§ 497.103 — Authority of board and department; Chief Financial Officer recommendations

Florida § 497.103

• Jurisdiction: Florida
• Title: XXXIII
• Ch. 497: FUNERAL, CEMETERY, AND CONSUMER SERVICES

Text

(1) BOARD AUTHORITY. — Subject to the provisions of this section, all authority provided under this chapter, including rulemaking authority, relating to the following matters, is vested solely in the board, and the board shall be deemed the licensing authority as to such matters: (a) Authority to determine any and all criteria for licensure under this chapter as to which this chapter vests discretion in the licensing authority. (b) Authority to specify who may conduct practical examination under this chapter. (c) Authority to specify the content of examinations for licensure, both written and practical, and the relative weighting of areas examined, and grading criteria, and determination of what constitutes a passing grade. (d) Authority to strike any examination question determined before or after an examination to be inappropriate for any reason. (e) Authority to specify which national examinations or parts thereof shall or shall not be required or accepted regarding Florida licensure. (f) Authority to determine time limits and substantive requirements regarding reexamination of applicants who fail any portion of a licensing examination. (g) Authority to determine substantive requirements and conditions relating to apprenticeships and internships, and temporary licensure pending examination. (h) Authority to determine substantive requirements for licensure by endorsement. (i) Authority to specify substantive requirements for reactivation of inactive licenses, such as, but not limited to, requirements for examination or education prior to reactivation. (j) Authority to approve or deny applications for initial licensure of all types under this chapter and to specify conditions for probationary initial licensure. (k) Authority to renew or decline to renew licenses issued under this chapter. (l) Authority to approve or deny applications for change of control or location of any licensee. (m) Authority to determine standards of construction applicable to facilities utilized by licensees under this chapter. (n) Authority to specify standards of operation applicable to licensees, including required equipment, supplies, facilities, and professional techniques and practices utilized by licensees. (o) Authority to specify required access to be provided by cemeteries to monument establishments licensed under this chapter. (p) Authority to determine required criteria for and provisions in agreements among licensees regarding the shared use of professional facilities, such as, but not limited to, embalming preparation rooms. (q) Authority to specify the amount and content of continuing education required of licensees and the acceptability of continuing education by distance learning. (r) Authority to approve or disapprove providers of continuing education. (s) Authority to specify the amount and content of safety education courses required by unlicensed staff of licensees. (t) Authority regarding establishing requirements to maintain complaint logs and complaint records. (u) Authority to approve or disapprove contract forms, trust instruments, and all other forms required to be filed by licensees for approval under this chapter. (v) Authority to determine through probable cause panels of the board whether proposed administrative prosecutions of licensees shall go forward. (w) Authority to establish disciplinary guidelines and to identify violations or categories of violation for which the department may issue citations under this chapter. (x) Authority to determine whether any licensee shall have her or his license revoked or suspended or be fined or otherwise sanctioned and to take final action in that regard. (y) Authority to determine the validity of and amount due on claims against the Preneed Funeral Contract Consumer Protection Trust Fund. (z) Authority to approve or deny applications to utilize any alternative to trust deposits concerning preneed sales. (aa) Authority to determine the method by which wholesale cost is determined for purposes of determining the amount of the preneed trust deposits required under this chapter. (bb) Authority to determine the amount of any fee payable under this chapter as to which this chapter provides discretion in setting the amount of the fee. (cc) Authority to direct the initiation of receivership or other delinquency proceedings against any licensee under this chapter.

(2) DEPARTMENT AUTHORITY. — All authority provided by this chapter and not expressly vested in the board by subsection (1) is vested in the department, and the department shall be deemed to be the licensing authority as to such matters. Without limiting the generality of the foregoing vesting of authority in the department, the authority provided by this chapter that is vested solely in the department includes: (a) Authority relating to the conduct of investigations, financial examinations, and inspections, including, but not limited to: 1. Determination of applicants, licensees, and other persons to be investigated, subjected to financial examination, or inspected. 2. The frequency, duration, and extent of investigations, financial examinations, and inspections. 3. Techniques and procedures utilized in, and staff assigned to, investigations, financial examinations, and inspections. 4. Establishment of requirements binding upon licensees and other persons regarding records and information to be produced or provided, and access to facilities and staff, in regard to investigations, financial examinations, and inspections. 5. Preparation and filing of reports concerning investigations, financial examinations, and inspections. (b) Authority to receive fees and other amounts payable under this chapter to the licensing authority or to the Regulatory Trust Fund or Preneed Funeral Contract Consumer Protection Trust Fund from licensees, applicants, and others and to process and deposit such receipts in accordance with this chapter and the laws of this state. (c) Authority to prescribe forms and procedures to be used by applicants or licensees relating to any and all applications, filings, or reports of any type that are made with or submitted to the licensing authority by any person or entity pursuant to this chapter, including, but not limited to, applications for licenses of any type under this chapter, applications for renewal of license, applications for approval of forms, applications for approval of change of control, periodic reports of operations, including format and reporting period for financial statements, and procedures and provisions relating to electronic submissions. (d) Authority to determine any application or other filing made under this chapter to be incomplete and not subject to further processing until made complete. (e) Authority to initiate and prosecute administrative and judicial action, including taking final action, regarding activity by persons and entities not licensed under this chapter engaging in activity the department deems to be in violation of this chapter. (f) Authority regarding procedures and requirements relating to security of examinations for licensure. (g) Authority to determine the systems, methods, means, facilities, equipment, procedures, budgets, department staff, and other persons and entities, whether inside or outside the department, to be used in relation to recording, tracking, and processing licensing applications, the administrative issuance and denial of licenses, license renewals, disciplinary actions, continuing education, filings made or required under this chapter, and all other administrative matters relating to the implementation and enforcement of this chapter. (h) Authority to determine the number, hiring, assignment, and discharge of department staff in relation to implementation of this chapter. (i) Authority to determine whether any contract or agreement authorized to be entered into by this chapter, on any subject matter, shall be entered into and sole authority to enter into any such other contract or agreement regarding the implementation of this chapter. (j) Subject to the requirements for probable cause proceedings before a probable cause panel of the board and subject to the sole authority of the board to take final action imposing disciplinary sanctions, all authority to draft, execute, file, serve, and prosecute administrative complaints and other action against any licensee. However, the Chief Financial Officer may in particular instances decline to prosecute or to continue to prosecute, in which case the board may request the Department of Legal Affairs to conduct or continue to conduct the prosecution and the Department of Legal Affairs shall be authorized at its discretion to do so. (k) Authority to seek administrative or judicial enforcement of orders of the board or department or of statutory predecessors to the board or department. However, the Chief Financial Officer may in particular instances decline to seek enforcement or to continue to seek enforcement of any order, in which case the board may request the Department of Legal Affairs to conduct or continue to conduct such enforcement action and the Department of Legal Affairs shall be authorized at its discretion to do so. (l) The department shall represent the board in any appeal of a board final order. However, the Chief Financial Officer may in particular instances decline to represent the board, in which case the board may request the Department of Legal Affairs to represent the board in the matter and the Department of Legal Affairs shall be authorized at its discretion to do so. (m) Authority to take emergency action against any licensee under this chapter, without prior consultation with the board, when the department determines that there is an imminent danger to the health, safety, or welfare of the citizens of the state. (n) Authority to develop and submit to the Legislature from time to time budgets for the implementation of this chapter. (o) The department shall have the authority and duty to provide necessary administrative support to the board as reasonably required to allow the board to discharge its responsibilities under this chapter.

(3) RECOMMENDATIONS BY DEPARTMENT STAFF. — The board shall carefully review and give substantial weight to any recommendation of department staff concerning any matter coming before the board and upon request of department staff shall state with specificity on the record at the board meeting where the rejection occurs the reason or reasons why the board has rejected a particular recommendation of the department staff.

(4) RECOMMENDATIONS BY THE CHIEF FINANCIAL OFFICER. — (a) As to any matter falling within the board’s authority, if the Chief Financial Officer submits or causes to be submitted to the board at any board meeting any recommendation signed by the Chief Financial Officer, the Chief Financial Officer’s recommendation shall be adopted by the board and the board shall act and be deemed to act in accordance with such recommendation, unless at such meeting 70 percent of the board members present and voting vote to reject the Chief Financial Officer’s recommendation. Any fractional vote resulting from application of the 70-percent requirement shall be rounded upward and counted as one additional vote in determining how many votes are required to reject the Chief Financial Officer’s recommendation. The Chief Financial Officer’s recommendation to the board shall be in regard to one or more of the following matters: 1. Protecting the public from any significant and discernible harm or damage. 2. Preventing the unreasonable restriction of competition or the availability of professional services in the state or in a significant part of the state. 3. Preventing the unnecessary increase in cost of professional services without a corresponding or equivalent public benefit. (b) If the recommendation of department staff to the board as to any matter shall be rejected or otherwise overridden by the board to any degree, the board’s action in the matter shall not be final until 14 days have elapsed after the board rejected or overrode the recommendation of department staff, and if during such 14-day period the Chief Financial Officer submits a recommendation concerning the matter to the board pursuant to paragraph (a), until the effect of such recommendation is determined in accordance with paragraph (a). The running of the period under s. 120.60 for approving or denying a completed application shall be tolled during such 14-day period. (c) If the Chief Financial Officer makes any recommendation pursuant to this subsection concerning approval or denial of an application for license or otherwise under this chapter, the running of the period under s. 120.60 for approving or denying a completed application shall be tolled from the date the Chief Financial Officer’s recommendation is made for the shorter of 90 days or until the effect of such recommendation is determined in accordance with paragraph (a). (d) If any recommendation by the Chief Financial Officer made under this subsection would require initiation of rulemaking proceedings under chapter 120 as a prerequisite to implementation of such recommendation by the board and such recommendation becomes binding on the board pursuant to this subsection, the board shall promptly and in good faith initiate and conduct such rulemaking proceedings or may in regard to the promulgation of the specific rule in issue delegate to the department the board’s rulemaking authority under this chapter, in which case the department shall be authorized to adopt the rule. (e) The Chief Financial Officer shall have no authority by recommendation or otherwise to set fees, rates, or prices to be used by any licensee under this chapter, and notwithstanding the provision of this subsection, no licensee under this chapter shall in any event be required to set fees, rates, or prices in accordance with any recommendation of the Chief Financial Officer.

(5) RULEMAKING. — (a) The board is authorized to adopt all rules authorized under this chapter regarding matters under the board’s authority. (b) The department is authorized to adopt all rules authorized under this chapter regarding matters which fall under the department’s authority or as to which the board has delegated rulemaking authority to the department. (c) Neither the board nor the department shall initiate rulemaking under their respective rulemaking authority under this chapter unless they have provided each other at least 60 days’ advance notice of their intent to initiate rulemaking proceedings and during that 60-day period have conferred and consulted with each other concerning the purpose and intent of the rulemaking. However, the 60-day advance notice requirement does not apply to the promulgation of emergency rules.

(6) FINAL ORDERS. — (a) The board shall have authority to take final action and issue final orders as to all matters under its authority. The chairperson of the board shall be authorized to sign orders of the board and may delegate such authority to the executive director of the board. (b) The department shall have authority to take final action and issue final orders as to all matters under its authority.

(7) ACTIONS BY BOARD AND DEPARTMENT. — (a) The department and the board shall each have standing to institute judicial or other proceedings against the other for the enforcement of this section. (b) The board shall have standing as a party litigant to challenge any rule proposed or adopted by the department under authority of this chapter, upon any grounds enumerated in s. 120.52(8). (c) The board shall be represented by the Department of Legal Affairs in any litigation by the board against the department authorized by this subsection, and the Department of Financial Services shall provide reasonable funds for the conduct of such litigation by the board. (d) No applicant, licensee, or person other than the board shall have standing in any proceeding under chapter 120 to assert that any rule adopted by the department under asserted authority of this chapter is invalid because it relates to a matter under the board’s authority.

(8) STATE-OF-EMERGENCY WAIVER. — The licensing authority may temporarily waive any provision of this chapter during a state of emergency declared pursuant to s. 252.36 in any threatened area or areas specified in the Governor’s executive order or proclamation.

Legislative History

s. 42, ch. 93-399; s. 167, ch. 98-200; s. 3, ch. 2000-195; s. 8, ch. 2004-301; s. 87, ch. 2005-2; s. 4, ch. 2005-155; s. 3, ch. 2010-125.