Fla. Stat. § 1005.38 — Florida Code / Title XLVIII / Chapter 1005 / Part III / Section 1005.38
1005.38 Actions against a licensee and other penalties.
Status: in_force

(1) The commission may deny, place on probation, or revoke any provisional license, annual license, license by means of accreditation, agent’s license, or other authorization required by this chapter. The commission shall adopt rules for taking these actions. The commission may impose an administrative fine of not more than $5,000 if an institution is on probation for a period under conditions that require oversight by the commission or its staff. The fine shall be deposited into the Institutional Assessment Trust Fund.

(2) The commission may conduct an investigation to determine if an applicant for a new institutional license, or the owners, directors, or administrators of the institution, previously closed an institution, failed to arrange for completion of student training or issue appropriate refunds, or had its license to operate an institution revoked or denied in this state or in another state or jurisdiction.

(3) Any person who has been convicted of, or entered a plea of guilty or nolo contendere to, a crime that relates to the unlawful operation or management of an institution is ineligible to own, operate, manage, or be a registered agent for a licensed institution in this state, and may not be a director or an officer in a corporation that owns or operates a licensed institution. Such a person may not operate or serve in a management or supervisory position in a licensed institution.

(4) The commission may deny an application for any operating status if the commission determines that the applicant or its owners, officers, directors, or administrators were previously operating an institution in this state or in another state or jurisdiction in a manner contrary to the health, education, or welfare of the public. The commission may consider factors such as the previous denial or revocation of an institutional license; prior criminal or civil administrative proceedings regarding the operation and management of an institution; other types of criminal proceedings involving fraud, deceit, dishonesty, or moral turpitude; failure of the institution to be properly closed, including completing the training or providing for the trainout of its students; and failure to issue appropriate refunds. The commission may require an applicant or its owners, officers, directors, or administrators to provide the commission with information under oath regarding the prior operation of an institution and to provide criminal justice information, the cost of which must be borne by the applicant in addition to license fees.

(5) The commission may obtain an injunction or take any action it deems necessary against any institution or agent in violation of this chapter, but such proceedings and orders do not bar the imposition of any other penalties that may be imposed for the violation.

(6) The commission may conduct disciplinary proceedings through an investigation of any suspected violation of this chapter or any rule of the commission, including a finding of probable cause and making reports to any law enforcement agency or regulatory agency. (a) The commission shall cause to be investigated a suspected violation of any provision of this chapter or any rule of the commission. Regardless of the source of information regarding the suspected violation, an investigation may be continued until it is completed and an investigative report is presented to a probable cause panel of the commission. (b)1. All investigatory records held by the commission in conjunction with an investigation conducted pursuant to this subsection are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for a period not to exceed 10 days after the panel makes a determination regarding probable cause. 2.a. Those portions of meetings of the probable cause panel at which records made exempt pursuant to subparagraph 1. are discussed are exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution. The closed portion of a meeting must be recorded and no portion of the closed meeting may be off the record. The recording shall be maintained by the commission. b. The recording of a closed portion of a meeting and the minutes and findings of such meeting are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for a period not to exceed 10 days after the panel makes a determination regarding probable cause. (c) The commission shall notify an institution or individual of the substance of any complaint that is under investigation unless the executive director and chairperson of the commission concur that notification would impede the investigation. The commission may also withhold notification to a person under investigation for an act that constitutes a criminal offense. (d) The determination of probable cause shall be made by a majority vote of the probable cause panel, the membership of which shall be provided by rule. After the panel declares a finding of probable cause, the commission may issue an administrative complaint and prosecute such complaint under chapter 120. (e) A privilege against civil liability is granted to any informant or any witness who provides information in good faith for an investigation or proceeding conducted under this section. (f) Upon written request by an informant, the commission shall notify the informant of the status of an investigation, civil action, or administrative proceeding.

(7) The commission may issue a cease and desist order in conjunction with an administrative complaint or notice of denial of licensure, if necessary to protect the health, safety, or welfare of students, prospective students, or the public. An unlicensed institution that advertises or causes advertisements to be made public through which students are solicited for enrollment or are offered diplomas or degrees is in violation of this chapter. The commission shall adopt rules that direct the issuance of an injunction against operating, advertising, or offering diplomas or degrees without a license. Each day of operation after a cease and desist letter is delivered constitutes a separate violation for purposes of assessing fines or seeking civil penalties. (a) A cease and desist order may be mandatory or prohibitory in form and may order a postsecondary institution to cease and desist from specified conduct or from failing to engage in specified conduct necessary to achieve the regulatory purposes of this chapter. (b) A cease and desist order may include an order to cease enrollment of students whom the institution cannot adequately serve, to modify curricula or methods of instruction to ensure the education or training of the type and quality represented in the institutional catalog, or to cease from advertising or to publish or broadcast corrective or clarifying advertising to overcome the effects of previous allegedly deceptive or misleading advertising. (c) A cease and desist order takes effect immediately upon issuance and remains in effect until the commission takes final agency action. (d) The commission shall adopt rules to direct procedures by which an affected party is entitled to a formal or informal review of a cease and desist order and may request the commission or the Division of Administrative Hearings to modify or abate a cease and desist order. If a party is aggrieved by a cease and desist order after seeking to have the order abated or modified, the party may seek interlocutory judicial review by the appropriate district court of appeal pursuant to the applicable rules of appellate procedure. (e) In addition to or in lieu of any remedy provided in this section, the commission may seek the imposition of a civil penalty through the circuit court for any violation for which the commission may issue a notice to cease and desist under this section.

(8) The commission shall adopt rules to identify grounds for imposing disciplinary actions for violations of this chapter or rules of the commission or for denial of a license, which must include at least the following grounds: (a) Attempting to obtain action from the commission by fraudulent misrepresentation, bribery, or through an error of the commission. (b) Action against a license or operation imposed under the authority of another state, territory, or country. (c) Delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform the responsibilities. (d) False, deceptive, or misleading advertising. (e) Conspiring to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services. (f) Violating or repeatedly violating any provision of this chapter or any rule adopted pursuant thereto. (g) Operating with a revoked, suspended, or inactive license. (h) Violating any lawful order of the commission previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena.

(9) The commission shall enter a final order either dismissing a complaint or imposing one or more of the following penalties for any violation of this chapter or any rule of the commission: (a) Denial of an application for licensure. (b) Revocation or suspension of a license. (c) Imposition of an administrative fine of no less than $100 and no more than $5,000 for each count or separate violation. Such fine shall be deposited in the Institutional Assessment Trust Fund pursuant to s. 1010.83. (d) Placement of a licensee on probation for a period of time and subject to such conditions as the commission may specify. (e) Issuance of a written reprimand to an institution. Such reprimand shall be posted in a prominent place at the institution for such period of time as the commission may specify.

(10) In any case in which the commission imposes a fine or an assessment of costs and the fine or assessment is not paid within a reasonable time, such reasonable time to be prescribed in commission rule or in the order assessing such fine or assessment, the commission or the Department of Legal Affairs may contract for the collection of, or bring a civil action to recover, the fine or assessment.

(11) The commission shall not reinstate the license of an institution, or cause a license to be issued to an institution it has deemed unqualified, until such time as it is satisfied that the institution has complied with all the terms and conditions set forth in the final order.

(12) The commission shall issue an emergency order suspending or limiting the license of an institution if there is a finding that an immediate danger to the public health, safety, or welfare requires emergency action. The executive director of the commission shall review the matter to determine if the emergency suspension or restriction order is warranted. Nothing in this subsection shall be construed to limit the authority of the executive director to issue an emergency order.

History: s. 261, ch. 2002-387; s. 3, ch. 2005-202; s. 1, ch. 2005-203; s. 185, ch. 2008-4; s. 1, ch. 2010-77; s. 1, ch. 2015-159.