61-42.001: Definitions
61-42.002: Investigations and Legal Services
61-42.003: Unsanctioned Amateur Events
61-42.004: Mediation
PURPOSE AND EFFECT: The purpose and effect of the proposed rules is to articulate and detail the legal and investigative services provided to the Florida State Boxing Commission by the Department.
SUMMARY: The subject area to be addressed in these rules is the legal and investigative services provided to the Florida State Boxing Commission by the Department.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department conducted an analysis of the proposed rule’s potential economic impact and determined that it did not exceed any of the criteria established in Section 120.541(2)(a), F.S.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 548.003(8) FS.
LAW IMPLEMENTED: 548.003(8) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kathleen Brown-Blake, Rules Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, (850)717-1244
THE FULL TEXT OF THE PROPOSED RULE IS:
61-42.001 Definitions.
For the purposes of this chapter, the following definitions shall apply:
(1) “Commission” means the Florida State Boxing Commission.
(2) “Disputant” means the complainant or the licensee.
(3) “Executive Director” means the executive director of the Florida State Boxing Commission.
(4) “Mediation” means a process whereby a third person acts to encourage and facilitate the resolution of a dispute between a complainant and licensee without prescribing what the resolution should be. The resolution is an informal and nonadversarial process with the objective of helping the disputants reach a mutually acceptable agreement.
(5) “Mediator” means the employee or agent of the department assigned to conduct the mediation (defined in subsection (4)) according to the procedures set forth in this rule. No person shall both conduct mediation and investigate the same complaint.
Rulemaking Authority 548.003(8) FS. Law Implemented 548.003(8) FS. History–New_________.
61-42.002 Investigations and Legal Services.
(1)(a)The department shall investigate, on behalf of the commission, any complaint that is filed with the department in writing, signed by the complainant, legally sufficient, and under the jurisdiction of the State of Florida. A complaint is legally sufficient if it contains facts that show a violation of this chapter, of any of the practice acts relating to the professions regulated by the commission, or of any rule adopted by the commission. In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate and take appropriate final action on a complaint even though the original complaint is withdrawn or the complainant indicates a desire not to cause the complaint to be investigated or prosecuted to completion.
(b) The department may investigate an anonymous complaint if the complaint is legally sufficient, if the alleged violation of law or rules is substantial, and if the department has reason to believe, after preliminary inquiry, that the violations alleged in the complaint are true.
(c) The department may investigate a complaint made by a confidential informant if the complaint is legally sufficient, if the alleged violation of law or rule is substantial, and if the department has reason to believe, after preliminary inquiry, that the allegations of the complainant are true.
(d) The department may initiate an investigation if it has reasonable cause to believe that a licensee or a group of licensees has violated a Florida statute or a rule of a commission.
(e)When an investigation of any subject is undertaken, the department shall promptly furnish to the subject or the subject’s attorney a copy of the complaint or document that resulted in the initiation of the investigation. The subject may submit a written response to the information contained in such complaint or document within 20 days after service to the subject of the complaint or document. The subject’s written response shall be considered by the department. The right to respond does not prohibit the issuance of a summary emergency order if necessary to protect the public health, safety, and welfare. However, if the secretary, or the secretary’s designee, and the chair of the commission agree in writing that such notification would be detrimental to the investigation, the department may withhold notification. The department may conduct an investigation without notification to any subject if the act under investigation is a criminal offense.
(f) When an investigation of an amateur sanctioning organization is undertaken, if possible, investigators shall conduct a compliance check on any matches held by the amateur sanctioning organization to ensure compliance with Chapter 548, F.S., and the rules adopted by the commission.
(g) For the purposes of investigation, any individuals designated by the executive director and department to conduct investigations shall be admitted to each event or match and provided reasonable access to all areas, including but not limited to dressing rooms or locker rooms by the amateur sanctioning organization.
(2) The department shall designate sufficient and adequately trained staff or other qualified persons to investigate all legally sufficient complaints The department shall allocate sufficient and adequately trained staff to expeditiously and thoroughly determine legal sufficiency.
(3) For the purposes of this rule, the Department may use any of the individuals designated to conduct compliance checks, as forth in Rule 61K1-4.001, F.A.C., to conduct or assist in investigations. Those individuals are:
(a) Referees currently or formerly licensed under Chapter 548, F.S.;
(b) Judges currently or formerly licensed under Chapter 548, F.S.;
(c) Inspectors, including Chief Inspectors;
(d) Ringside physicians currently or formerly licensed under Chapter 548, F.S.;
(e) Commission staff;
(g) The executive director;
(h) Commissioners.
(4) When its investigation is complete and deemed legally sufficient, the department shall prepare and submit to the Office of the General Counsel the investigative report. The report shall contain the investigative findings and the recommendations concerning the existence of probable cause of any violation of Chapter 548, F.S., or of any rule adopted by the commission. At any time after legal sufficiency is found, the department may dismiss any case, or any part thereof, if the department determines that there is insufficient evidence to support the prosecution of allegations contained therein.
(5) As an alternative to the provisions of subsections (1), (2), and (3), when a complaint is received, the department may provide a licensee with a notice of noncompliance for an initial offense of a minor violation, as listed in Rules 61K1-3.024 and 61K1-4.013, F.A.C. Failure of a licensee to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings.
(6) The determination of whether probable cause exists shall be made by the Office of the General Counsel within the Department. The Office of the General Counsel may retain independent legal counsel, employ investigators, and continue the investigation as it deems necessary; and all costs thereof shall be paid from the Professional Regulation Trust Fund.
(7) When probable cause of a violation of Chapter 548, F.S., or the rules of the commission has been found by the Office of the General Counsel, the Office of the General Counsel shall serve notice of the alleged violation(s) in an Administrative Complaint in accordance with Section 120.60(5), F.S. If the Subject of a complaint disagrees with the allegations set forth in the Administrative Complaint, a formal hearing before an administrative law judge may be requested from the Division of Administrative Hearings, pursuant to a petition or request for hearing, as set forth in Section 120.569, F.S., and the rules adopted thereto. Hearings shall be held pursuant to Chapter 120, F.S., and the rules adopted thereto.
(8) The commission shall determine and issue the final order in each disciplinary case. Such order shall constitute final agency action. Any consent order or agreed settlement shall be subject to the approval of the commission.
(9) The department shall have standing to seek judicial review of any final order of the commission, pursuant to Section 120.68, F.S.
(10) The department shall periodically notify the complainant of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal.
(11) Upon completion of the investigation and pursuant to a written request by the subject, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject’s expense, forward to the subject a copy of the investigative file. The subject may file a written response to the information contained in the investigative file. Such response must be filed within 20 days, unless an extension of time has been granted by the department. This subsection does not prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency.
(12) All fines, fees, and costs collected through the procedures set forth in this section shall be allocated to the Florida State Boxing Commission Trust Fund for the allocation of the fees assessed and collected to combat unlicensed practice of a profession.
Rulemaking Authority 548.003(8) FS. Law Implemented 548.003(8) FS. History–New________.
61-42.003 Unsanctioned Amateur Events.
(1) When the department has probable cause to believe that any person or entity not licensed by the commission intends to sanction or supervise an amateur match or event in the state, the department may issue and deliver to such person a notice to cease and desist from such violation. In addition, the department may issue and deliver a notice to cease and desist to any person or entity who aids and abets the unlicensed sanctioning or supervising of an amateur match or event in this state by employing such unlicensed person or entity. The issuance of a notice to cease and desist shall not constitute agency action for which a hearing under Sections 120.569 and 120.57, F.S., may be sought. For the purpose of enforcing a cease and desist notice, the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person or entity who violates any provisions of such notice. In addition to the foregoing remedies, the department may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120 or may issue a citation pursuant to the provisions of subsection (3). If the department is required to seek enforcement of the notice for a penalty pursuant to Section 120.569, F.S., it shall be entitled to collect its attorney’s fees and costs, together with any cost of collection.
(2) In addition to or in lieu of any remedy provided in subsection (1), the department may seek the imposition of a civil penalty through the circuit court in which the department’s main office is located for any violation for which the department may issue a notice to cease and desist under subsection (1). The civil penalty shall be no less than $500 and no more than $5,000 for each offense.
(3)(a) The department may issue citations to the subject for intending to sanction or supervise amateur matches or events without being licensed to do so. The citations shall contain the subject’s name and any other information the department determines to be necessary to identify the subject, a brief factual statement, the sections of the law allegedly violated, and the penalty imposed. The citation must clearly state that the subject may choose, in lieu of accepting the citation, to follow the procedure in Rule 61-41.002, F.A.C. If the subject disputes the matter in the citation, the procedures set forth in Rule 61-41.002, F.A.C., must be followed. The penalty shall be a fine of not less than $500 or more than $5,000 or other conditions as established by rule.
(b) Citations imposing a designated fine may be issued under the following conditions:
1. The subject has received a previous Notice to Cease and Desist for the unlicensed activity;
2. The subject has not received a prior citation, or final order, for the unlicensed activity;
3. There is no evidence of consumer harm; and
4. The subject has not previously held a license as an amateur sanctioning organization.
(c) Citations for the unlicensed practice of a sanctioning or supervising an amateur match governed by Chapter 548, F.S., shall be either personally-served or served by certified mail, restricted delivery.
(d) If the subject does not dispute the citation within 30 days after the citation is served, the citation will become a final order of the Department.
(e) Payment of an undisputed citation is due within 30 days after the citation has become a final order.
(f) Citations which have become final orders will be used in any subsequent proceedings as evidence of a prior violation of that statute or rule.
(g) The Department shall open a complaint against any individual or organization issued a citation for intending to sanction or supervise an amateur match without being licensed to do so, who does not immediately cease the activity, or who has sanctioned or supervised an amateur match without being licensed to do so. Furthermore, the Department shall forward notice of criminal violations to the proper prosecuting authority in accordance with Section 548.008, F.S.
(h) Each day that the unlicensed practice continues after issuance of a citation constitutes a separate violation.
(i) The department shall be entitled to recover the costs of investigation, in addition to any penalty provided according to department rule as part of the penalty levied pursuant to the citation.
(4) All fines, fees, and costs collected through the procedures set forth in this section shall be allocated to the Florida State Boxing Commission Trust Fund for the allocation of the fees assessed and collected to combat unlicensed practice of a profession.
Rulemaking Authority 548.003(8) FS. Law Implemented 548.003(8) FS. History–New_________.
61-42.004 Procedure for Mediation.
(1) The department may designate as mediation offenses those complaints where harm caused by the licensee is economic in nature or can be remedied by the licensee.
(2) After the department determines a complaint is legally sufficient and the alleged violations are defined as mediation offenses, the mediator may conduct informal mediation to resolve the complaint. If the complainant and the subject of the complaint agree to a resolution of a complaint within 14 days after contact by the mediator, the mediator shall notify the department of the terms of the resolution. The department shall take no further action unless the complainant and the subject each fail to record with the department an acknowledgment of satisfaction of the terms of mediation within 60 days of the mediator’s notification to the department. In the event the complainant and subject fail to reach settlement terms or to record the required acknowledgment, the department shall process the complaint according to the provisions of Rule 61-42.002, F.A.C.
(3) No licensee shall be permitted to engage in the mediation process more than three times without approval from the department. The department may consider the subject and dates of the earlier complaints in rendering its decision. Such decision shall not be considered final agency action for purposes of Chapter 120, F.S.
(4) A department complaint analyst or investigator shall determine the suitability of a complaint for mediation, employing the criteria set forth in Section 455.2235, F.S., Chapter 548, F.S., and the rules adopted by the commission.
(5) Mediation shall be conducted in person or via electronic media or telecommunications, or any combination of the two, as warranted by relevant circumstances of the mediation.
(6) The mediator shall meet with the complainant and licensee together or separately, as warranted by the circumstances of the mediation.
(7) The mediator shall provide a written report to the department of the mediation results within 10 days of the conclusion of the mediation. If the complaint is resolved in mediation, the department shall close the complaint.
(8) If mediation is rejected by either the complainant or licensee, or should the parties fail to reach agreement, the department shall proceed on the complaint in the manner required by Chapter 120, F.S. and Rule 61-42.002, F.A.C.
(9) To determine whether the department will approve a licensee's participation in the mediation process more than three times, the department shall consider factors including the subject, date, disposition, and number of complaints against the licensee, and the licensee’s history of compliance with board or department orders.
Rulemaking Authority 548.003(8) FS. Law Implemented 548.003(8) FS. History–New_________.