To clarify, simplify, and update the Board’s disciplinary guidelines.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Board of Employee Leasing Companies

RULE NO.:RULE TITLE:

61G7-7.001Disciplinary Guidelines; Range of Penalties

PURPOSE AND EFFECT: To clarify, simplify, and update the Board’s disciplinary guidelines.

SUMMARY: Disciplinary guidelines and penalty ranges are being updated by the Board.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST 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:  During discussion of the economic impact of this rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature.  No person or interested party submitted additional information regarding the economic impact at that time.

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 455.2273, 468.522, 468.532(4) FS.

LAW IMPLEMENTED 455.227, 455.2273, 468.525, 468.526, 468.529, 468.530, 468.531, 468.532 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Richard Morrison, Executive Director, Board of Employee Leasing Companies, 2601 Blair Stone Road, Tallahassee, Florida 32399-0783, [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

61G7-7.001 Disciplinary Guidelines; Range of Penalties.

(1) The Board sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon practitioners guilty of violating Chapter 455, F.S., Chapter 468, Part XI, F.S., or the rules promulgated thereto. The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which will normally be imposed upon violations of the particular provisions identified in subsection (2).of Chapter 468, Part XI, F.S.

(a) The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations and of the same provision of Chapter 468, Part XI, F.S. or the rules promulgated thereto, or other unrelated violations contained in the same administrative complaint will compound the listed be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines, i.e., denial or revocation of a license, etc., includes lesser penalties,i.e., fine, probation or reprimand which may be included in the final penalty at the Board’s discretion. 

(b) Probationary terms include, as applicable, a review of the licensee’s practice by a representative of the Department or Board, with the licensee assuming the cost of the review. In all cases of probation or suspension, a report showing compliance with the terms of the final order must be received and accepted by the Board prior to the termination of the probation or suspension. Other specific terms of probation or suspension shall be imposed, as necessary, by the Board.

(2) The following disciplinary guidelines include costs related to the investigation and prosecution of the case, excluding costs associated with an attorney’s time, as permitted by Section 455.227(3)(a), F.S. The penalty for each count in the administrative complaint shall be determined by the Board to be within the minimum and maximum penalty range and reflect the seriousness of the harm to public welfare. The Board may impose a penalty outside the penalty range when mitigating or aggravating circumstances are identified.shall be followed by the Board in imposing disciplinary penalties upon licensees for violation of the below mentioned statutes and rules:

 

PENALTY RANGE
VIOLATION	MINIMUM	MAXIMUM
(a) Misdemeanor criminal conviction of bribery or fraud, in violation of Ssection 468.532(1)(a), F.S.	Reprimand, probation, and/or $500 fine, and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(b) Felony criminal conviction of bribery or fraud, in violation of Ssection 468.532(1)(a), F.S.	Suspension, and/or $2,500 fine, administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(c) Willful misrepresentation of facts in obtaining a license, in violation of section 468.532(1)(a), F.S.	Letter of guidance, and administrative/legal costs.	Suspension, $2,500 fine, administrative/legal costs.
(c)(d) Willful misrepresentation of material facts in obtaining or renewing a license, in violation of Ssection 468.532(1)(a), F.S., or attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the board, in violation of Section 455.227(1)(h), F.S.	Reprimand, probation, and/or $2,500 fine and administrative/legal costs.	Denial or rRevocation of license, and/or $5,000 fine and administrative/legal costs.
(d) Being determined liable for civil fraud by a court in any jurisdiction, in violation of Section 468.532(1)(o), F.S.	Reprimand, probation, and/or $1,500 fine.	Denial or revocation of license and/or $5,000 fine.
(e) Misdemeanor conviction relating to operation of or ability to engage in business as an employee leasing company, in violation of Ssection 468.532(1)(b), or 455.227(1)(c), F.S.	Reprimand, probation, and/or $500 fine and administrative/legal costs.	Denial or rRevocation of license, and/or $5,000 fine and administrative/legal costs.
(f) Felony conviction relating to operation of or ability to engage in business as an employee leasing company, in violation of Ssection 468.532(1)(b), or 455.227(1)(c), F.S.	Suspension, probation, and/or $1,500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine per day, and administrative/legal costs.
(g) Misdemeanor conviction of fraud, deceit, or misconduct relating to the classification of employees for workers’ compensation, in violation of Ssection 468.532(1)(c), F.S.	Reprimand, probation, and/or $500 fine and administrative/legal costs.	Denial or rRevocation of license, and/or $2,500 fine, and administrative/legal costs.
(h) Felony conviction of fraud, deceit, or misconduct relating to the classification of employees for workers’ compensation, in violation of Ssection 468.532(1)(c), F.S.	Suspension, followed by probation, and/or $1,500 fine administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine per day, and administrative/legal costs.
(i) Misdemeanor conviction of fraud, deceit, or misconduct relating to the establishment or maintenance of self-insurance, in violation of Ssection 468.532(1)(d), F.S.	Reprimand, probation, and/or $500 fine and administrative/legal costs.	Denial or rRevocation of license, and/or $2,500 fine and administrative/legal costs.
(j) Felony conviction of fraud, deceit, or misconduct relating to the establishment or maintenance of self-insurance, in violation of Ssection 468.532(1)(d), F.S.	Suspension, followed by probation, and/or $1,500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine per day, and administrative/legal costs.
(k) Misdemeanor conviction of relating to fraud, deceit, or misconduct in the operation of an employee leasing company, in violation of Ssection 468.532(1)(e), F.S.	Reprimand, probation, and/or $500 fine and administrative/legal costs.	Denial or rRevocation of license, and/or $2,500 fine and administrative/legal costs.
(l) Felony conviction of relating to fraud, deceit, or misconduct in the operation of an employee leasing company, in violation of Ssection 468.532(1)(e), F.S.	Suspension, followed by probation, and/or $1,500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine per day and administrative/legal costs.
(m) Practicing on an inactive, revoked, or suspended license, or unlicensed practice, in violation of Ssection 468.532(1)(f), F.S.	Reprimand, probation, and/or $1,500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine per day and administrative/legal costs.
(n) Failure to maintain, or provide evidence to the Board office of, workers’ compensation insurance at the Board office, in violation of Ssection 468.532(1)(g), F.S.	Reprimand, and/or $500 fine, probation and administrative/legal costs.	Denial or revocation of license, and/or $51,000 fine per day and administrative/legal costs.
(o) Transfer of a license in violation of Ssection 468.532(1)(h), F.S.	Letter of guidance, rReprimand, probation, suspension until corrected, and/or $500 fine and administrative/legal costs.	Denial or revocation of license, and/or $51,000 fine per day and administrative/legal costs.
(p) Violation of Chapter 455, F.S., Chapter 468, Part XI, F.S., or any rule promulgated thereto issued under Chapter 468 or 455, F.S., in violation of Ssection 468.532(1)(i) or 455.227(1)(g), F.S.	Letter of guidance, rReprimand, probation, suspension until corrected, and/or $500 fine and administrative/legal costs.	Denial or revocation of license, and/or $51,000 fine per day and administrative/legal costs.
(q) Failure to notify the Board of change of address, in violation of Ssection 468.532(1)(j), F.S.	Letter of guidance, rReprimand, and/or $100 fine probation, suspension until corrected, and administrative/legal costs.	Reprimand, $500 fine and administrative/legal costs.
(r) Incarceration or mental incompetence (mental or physical) which may impair ability to maintain confidentiality, in violation of Ssection 468.532(1)(k), F.S.	Suspension until demonstrates ability to practice, followed by probation and administrative/legal costs.	Denial or revocation of license, administrative/legal costs.
(s) Second finding of guilt for any misconduct that warrants suspension or any as to course of conduct which shows inability to maintain confidentiality, in violation of Ssection 468.532(1)(l), F.S.	Suspension until demonstrates ability to practice followed by probation, Reprimand and/or $500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine administrative/legal costs.
(t) Failure to notify the Board of felony conviction within 30 days, in violation of Ssection 468.532(1)(m) or 455.227(1)(t), F.S.	Suspension, and/or $2,500 fine, and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(u) Failure to conform to any lawful order of the Board, in violation of Ssection 468.532(1)(n), F.S.	Reprimand, sSuspension, and/or $2,500 fine, and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(v) Failure to have a registered agent for service in the State of Florida, in violation of Ssection 468.525(3), F.S.	Reprimand and/or $100 fine Letter of guidance or reprimand, probation, and administrative/legal costs.	Denial or revocation of license, and/or $25,000 fine and administrative/legal costs.
(w) Failure to have a written agreement with client and written notice to employees, in violation of Ssection 468.525(3)(a), F.S.	Reprimand, and/or probation and administrative/legal costs.	Denial or revocation of license, suspension, and/or $1,500 fine and administrative/legal costs.
(x) Failure to maintain positive working capital, or accounting net worth in violation of Ssection 468.525(3)(d), F.S.	Reprimand, probation, and/or $500 fine administrative/legal costs.	Suspension, denial or revocation of license, and/or $2,500 fine administrative/legal costs.
(y) Failure to satisfy the contract requirements of Section 468.525(4), F.S., in violation of Ssection 468.525(4), F.S.	Reprimand, and probation, and/or $1,000 fine, administrative/legal costs.	Suspension, and/or denial or revocation of license and administrative/legal costs.
(z) Failure to pay annual fees when due, in violation of Ssection 468.526(3), F.S.	Reprimand, sSuspension until fee is paid, and/or $500 fineand administrative/legal costs.	Denial or revocation of license, Revocation and/or $5,000 fine plus administrative/legal costs.
(aa) Failure to have at least one controlling person per employee leasing company, in violation of Ssection 468.530(1)(a), F.S.	Reprimand, probation of company license, and/or $1,000 fine, and administrative/legal costs.	Suspension, revocation, and/or $5,000 fine and administrative/legal costs.
(bb) Conducting a business under a name other than the licensed name of the employee leasing company, in violation of Ssection 468.530(3), F.S.	Reprimand and/or Letter of guidance or $100 fine, and administrative/legal costs.	Suspension, $100 per day until corrected, and/or $1,500 fine administrative/legal costs.
(cc) Failure to pay unemployment compensation taxes or workers’ compensation premiums, in violation of Ssection 468.529(1), F.S.	Reprimand, probation, and/or $1,000 fine, probation, and administrative/legal costs.	Suspension, and/or denial or revocation of license and administrative/legal costs.
(dd) Failure to make available to its workers’ compensation carrier information in Ssection 468.529, F.S., in violation of Ssection 468.529(2), F.S.	Letter of guidance or rReprimand, and/or $1000 fine, and administrative/legal costs.	Suspension, and/or denial or revocation of license and administrative/legal costs.
(ee) Failure to notify termination of client relationships, in violation of Ssection 468.529(3), F.S.	Letter of guidance or rReprimand, and/or $100 fine, and administrative/legal costs.	Suspension, and/or denial or revocation of license, and administrative/legal costs.
(ff) Failure to submit quarterly reports when due, in violation of Rule 61G7-10.001, F.A.C.	Letter of guidance or rReprimand, and/or $100 fine, and administrative/legal costs.	Suspension, revocation, and/or $5,000 fine and administrative/legal costs.
(gg) Making misleading, deceptive, or fraudulent representations in or related to the practice of employee leasing, in violation of Ssection 455.227(1)(a), F.S.	Reprimand, probation, and/or $2,5000 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine administrative/legal costs and restitution.
(hh) Having a license or the authority to practice employee leasing revoked, suspended, or otherwise acted against in another jurisdiction for a violation that would constitute a violation under Florida law, in violation of 455.227(1)(f), F.S.	Imposition of a penalty identical or substantially similar to the other jurisdiction’s penalty, or imposition of Florida’s penalty for the same underlying offense.
(ii) Having been found liable in a civil proceeding for knowingly filing a false report or complaint within the department or the agency against another licensee, in violation of Ssection 455.227(1)(g), F.S.	Reprimand, probation, and/or $1,000 500 fine and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(jj) Failing to report to the department any person who the licensee knows is in violation of Chapters 468 or 455, F.S., or rules promulgated thereto, in violation of 455.227(1)(i), F.S.	Reprimand and/or $100 fine Letter of guidance and administrative/legal costs.	Written reprimand, pProbation, and/or $500 fine and administrative/legal costs.
(kk) Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice employee leasing contrary to Chapter 455 or 468, XI, or rules promulgated thereto this chapter, in violation of Section 455.2277(1)(j), F.S.	Reprimand, probation, and/or $500 fine, and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
(ll) Failing to perform any statutory or legal obligation placed upon a licensee, in violation of Ssection 455.227(1)(k), F.S.	The Board shall impose as its minimum and maximum penalties, the same ones as the underlying offense involved in the violation under Chapter 455 or 468, F.S.
(mm) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person to do so, in violation of Ssection 455.227(1)(l), F.S.	IntentionalWillful – Reprimand, probation, suspension until corrected, and/or $500 fine and administrative/legal costs.	IntentionalWillful – Denial or revocation of license, and/or $5,000 fine and administrative/legal costs.
	Negligent – Letter of guidance, rReprimand, and/or probation, suspension until corrected, and administrative/legal costs.	Negligent – Reprimand, and/or $5000 fine and administrative/legal costs.
(nn) Making deceptive, untrue, or fraudulent representations in or related to the practice of employee leasing or employing a trick or scheme in or related to the practice of employee leasing, in violation of Ssection 455.227(1)(m), F.S.	Reprimand, probation, and/or $500 fine, and administrative/legal costs.	Denial or revocation of license, and/or $5,000 fine, administrative/legal costs and restoration.
(oo) Exercising influence on a client for the purpose of financial gain of the licensee or a third party, in violation of Ssection 455.227(1)(n), F.S.	Reprimand, probation, and/or $500 fine, and administrative/legal costs.	SuspensionReprimand, and/or $2,500 fine and administrative/legal costs.
(pp) Practicing or of offering to practice beyond the scope permitted by law, in violation of Ssection 455.227(1)(o), F.S.	Reprimand, $500 fine, and/or Letter of guidance, administrative/legal costs and requirement that activity be ceased.	ProbationReprimand, and/or $1,500 fine and administrative/legal costs.
(qq) Knowingly dDelegating or contracting for the performance of professional responsibilities by an unqualified person, when such acts in violation of Ssection 455.277(1)(p), F.S.	Reprimand and/or $500 fine Letter of guidance, administrative/legal costs.	Suspension of license, and/or $2,500 fine and administrative/legal costs.
(rr) Failing to comply with a lawfully issued subpoena of the department, in violation of Ssection 455.227(1)(q), F.S.	Reprimand, probation, $500 fine, administrative/legal costs and/or compliance with the subpoena.	Revocation of license, and/or $5,000 fine and administrative/legal costs.
(ss) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding, in violation of Ssection 455.227(1)(r), F.S.	Reprimand, probation, and/or $500 fine and administrative/legal costs.	Revocation of license, and/or $5,000 fine and administrative/legal costs.
(tt) Failing to inform the Board in writing within 30 days after any adverse material final action by a state or federal regulatory agency, in violation of Section 468.532(1)(q), F.S.	Reprimand and/or $500 fine.	Denial or revocation of license and/or $2,500 fine.
(uu) Failing to meet or maintain the requirements for licensure as an employee leasing company or controlling person, in violation of Section 468.532(1)(r), F.S.	Reprimand and/or $500 fine.	Denial or revocation of license and/or $2,500 fine.
(vv) Engaging as a controlling person any person who is not licensed by the Board as a controlling person, in violation of Section 468.532(1)(s), F.S.	Reprimand and/or $500 fine.	Denial or revocation of license and/or $1,500 fine.

 

(3) The Board shall be entitled to deviate from the above-mentioned guidelines, up to the limits provided in Section 455.227(2)(d), F.S., upon a showing of aggravating or mitigating circumstances by clear and convincing evidence presented to the Board prior to the imposition of a final penalty.

(a) Aggravating circumstances are those; circumstances which justify deviating from the above set forth disciplinary guidelines and cause the enhancement of a penalty beyond the maximum level of discipline in the guidelines, and are as follows:

1. History of previous violations of Chapter 455, F.S., the Practice Act, orand the rules promulgated thereto.

2. No change.

3. Degree of public harm Violation of the provision of the Practice Act wherein a letter of guidance as provided in Section 455.225(3), F.S., has previously been issued to the licensee.

(b) Mitigating circumstances are those; circumstances which justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty below beyond the minimum level of discipline in the guidelines, and are as follows:

1. No change.

2. Voluntary rRestitution of any damages suffered by the licensee’s client.

3. The licensee’s professional standing among his peers.

4. Steps taken by the licensee or the licensee’shis company to ensure the non-occurrence of similar violations in the future.

5. No change.

6. Cooperation and timely communication with the Department of Business and Professional Regulation and the Board including understanding and admission of the violation by the Respondent.

7. The licensee’s full understanding and admission of the violation.

Rulemaking Authority 455.2273, 468.522, 468.532(4) FS. Law Implemented 455.227, 455.2273, 468.525, 468.526, 468.529, 468.530, 468.531, 468.532, 455.227 FS. History–New 5-20-93, Formerly 21EE-7.001, Amended 5-29-94, 12-19-94, 11-9-95, 6-23-04,               .

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Employee Leasing Companies

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Employee Leasing Companies

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 11, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 2, 2018