The purpose and effect is to update the disciplinary guidelines and mediation rules for those regulated under Chapter 468, Part VIII, Florida Statutes.

Notice of Proposed Rule

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

61-20.010Disciplinary Guidelines.

61-20.012Mediation.

PURPOSE AND EFFECT: The purpose and effect is to update the disciplinary guidelines and mediation rules for those regulated under Chapter 468, Part VIII, Florida Statutes.

SUMMARY: This amendment will update the disciplinary guidelines and mediation rules for those regulated under Chapter 468, Part VIII, Florida Statutes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule 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 the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 455.2235, 455.2273(1), 468.4315(3) FS.

LAW IMPLEMENTED: 455.2235, 455.227, 455.2273, 468.436 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: Brittany B. Griffith, Assistant General Counsel, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

61-20.010 Disciplinary Guidelines.

(1) PURPOSE. Pursuant to Section 455.2273, F.S., the department provides within this rule disciplinary guidelines which shall be imposed upon applicants, registrants, or licensees whom it regulates under Chapter 468, Part VIII, F.S. The purpose of this rule is to notify applicants, registrants, and licensees of the ranges of penalties which will routinely be imposed unless the department finds it necessary to deviate from the guidelines for the stated reasons given in subsection (2). The ranges of penalties provided in this rule are based upon a single count violation of each provision listed. Multiple counts of the violated provisions or a combination of the violation may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants, registrants, or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants, registrants, or licensees from violations.

(2) AGGRAVATING AND MITIGATING CIRCUMSTANCES. The department shall be entitled to deviate from the disciplinary guidelines provided by this rule upon a showing of aggravating or mitigating circumstances by clear and convincing evidence presented to the department prior to the imposition of a final penalty. The department must make a specific finding of mitigating or aggravating guidelines. Based upon consideration of the facts present in an individual case, the department shall consider the following factors in aggravation and mitigation when deviating from the disciplinary guidelines set forth in this rule:

(a) Danger to the public;

(b) Physical or financial harm resulting from the violation;

(c) Prior violations committed by the subject;

(d) Length of time the registrant or licensee has practiced;

(e) Deterrent effect of the penalty;

(f) Correction or attempted correction of the violation;

(g) Effect on the registrant’s or licensee’s livelihood;

(h) Any efforts toward rehabilitation;

(i) Any other aggravating or mitigating factor which is directly relevant under the circumstances.

(3) PENALTIES CUMULATIVE AND CONSECUTIVE. Where several violations occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.

(4) STIPULATION OR SETTLEMENT. The provisions of this part are not intended and shall not be construed to limit the ability of the department to dispose disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(1) (5) VIOLATIONS AND RANGE OF PENALTIES. In imposing discipline upon applicants, registrants, and licensees for any of the violations set forth below in proceedings pursuant to Sections 120.569, 120.57(1) and (2), F.S., the department shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations as set forth in this subsection. The verbal identifications identification of violations offenses are is descriptive only;. tThe full language of each statutory or rule provision cited must be consulted in order to determine the conduct included.

PENALTY RANGE

VIOLATIONMINIMUMMAXIMUM

   (Each semi-colon indicates                             (Each semi-colon indicates

   “or” in this column.)                                          “and” in this column.)

 

(a) Section 468.436(2)(b)1., F.S.

Violating any provision of chapter 468,

this part VIII, F.S., if not otherwise delineated

in this rule.

First OffenseReprimand$1000 fine; costs

Second Offense$500 fineProbation; $2500 fine; costs

Third or Subsequent OffenseProbation; $2500 fineOne year suspension; $5000

fine; costs

(b) Section 468.436(2)(b)2., F.S.

Violating any lawful order or rule

rendered or adopted by the department

or council, if not otherwise delineated

in this rule.

First OffenseReprimand$1000 fine; costs

Second Offense$500 fineProbation; $2500 fine; costs

Third or Subsequent OffenseProbation; $2500 fineOne year suspension; $5000

fine; costs

 

(c) Section 468.436(2)(b)3., F.S.

Being convicted of or pleading

nolo contendere to a felony.

First OffenseReprimand; $500 fineRevocation; $5000 fine; costs

Second OffenseOne year suspension;Revocation; $5000 fine; costs

$1000 fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

$1000 fine

 

(d) Section 468.436(2)(b)4., F.S.

Obtaining a license or

certification or any other order,

ruling, or authorization by means

of fraud, misrepresentation, or

concealment of material facts.

First Offense$1000 fine; costsRevocation; $5000 fine; costs

Second OffenseOne year suspension;Revocation; $5000 fine; costs

$1000 fine; costs

Third or Subsequent OffenseRevocationRevocation; $5000 fine; costs

 

(e) Section 468.436(2)(b)5., F.S.

Committing acts of gross

misconduct or gross negligence in

connection with the profession.

First Offense$500 fineRevocation; $5000 fine; costs

Second Offense$2500 fine; costsRevocation; $5000 fine; costs

Third or Subsequent OffenseOne year suspension; oneRevocation; $5000 fine; costs

year probation; $2500 fine

 

(f) Section 468.463(2)(b)6., F.S.

Contracting, on behalf of an association,

with any entity in which the licensee has

an undisclosed financial interest.

First Offense$1000 fine                                                        Revocation; $5000 fine; costs

Second OffenseOne year suspension; $2500 fine              Revocation; $5000 fine; costs

Third or Subsequent OffenseRevocation                                                        Revocation; $5000 fine; costs

 

(g) Section 468.436(2)(b)7., F.S.

Violating any provision of chapter 718,

chapter 719, or chapter 720, F.S.,

during the course of performing community

association services pursuant to a contract

with a community association.

First OffenseReprimand                                                        $1000 fine; costs

Second Offense$500 fine                                                        Probation; $2500 fine; costs

Third or Subsequent OffenseProbation; $2500 fine                                          One year suspension; $5000

                                                                      fine; costs

 

(f) Subsection 61-20.002(1), F.A.C.

Change of address, notification,

license renewal.

First OffenseReprimand$500 fine; costs

Second OffenseReprimand$1000 fine; costs

Third OffenseReprimand$2000 fine; costs

 

(g) Paragraph 61-20.002(3)(c), F.A.C.

Legal name change, notification.

First OffenseReprimand$500 fine; costs

Second OffenseReprimand$1000 fine; costs

Third OffenseReprimand$2000 fine; costs

 

(h) Subsection 61E14-2.001(2), F.A.C.

A licensee or registrant shall not

make an untrue statement of a

material fact or fail to state a

material fact.

First OffenseReprimandOne year suspension; $1000 fine; costs

Second OffenseOne year probation; $500One year suspension; two

fine; costsyears probation; $5000 fine; costs

Third OffenseTwo years suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

(i) Subsection 61E14-2.001(3), F.A.C. 

A licensee or registrant shall perform

only those services which he or she

can reasonably expect to complete

with professional competence.

First OffenseReprimand$1000 fine; costs

Second OffenseOne year probation; $500One year suspension; two

fine; costsyears probation; $5000 fine; costs

Third OffenseTwo years suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

(j) Paragraph 61E14-2.001(4)(a), F.A.C.

A licensee or registrant shall

exercise due professional care.

First OffenseReprimand$1000 fine; costs

Second OffenseOne year probation; $500 fineOne year suspension; two

years probation; $5000 fine; costs

Third OffenseTwo years suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

(h)(k) Paragraph 61E14-2.001(2)(a) 61E14-2.001(4)(b), F.A.C.

A licensee or registrant shall not

knowingly fail Failing to comply with the

requirements of the documents by

which the association is created or

operated.

First OffenseReprimandOne year suspension; $2500 fine; costs

Second OffenseOne year probation;One year suspension; two

$1000 fine; costsyears probation; $5000 fine; costs

Third or Subsequent Offense$2500 fine; costsRevocation; $5000 fine; costs

 

(i) Paragraph 61E14-2.001(2)(b), F.A.C.

Use funds for undesignated purpose.

First Offense$250 fineRevocation; $5000 fine; costs

Second Offense$2500; two years probationRevocation; $5000 fine; costs

Third or Subsequent OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation; $5000 fine

 

(j) Paragraph 61E14-2.001(2)(c), F.A.C.

Failing to perform all contracted community

association management services to

professional standards and to the standards

established by Section 468.4334(1), F.S.

First OffenseReprimand$1000 fine; costs

Second OffenseOne year probation; $500 fineOne year suspension; two

years probation; $5000 fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

 

 

(l) Subsection 61E14-2.001(5), F.A.C.

A licensee or registrant shall not

permit others to commit certain

acts or omissions.

First OffenseReprimandOne year suspension; $1000 fine; costs

Second OffenseOne year probation; $500Two years suspension; two

fine; costsyears probation; $5000 fine; costs

Third OffenseTwo years suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

(k)(m) Paragraph 61E14-2.001(3)(a) 61E14-2.001(6)(a), F.A.C.

A licensee or registrant shall not

withhold possession of records.

First OffenseReprimand$2500 fine; one year suspension; costs

Second Offense$500 fine$2500 fine; Revocation; costs

Third or Subsequent Offense$1000 fineRevocation; $5000 fine; costs

 

(l)(n) Paragraph 61E14-2.001(3)(b) 61E14-2.001(6)(b), F.A.C.

A licensee or registrant shall not

deny or delay access to association records.

First OffenseReprimand$1000 fine; costs

Second Offense$500 fine; costs$2500 fine; one year suspension;

one year probation; costs

Third or Subsequent OffenseOne year probation;One year suspension; two

$3000 fine; costsyears probation; $5000 fine; costs

 

(m)(o) Paragraph 61E14-2.001(3)(c) 61E14-2.001(6)(c), F.A.C.

A licensee or registrant shall not

create false records or impermissibly

alter offical records.

First OffenseReprimand; $1000 fine; costsOne year suspension; two

years probation; $1000 fine; costs

Second OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation; $2500

fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

two years probation;

$5000 fine; costs

 

(n)(p) Paragraph 61E14-2.001(3)(d) 61E14-2.001(6)(d), F.A.C.

A licensee or registrant shall not

fail to maintain records.

First OffenseReprimandOne year suspension; $1000 fine; costs

Second Offense$500 fine; costsTwo years suspension; $2500

fine; two years probation; costs

Third or Subsequent OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation

 

(q) Subsection 61E14-2.001(7), F.A.C.

Use funds for intended purpose.

First Offense$1000 fine; costsRevocation; $5000 fine; costs

Second Offense$2500; two yearsRevocation; $5000 fine; costs

probation; costs

Third OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation; $5000

fine; costs

 

(r) Paragraph 61E14-2.001(8)(a), F.A.C.

Other license suspended, revoked,

misconduct.

First OffenseTwo years probationRevocation; $5000 fine; costs

Second Offense$1000 fine; costsRevocation; $5000 fine; costs

Third Offense$2500 fine; costsRevocation; $5000 fine; costs

 

(s) Paragraph 61E14-2.001(8)(b), F.A.C.

Perform services requiring

licensure without requisite

licensure.

First OffenseReprimand$2500 fine; costs

Second Offense$1000 fine; costs$5000 fine; one year

suspension; two years

probation; costs

Third Offense$2500 fine; costsRevocation; $5000 fine; costs

 

(t) Paragraph 61E14-2.001(8)(c), F.A.C.

Other licenses, reveal.

First OffenseReprimandReprimand; $1000 fine; costs

Second Offense$500 fine; costsOne year suspension; two

years probation; $3000 fine;

costs

Third Offense$1000 fine; costsRevocation; $5000 fine; costs

 

(u) Subsection 61E14-4.001(1), F.A.C.

Continuing Education.

First OffenseReprimandOne year probation; $1000

fine; compliance; costs

Second Offense$250 fine; complianceSuspension until compliance;

within 60 days$2500 fine; costs

Third Offense$1000 fine; complianceOne year suspension or until

within 60 dayscompliance, whichever is

greater; $5000 fine;

compliance; costs

 

(v) Subsection 61-20.5083(5), F.A.C.

Continuing education audit, failure

to respond.

First OffenseReprimand$500 fine; costs

Second Offense$500 fine$2500 fine; costs

Third OffenseOne year probation;One year suspension; $2500

$2500 fine; costsfine; costs

 

(w) Subsection 61E14-2.001(2), F.A.C.

Practice through unregistered

entity 3 months or less.

First OffenseReprimand$500 fine; costs

Second Offense$500 fine; costs$2500 fine; costs

Third OffenseOne year probation;One year suspension; $5000

$1000 fine; costsfine; costs

 

(o)(x) Section 455.271(1), F.S.

Practice on a delinquent, or inactive

license.

First Offense$125 fine Reprimand$1250 $100 per month fine; costs

Second Offense$250 $100 per month fine$2500 fine; costs

Third or Subsequent Offense$500 $1000 fine; costsRevocation; $5000 fine; costs

 

(p)(y) Section 455.227(1)(c), F.S.

Being convicted or found guilty of

a crime related to the practice of a

licensee’s or registrant’s profession.

First OffenseOne year suspension;Revocation; $5000 fine; costs

$1000 fine; costs

Second OffenseOne year suspension;Revocation; $5000 fine; costs

$1500 fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

$3000 fine; costs

 

(q)(z) Section 455.227(1)(g), F.S.

Having been found guilty in a civil

proceeing for knowingly fFiling a false

report or complaint with the department.

First Offense$500 fineOne year suspension; $3000

fine; costs

Second OffenseTwo years probation;Revocation; $5000 fine; costs

$1000 fine; costs

Third or Subsequent OffenseOne year suspension;Revocation; $5000 fine; costs

$2500 fine; costs

 

(r)(aa) Section 455.227(1)(h), F.S.

Attempting to obtain, obtaining, or

renewing a license by bribery, fraudulent

misrepresentation, or error fraud.

First Offense$1000 fine; costsRevocation; $5000 fine; costs

Second OffenseOne year suspension;Revocation; $5000 fine; costs

$3000 fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

$5000 fine; costs

 

(s)(bb) Section 455.227(1)(i), F.S.

Failing to report any person in

violation of this part or the chapter

regulating the alleged violator.

First OffenseReprimandOne year suspension; $3000

fine; costs

Second OffenseReprimand; one yearTwo years suspension; $5000

probationfine; costs

Third or Subsequent OffenseReprimand; two yearsRevocation; $5000 fine; costs

probation; costs

 

(t)(cc) Section 455.227(1)(j), F.S.

Aiding, assisting, procuring, employing,

or advising any unlicensed person persons or entity.

First OffenseReprimandOne year suspension; $3000

fine; costs

Second Offense$1000 fine; costsTwo years suspension; two

years probation; $5000 fine;

costs

Third or Subsequent OffenseOne year suspension; oneRevocation; $5000 fine; costs

year probation; costs

 

(u)(dd) Section 455.227(1)(k), F.S.

Failing to perform any statutory or

legal obligation placed on a licensee

or registrant, if the obligation is not

otherwise covered by this rule.

First OffenseReprimandOne year suspension; two

years probation; $3000 fine;

costs

Second OffenseReprimandTwo year suspension; two

years probation; $5000 fine;

costs

Third or Subsequent OffenseReprimand; $500 fine;Revocation; $5000 fine; costs

costs

 

(v)(ee) Section 455.227(1)(l), F.S.

Making a report that the licensee

or registrant knows to be false,

failing to file a required report.

First Offense$500 fine; costsRevocation; $5000 fine; costs

Second Offense$1000 fine; costsRevocation; $5000 fine; costs

Third or Subsequent Offense$2500 fine; costsRevocation; $5000 fine; costs

 

(w)(ff) Section 455.227(1)(m), F.S.

Making deceptive, untrue, or

fraudulent misrepresentations,

trick or scheme, related to the

practice or profession.

First OffenseReprimand; $500 fineRevocation; $5000 fine; costs

Second OffenseOne year probation;Revocation; $5000 fine; costs

$1000 fine; costs

Third or Subsequent OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation; $2500 fine; costs

 

(x)(gg) Section 455.227(1)(p), F.S.

Knowingly delegating or

contracting for the

performance of professional

responsibilities.

First OffenseReprimand; costsOne year suspension; $3000 fine; costs

Second OffenseTwo years probation;Two years suspension; two

$500 fine; costsyears probation; $5000 fine; costs

Third or Subsequent OffenseOne year suspension; twoRevocation; $5000 fine; costs

years probation; $2500 fine; costs

 

(y)(hh) Section 455.227(1)(r), F.S.

Improperly interfering with an

investigation or inspection

authorized by statute, or within any

disciplinary proceedings.

First Offense$1000 fineRevocation; $5000 fine; costs

Second OffenseOne year suspension;Revocation; $5000 fine; costs

$2500 fine; costs

Third or Subsequent OffenseTwo years suspension;Revocation; $5000 fine; costs

$5000 fine; costs

 

(z) Section 455.227(1)(t), F.S.

Failing to report in writing within 30 days

after the licensee is convicted or found guilty

of, or entered a plea of nolo contendere or

guilty to a crime in any jurisdiction.

First OffenseReprimand$1000 fine; costs

Second Offense$500 fineProbation; $2500 fine; costs

Third or Subsequent OffenseProbation; $2500 fineOne year suspension; $5000 fine; costs

 

(2) As used in this rule, the term “costs” means costs related to the investigation and prosecution of the case excluding costs associated with an attorney’s time.

(3) Where several violations occur in one case or several cases being considered together, the penalties shall be cumulative and consecutive.

(4) The provisions of this rule shall not be construed to limit the ability of the department to dispose disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

Rulemaking Authority 455.2273(1) FS. Law Implemented 455.227, 455.2273, 468.436 FS. History–New 6-2-03, Amended_______.

 

61-20.012 Mediation.

The following alleged violations may be resolved by mediation using the procedure adopted by the Department pursuant to Section 455.2235, F.S. and Chapter 61-34, F.A.C.:

(1) Subsection 61E14-2.001(2), F.A.C., Making an untrue statement of material fact or failing to state a material fact.

(2) Paragraph 61E14-2.001(4)(a), F.A.C., Failing to exercise due professional care in the performance of community association management services.

(1)(3) Paragraph 61E14-2.001(2)(a) 61E14-2.001(4)(b), F.A.C., Knowingly Ffailing to comply with the requirements of the governing documents by which the community association is created or operated so long as such documents comply with the requirements of law.

(2)(4) Paragraph 61E14-2.001(3)(a) 61E14-2.001(6)(a), F.A.C., Withholding possession of any the association’s official records or original books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice.

(3)(5) Paragraph 61E14-2.001(3)(b) 61E14-2.001(6)(b), F.A.C., Denying or delaying access to association official records, for the purpose of inspecting or photocopying the same, to a person entitled to such by the law within the timeframe and under the procedures set out in Section 718.111(12), 719.104(2), or 720.303(5), F.S.

(4)(6) Paragraph 61E14-2.001(3)(d) 61E14-2.001(6)(d), F.A.C., Failing to maintain the records for a community association manager or management firm or the official records of any applicable association, as required by Section 718.111(12), 719.104(2), or 720.303(4), F.S. his or a management firm’s records, and the records of any applicable community association, to the extent charged with the responsibility of maintaing records, in accordance with the laws and documents requiring or governing the records.

(7) Paragraph 61E14-2.001(8)(a), F.A.C., Committing acts of gross negligence or gross misconduct in the pursuit of community association management or any other profession for which a state or federal license is required or permitted.

(5)(8) Section 455.227(1)(m), F.S., Making deceptive, untrue, or fraudulent misrepresentations, in or related to the practice of a profession, or employing a trick or scheme, in or related to the practice of a profession.

Rulemaking Authority 468.4315(3), 455.2235 FS. Law Implemented 455.2235 FS. History–New 9-3-13, Amended______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Robyn Barineau, Executive Director, Community Association Managers, Department of Business and Professional Regulation.

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 8, 2015

DATE THE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 18, 2015