Notice of Proposed Rule

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
RULE NO: RULE TITLE
61-5.007: Disciplinary Guidelines for Unlicensed Activity
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to inform the public of the possible penalties for unlicensed activity and to comply with Section 455.2273(6), F.S.
SUMMARY: The proposed rule will set administrative penalty guidelines for violations of the unlicensed activity statutes articulated by Chapter 455, F.S., and the professional practice acts administered by the Department of Business and Professional Regulation.
OTHER RULES INCORPORATING THIS RULE: None
AFFECT ON THOSE OTHER RULES: None
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 455.2273 FS.
LAW IMPLEMENTED: 455.2273, 455.228 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Michael Green, Unlicensed Activity Administrator, Division of Regulation, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-2212, (850)488-6603

THE FULL TEXT OF THE PROPOSED RULE IS:

61-5.007 Disciplinary Guidelines for Unlicensed Activity.

(1) In imposing disciplinary penalties upon unlicensed persons, the Department of Business and Professional Regulation (hereinafter, “Department”) shall act in accordance with the following disciplinary guidelines and shall impose a penalty consistent herewith absent the application of aggravating or mitigating circumstances and subject to the provisions of Section 455.228, Florida Statutes.

(2) For the purpose of this rule, the term “license” shall mean the professional license, registration, certificate or certification issued by the Department to authorize the practice of a profession pursuant to a professional practice act administered by the Department.

(3) All penalties established herein are for each count or separate violation found.

(4) For using a professional title or designation without holding the requisite license to do so, the following penalties shall apply:

(a) First violation – $1000 administrative fine;

(b) Second violation – $2500 administrative fine; and

(c) Third and subsequent violations – $5000 administrative fine.

(5) For advertising or offering to practice a profession without holding the requisite license to do so, the following penalties shall apply:

(a) First violation – $1500 administrative fine;

(b) Second violation – $3000 administrative fine; and

(c) Third and subsequent violations – $5000 administrative fine.

(6) For practicing a profession without holding the requisite license to do so, the following penalties shall apply:

(a) First violation – $2500 administrative fine;

(b) Second violation – $4000 administrative fine; and

(c) Third and subsequent violations – $5000 administrative fine.

(7) Notwithstanding the foregoing, all third and subsequent violations of Section 489.13, Florida Statutes, shall result in the imposition of a $10,000 administrative fine.

(8) Circumstances which may be considered for the purposes of mitigation or aggravation of the foregoing penalties shall include the following:

(a) Monetary or other damage to the unlicensed person’s customer and/or other persons, in any way associated with the violation, which damage the unlicensed person has not relieved as of the time the penalty is to be assessed.

(b) The severity of the offense.

(c) The danger to the public.

(d) The number of repetitions of offenses.

(e) The number of complaints filed against the unlicensed person.

(f) The length of time the unlicensed person has been engaging in unlicensed activity.

(g) The actual damage, physical or otherwise, to the unlicensed person’s customer.

(h) The deterrent effect of the penalty imposed.

(i) The effect of the penalty upon the unlicensed person’s livelihood.

(j) Any efforts at rehabilitation.

(k) The unlicensed person’s use of an altered license or impersonation of a licensee.

(9) The disciplinary guidelines established by this rule are only applicable to final orders issued by the Secretary of the Department or his/her appointed designee.

Rulemaking Authority 455.2273 FS. Law Implemented 455.2273, 455.228 FS. History–New________.


NAME OF PERSON ORIGINATING PROPOSED RULE: Jerry Wilson, Director, Division of Regulation, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-2212, (850)488-6603
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charles W. Drago, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 24, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: April 13, 2007