The purpose and effect of the proposed rule is to create disciplinary guidelines for statutory and rule violations committed by persons licensed pursuant to Chapter 469, Florida Statutes.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Miscellaneous Businesses and Professions - Asbestos Consultants/Asbestos Consultant Examination

RULE NO.:RULE TITLE:

61E1-6.001Disciplinary Guidelines.

PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to create disciplinary guidelines for statutory and rule violations committed by persons licensed pursuant to Chapter 469, Florida Statutes.

SUMMARY: Disciplinary guidelines for violations committed by persons licensed pursuant to Chapter 469, Florida Statutes.

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 economic review conducted by the agency.

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, 469.011, 455.225(3) FS.

LAW IMPLEMENTED: 455.2273, 469.009, 455.225(3) 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: Jamie Royal, Assistant General Counsel, Rules Division, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

61E1-6.001 Disciplinary Guidelines.

(1) Whenever the Department finds a licensee guilty of violating a provision of Chapter 469 or Chapter 455, F.S., the following Disciplinary Guidelines shall be followed. Penalties imposed by the Department pursuant to Rule 61E1-6, F.A.C., may be imposed in combination or individually but may not exceed the limitations enumerated below. The identification of violations is descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included:

Statutory Violation	Description of Violation (This description is a general summary).	Penalty Range for First Violation.	Penalty Range for Any Subsequent Violations.
(a) Violation of: Section 469.009(1)(a), F.S.	Willfully or deliberately disregarding or violating health and safety standards, Florida Statutes or rules promulgated thereunder, or any ordinance.	Fine of $1000 up to $2500, Censure, Investigative/Prosecution Costs, Reprimand, Probation, Suspension, Revocation, Deny Issuance/Renewal License.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation; Investigative/ Prosecution Costs, Deny Issuance/Renewal License.
(b) Violation of: Section 469.009(1)(b), F.S.	Violating any provision of chapter 455.	Fine of $500 up to $2500, Censure, Investigative/Prosecution Costs, Reprimand, Continuing Education, Probation, Suspension, Revocation, Deny Issuance/Renewal License.	Fine of $2500 up to $5000, Investigative/Prosecution Costs, Continuing Education, Probation, Suspension, Revocation, Deny Issuance/Renewal License.
(c) Violation of: Section 469.009(1)(c), F.S.	Failing in any material respect to comply with the provisions of this chapter or any rule promulgated hereunder.	Fine of $500 up to $1000, Censure, Investigative/Prosecution Costs, Reprimand, Continuing Education, Probation, Suspension, Revocation, Deny Issuance/Renewal License.	Fine of $1000 up to $5000, Investigative/Prosecution Costs, Continuing Education, Probation, Suspension, Revocation, Deny Issuance/Renewal License.
(d) Violation of: Section 469.009(1)(d), F.S.	Acting in the capacity of an asbestos contractor or asbestos consultant under any license issued under this chapter except in the name of the licensee as set forth on the issued license.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Probation, Suspension, Deny Issuance License/Renewal License.	Fine of $1000 up to $5000, Investigative/Prosecution Costs, Probation, Suspension, Revocation, Deny Issuance/Renewal License
(e) Violation of: Section 469.009(1)(e), F.S.	Proceeding on any job without obtaining all applicable approvals, authorizations, permits, and inspections.	Fine of $500 up to $1000, Censure, Investigative/Prosecution Costs, Reprimand, Continuing Education, Probation, Suspension.	Fine of $1000 up to $5000, Investigative/Prosecution Costs, Continuing Education, Probation, Suspension, Revocation.
(f) Violation of: Section 469.009(1)(f), or 455.227(1)(h), F.S.	Obtaining a license by fraud or misrepresentation.	Fine of $500 to $2500, Investigative/Prosecution Costs, Reprimand, Probation, Suspension, Revocation, Deny Issuance/Renewal License.	Fine of $2500 up to $5000, Investigative/Prosecution Costs, Probation, Suspension, Revocation, Deny Issuance/Renewal License.
(g) Violation of: Section 469.009(1)(g), or 455.227(1)(c), F.S.	Being convicted, found guilty, pleading nolo contendere to a crime, in any jurisdiction, that directly relates to the practice or ability to practice.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Censure, Reprimand, Suspension, Revocation.	Fine of $1000 up to $5000, Investigative/Prosecution Costs, Suspension, Revocation.
(h) Violation of: Section 469.009(1)(h), F.S.	Knowingly violating any building code, lifesafety code, or county or municipal ordinance relating to the practice of asbestos consulting or contracting.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Censure, Reprimand, Continuing Education, Probation, Suspension, Revocation.	Fine of $2500 up to $5000, Investigative/Prosecution Costs, Continuing Education, Suspension, Revocation.
(i) Violation of: Section 469.009(1)(i), F.S.	Performing an act assisting a person or entity in the unlicensed practice of asbestos consulting or contracting, if the licensee knows or has reason to know the person or entity was unlicensed.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Censure, Reprimand, Continuing Education, Probation, Suspension, Revocation.	Fine of $1000 up to $5000 and Probation, Suspension, Revocation; Investigative/Prosecution Costs, Continuing Education, Deny Issuance/Renewal License.
(j) Violation of: Section 469.009(1)(j), F.S.	Committing mismanagement or misconduct in the practice of contracting causing financial harm to a customer.	Fine of $1000  up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Restitution, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation; Investigative/Prosecution Costs, Restitution, Continuing Education,  Deny Issuance/Renewal License.
(k) Violation of: Section 469.009(1)(k), or 455.227(1)(f), F.S.	Being disciplined by any municipality or county for an act or violation of this chapter.	Fine of $500 up to $1000, Censure, Reprimand, Probation, Suspension, Revocation.	Fine of $1000 up to $5000, Reprimand, Probation, Suspension, Revocation.
(l) Violation of: Section 469.009(1)(l), F.S.	Failing in any material respect to comply with the provisions of this chapter, or violating a rule or lawful order of the department.	Fine of $500 up to $1000, Censure, Investigative/Prosecution Costs, Reprimand, Probation, Suspension, Revocation, Deny Issuance/Renewal License.	Fine of $1000 up to $5000, Investigative Costs, Probation, Suspension, Revocation, Deny Issuance/Renewal License.
(m) Violation of: Section 469.009(1)(m), F.S.	Abandoning an asbestos abatement project in which the asbestos contractor is engaged or under contract as a contractor.	Fine of $1000 up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Restitution, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation; Investigative/Prosecution Costs, Restitution, Continuing Education, Deny Issuance/Renewal License.
(n) Violation of: Section 469.009(1)(n), F.S.	Signing a statement falsely indicating that: 1) work is bonded; or 2) payment has been made for all subcontracted work, labor, and materials, resulting in financial loss to owner, purchaser, or contractor; or 3) workers’ compensation and public liability insurance are provided.	Fine of $1000 up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation; Investigative/Prosecution Costs, Continuing Education, Deny Issuance/Renewal License.
(o) Violation of: Section 469.009(1)(o), or 455.227(1) (m), F.S.	Committing fraud or deceit in the practice of asbestos consulting or contracting.	Fine of $1000 up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Restitution, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation;Investigative/ Prosecution Costs, Restitution, Continuing Education, Deny Issuance/Renewal License.
(p) Violation of: Section 469.009(1)(p), F.S.	Committing incompetency or misconduct in the practice of asbestos consulting or contracting.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Censure, Reprimand, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $1000  up to $5000, Investigative/Prosecution Costs, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, or Revocation.
(q) Violation of: Section 469.009(1)(q), F.S.	Committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property in the practice of asbestos consulting or contracting.	Fine of $1000 up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Restitution, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $2500 up to $5000 and Probation, Suspension, and/or Revocation;Investigative/ Prosecution Costs, Restitution, Continuing Education, Deny Issuance/Renewal License.
(r) Violation of: Section 469.009(1)(r), F.S.	Intimidating, threatening, coercing, or otherwise discouraging the service of a notice to owner under part I of chapter 713 or a notice to contractor under chapter 255 or part I of chapter 713.	Fine of $1000 up to $2500, Investigative/Prosecution Costs, Censure, Reprimand, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $2500 up to $5000 and Probation, Suspension, Revocation;Investigative/ Prosecution Costs, Censure, Reprimand, Continuing Education, Deny Issuance/Renewal License.
(s) Violation of: Section 469.009(1)(s), F.S.	Failing to satisfy, within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee’s profession.	Fine of $500 up to $1000, Investigative/Prosecution Costs, Censure, Reprimand, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.	Fine of $1000 up to $5000, Investigative/Prosecution Costs, Suspension, Probation, Continuing Education, Deny Issuance/Renewal License, Revocation.

(2) Aggravating/Mitigating Circumstances. The existence of aggravating or mitigating circumstances, as set forth below, will permit deviation from the guidelines upon clear and convincing evidence.

(a) Aggravating circumstances; circumstances which may justify deviating from the disciplinary guidelines include, but are not limited to:

1. History of previous violations of the practice act or the rules promulgated thereunder;

2. The magnitude and scope of the project and the damage inflicted upon the public;

3. Evidence of violations of professional practice acts in this or other jurisdictions which resulted in discipline by the regulatory authority;

4. Failure to attempt to correct the violation by the licensee;

5. Any other relevant aggravating circumstances;

6. Physical harm to public or employees.

(b) Mitigating circumstances; circumstances which may justify deviating from the disciplinary guidelines include, but are not limited to:

1. In cases of negligence, the minor nature of the project in question and the lack of danger to the public health, safety or welfare which resulted;

2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices or has practiced;

3. Restitution of any damages suffered by the licensee’s client;

4. Remedial steps taken by the licensee to avoid similar violations in the future;

5. Attempts by the licensee to correct the violation;

6. Any other relevant mitigating circumstances.

(3) Minor Violations.

(a) Subject to the limitations imposed by this rule, the following violations are designated as minor for the purposes of Section 455.225(3), F.S.

1. Violation of Section 469.006(5)(a), F.S.

2. Violation of Section 469.006(5)(b), F.S.

(b) The designation of violations as minor for the purposes of Section 455.255(3), F.S., is limited to initial violations.

Rulemaking Authority 455.2273, 469.011,455.225(3), , FS. Law Implemented 455.2273, 469.009, 455.225(3), FS. History‒new

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jamie Royal, Assistant General Counsel, Rules Division, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 10, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 17, 2015