To update and revise forms provided in the rules, clarify existing language, and remove unnecessary language within the rules’ text.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

RULE NOS.:RULE TITLES:

61-20.001Licensing Procedure for Manager's License

61-20.002Inactive Status and Renewal of Manager's License

61-20.0025Exemption of Spouses of Members of Armed Forces from Licensure Renewal Provisions

61-20.003Business Entity Registration

61-20.004Unexcused Absences

PURPOSE AND EFFECT: To update and revise forms provided in the rules, clarify existing language, and remove unnecessary language within the rules’ text.

SUMMARY: The proposed rulemaking amends Rules 61-20.001, .002, .0025, .003, and .004, F.A.C., to update and revise forms provided in the rules, clarify existing language, and remove unnecessary language within the rules’ text

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: 455.02(2), 455.2035, 455.271, 455.207(3), 468.4315(3), FS.

LAW IMPLEMENTED: 120.60, 455.02(2), 455.271, 468.432, 468.433, 468.435, 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: Thomas J. Izzo, Assistant General Counsel, Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

61-20.001 Licensing Procedure for Manager’s License.

(1) No change.

(2)(a) No person who is subject to the provisions of these rules shall provide community association management services without first complying with the requirements of Chapter 61-20, F.A.C., and Rule Title 61E14, F.A.C.

(b) Application for License. All persons subject to the provisions of these rules shall apply to the department division for a community association manager’s license, on Form DBPR CAM 1 a BPR form 33-009, APPLICATION FOR LICENSURE AS A COMMUNITY ASSOCIATION MANAGER EXAMINATION, incorporated herein by reference in Rule 61-35.020(1), F.A.C. and effective 4-28-94. The application fees as set forth in Rule 61E14-3.001, F.A.C., A non-refundable fee of $50 shall be included with the application.

(3) Review of Application.

(a) Within 30 days of the receipt of the application the department division shall determine if the application is complete. A complete application refers to an approved department division application form which contains all of the information requested on the form and all documentation and fees required to be furnished with the application (including the applicant’s criminal history record provided by the Florida Department of Law Enforcement), as required by the application or by any statute or rule of the department division, and the fee required by paragraph (2)(b) of this rule. The applicant’s criminal history records, provided by the Florida Department of Law Enforcement upon request by the department division, must be received by the department division for the applicant’s application to be considered complete. An application which contains errors, omissions, or which requires additional or clarifying information is not considered a complete application.

(b) Within 15 days of receipt of the application, the department division shall request the applicant’s criminal history record from the Florida Department of Law Enforcement. If the criminal history record provided by the Florida Department of Law Enforcement shows law enforcement information not included on the applicant’s application, the department division will notify the applicant in writing of the discrepancy and the applicant shall be required to provide an explanation and documentation as necessary to provide the department division the information needed to be fully informed of the applicant’s criminal record. Where an arrest or charge was dismissed, or formal statement of nolle prosse by the prosecuting authority was issued, or otherwise disposed of without resulting in a criminal record as defined herein, a copy of the document (need not be certified true copy) issued by the court or other government agency resulting in such disposition shall be sufficient.

(c) No change.

(d) If the application is not complete, the department division shall, within 30 days of receipt, notify the applicant in writing and request the additional information and documentation needed to complete the application. The applicant shall have 60 days from the date of the notice in which to correct the errors or omissions and provide the additional information or explain in writing why such errors or omissions cannot be corrected or such information cannot be provided within 60 days.

(4) General Procedure.

(a) If the deficiency is not timely corrected or the applicant fails to provide any explanation why it cannot respond to such a request, the application shall be denied. The application shall be denied solely on the grounds that the application is not complete. If the applicant timely files some but not all of the requested information or corrects some but not all of the errors or omissions in response to the department’s division’s notice, the timely filed information and other materials shall be included in the application file and no additional deficiency notice shall be sent by the department division. At the expiration of 60 days after the date of the deficiency notice, the department division shall make a decision to approve, subject to meeting the examination requirements of Rule 61E14-1.002, F.A.C., or deny the application based on the information and other materials contained in the application file and shall notify the applicant of the decision within 90 days from the applicant’s last timely filed information in response to the department’s division’s deficiency notice.

(b) If the applicant files a timely response indicating that the requested information and corrections cannot be supplied, the department division shall make a decision as to whether the application is approved, subject to meeting the examination requirements of Rule 61E14-1.002, F.A.C., or denied, based on the information currently contained in the application file and so notify the applicant of the decision within 90 days from the applicant’s last timely filed information in response to the department’s division’s deficiency notice.

(c) If all requested information and corrections are timely filed, the department division shall make a decision to approve, subject to meeting the examination requirements of Rule 61E14-1.002, F.A.C., or deny the application and shall notify the applicant of the decision within 90 days of receipt of the information and other materials which make the application complete.

(d) The applicant shall supply the department division with required documentation (as specified below) as to all matters which comprise the applicant’s criminal record. All documentation must be completely legible. Required documentation generally includes, as applicable:

1. For arrests, the police arrest affidavit or arrest report or similar document (need not be certified true copy);

2. The charges (certified true copy);

3. Plea, judgment and sentence (certified true copy); and

4. Order of entry into pre-trial intervention, and where applicable, the order of termination of pre-trial intervention showing dismissal of charges (all must be certified true copies).

(e) Situations may arise where some government agency’s records suggest that a criminal record exists regarding the applicant (e.g., FDLE criminal history records show a criminal conviction in another state), but the court or law enforcement agency that should have the actual records denies having them or cannot produce them or cannot produce whole, legible copies of them. In such instances the burden is upon the applicant to show by clear and convincing evidence that the records are not available or do not exist. It is generally sufficient if the applicant supplies a written statement on the letterhead of the agency, that would apparently be the custodian of the record, signed by a representative of the agency, stating that they have no record of such matter, or the record is lost or was damaged or destroyed, or otherwise stating why the record cannot be produced. Upon receipt of such a document, the burden shifts to the department division to find other evidence to establish the existence of the matter, and failing to find same, the department division shall enter into the applicant’s department division record a memorandum or other documentation to memorialize the situation, including why the department division took no action on the apparent suggestion of criminal record, and thereafter the department division does not hold the matter against the applicant.

(5) Good Moral Character.

(a) Unless the department division denies the application for incompleteness under paragraph (4)(a) of this rule, the department division shall evaluate the application and make appropriate inquiry to determine the applicant’s moral character. Demonstration of all of the following will establish the applicant’s good moral character:

1. through 2. No change.

3. No prior history of violations by the applicant of Chapter 468, Part VIII, F.S., any rule of the department division relating to community association management, or any lawful order of the department division previously entered in a disciplinary proceeding, or of failing to comply with a lawfully issued subpoena of the department division; and

4. No change.

5. That the applicant has not committed the following in connection with an application:

a. Given to the department division a check for payment of any fee when there are insufficient funds with which to pay the same, if the applicant, upon notification by the department division, fails to redeem the check or otherwise pay the fee within 30 days of the date of written notification by the department division; or

b. Failed to provide full and complete disclosure, or failed to provide accurate information.

(b) If the applicant has failed to establish good moral character under paragraph (5)(a), the department division will then consider the following additional factors to determine whether an applicant has good moral character for purposes of licensure under Chapter 468, Part VIII, F.S.:

1. No change.

2. If the applicant has committed a first degree misdemeanor or a felony, and the applicant’s civil rights have been restored, this alone shall not preclude a finding of good moral character unless the crime is directly related to the professional responsibilities of a community association manager. Crimes that are deemed to be directly related to the professional responsibilities of a community association manager include, for example, fraud, theft, burglary, bribery, arson, dealing in stolen property, forgery, uttering a forged instrument, sexual battery, lewd conduct, child or adult abuse, murder, manslaughter, assault, battery, and perjury. The applicant has the burden of proving restoration of civil rights by providing a certified true copy of government or court records reflecting such action.

3. through 4. No change.

5. Conduct of the applicant relied upon by the department division to determine that the applicant lacks good moral character shall be directly related to the professional responsibilities of a community association manager.

6. Written evidence the department division will consider in determining the applicant’s good moral character shall include:

a. A statement from the applicant explaining the applicant’s criminal/unlawful conduct and the reason the applicant believes the department division should issue the license;

b. through i. No change.

It is the applicant’s responsibility to provide such mitigating evidence to the department division.

7. No change.

(c) If the applicant has failed to meet the requirements of paragraph (5)(a) of this rule and has been unable to present sufficient evidence to establish good moral character pursuant to paragraph (5)(b) of this rule within the time limitations of this rule and Section 120.60, F.S., the application will be denied. However, the applicant will be given an opportunity by the department division to waive the time limits of this rule and Section 120.60, F.S., if it appears to the department division that, through the submission of additional information or with additional time for investigation and verification, the applicant’s good moral character might be established. The applicant bears the burden of affirmatively providing the department division with evidence of good moral character.

(6) If the application is denied, the department division shall proceed as provided in Section 120.60, F.S. subsection 61B-55.0011(1), F.A.C. The unsuccessful applicant who requests a hearing for issuance of a license under this rule shall have the burden of proof to establish, by a preponderance of the evidence, entitlement to the requested license.

Rulemaking Authority 455.2035  468.433 FS. Law Implemented 120.60, 468.432, 468.433, 468.435 FS. History–New 5-5-88, Amended 3-22-89, 2-5-91, Formerly 7D-55.004, Amended 11-23-93, 4-28-94, Formerly 61B-55.004, Amended       .

 

61-20.002 Inactive Status and Renewal of Manager’s License.

(1) Changing an Active License to an Inactive License and Renewal of an Inactive License. A licensee desiring to maintain a valid license but who will not be providing community association management services for a period of time, may change the status of his/her license to inactive status, as provided in Department of Business and Professional Regulation Rule 61-6.003, F.A.C.

(a) In order to place an active license in an inactive status the licensee shall complete Form DBPR CAM 4 BPR form CAM-4305, Community Association Change of Status Application, effective 10/23/2002, incorporated by reference in Rule 61-35.020(4), F.A.C., available on the DBPR Web site at http://www.myflorida.com/dbpr/pro/forms/cam/index.shtml or by written request addressed to the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399-0771. A change of status processing non-refundable inactive license fee of $10 shall accompany the application as set forth in Rule 61E14-3.001, F.A.C., unless the status change request is made at the end of a renewal period.

(b) No change.

(2) Changing an Inactive License to an Active License. In order to reactivate from an inactive status, the licensee shall complete Form DBPR CAM 4 BPR form CAM-4305, Community Association Manager Change of Status Application, effective 10/23/2002, as incorporated by reference in Rule 61-35.020(4), F.A.C., available on the DBPR Web site at http://www.myflorida.com/dbpr/ pro/forms/cam/index.shtml, or by written request from the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399-0771. The reactivated license shall expire in accordance with the schedule set forth in Rule 61-6.001, F.A.C., and be renewed at the end of the current renewal period, along with all other licenses.

(3) Renewal of a Delinquent license whether Active or Inactive shall require submission of a Renewal application to the Council on or before September 30 to be processed for renewal. If September 30 falls on a Saturday, Sunday, or legal holiday, the time period is deemed extended to the next working day. Proper form shall mean the renewal application is complete, all applicable fees are paid and all applicable continuing education hours have been completed prior to submission. If a renewal application is submitted after September 30 of the renewal year, the license becomes null. The holder of a null license desiring to perform community association management services shall be required to make an initial application to the department division and proceed as provided in Rules 61-20.001 and 61E14-1.002, F.A.C.

Rulemaking Authority 455.271, 455.2035 468.433 FS. Law Implemented 455.271, 468.433, 468.435, 468.436 FS. History–New 5-5-88, Amended 3-22-89, 2-5-91, 12-28-92, Formerly 7D-55.006, Amended 11-23-93, 7-12-94, 10-9-94, 1-29-96, Formerly 61B-55.006, Amended 8-2-07,                 .

 

61-20.0025 Exemption of Spouses of Members of Armed Forces from Licensure Renewal Provisions.

Rulemaking Authority 455.02(2), 468.4315(3) FS. Law Implemented 455.02(2) FS. History–New 4-25-05, Repealed              .

 

61-20.003 Business Entity Registration.

(1) A corporation, association or other organization or entity which engages in, or is desirous of engaging in, the business of community association management shall be registered under this rule and shall employ only licensed persons in the direct provision of community management services. Such entities shall, no later than October 1, 1988, register with the department division, on  Form DBPR CAM 2 a BPR form 33-008, Community Association Management Business Entity Registration, incorporated herein by reference in Rule 61-35.020(2), F.A.C. and effective 2-5-91.

(2) No entity described in subsection (1) above may, subsequent to October 1, 1988, conduct association management business or use its name in the conduct of its business without first registering with the department division.

(2)(3) There shall be a no fee required to register an entity with the department as set forth in Rule 61E14-3.001, F.A.C. division. Once an entity is registered, no renewal of the registration is required, and the registration shall be deemed valid unless suspended or revoked pursuant to Section 468.436, F.S., or Rule 61E14-2.001, F.A.C.

(3)(4) As officers or licensed personnel or the business address change, the department division shall be notified on Form DBPR CAM 2 BPR form 33-008, Community Association Management Business Entity Registration, as incorporated by reference in Rule 61-35.020(2), F.A.C., within 60 days of such change.

Rulemaking Authority 455.2035 468.433 FS. Law Implemented 468.432 FS. History–New 5-5-88, Amended 3-22-89, 2-5-91, Formerly 7D-55.003, 61B-55.003, Amended        .

 

61-20.004 Unexcused Absences.

Rulemaking Authority 455.207(3) FS. Law Implemented 455.207(3) FS. History–New 6-18-02, Repealed       .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Thomas J. Izzo, Assistant General Counsel, Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399, [phone].

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 31, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 28, 2017