6E-2.0061. Actions Against A Licensee; Penalties

(1) Denial. Any Provisional License, Annual License, License by Means of Accreditation, agent’s license, approval to use the terms “college” or “university,” approval of modifications, approval of occasional elective clinical clerkships, or other authorization under the Commission’s jurisdiction shall be denied upon a determination by the Commission that the applicant does not meet the requirements of Chapter 1005, F.S., or the applicable standards in Chapters 6E-1 and 6E-2, F.A.C., or for specific grounds as stated in Sections 1005.32(7), 1005.34(3) and 1005.38, F.S.

(2) Probation.

(a) A Provisional License, Annual License, or License by Means of Accreditation, agent’s license, or other authorization under the Commission’s jurisdiction shall be placed on probation when the Commission finds an infraction of any of the grounds enumerated in subsection (4) of this rule, which in the Commission’s judgment threatens the efficient operation of the institution or the quality of the educational programs or services offered, damages the reputation of another institution, or deceives the public.

(b) The Commission shall impose conditions designed to correct the infractions identified or to overcome the effects of such infractions, and shall require submission of periodic progress reports on the steps being taken to comply with the conditions and to correct the situation. Unannounced staff visits shall be made to the institution as necessary to monitor its activities. An institution or agent placed on probation shall provide satisfactory documentation to the Commission that remedial action has been taken to correct the situation or activities leading to probation. When it is documented to the Commission that the situation or activities have been corrected, and policies have been adopted by the institution to prevent the recurrence of the infractions, the Commission shall remove the probation. If competent evidence is not presented showing that the situation or activities leading to probation have been corrected within the period of time specified by the Commission, or if similar infractions recur, procedures shall be initiated to revoke the license or other authorization.

(c) If the conditions set by the Commission in conjunction with the probation require oversight and monitoring by the Commission or its staff, the Commission shall impose an administrative fine in an amount reflective of the administrative time required for the specific case, up to $5,000, as provided in Section 1005.38(1), F.S.

(3) Revocation. Any Provisional License, Annual License, or License by Means of Accreditation, agent’s license, or other authorization under the Commission's jurisdiction shall be revoked when the Commission finds:

(a) An infraction of any of the grounds enumerated in subsection (4) of this rule, which in the Commission’s judgment is so serious as to threaten the continued operation of the institution, or the health, safety and welfare of its students or staff or of the general public; or

(b) That the institution or agent continues to engage in activities in noncompliance with applicable laws after directed by the Commission to cease and desist; or

(c) That the institution or agent has failed to correct, within the allotted period, the situation or activities for which probation has been imposed.

If a license is revoked, the college or agent affected shall cease operations in Florida. Any new application for licensure shall follow the procedures and requirements of the applicable statute and rules.

(4) Grounds for Imposing Disciplinary Actions.

(a) Attempting to obtain action from the Commission by fraudulent misrepresentation, bribery, or through an error of the Commission.

(b) Action against a license or operation imposed under the authority of another state, territory, or country.

(c) Delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform the responsibilities.

(d) False, deceptive, or misleading advertising.

(e) Conspiring to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.

(f) Failure to maintain the licensure standards as set forth in Sections 1005.31 and 1005.32, F.S., and applicable rules.

(g) Failure to comply with fair consumer practices as set forth in Sections 1005.04 and 1005.34, F.S., and applicable rules.

(h) Previously operating an institution in a manner contrary to the health, education, or welfare of the public, as described in Section 1005.38(4), F.S.

(i) Failure of the licensee to comply with any conditions or limitations placed by the Commission upon its licensure or operation.

(j) Failure to notify the Commission of a change of address.

(k) Violating or repeatedly violating any provision of Chapter 1005, F.S., or any rule adopted pursuant thereto.

(l) Operating with a revoked, suspended, or inactive license.

(m) Violating any lawful order of the Commission previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena.

(n) Failure of licensee to notify the Commission of closing of an institution or campus.

(5) Based upon consideration of aggravating or mitigating factors, present in an individual case, the Commission may deviate from the recommended penalties. The Commission shall consider as aggravating or mitigating factors the following:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has been previously disciplined by the Commission;

(d) The length of time institution has been a licensed school;

(e) The actual damage, monetary or otherwise, caused by the violation;

(f) The deterrent effect of the penalty imposed;

(g) The effect of the penalty upon the institutions’ ability to stay open;

(h) Any effort of rehabilitation by the institution;

(i) The actual knowledge of the licensee pertaining to the violation;

(j) Attempts by institution to correct or stop violation or refusal by institution to correct or stop violation;

(k) Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

(l) Actual negligence of the licensee pertaining to any violation;

(m) Penalties imposed for related offenses;

(n) Pecuniary gain to the institution;

(o) The number of complaints filed against the institution; and

(p) Any other relevant mitigating or aggravating factors under the circumstances.

(6) Investigations. Investigations on behalf of the Commission shall be carried out as provided in Section 1005.38, F.S.

(7) Probable cause. Determinations of probable cause shall be made as provided in Section 1005.38, F.S. Probable cause panels shall be appointed to consider suspected violations of law and to make findings, which shall be reported to the full Commission. If the probable cause panel makes a determination of probable cause, the Commission shall issue an administrative complaint and shall issue a cease and desist order as provided in Section 1005.38, F.S., if necessary to stop the violations. Probable cause panels shall be appointed and shall serve as follows:

(a) The chair of the Commission shall appoint three people to a probable cause panel, and shall designate its chair. At least one panel member shall be a current member of the Commission. Other members may be current Commission members or previous members of the Commission for Independent Education, State Board of Independent Colleges and Universities, or State Board of Nonpublic Career Education. Each probable cause panel shall serve on an ad hoc basis to review specific cases referred to it by the Commission.

(b) Current commission members who serve on a probable cause panel cannot vote for final agency action on institutions whose current cases they have reviewed while serving on the panel.

(c) Reconsideration of probable cause in any given case shall be performed by the members of the panel who initially found probable cause in that case. Whenever an original panel member is not available, current member(s) shall hear the reconsideration.

(d) All investigatory records including the findings of an exempt probable cause panel meeting are exempt from Section 119.07(1), F.S., and Section 24(a), Art. 1 of the State Constitution for a period not to exceed 10 days after the panel makes a determination regarding probable cause.

(e) The Commission will review the recommendation of the Probable Cause Panel. If probable cause is found, the Commission will issue an Administrative Complaint. The Commission also has the authority to issue an administrative fine from $100-$5000 per count. The Commission also has the authority to issue Cease and Desist orders as provided in Section 1005.38, F.S., if necessary to stop a violation.

(f) The Commission shall determine the amount of costs to be assessed after its consideration of an affidavit of itemized costs and any written objections thereto submitted to the Commission for Independent Education.

(g) In cases where the Commission imposes an administrative fine and an assessment of costs, each shall be paid within thirty (30) days from the date the final order of the Commission is filed with the Clerk of the Commission unless a different time frame is set forth in the final order.

(8) Issuance of Citations.

(a) All citations will include a requirement that the subject correct the violation, if remediable, within a specified period of time not to exceed 60 days, and impose whatever obligations will remedy the offense.

(b) The Commission shall be entitled to recover the cost of investigation and prosecution in addition to the fine levied pursuant to the citation.

(c) The citation becomes a final order of the Commission if the subject fails to dispute the issuance of the citation within 30 days of service. The subject has 30 days from the date the citation becomes a final order to pay the fine and costs. Failure to pay the fine and costs within the prescribed time period constitutes a violation of Section 1005.385, F.S., which will result in further disciplinary action. All fines and costs are to be made payable to “Office of the Comptroller, Department of Education.”

(d) Once the citation becomes a final order, the citation and complaint become a public record pursuant to Chapter 119, F.S., unless otherwise exempt from the provision of Chapter 119, F.S.

(e) The Executive Director will report to the Commission the number of citations issued and the nature of the offenses for which they were issued.

(f) Violations and Penalties for Citations. Citations shall be issued by the Executive Director for failure to meet procedural requirements of the Commission. For the purposes of this rule, the Commission designates as offenses for citations only the following violations with accompanying penalty:

1. Issuance of a worthless bank check to the Commission.$100.00

2. Failure to notify the Commission of a change of address within time in violation of paragraph

6E-2.0061(4)(j), F.A.C. $500.00

3. Failure to notify the Commission of a minor modification of a program pursuant to Rule 6E-2.008, F.A.C.$250.00

4. Failure to meet the Commission deadlines within 30 days of the second request.$100.00

5. Failure to report data to the Commission on a second request within 30 days of the second request.$100.00

6. Failure to submit the substantive change notification to the Commission as required by

subsection 6E-1.003(52), F.A.C.$500.00

7. Failure to provide access to employees of the Commission or a designee to inspect the institution for

an on site visit.$500.00

(9) Cease and desist orders. Cease and desist orders shall be issued by the Commission upon finding probable cause or in conjunction with a notice of denial of licensure, and shall comply with Section 1005.38, F.S., and other applicable laws.

(10) Injunctions. The Commission shall seek injunctive relief and other applicable civil penalties as provided by Section 1005.38, F.S., and other applicable laws, after conducting an investigation and confirming that a violation of Chapter 1005, F.S., has occurred which the Commission deems is serious enough that other available remedies are not sufficient to stop the potential damage to the public.

(11) Due process procedures. The Commission shall notify the institution or agent by certified mail of any disciplinary action, giving the grounds for the action and an explanation of the institution’s or agent’s right to a hearing. The institution or agent shall have twenty (20) days to respond, by certified mail, indicating any request for a formal or informal hearing or concurring with the Commission’s action.

(a) Failure on the part of the institution or agent to respond by certified mail within twenty (20) days shall constitute default. At its next regular or special meeting, the Commission shall then receive evidence in the case and enter its Final Order.

(b) The institution or agent may request an informal hearing by the Commission if no material facts are disputed, or if the institution or agent and the Commission agree to hold an informal hearing in lieu of a formal hearing. Procedures for informal hearings shall be in accordance with Section 120.57(2), F.S. After hearing the presentations of the representatives of the Commission and of the institution or agent, the Commission shall enter its Final Order.

(c) The institution or agent may request a formal hearing by an administrative judge of the Division of Administrative Hearings if material facts are in dispute. Procedures for formal hearings shall be in accordance with Section 120.57(1), F.S. After receiving a Recommended Order from the hearing officer, the Commission shall enter its Final Order.

(d) An affected party who has been served with a cease and desist order by the Commission may request a formal or informal review of the order as set forth in this subsection above, and may request the Commission or the Division of Administrative Hearings to modify or abate the cease and desist order. If the affected party is aggrieved by the decision produced by this review, the party may seek interlocutory judicial review by the appropriate district court of appeal, as provided in Section 1005.38(7), F.S.

Rulemaking Authority 1005.22(1)(e)1., 1005.32(7), 1005.38 FS. Law Implemented 1005.32(7), 1005.34(3), 1005.38, 1005.385 FS. History–New 10-13-83, Formerly 6E-2.061, Amended 5-20-87, 11-27-88, 11-29-89, 12-10-90, 10-19-93, 1-7-03, 7-20-04, 5-18-05, 6-13-05, 2-20-06, 7-10-06.