument
  128  builder, and one consumer member shall be appointed for terms of
  129  2 years, and the remaining members shall be appointed for terms
  130  of 4 years. All subsequent terms shall be for 4 years.
  131         (6) The headquarters and records of the board shall be in
  132  the Division of Funeral, Cemetery, and Consumer Services of the
  133  Department of Financial Services in the City of Tallahassee. The
  134  board may be contacted through the Division of Funeral,
  135  Cemetery, and Consumer Services of the Department of Financial
  136  Services in the City of Tallahassee. The Chief Financial Officer
  137  shall annually appoint from among the board members a chair and
  138  vice chair of the board. The board shall meet at least every 6
  139  months, and more often as necessary. Special meetings of the
  140  board shall be convened upon the direction of the Chief
  141  Financial Officer. A quorum is necessary for the conduct of
  142  business by the board. Unless otherwise provided by law, a
  143  majority of the board members eligible to vote shall constitute
  144  a quorum for the purpose of conducting its business six board
  145  members shall constitute a quorum for the conduct of the board’s
  146  business.
  147         (8)The department shall adopt rules establishing forms by
  148  which persons may apply for membership on the board and
  149  procedures for applying for such membership. Such forms shall
  150  require disclosure of the existence and nature of all current
  151  and past employments by or contracts with, and direct or
  152  indirect affiliations or interests in, any entity or business
  153  that at any time was licensed by the board or by the former
  154  Board of Funeral and Cemetery Services or the former Board of
  155  Funeral Directors and Embalmers or that is or was otherwise
  156  involved in the death care industry, as specified by department
  157  rule.
  158         Section 3. Section 497.1411, Florida Statutes, is created
  159  to read:
  160         497.1411Disqualification of applicants and licensees;
  161  penalties against licensees; rulemaking.—
  162         (1)For purposes of this section, the term:
  163         (a)“Applicant” means an individual applying for licensure
  164  or relicensure under this chapter, and an officer, a director, a
  165  majority owner, a partner, a manager, or other person who
  166  manages or controls an entity applying for licensure or
  167  relicensure under this chapter.
  168         (b)“Felony of the first degree” and “capital felony”
  169  include all felonies designated as such in this state at the
  170  time of the commission of the offense, as well as any offense in
  171  another jurisdiction that is substantially similar to an offense
  172  so designated in this state.
  173         (c)“Financial services business” means any financial
  174  activity regulated by the department, the Office of Insurance
  175  Regulation, or the Office of Financial Regulation.
  176         (2)An applicant who has been found guilty of or has
  177  pleaded guilty or nolo contendere to any of the following
  178  crimes, regardless of adjudication, is permanently barred from
  179  licensure under this chapter:
  180         (a)A felony of the first degree.
  181         (b)A capital felony.
  182         (c)A felony money laundering offense.
  183         (d)A felony embezzlement.
  184         (3)An applicant who has been found guilty of or has
  185  pleaded guilty or nolo contendere to a crime not included in
  186  subsection (2), regardless of adjudication, is subject to:
  187         (a)A 10-year disqualifying period for all felonies
  188  involving moral turpitude that are not specifically included in
  189  the permanent bar contained in subsection (2).
  190         (b)A 5-year disqualifying period for all felonies to which
  191  neither the permanent bar in subsection (2) nor the 10-year
  192  disqualifying period in paragraph (a) applies.
  193         (c)A 5-year disqualifying period for all misdemeanors
  194  directly related to the financial services business.
  195         (4)The department shall adopt rules to administer this
  196  section. The rules must provide for additional disqualifying
  197  periods due to the commitment of multiple crimes and may include
  198  other factors reasonably related to the applicant’s criminal
  199  history. The rules shall provide for mitigating and aggravating
  200  factors. However, mitigation may not result in a period of
  201  disqualification of less than 5 years and may not mitigate the
  202  disqualifying periods in paragraphs (3)(b) and (c).
  203         (5)For purposes of this section, a disqualifying period
  204  begins upon the applicant’s final release from supervision or
  205  upon completion of the applicant’s criminal sentence. The
  206  department may not issue a license to an applicant unless all
  207  related fines, court costs and fees, and court-ordered
  208  restitution have been paid.
  209         (6)After the disqualifying period has expired, the burden
  210  is on the applicant to demonstrate that he or she has been
  211  rehabilitated, does not pose a risk to the public, is fit and
  212  trustworthy to engage in business regulated by this chapter, and
  213  is otherwise qualified for licensure.
  214         (7)Notwithstanding subsections (2) and (3), upon a grant
  215  of a pardon or the restoration of civil rights pursuant to
  216  chapter 940 and s. 8, Art. IV of the State Constitution with
  217  respect to a finding of guilt or a plea under subsection (2) or
  218  subsection (3), or such pardon or the restoration of civil
  219  rights under the laws of another jurisdiction with respect to a
  220  conviction in that jurisdiction, such finding or plea no longer
  221  bars or disqualifies the applicant from licensure under this
  222  chapter; however, such a pardon or restoration of civil rights
  223  does not require the department to award such license.
  224         (8)(a)The Board of Funeral, Cemetery, and Consumer
  225  Services may grant an exemption from disqualification to any
  226  person disqualified from licensure under this section because of
  227  a criminal record if:
  228         1.The applicant has paid in full any fee, fine, fund,
  229  lien, civil judgment, restitution, or cost of prosecution
  230  imposed by the court as part of the judgment and sentence for
  231  any disqualifying offense; and
  232         2.At least 5 years have elapsed since the applicant
  233  completed or has been lawfully released from confinement,
  234  supervision, or nonmonetary condition imposed by the court for a
  235  disqualifying offense.
  236         (b)For the board to grant an exemption under this
  237  subsection, the applicant must clearly and convincingly
  238  demonstrate that he or she would not pose a risk to persons or
  239  property if licensed under this chapter, evidence of which must
  240  include, but need not be limited to, facts and circumstances
  241  surrounding the disqualifying offense, the time that has elapsed
  242  since the offense, the nature of the offense and harm caused to
  243  the victim, the applicant’s history before and after the
  244  offense, and any other evidence or circumstances indicating that
  245  the applicant will not present a danger if licensed or
  246  certified.
  247         (c)The board has discretion whether to grant or deny an
  248  exemption under this subsection. The board’s decision is subject
  249  to chapter 120, except that a formal proceeding under s.
  250  120.57(1) is available only if there are disputed issues of
  251  material fact that the department relied upon in reaching its
  252  decision.
  253         Section 4. Present subsections (2) through (5) of section
  254  497.157, Florida Statutes, are redesignated as subsections (4)
  255  through (7), respectively, new subsections (2) and (3) and
  256  subsection (8) are added to that section, and present subsection
  257  (3) of that section is amended, to read:
  258         497.157 Unlicensed practice; remedies concerning violations
  259  by unlicensed persons.—
  260         (2)A person may not be, act as, or advertise or hold
  261  himself or herself out to be a funeral director, embalmer, or
  262  direct disposer unless he or she is currently licensed by the
  263  department.
  264         (3)A person may not be, act as, or advertise or hold
  265  himself or herself out to be a preneed sales agent unless he or
  266  she is currently licensed by the department and appointed by a
  267  preneed main licensee for which they are executing preneed
  268  contracts.
  269         (5)(3) Where the department determines that an emergency
  270  exists regarding any violation of this chapter by any unlicensed
  271  person or entity, the department may issue and serve an
  272  immediate final order upon such unlicensed person or entity, in
  273  accordance with s. 120.569(2)(n). Such an immediate final order
  274  may impose such prohibitions and requirements as are reasonably
  275  necessary to protect the public health, safety, and welfare, and
  276  shall be effective when served.
  277         (a) For the purpose of enforcing such an immediate final
  278  order, the department may file an emergency or other proceeding
  279  in the circuit courts of the state seeking enforcement of the
  280  immediate final order by injunctive or other order of the court.
  281  The court shall issue its injunction or other order enforcing
  282  the immediate final order pending administrative resolution of
  283  the matter under subsection (4) (2), unless the court determines
  284  that such action would work a manifest injustice under the
  285  circumstances. Venue for judicial actions under this paragraph
  286  shall be, at the election of the department, in the courts of
  287  Leon County, or in a county where the respondent resides or has
  288  a place of business.
  289         (b) After serving an immediate final order to cease and
  290  desist upon any person or entity, the department shall within 10
  291  days issue and serve upon the same person or entity an
  292  administrative complaint as set forth in subsection (4) (2),
  293  except that, absent order of a court to the contrary, the
  294  immediate final order shall be effective throughout the pendency
  295  of proceedings under subsection (4) (2).
  296         (8)Any person who is not licensed under this chapter and
  297  who engages in activity requiring licensure under this chapter
  298  commits a felony of the third degree, punishable as provided in
  299  s. 775.082, s. 775.083, or s. 775.084.
  300         Section 5. Subsection (13) of section 552.081, Florida
  301  Statutes, is amended to read:
  302         552.081 Definitions.—As used in this chapter:
  303         (13) “Two-component explosives” means any two inert
  304  components which, when mixed, become capable of detonation by
  305  any detonator a No. 6 blasting cap, and shall be classified as a
  306  Class “A” explosive when so mixed.
  307         Section 6. Present subsection (2) of section 553.7921,
  308  Florida Statutes, is redesignated as subsection (3), a new
  309  subsection (2) is added to that section, and subsection (1) of
  310  that section is amended, to read:
  311         553.7921 Fire alarm permit application to local enforcement
  312  agency.—
  313         (1) A contractor must file a Uniform Fire Alarm Permit
  314  Application as provided in subsection (3) (2) with the local
  315  enforcement agency and must receive the fire alarm permit
  316  before:
  317         (a) installing or replacing a fire alarm, if the local
  318  enforcement agency requires a plan review for the installation
  319  or replacement; or
  320         (b) Repairing an existing alarm system that was previously
  321  permitted by the local enforcement agency if the local
  322  enforcement agency requires a fire alarm permit for the repair.
  323         (2) If the local enforcement agency requires a fire alarm
  324  permit to repair an existing alarm system that was previously
  325  permitted by the local enforcement agency, a contractor may
  326  begin work after filing a Uniform Fire Alarm Permit Application
  327  as provided in subsection (3). A fire alarm repaired pursuant to
  328  this subsection may not be considered compliant until the
  329  required permit is issued and the local enforcement agency
  330  approves the repair.
  331         Section 7. Section 633.217, Florida Statutes, is created to
  332  read:
  333         633.217Influencing a firesafety inspector; prohibited
  334  acts.
  335         (1) A person may not influence a firesafety inspector by:
  336         (a) Threatening, coercing, tricking, or attempting to
  337  threaten, coerce, or trick, the firesafety inspector into
  338  violating any provision of the Florida Fire Prevention Code, any
  339  rule adopted by the State Fire Marshal, or any provision of this
  340  chapter.
  341         (b) Offering any compensation to the firesafety inspector
  342  to induce a violation of the Florida Fire Prevention Code, any
  343  rule adopted by the State Fire Marshal, or any provision of this
  344  chapter.
  345         (2) A firesafety inspector may not knowingly and willfully
  346  accept an attempt by a person to influence the firesafety
  347  inspector into violating any provision of the Florida Fire
  348  Prevention Code, any rule adopted by the State Fire Marshal, or
  349  any provision of this chapter.
  350         Section 8. Subsection (1) of section 633.416, Florida
  351  Statutes, is amended to read:
  352         633.416 Firefighter employment and volunteer firefighter
  353  service; saving clause.—
  354         (1) A fire service provider may not employ an individual
  355  to:
  356         (a) Extinguish fires for the protection of life or property
  357  or to supervise individuals who perform such services unless the
  358  individual holds a current and valid Firefighter Certificate of
  359  Compliance. However, a person who is currently serving as a
  360  volunteer firefighter and holds a volunteer firefighter
  361  certificate of completion with a fire service provider, who is
  362  then employed as a regular or permanent firefighter by such fire
  363  service provider, may function, for a period of 1 year under the
  364  direct supervision of an individual holding a valid firefighter
  365  certificate of compliance, in the same capacity in which he or
  366  she acted as a volunteer firefighter, provided that he or she
  367  has completed all training required by the volunteer
  368  organization. Under no circumstance can this period extend
  369  beyond 1 year either collectively or consecutively from the
  370  start of employment to obtain a Firefighter Certificate of
  371  Compliance; or
  372         (b) Serve as the administrative and command head of a fire
  373  service provider for a period in excess of 1 year unless the
  374  individual holds a current and valid Firefighter Certificate of
  375  Compliance or Special Certificate of Compliance.
  376         Section 9. Section 843.08, Florida Statutes, is amended to
  377  read:
  378         843.08 False personation.—A person who falsely assumes or
  379  pretends to be a firefighter, a sheriff, an officer of the
  380  Florida Highway Patrol, an officer of the Fish and Wildlife
  381  Conservation Commission, an officer of the Department of
  382  Environmental Protection, a fire or arson investigator of the
  383  Department of Financial Services, an officer of the Department
  384  of Financial Services, any personnel or representative of the
  385  Division of Investigative and Forensic Services, an officer of
  386  the Department of Corrections, a correctional probation officer,
  387  a deputy sheriff, a state attorney or an assistant state
  388  attorney, a statewide prosecutor or an assistant statewide
  389  prosecutor, a state attorney investigator, a coroner, a police
  390  officer, a lottery special agent or lottery investigator, a
  391  beverage enforcement agent, a school guardian as described in s.
  392  30.15(1)(k), a security officer licensed under chapter 493, any
  393  member of the Florida Commission on Offender Review or any
  394  administrative aide or supervisor employed by the commission,
  395  any personnel or representative of the Department of Law
  396  Enforcement, or a federal law enforcement officer as defined in
  397  s. 901.1505, and takes upon himself or herself to act as such,
  398  or to require any other person to aid or assist him or her in a
  399  matter pertaining to the duty of any such officer, commits a
  400  felony of the third degree, punishable as provided in s.
  401  775.082, s. 775.083, or s. 775.084. However, a person who
  402  falsely personates any such officer during the course of the
  403  commission of a felony commits a felony of the second degree,
  404  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  405  If the commission of the felony results in the death or personal
  406  injury of another human being, the person commits a felony of
  407  the first degree, punishable as provided in s. 775.082, s.
  408  775.083, or s. 775.084.
  409         Section 10. Paragraph (f) is added to subsection (11) of
  410  section 943.045, Florida Statutes, to read:
  411         943.045 Definitions; ss. 943.045-943.08.—The following
  412  words and phrases as used in ss. 943.045-943.08 shall have the
  413  following meanings:
  414         (11) “Criminal justice agency” means:
  415         (f)The investigations component of the Department of
  416  Financial Services which investigates the crimes of fraud and
  417  official misconduct in all public assistance given to residents
  418  of the state or provided to others by the state.
  419         Section 11. This act shall take effect July 1, 2020.