US Laws, Codes, Statutes & Cases

497.001  Short title.

497.002  Purpose and intent.

497.0021  Applicability of parts.

497.005  Definitions.

497.101  Board of Funeral, Cemetery, and Consumer Services; membership; appointment; terms.

497.103  Authority of board and department; Chief Financial Officer recommendations.

497.105  Department; powers and duties.

497.107  Headquarters.

497.109  Board of Funeral and Cemetery Services; membership.

497.111  Publication of information.

497.113  Accountability and liability of board members.

497.115  Board rules; final agency action; challenges.

497.117  Legal and investigative services.

497.119  Mediation.

497.123  Powers to administer oaths and issue subpoenas.

497.125  Evidence; examiner's worksheets, investigative reports, other related documents.

497.127  Injunction to restrain violations.

497.129  Cease and desist order; civil penalty; enforcement.

497.131  Disciplinary proceedings.

497.135  Penalty for giving false information.

497.137  Unlicensed activity; emergency cease and desist order; administrative penalty; civil penalty; enforcement; attorney's fees and costs.

497.140  Fees.

497.141  Licensing; general application procedures.

497.142  Licensing; fingerprinting and criminal background checks.

497.143  Licensing; limited licenses for retired professionals.

497.144  Licensing; examinations, general provisions.

497.145  Licensing; use of professional testing services.

497.146  Licensing; address of record; changes; licensee responsibility.

497.147  Continuing education; general provisions.

497.148  Continuing education; monitoring of compliance.

497.149  Investigations, hearings, and inspections.

497.150  Compliance examinations of existing licensees.

497.151  Complaints; logs; procedures.

497.152  Disciplinary grounds.

497.153  Disciplinary procedures and penalties.

497.154  Disciplinary guidelines.

497.155  Disciplinary citations and minor violations.

497.156  Emergency action against licensees.

497.157  Unlicensed practice; remedies concerning violations by unlicensed persons.

497.158  Court enforcement actions; powers; abatement of nuisances.

497.159  Crimes.

497.160  Receivership proceedings.

497.161  Other rulemaking provisions.

497.162  Health and safety education.

497.163  Restriction on requirement of citizenship.

497.164  Solicitation of goods or services.

497.165  Liability of owners, directors, and officers regarding trust funds.

497.166  Preneed sales.

497.167  Administrative matters.

497.168  Members of Armed Forces in good standing with administrative boards.

497.169  Private actions; actions on behalf of consumers; attorney's fee.

497.170  Unauthorized arrangements.

497.171  Identification of human remains.

497.172  Public records exemptions; public meetings exemptions.

497.209  Application for change of control among existing stockholders or partners; investigation fee.

497.217  Department rules; challenges.

497.221  Cease and desist orders.

497.225  Civil penalty.

497.233  Disciplinary proceedings.

497.001  Short title.--This chapter may be cited as the "Florida Funeral, Cemetery, and Consumer Services Act."

History.--s. 1, ch. 59-363; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 36, 122, ch. 93-399; s. 3, ch. 2004-301.

Note.--Former s. 559.30.

497.002  Purpose and intent.--

(1)  The Legislature recognizes that purchasers of preneed burial rights, funeral or burial merchandise, or funeral or burial services may suffer serious economic harm if purchase money is not set aside for future use as intended by the purchaser and that the failure to maintain cemetery grounds properly may cause significant emotional stress. Therefore, it is necessary in the interest of the public welfare to regulate preneed sales and cemeteries in this state. However, restrictions shall be imposed only to the extent necessary to protect the public from significant or discernible harm or damage and not in a manner which will unreasonably affect the competitive market.

(2)  Subject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements. Accordingly, unless otherwise stated herein, it is the Legislature's express intent that nothing contained in this chapter should be construed or interpreted in any manner as to subject preneed contract purchasers to federal income taxation under the grantor trust rules contained in ss. 671 et seq. of the Internal Revenue Code of 1986, as amended.

(3)  The Legislature deems it necessary in the interest of public health and safety to establish minimum qualifications for entry into the professions and occupations of embalming, funeral directing, cremation, direct disposition, and monument sales; to regulate such activities; and to provide for swift and effective discipline for those practitioners who violate the law.

History.--ss. 2, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 37, 122, ch. 93-399; s. 1, ch. 96-400; s. 1141, ch. 97-103; s. 4, ch. 2004-301.

Note.--Former s. 559.305.

497.0021  Applicability of parts.--The provisions of this part shall be applicable to and supplement the provisions of parts II, III, IV, V, and VI of this chapter and shall be applicable to all licensees under this chapter, except to the extent specifically provided otherwise in this chapter.

History.--s. 5, ch. 2004-301.

497.005  Definitions.--As used in this chapter:

(1)  "Alternative container" means an unfinished wood box or other nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, that is designed for the encasement of human remains and that is made of fiberboard, pressed wood, composition materials (with or without an outside covering), or like materials.

(2)  "At-need solicitation" means any uninvited contact by a licensee or her or his agent for the purpose of the sale of burial services or merchandise to the family or next of kin of a person after her or his death has occurred.

(3)  "Bank of belowground crypts" means any construction unit of belowground crypts that is acceptable to the department and that a cemetery uses to initiate its belowground crypt program or to add to existing belowground crypt structures.

(4)  "Belowground crypts" consist of interment space in preplaced chambers, either side by side or multiple depth, covered by earth and sod and known also as "lawn crypts," "westminsters," or "turf-top crypts."

(5)  "Board" means the Board of Funeral, Cemetery, and Consumer Services.

(6)  "Burial merchandise," "funeral merchandise," or "merchandise" means any personal property offered or sold by any person for use in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains or cremated remains, including, but not limited to, caskets, outer burial containers, alternative containers, cremation containers, cremation interment containers, urns, monuments, private mausoleums, flowers, benches, vases, acknowledgment cards, register books, memory folders, prayer cards, and clothing.

(7)  "Burial right" means the right to use a grave space, mausoleum, columbarium, ossuary, or scattering garden for the interment, entombment, inurnment, or other disposition of human remains or cremated remains.

(8)  "Burial service" or "service" means any service offered or provided in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains or cremated remains.

(9)  "Care and maintenance" means the perpetual process of keeping a cemetery and its lots, graves, grounds, landscaping, roads, paths, parking lots, fences, mausoleums, columbaria, vaults, crypts, utilities, and other improvements, structures, and embellishments in a well-cared-for and dignified condition, so that the cemetery does not become a nuisance or place of reproach and desolation in the community. As specified in the rules of the licensing authority, "care and maintenance" may include, but is not limited to, any or all of the following activities: mowing the grass at reasonable intervals; raking and cleaning the grave spaces and adjacent areas; pruning of shrubs and trees; suppression of weeds and exotic flora; and maintenance, upkeep, and repair of drains, water lines, roads, buildings, and other improvements. "Care and maintenance" may include, but is not limited to, reasonable overhead expenses necessary for such purposes, including maintenance of machinery, tools, and equipment used for such purposes. "Care and maintenance" may also include repair or restoration of improvements necessary or desirable as a result of wear, deterioration, accident, damage, or destruction. "Care and maintenance" does not include expenses for the construction and development of new grave spaces or interment structures to be sold to the public.

(10)  "Casket" means a rigid container that is designed for the encasement of human remains and that is usually constructed of wood or metal, ornamented, and lined with fabric.

(11)  "Cemetery" means a place dedicated to and used or intended to be used for the permanent interment of human remains or cremated remains. A cemetery may contain land or earth interment; mausoleum, vault, or crypt interment; a columbarium, ossuary, scattering garden, or other structure or place used or intended to be used for the interment or disposition of cremated remains; or any combination of one or more of such structures or places.

(12)  "Cemetery company" means any legal entity that owns or controls cemetery lands or property.

(13)  "Centralized embalming facility" means a facility in which embalming takes place that operates independently of a funeral establishment licensee and that offers embalming services to funeral directors for a fee.

(14)  "Cinerator" means a facility where dead human bodies are subjected to cremation.

(15)  "Closed container" means any container in which cremated remains can be placed and closed in a manner so as to prevent leakage or spillage of the remains.

(16)  "Columbarium" means a structure or building that is substantially exposed above the ground and that is intended to be used for the inurnment of cremated remains.

(17)  "Common business enterprise" means a group of two or more business entities that share common ownership in excess of 50 percent.

(18)  "Control" means the possession, directly or indirectly, through the ownership of voting shares, by contract, arrangement, understanding, relationship, or otherwise, of the power to direct or cause the direction of the management and policies of a person or entity. However, a person or entity shall not be deemed to have control if the person or entity holds voting shares, in good faith and not for the purpose of circumventing this definition, as an agent, bank, broker, nominee, custodian, or trustee for one or more beneficial owners who do not individually or as a group have control.

(19)  "Cremated remains" means all the remains of the human body recovered after the completion of the cremation process, including processing or pulverization that leaves only bone fragments reduced to unidentifiable dimensions and may include the residue of any foreign matter, including casket material, bridgework, or eyeglasses that were cremated with the human remains.

(20)  "Cremation" means any mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments. Cremation also includes any other mechanical or thermal process whereby human remains are pulverized, burned, recremated, or otherwise further reduced in size or quantity.

(21)  "Cremation chamber" means the enclosed space within which the cremation process takes place. Cremation chambers covered by these procedures shall be used exclusively for the cremation of human remains.

(22)  "Cremation container" means the casket or alternative container in which the human remains are transported to and placed in the cremation chamber for a cremation. A cremation container should meet substantially all of the following standards:

(a)  Be composed of readily combustible materials suitable for cremation.

(b)  Be able to be closed in order to provide a complete covering for the human remains.

(c)  Be resistant to leakage or spillage.

(d)  Be rigid enough to be handled with ease.

(e)  Be able to provide protection for the health, safety, and personal integrity of crematory personnel.

(23)  "Cremation interment container" means a rigid outer container that, subject to a cemetery's rules and regulations, is composed of concrete, steel, fiberglass, or some similar material in which an urn is placed prior to being interred in the ground and that is designed to support the earth above the urn.

(24)  "Department" means the Department of Financial Services.

(25)  "Direct disposal establishment" means a facility licensed under this chapter where a direct disposer practices direct disposition.

(26)  "Direct disposer" means any person licensed under this chapter to practice direct disposition in this state.

(27)  "Director" means the director of the Division of Funeral, Cemetery, and Consumer Services.

(28)  "Disinterment" means removal of a dead human body from earth interment or aboveground interment.

(29)  "Division" means the Division of Funeral, Cemetery, and Consumer Services within the Department of Financial Services.

(30)  "Embalmer" means any person licensed under this chapter to practice embalming in this state.

(31)  "Final disposition" means the final disposal of a dead human body by earth interment, aboveground interment, cremation, burial at sea, or delivery to a medical institution for lawful dissection if the medical institution assumes responsibility for disposal. "Final disposition" does not include the disposal or distribution of cremated remains and residue of cremated remains.

(32)  "Funeral" or "funeral service" means the observances, services, or ceremonies held to commemorate the life of a specific deceased human being and at which the human remains are present.

(33)  "Funeral director" means any person licensed under this chapter to practice funeral directing in this state.

(34)  "Funeral establishment" means a facility licensed under this chapter where a funeral director or embalmer practices funeral directing or embalming.

(35)  "Grave space" means a space of ground in a cemetery intended to be used for the interment in the ground of human remains.

(36)  "Human remains" or "remains," or "dead human body" or "dead human bodies," means the body of a deceased human person for which a death certificate or fetal death certificate is required under chapter 382 and includes the body in any stage of decomposition.

(37)  "Legally authorized person" means, in the priority listed, the decedent, when written inter vivos authorizations and directions are provided by the decedent; the surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased; a son or daughter who is 18 years of age or older; a parent; a brother or sister who is 18 years of age or older; a grandchild who is 18 years of age or older; a grandparent; or any person in the next degree of kinship. In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased's human remains by others in the same class of the person making the representation or of any person in a higher priority class.

(38)  "License" includes all authorizations required or issued under this chapter, except where expressly indicated otherwise, and shall be understood to include authorizations previously referred to as registrations or certificates of authority in chapters 470 and 497 as those chapters appeared in the 2004 edition of the Florida Statutes.

(39)  "Licensee" means the person or entity holding any license or other authorization issued under this chapter, except where expressly indicated otherwise.

(40)  "Mausoleum" means a structure or building that is substantially exposed above the ground and that is intended to be used for the entombment of human remains.

(41)  "Mausoleum section" means any construction unit of a mausoleum that is acceptable to the department and that a cemetery uses to initiate its mausoleum program or to add to its existing mausoleum structures.

(42)  "Monument" means any product used for identifying a grave site and cemetery memorials of all types, including monuments, markers, and vases.

(43)  "Monument establishment" means a facility that operates independently of a cemetery or funeral establishment and that offers to sell monuments or monument services to the public for placement in a cemetery.

(44)  "Net assets" means the amount by which the total assets of a licensee, excluding goodwill, franchises, customer lists, patents, trademarks, and receivables from or advances to officers, directors, employees, salespersons, and affiliated companies, exceed total liabilities of the licensee. For purposes of this definition, the term "total liabilities" does not include the capital stock, paid-in capital, or retained earnings of the licensee.

(45)  "Net worth" means total assets minus total liabilities pursuant to generally accepted accounting principles.

(46)  "Niche" means a compartment or cubicle for the memorialization or permanent placement of a container or urn containing cremated remains.

(47)  "Ossuary" means a receptacle used for the communal placement of cremated remains without benefit of an urn or any other container in which cremated remains may be commingled with other cremated remains and are nonrecoverable. It may or may not include memorialization.

(48)  "Outer burial container" means an enclosure into which a casket is placed and includes, but is not limited to, vaults made of concrete, steel, fiberglass, or copper; sectional concrete enclosures; crypts; and wooden enclosures.

(49)  "Person," when used without qualification such as "natural" or "individual," includes both natural persons and legal entities.

(50)  "Personal residence" means any residential building in which one temporarily or permanently maintains her or his abode, including, but not limited to, an apartment or a hotel, motel, nursing home, convalescent home, home for the aged, or a public or private institution.

(51)  "Practice of direct disposition" means the cremation of human remains without preparation of the human remains by embalming and without any attendant services or rites such as funeral or graveside services or the making of arrangements for such final disposition.

(52)  "Practice of embalming" means disinfecting or preserving or attempting to disinfect or preserve dead human bodies by replacing certain body fluids with preserving and disinfecting chemicals.

(53)  "Practice of funeral directing" means the performance by a licensed funeral director of any of those functions authorized by s. 497.372.

(54)  "Preneed contract" means any arrangement or method, of which the provider of funeral merchandise or services has actual knowledge, whereby any person agrees to furnish funeral merchandise or service in the future.

(55)  "Preneed sales agent" means any person who is licensed under this chapter to sell preneed burial or funeral service and merchandise contracts or direct disposition contracts in this state.

(56)  "Principal" means and includes the sole proprietor of a sole proprietorship; all partners of a partnership; all members of a limited liability company; regarding a corporation, all directors and officers, and all stockholders controlling more than 10 percent of the voting stock; and all other persons who can exercise control over the person or entity.

(57)  "Processing" means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual means.

(58)  "Profession" and "occupation" are used interchangeably in this chapter. The use of the word "profession" in this chapter with respect to any activities regulated under this chapter shall not be deemed to mean that such activities are not occupations for other purposes in state or federal law.

(59)  "Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation and processing to granulated particles by manual or mechanical means.

(60)  "Refrigeration facility" means a facility that is operated independently of a funeral establishment, crematory, or direct disposal establishment, that maintains space and equipment for the storage and refrigeration of dead human bodies, and that offers its service to funeral directors, funeral establishments, direct disposers, direct disposal establishments, or crematories for a fee.

(61)  "Religious institution" means an organization formed primarily for religious purposes that has qualified for exemption from federal income tax as an exempt organization under the provisions of s. 501(c)(3) of the Internal Revenue Code of 1986, as amended.

(62)  "Removal service" means any service that operates independently of a funeral establishment or a direct disposal establishment, that handles the initial removal of dead human bodies, and that offers its service to funeral establishments and direct disposal establishments for a fee.

(63)  "Rules" refers to rules adopted under this chapter unless expressly indicated to the contrary.

(64)  "Scattering garden" means a location set aside, within a cemetery, that is used for the spreading or broadcasting of cremated remains that have been removed from their container and can be mixed with or placed on top of the soil or ground cover or buried in an underground receptacle on a commingled basis and that are nonrecoverable. It may or may not include memorialization.

(65)  "Servicing agent" means any person acting as an independent contractor whose fiduciary responsibility is to assist both the trustee and licensee in administrating their responsibilities pursuant to this chapter.

(66)  "Solicitation" means any communication that directly or implicitly requests an immediate oral response from the recipient.

(67)  "Statutory accounting" means generally accepted accounting principles, except as modified by this chapter.

(68)  "Temporary container" means a receptacle for cremated remains usually made of cardboard, plastic, or similar material designated to hold the cremated remains until an urn or other permanent container is acquired.

(69)  "Urn" means a receptacle designed to permanently encase cremated remains.

History.--s. 3, ch. 59-363; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 210, ch. 71-377; ss. 1, 2, ch. 72-78; s. 3, ch. 76-168; s. 2, ch. 76-251; s. 1, ch. 77-457; ss. 4, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 3, ch. 85-16; s. 2, ch. 85-202; s. 1, ch. 89-8; ss. 40, 122, ch. 93-399; s. 3, ch. 96-400; s. 1142, ch. 97-103; s. 2, ch. 98-268; s. 2, ch. 2000-195; s. 2, ch. 2001-120; s. 550, ch. 2003-261; s. 6, ch. 2004-301; s. 2, ch. 2005-155.

Note.--Former s. 559.32.

¹497.101  Board of Funeral, Cemetery, and Consumer Services; membership; appointment; terms.--

(1)  The Board of Funeral, Cemetery, and Consumer Services is created within the Department of Financial Services and shall consist of 10 members, 9 of whom shall be appointed by the Governor from nominations made by the Chief Financial Officer and confirmed by the Senate. The Chief Financial Officer shall nominate three persons for each of the nine vacancies on the board, and the Governor shall fill each vacancy on the board by appointing one of the three persons nominated by the Chief Financial Officer to fill that vacancy. If the Governor objects to each of the three nominations for a vacancy, she or he shall inform the Chief Financial Officer in writing. Upon notification of an objection by the Governor, the Chief Financial Officer shall submit three additional nominations for that vacancy until the vacancy is filled. One member must be the State Health Officer or her or his designee.

(2)  Two members of the board shall be funeral directors licensed under part III of this chapter who are associated with a funeral establishment. One member of the board shall be a funeral director licensed under part III of this chapter who is associated with a funeral establishment licensed under part III of this chapter that has a valid preneed license issued pursuant to this chapter and who owns or operates a cinerator facility approved under chapter 403 and licensed under part VI of this chapter. Two members of the board shall be persons whose primary occupation is associated with a cemetery company licensed pursuant to this chapter. Three members of the board shall be consumers who are residents of the state, have never been licensed as funeral directors or embalmers, are not connected with a cemetery or cemetery company licensed pursuant to this chapter, and are not connected with the death care industry or the practice of embalming, funeral directing, or direct disposition. One of the consumer members shall be at least 60 years of age, and one shall be licensed as a certified public accountant under chapter 473. One member of the board shall be a monument establishment licensed under this chapter as a monument builder or, for board appointments made before June 1, 2006, a licensed monument establishment certified by the department to be eligible for licensure as a monument builder. One member shall be the State Health Officer or her or his designee. There shall not be two or more board members who are principals or employees of the same company or partnership or group of companies or partnerships under common control.

(3)  Board members shall be appointed for terms of 4 years, and the State Health Officer shall serve as long as that person holds that office. The designee of the State Health Officer shall serve at the pleasure of the Governor. When the terms of the initial board members expire, the Chief Financial Officer shall stagger the terms of the successor members as follows: one funeral director, one cemetery representative, the monument dealer, and one consumer member shall be appointed for terms of 2 years, and the remaining members shall be appointed for terms of 4 years. All subsequent terms shall be for 4 years.

(4)  The Governor may suspend and the Senate may remove any board member for malfeasance or misfeasance, neglect of duty, incompetence, substantial inability to perform official duties, commission of a crime, or other substantial cause as determined by the Governor or Senate, as applicable, to evidence a lack of fitness to sit on the board. A board member shall be deemed to have resigned her or his board membership, and that position shall be deemed vacant, upon the failure of the member to attend three consecutive meetings of the board or at least half of the meetings of the board during any 12-month period, unless the Chief Financial Officer determines that there was good and adequate justification for the absences and that such absences are not likely to continue.

(5)  A current or former board member is exempt from any civil liability for any act or omission when acting in good faith in her or his official capacity, and the Department of Legal Affairs and the Division of Risk Management shall defend such board member in any civil action against such person arising from any such act or omission.

(6)  The headquarters and records of the board shall be in the Division of Funeral, Cemetery, and Consumer Services of the Department of Financial Services in the City of Tallahassee. The board may be contacted through the Division of Funeral, Cemetery, and Consumer Services of the Department of Financial Services in the City of Tallahassee. The Chief Financial Officer shall annually appoint from among the board members a chair and vice chair of the board. The board shall meet at least every 6 months, and more often as necessary. Special meetings of the board shall be convened upon the direction of the Chief Financial Officer. A quorum is necessary for the conduct of business by the board. Unless otherwise provided by law, six board members shall constitute a quorum for the conduct of the board's business.

(7)  A board member shall be compensated $50 for each day the member attends an official meeting and each day the member participates at the request of the board's executive director in any other business involving the board. To the extent authorized by s. 112.061, a board member is entitled to reimbursement for expenses incurred in connection with official duties. Out-of-state travel by board members on official business shall, in each specific instance, require the advance approval of the board's executive director in order for the travel to be eligible for reimbursement of expenses.

(8)  The department shall adopt rules establishing forms by which persons may apply for membership on the board and procedures for applying for such membership. Such forms shall require disclosure of the existence and nature of all current and past employments by or contracts with, and direct or indirect affiliations or interests in, any entity or business that at any time was licensed by the board or by the former Board of Funeral and Cemetery Services or the former Board of Funeral Directors and Embalmers or that is or was otherwise involved in the death care industry, as specified by department rule.

History.--s. 41, ch. 93-399; s. 5, ch. 96-400; s. 1143, ch. 97-103; s. 551, ch. 2003-261; s. 7, ch. 2004-301; s. 3, ch. 2005-155.

¹Note.--Section 152, ch. 2004-301, as amended by s. 51, ch. 2005-155, provides that:

"(1)  The rules of the Board of Funeral Directors and Embalmers and of the Department of Business and Professional Regulation relating to the Board of Funeral Directors and Embalmers or implementation of chapter 470, Florida Statutes, that were in effect at 11:59 p.m. on the day prior to this act taking effect shall become, on the subjects they address, the rules of the Department of Financial Services and the Board of Funeral, Cemetery, and Consumer Services and shall remain in effect until amended or repealed in the manner provided by law.

"(2)  The rules of the Board of Funeral and Cemetery Services that were in effect at 11:59 p.m. on the day prior to this act taking effect shall become, on the subjects they address, the rules of the Department of Financial Services and the Board of Funeral, Cemetery, and Consumer Services and shall remain in effect until specifically amended or repealed in the manner provided by law.

"(3)  The rules of the Department of Financial Services relating to chapter 497, Florida Statutes, that were in effect at 11:59 p.m. on the day prior to this act taking effect shall continue in force until thereafter repealed or amended pursuant to chapter 120, Florida Statutes, and this act."

497.103  Authority of board and department; Chief Financial Officer recommendations.--

(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.

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.

¹497.105  Department; powers and duties.--The department shall:

(1)  Adopt rules establishing procedures for the renewal of licenses, registrations, and certificates of authority.

(2)  Appoint the executive director of the Board of Funeral and Cemetery Services, subject to the approval of the board.

(3)  With the advice of the board, submit a biennial budget to the Legislature at a time and in the manner provided by law.

(4)  Develop a training program for persons newly appointed to membership on the board. The program shall familiarize such persons with the substantive and procedural laws and rules which relate to the regulation under this chapter and with the structure of the department.

(5)  Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.

(6)  Establish by rule procedures by which the department shall use the expert or technical advice of the board, for the purposes of investigation, inspection, audit, evaluation of applications, other duties of the department, or any other areas the department may deem appropriate.

(7)  Require all proceedings of the board or panels thereof within the department and all formal or informal proceedings conducted by the department, an administrative law judge, or a hearing officer with respect to licensing, registration, certification, or discipline to be electronically recorded in a manner sufficient to ensure the accurate transcription of all matters so recorded.

(8)  Select only those investigators approved by the board. Such investigators shall report to and work in coordination with the executive director of the board and are responsible for all inspections and investigations other than financial examinations.

History.--s. 43, ch. 93-399; s. 6, ch. 96-400; s. 231, ch. 96-410; s. 168, ch. 98-200; s. 552, ch. 2003-261; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

497.107  Headquarters.--The Board of Funeral, Cemetery, and Consumer Services may be contacted through the division at the headquarters of the department in the City of Tallahassee.

History.--s. 44, ch. 93-399; s. 553, ch. 2003-261; s. 9, ch. 2004-301.

¹497.109  Board of Funeral and Cemetery Services; membership.--

(1)  The Board of Funeral and Cemetery Services shall comply with the provisions of this section.

(2)  The board shall annually elect from among its number a chair and a vice chair.

(3)  The board shall hold such meetings during the year as it may deem necessary, one of which shall be the annual meeting. The chair or a quorum of the board may call other meetings, and a quorum is necessary for the conduct of business by the board. Unless otherwise provided by law, a majority of the members of the board constitutes a quorum. A vacancy shall occur upon the failure of a member of the board to attend three consecutive meetings of the board or at least half of the meetings of the board during any 12-month period.

(4)  Unless otherwise provided by law, a board member shall be compensated $50 for each day the member attends an official meeting of the board and for each day the member participates in any other business involving the board. The board shall adopt rules defining the phrase "other business involving the board," but the phrase may not be defined to include telephone conference calls. A board member is entitled to reimbursement for expenses pursuant to s. 112.061, but travel out of state requires the prior approval of the Chief Financial Officer.

History.--s. 45, ch. 93-399; s. 554, ch. 2003-261; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.111  Publication of information.--The department and the board may periodically advise licensees, registrants, and certificateholders, through the publication of a newsletter, about information that the department or the board determines is of interest to the death care industry.

History.--s. 46, ch. 93-399; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.113  Accountability and liability of board members.--

(1)  Each board member is accountable to the Governor for the proper performance of his or her duties as a member of the board. The Governor shall investigate any legally sufficient complaint or unfavorable written report received by the Governor or by the department concerning the actions of the board or individual members of the board. The Governor may suspend from office any board member for malfeasance, misfeasance, neglect of duty, incompetence, permanent inability to perform official duties, or commission of a felony.

(2)  Each board member, and each past board member serving on a probable cause panel, is exempt from civil liability for any act or omission when acting in an official capacity, and the department or the Department of Legal Affairs shall defend any such member in any action against the board or member of the board arising from any such act or omission. In providing such defense, the department or the Department of Legal Affairs may employ or utilize the legal services of outside counsel.

History.--s. 47, ch. 93-399; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.115  Board rules; final agency action; challenges.--

(1)  The Chief Financial Officer shall have standing to challenge any rule or proposed rule of the board pursuant to s. 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the administrative law judge, upon such a challenge by the Chief Financial Officer, may declare all or part of a rule or proposed rule invalid if it:

(a)  Does not protect the public from any significant and discernible harm or damages;

(b)  Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state; or

(c)  Unnecessarily increases the cost of professional services without a corresponding or equivalent public benefit.

However, there shall not be created a presumption of the existence of any of the conditions cited in this subsection in the event that the rule or proposed rule is challenged.

(2)  In addition, either the Chief Financial Officer or the board shall be a substantially interested party for purposes of s. 120.54(7). The board may, as an adversely affected party, initiate and maintain an action pursuant to s. 120.68 challenging the final agency action.

History.--s. 48, ch. 93-399; s. 232, ch. 96-410; s. 555, ch. 2003-261; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.117  Legal and investigative services.--

(1)  The Department of Legal Affairs shall provide legal services to the board within the Department of Financial Services, but the primary responsibility of the Department of Legal Affairs shall be to represent the interests of the citizens of the state by vigorously counseling the board with respect to its obligations under the laws of the state. Subject to the prior approval of the Attorney General, the board may retain independent legal counsel to provide legal advice to the board on a specific matter. Fees and costs of such counsel shall be paid from the Regulatory Trust Fund of the Department of Financial Services.

(2)  The Department of Financial Services may employ or utilize the legal services of outside counsel and the investigative services of outside personnel. However, no attorney employed or utilized by the department shall prosecute a matter or provide legal services to the board with respect to the same matter.

History.--s. 49, ch. 93-399; s. 4, ch. 2000-195; s. 556, ch. 2003-261; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.119  Mediation.--

(1)  Notwithstanding the provisions of s. 497.131, the board may adopt rules to designate which violations of this chapter are appropriate for mediation. The board may designate as mediation offenses those complaints where harm caused by the licensee is economic in nature or can be remedied by the licensee.

(2)  After the department determines a complaint is legally sufficient and the alleged violations are defined as mediation offenses, the department or any agent of the department may conduct informal mediation to resolve the complaint. If the complainant and the subject of the complaint agree to a resolution of a complaint within 14 days after contact by the mediator, the mediator shall notify the department of the terms of the resolution. The department or board shall take no further action unless the complainant and the subject each fail to record with the department an acknowledgment of satisfaction of the terms of mediation within 60 days after the mediator's notification to the department. In the event the complainant and subject fail to reach settlement terms or to record the required acknowledgment, the department shall process the complaint according to the provisions of s. 497.131.

(3)  Conduct or statements made during mediation are inadmissible in any proceeding pursuant to s. 497.131. Further, any information relating to the mediation of a case shall be subject to the confidentiality provisions of s. 497.131.

(4)  No licensee may go through the mediation process more than three times without approval of the department. The department may consider the subject and dates of the earlier complaints in rendering its decision. Such decision may not be considered a final agency action for purposes of chapter 120.

History.--s. 50, ch. 93-399; s. 2, ch. 95-385; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.123  Powers to administer oaths and issue subpoenas.--

(1)(a)  The board or the department has the power to issue and to serve subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation. The department, or its duly authorized representative, has the power to administer oaths and affirmations to any person.

(b)  The board or the department may, in its discretion, seek subpoenas or subpoenas duces tecum from any court of competent jurisdiction commanding the appearance of witnesses and the production of books, accounts, records, and other documents or materials at a time and place named in the subpoenas; and any authorized representative of the department may serve any subpoena.

(2)(a)  In the event of substantial noncompliance with a subpoena or subpoena duces tecum issued or caused to be issued by the board or the department, the board or the department may petition the circuit court or any other court of competent jurisdiction of the county in which the person subpoenaed resides or has its principal place of business for an order requiring the subpoenaed person to appear and testify and to produce such books, accounts, records, and other documents as are specified in the subpoena duces tecum. The court may grant injunctive relief restraining the person from advertising, promoting, soliciting, entering into, offering to enter into, continuing, or completing a contract pursuant to the provisions of this chapter. The court may grant such other relief, including, but not limited to, the restraint, by injunction or appointment of a receiver, of any transfer, pledge, assignment, or other disposition of the person's assets or any concealment, alteration, destruction, or other disposition of books, accounts, records, or other documents and materials as the court deems appropriate, until the person has fully complied with the subpoena duces tecum and the department has completed its investigation or examination. In addition, the court may order the refund of any fees collected in a transaction whenever books and documents substantiating the transaction are not produced or cannot be produced. The department is entitled to the summary procedure provided in s. 51.011, and the court shall advance such cause on its calendar. Attorney's fees and any other costs incurred by the department to obtain an order granting, in whole or part, a petition for enforcement of a subpoena or subpoena duces tecum shall be taxed against the subpoenaed person, and failure to comply with such order is a contempt of court.

(b)  When it appears to the department that the compliance with a subpoena or subpoena duces tecum issued or caused to be issued by the department pursuant to this section is essential and otherwise unavailable to an investigation or examination, the department, in addition to the other remedies provided for in this section, may apply to the circuit court or any other court of competent jurisdiction of the county in which the subpoenaed person resides or has its principal place of business for a writ of ne exeat. The court shall thereupon direct the issuance of the writ against the subpoenaed person requiring sufficient bond conditioned on compliance with the subpoena or subpoena duces tecum. The court shall cause to be endorsed on the writ a suitable amount of bond upon the payment of which the person named in the writ shall be freed, having a due regard to the nature of the case.

(c)  Alternatively, the department may seek a writ of attachment from the court having jurisdiction over the person who has refused to obey a subpoena, who has refused to give testimony, or who has refused to produce the matters described in the subpoena duces tecum.

History.--s. 52, ch. 93-399; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.125  Evidence; examiner's worksheets, investigative reports, other related documents.--In any hearing in which the financial examiner acting under authority of this chapter is available for cross-examination, any official written report, worksheet, or other related paper, or a duly certified copy thereof, compiled, prepared, drafted, or otherwise made by the financial examiner, after being duly authenticated by the examiner, may be admitted as competent evidence upon the oath of the examiner that the report, worksheet, or related paper was prepared as a result of an examination of the books and records of a licensee or other person conducted pursuant to the authority of this chapter.

History.--s. 53, ch. 93-399; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.127  Injunction to restrain violations.--

(1)  The board or the department may bring action through its own counsel in the name and on behalf of the state against any person who has violated or is about to violate any provision of this chapter or any rule or order of the department issued under this chapter to enjoin the person from continuing in or engaging in any act in furtherance of the violation.

(2)  In any injunctive proceeding, the court may, on due showing by the board or the department, issue a subpoena or subpoena duces tecum requiring the attendance of any witness and requiring the production of any books, accounts, records, or other documents and materials that appear necessary to the expeditious resolution of the application for injunction.

(3)  In addition to all other means provided by law for the enforcement of any temporary restraining order, temporary injunction, or permanent injunction issued in any such court proceeding, the court has the power and jurisdiction, upon application of the board or the department, to impound, and to appoint a receiver or administrator for, the property, assets, and business of the defendant, including, but not limited to, the books, records, documents, and papers appertaining thereto. Such receiver or administrator, when appointed and qualified, has all powers and duties as to custody, collection, administration, winding up, and liquidation of the property and business as are from time to time conferred upon him or her by the court. In any such action, the court may issue an order staying all pending suits and enjoining any further suits affecting the receiver's or administrator's custody or possession of the property, assets, and business, or the court, in its discretion and with the consent of the chief judge of the circuit, may require that all such suits be assigned to the circuit court judge who appoints the receiver or administrator.

(4)  For the purpose of this section, the violation of this chapter by a person who is not licensed by the department or the board or by any person who aids and abets the unlicensed activity shall be presumed to be irreparable harm to the public health, safety, or welfare.

History.--s. 54, ch. 93-399; s. 7, ch. 96-400; s. 1144, ch. 97-103; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.129  Cease and desist order; civil penalty; enforcement.--

(1)  The department or the board has the power to issue and serve upon any person an order to cease and desist and to take corrective action whenever it has reason to believe the person is violating, has violated, or is about to violate any provision of this chapter, any rule or order of the department or the board issued under this chapter, or any written agreement between the person and the department or the board. All procedural matters relating to issuance and enforcement of such a cease and desist order are governed by the Administrative Procedure Act.

(2)  Failure to respond to a complaint within the time allowed in ss. 120.569 and 120.57 shall constitute a default and shall be grounds for the issuance of a final order to cease and desist.

(3)  The department or the board may issue an emergency cease and desist order pursuant to s. 120.569.

²(4)  For the purpose of enforcing a cease and desist order, the board or the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of such order. In addition to the foregoing remedies, the board or the department may impose an administrative penalty not to exceed $5,000 per violation, pursuant to the provisions of chapter 120. If the board or the department is required to seek enforcement of the agency order for a penalty pursuant to s. 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

(5)  In addition to or in lieu of any remedy provided in subsection (1), the board or the department may seek the imposition of a civil penalty through the circuit court for any violation for which the board or the department may issue a notice to cease and desist under subsection (1). The civil penalty shall be no less than $500 and no more than $5,000 for each violation. The court may also award to the prevailing party court costs and reasonable attorney's fees and, in the event the board or the department prevails, may also award reasonable costs of investigation.

(6)  In addition to the other remedies provided by this section, the board or the department may impose an administrative penalty not to exceed $5,000 per violation, pursuant to the provisions of chapter 120.

History.--s. 55, ch. 93-399; s. 8, ch. 96-400; s. 233, ch. 96-410; s. 53, ch. 97-98; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

²Note.--As amended by s. 233, ch. 96-410. This version is published as the last expression of legislative will (see Journal of the House of Representatives 1996, p. 2168). Subsection (4) was also amended by s. 8, ch. 96-400, and that version reads:

(4)  For the purpose of enforcing a cease and desist order, the board or the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of such order. If the board or the department is required to seek enforcement of the agency order for a penalty pursuant to s. 120.69, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

¹497.131  Disciplinary proceedings.--

(1)  The department shall cause to be investigated any complaint which is filed before it if the complaint is in writing, signed by the complainant, and legally sufficient. A complaint is legally sufficient if it contains ultimate facts which show that a violation of this chapter, or of any rule promulgated by the department or board has occurred. In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate or continue to investigate, and the department and the board may take appropriate final action on, a complaint even though the original complainant withdraws it or otherwise indicates her or his desire not to cause the complaint to be investigated or prosecuted to completion. The department may investigate an anonymous complaint if the complaint is in writing and is legally sufficient, if the alleged violation of law or rules is substantial, and if the department has reason to believe, after preliminary inquiry, that the alleged violations in the complaint are true. The department may investigate a complaint made by a confidential informant if the complaint is legally sufficient, if the alleged violation of law or rule is substantial, and if the department has reason to believe, after preliminary inquiry, that the allegations of the complainant are true. The department may initiate an investigation if it has reasonable cause to believe that a person has violated a state statute, a rule of the department, or a rule of the board. When an investigation of any person is undertaken, the department shall promptly furnish to the person or her or his attorney a copy of the complaint or document which resulted in the initiation of the investigation. The person may submit a written response to the information contained in such complaint or document within 20 days after service to the person of the complaint or document. The person's written response shall be considered by the probable cause panel. This right to respond shall not prohibit the department from issuing a summary emergency order if necessary to protect the public. However, if the Chief Financial Officer or her or his designee and the chair of the board or the chair of its probable cause panel agree in writing that such notification would be detrimental to the investigation, the department may withhold notification. The department may conduct an investigation without notification to any person if the act under investigation is a criminal offense.

(2)  The department shall expeditiously investigate complaints. When its investigation is complete and legally sufficient, the department shall prepare and submit to the probable cause panel of the board the investigative report of the department. The report shall contain the investigative findings and the recommendations of the department concerning the existence of probable cause. At any time after legal sufficiency is found, the department may dismiss any case, or any part thereof, if the department determines that there is insufficient evidence to support the prosecution of allegations contained therein. The department shall provide a detailed report to the probable cause panel prior to dismissal of any case or part thereof, and to the subject of the complaint after dismissal of any case or part thereof, under this section. The probable cause panel shall have access, upon request, to the investigative files pertaining to a case prior to dismissal of such case. If the department dismisses a case, the probable cause panel may retain independent legal counsel, employ investigators, and continue the investigation and prosecution of the case as it deems necessary.

(3)  As an alternative to the provisions of subsections (1) and (2), when a complaint is received, the department may provide a licensee with a notice of noncompliance for an initial offense of a minor violation. The board shall establish by rule those minor violations under this provision that do not endanger the public health, safety, and welfare and which do not demonstrate a serious inability to practice the profession. Failure of a licensee to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings.

(4)  The determination as to whether probable cause exists shall be made by majority vote of the probable cause panel of the board. The board shall provide, by rule, that the determination of probable cause shall be made by a panel of its members or by the department. The board may provide, by rule, for multiple probable cause panels composed of at least two members. The board may provide, by rule, that one or more members of the panel or panels may be a former board member. The length of term or repetition of service of any such former board member on a probable cause panel may vary according to the direction of the board when authorized by board rule. Any probable cause panel must include one of the board's former or present consumer members, if one is available, willing to serve, and is authorized to do so by the board chair. Any probable cause panel must include a present board member. Any probable cause panel must include a former or present professional board member. However, any former professional board member serving on the probable cause panel must hold an active valid license for that profession. All probable cause proceedings conducted pursuant to the provisions of this section are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. The probable cause panel may make a reasonable request, and upon such request the department shall provide such additional investigative information as is necessary to the determination of probable cause. A request for additional investigative information shall be made within 15 days from the date of receipt by the probable cause panel of the investigative report of the department. The probable cause panel shall make its determination of probable cause within 30 days after receipt by it of the final investigative report of the department. The Chief Financial Officer may grant extensions of the 15-day and the 30-day time limits. If the probable cause panel does not find probable cause within the 30-day time limit, as may be extended, or if the probable cause panel finds no probable cause, the department may determine, within 10 days after the panel fails to determine probable cause or 10 days after the time limit has elapsed, that probable cause exists. If the probable cause panel finds that probable cause exists, it shall direct the department to file a formal complaint against the licensee. The department shall follow the directions of the probable cause panel regarding the filing of a formal complaint. If directed to do so, the department shall file a formal complaint against the subject of the investigation and prosecute that complaint pursuant to the provisions of chapter 120. However, the department may decide not to prosecute the complaint if it finds that probable cause had been improvidently found by the panel. In such cases, the department shall refer the matter to the board. The board may then file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. The department shall also refer to the board any investigation or disciplinary proceeding not before the Division of Administrative Hearings pursuant to chapter 120 or otherwise completed by the department within 1 year after the filing of a complaint. A probable cause panel or the board may retain independent legal counsel, employ investigators, and continue the investigation as it deems necessary; all costs thereof shall be paid from the department's Regulatory Trust Fund. All proceedings of the probable cause panel shall be exempt from the provisions of s. 120.525.

(5)  A formal hearing before an administrative law judge from the Division of Administrative Hearings of the Department of Management Services shall be held pursuant to chapter 120 if there are any disputed issues of material fact. The administrative law judge shall issue a recommended order pursuant to chapter 120. If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.

(6)  The board, with those members of the panel who reviewed the investigation pursuant to subsection (4) being excused, shall determine and issue the final order in each disciplinary case. Such order shall constitute final agency action. Any consent order or agreed settlement shall be subject to the approval of the department.

(7)  The department shall have standing to seek judicial review of any final order of the board, pursuant to s. 120.68.

(8)  Any proceeding for the purpose of summary suspension of a license, or for the restriction of a license, of a licensee pursuant to s. 120.60(6) shall be conducted by the Chief Financial Officer or her or his designee, who shall issue the final summary order.

(9)  The department shall periodically notify the person who filed the complaint of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal.

(10)  Except as otherwise provided in this section, any complaints, investigative reports compiled by the department or board, and all records and information relating to an investigation conducted pursuant to the provisions of this section are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation ceases to be active. For purposes of this section, an investigation is considered "active" while the investigation is being conducted by the department or board with a reasonable, good faith belief that it may lead to the filing of administrative, civil, or criminal proceedings. An investigation does not cease to be active if the department or board is proceeding with reasonable dispatch, and there is good faith belief that action may be initiated by the department, the board, or other administrative or law enforcement agency. The subject may file a written response to the information contained in the investigative file. Nothing in this subsection shall be construed to prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency.

(11)  A privilege against civil liability is hereby granted to any complainant or any witness with regard to information furnished with respect to any investigation or proceeding pursuant to this chapter, unless the complainant or witness acted in bad faith or with malice in providing such information.

History.--s. 56, ch. 93-399; s. 1, ch. 95-385; s. 330, ch. 96-406; s. 234, ch. 96-410; s. 1145, ch. 97-103; s. 5, ch. 2000-195; s. 557, ch. 2003-261; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.135  Penalty for giving false information.--In addition to, or in lieu of, any other discipline imposed pursuant to this chapter, the act of knowingly giving false information in the course of applying for or obtaining a license from the department or the board, with intent to mislead a public servant in the performance of his or her official duties, or the act of attempting to obtain or obtaining a license to practice by misleading statements or knowing misrepresentations constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 58, ch. 93-399; s. 566, ch. 97-103; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

¹497.137  Unlicensed activity; emergency cease and desist order; administrative penalty; civil penalty; enforcement; attorney's fees and costs.--

(1)  In addition to other remedies provided to the department or the board, when the department or the board has probable cause to believe that any person who is not licensed by the department or the board has violated any provision of this chapter or any rule adopted pursuant thereto, the department or the board may issue and deliver to the person an emergency order to cease and desist from such a violation. In addition, the department or the board may issue and deliver an emergency order to cease and desist to any person who aids and abets the unlicensed activity. The issuance of the emergency order to cease and desist shall be effective immediately upon issuance and shall be subject to s. 120.68. For the purpose of enforcing an emergency cease and desist order, the department or the board may file a proceeding in the name of the state seeking issuance of an injunction against any person who violates any provisions of such an order. In addition to the foregoing remedies, the department or the board may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120. If the department or the board is required to seek enforcement of the agency order for a penalty pursuant to s. 120.69, it shall be entitled to collect reasonable attorney's fees and costs, together with any reasonable costs of collecting the attorney's fees and costs.

(2)  In addition to or in lieu of any remedy provided in subsection (1), the department or the board may seek the imposition of a civil penalty through the circuit court for any violation for which the department or the board may issue an emergency order to cease and desist under subsection (1). The civil penalty shall be no less than $500 and no more than $5,000 for each offense. The court may also award to the prevailing party court costs and reasonable attorney's fees and, if the department or the board prevails, may also award reasonable costs of investigation.

(3)  For the purpose of this section, the violation of this chapter by a person who is not licensed by the department or the board or by any person who aids and abets the unlicensed activity shall be presumed to be an immediate serious danger to the public health, safety, or welfare.

History.--s. 9, ch. 96-400; s. 157, ch. 2004-301.

¹Note.--Repealed October 1, 2005, by s. 157, ch. 2004-301.

497.140  Fees.--

(1)(a)  As to any fee payable under this chapter as to which discretion is provided to the licensing authority to specify the amount of the fee subject to a cap stated in this chapter, the board shall from time to time as requested by the department determine by rule the amount of such fee, based upon department-prepared estimates of the revenue required to implement all provisions of this chapter.

(b)  It is the legislative intent that the costs of regulation under this chapter be provided for by fees collected under this chapter. The board shall ensure that fees are adequate to cover all anticipated costs of implementation of this chapter. The department shall at least every other year provide the board with estimates as to projected costs in implementing this chapter and projected fee collections under this chapter for the following 2 years, information as to balances of regulatory trusts from fees collected, other information that the department deems material to the setting of fees by the board at proper levels, and a department recommendation as to action, if any, regarding changing fee levels. The board shall review such information provided by the department and increase or decrease fees as the board determines appropriate. If sufficient action is not taken by the board within 6 months after notification by the department that fees are projected to be inadequate, the department shall set fees on behalf of the board to cover anticipated costs.

(c)  The board may from time to time by rule assess and collect a one-time fee from each active and each voluntary inactive licensee under this chapter in an amount necessary to correct an inadequacy of fees received to implement regulation required by this chapter, provided that no such assessments may be made after October 1, 2007.

(2)  All moneys collected under this chapter shall be paid into the Regulatory Trust Fund, except as otherwise expressly provided in this chapter, for the purpose of providing for the payment of all expenses in respect to the administration of this chapter.

(3)  The department, in consultation with the board, shall from time to time recommend fee and fee cap increases to the Legislature as deemed advisable.

(4)  If a duplicate license is required or requested by the licensee, the department may charge a fee as determined by rule not to exceed $25 before issuance of the duplicate license.

(5)  The department shall charge a fee not to exceed $25 for the certification of a public record. The fee shall be determined by rule of the department. The department shall assess a fee for duplication of a public record as provided in s. 119.07(1)(a) and (b).

(6)(a)  The department shall impose, upon initial licensure and each renewal thereof, a special unlicensed activity fee of $5 per licensee, in addition to all other fees provided for in this chapter. Such fee shall be used by the department to fund efforts to identify and combat unlicensed activity which violates this chapter. Such fee shall be in addition to all other fees collected from each licensee and shall be deposited in a separate account of the Regulatory Trust Fund; however, the department is not limited to the funds in such an account for combating improper unlicensed activity in violation of this chapter.

(b)  The board may with the concurrence of the department, if that portion of the Regulatory Trust Fund held by the department for implementation of this chapter is not in deficit and has a reasonable cash balance, earmark $5 of each initial licensure and each license renewal fee collected under this chapter and direct the deposit of each such amount into the separate account required in paragraph (a), to be utilized by the department for the purposes of combating unlicensed practice in violation of this chapter. Such earmarked amount may be, as the board directs, in lieu of or in addition to the special unlicensed activity fee imposed under paragraph (a). The earmarking may be imposed and thereafter eliminated from time to time according to the adequacy of trust funds held for implementation of this chapter.

(c)  The department shall confer and consult with the board regarding enforcement methods and strategies regarding the use of such unlicensed activity fee funds.

(7)  Any fee required to be paid under this chapter, which was set at a fixed amount as in the 2004 edition of the Florida Statutes, but as to which this chapter now provides to be a fee as determined by board rule subject to a cap specified in this chapter, shall remain at the amount as set in the 2004 edition of the Florida Statutes unless and until the board shall change such fee by rule.

(8)  A delinquency fee shall be charged and collected from a licensee for the failure to timely renew a license issued under this chapter. Where no specific delinquency fee is specified in this chapter in relation to a particular category of licensure under this chapter, the delinquency fee shall be $50.

History.--ss. 25, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 10, ch. 2004-301; s. 88, ch. 2005-2; s. 5, ch. 2005-155.

Note.--Former s. 559.491; s. 497.019; s. 497.525.

497.141  Licensing; general application procedures.--

(1)  The provisions of this section shall supplement and implement all provisions of this chapter relating to application for licensure.

(2)  Any person desiring to be licensed shall apply to the licensing authority in writing using such forms and procedures as may be prescribed by rule. The application for licensure shall include the applicant's social security number if the applicant is a natural person; otherwise, the applicant's federal tax identification number shall be included. Notwithstanding any other provision of law, the department is the sole authority for determining the forms and form contents to be submitted for initial licensure and licensure renewal application. Such forms and the information and materials required by such forms may include, as appropriate, demographics, education, work history, personal background, criminal history, finances, business information, signature notarization, performance periods, reciprocity, local government approvals, supporting documentation, periodic reporting requirements, fingerprint requirements, continuing education requirements, business plans, character references, and ongoing education monitoring. Such forms and the information and materials required by such forms may also include, to the extent such information or materials are not already in the possession of the department or the board, records or information as to complaints, inspections, investigations, discipline, and bonding. The application shall be supplemented as needed to reflect any material change in any circumstance or condition stated in the application that takes place between the initial filing of the application and the final grant or denial of the license and that might affect the decision of the department or the board. After an application by a natural person for licensure under this chapter is approved, the licensing authority may require the successful applicant to provide a photograph of himself or herself for permanent lamination onto the license card to be issued to the applicant, pursuant to rules and fees adopted by the licensing authority.

(3)  The department shall conduct such investigation of the applicant and the application as the department deems necessary or advisable to establish the correctness of matters stated in the application and to determine whether the applicable licensing criteria are met and shall make recommendations in those regards to the board.

(4)  Before the issuance of any license, the department shall collect such initial fee as specified by this chapter or, where authorized, by rule of the board. Upon receipt of a completed application and the appropriate fee, and certification by the board that the applicant meets the applicable requirements of law and rules, the department shall issue the license applied for. However, an applicant who is not otherwise qualified for licensure is not entitled to licensure solely based on a passing score on a required examination.

(5)  The board may refuse to rule on an initial application for licensure by any applicant who is under investigation or prosecution in any jurisdiction for an action which there is reasonable cause to believe would constitute a violation of this chapter if committed in this state, until such time as such investigation or prosecution is completed and the results of the investigation or prosecution are reviewed by the board.

(6)  When any administrative law judge conducts a hearing pursuant to the provisions of chapter 120 with respect to the issuance or denial of a license under this chapter, the administrative law judge shall submit her or his recommended order to the board, which shall thereupon issue a final order. The applicant for a license may appeal the final order in accordance with the provisions of chapter 120.

(7)  A privilege against civil liability is hereby granted to any witness for any information furnished by the witness in any proceeding pursuant to this section, unless the witness acted in bad faith or with malice in providing such information.

(8)  Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each applicant for licensure is required to provide her or his social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement and use by the department and as otherwise provided by law.

(9)  Whenever any provision of this chapter or rules adopted under this chapter require student completion of a specific number of clock hours of classroom instruction for initial licensure purposes, there shall be established by rule the minimal competencies that such students must demonstrate in order to be licensed. The demonstration of such competencies may be substituted for specific classroom clock-hour requirements established in statute or rule which are related to instructional programs for licensure purposes. Student demonstration of the established minimum competencies shall be certified by the educational institution. The provisions of this subsection shall not apply if federal licensure standards are more restrictive or stringent than the standards prescribed in this chapter.

(10)  No license issued under this chapter shall be assignable or transferable except to the extent specifically provided by this chapter.

(11)  The department shall implement a system for administration of the overall licensing process, including the processing and tracking of applications for licensure, the issuance of licenses approved by the board, the tracking of licenses issued, the administration of the license renewal process, and the collection and processing of fees related to those activities. The system may use staff and facilities of the department or the department may enter into a contract for all or any part of such system, upon such terms and conditions as the department deems advisable, and such contract may be with another government agency or a private business.

(12)(a)  The following licenses may only be applied for and issued to a natural person:

1.  Embalmer apprentice.

2.  Embalmer intern.

3.  Funeral director intern.

4.  Funeral director.

5.  Funeral director and embalmer.

6.  Direct disposer.

7.  Monument establishment sales agent.

8.  Preneed sales agent.

(b)  The following licenses may be applied for and issued to a natural person, a corporation, a limited liability company, or a partnership:

1.  Funeral establishment.

2.  Centralized embalming facility.

3.  Refrigeration facility.

4.  Direct disposal establishment.

5.  Monument establishment.

6.  Cinerator facility.

7.  Removal service.

8.  Preneed sales business under s. 497.453.

(c)  A cemetery license may only be applied for and issued to a corporation, partnership, or limited liability company.

(d)  No license shall be issued to any applicant that is a corporation, limited liability company, or partnership unless the applicant is organized and in good standing under the laws of this state or another state of the United States and provides written proof thereof issued by the applicable state office or official in the state concerned. Each applicant that is a corporation, limited liability company, or partnership shall file with its application a written statement, signed by the same person who signs the application, identifying by name and business functional title the following persons, as applicable to the type of entity applying: officers, managers, managing members, partners, general partners, limited partners, managing partners, directors, all stockholders controlling more than 10 percent of the voting stock, and all other persons who may exercise control over the applicant. The licensing authority may require the filing of the applicant's articles of incorporation or other organizational documents and a resume concerning any person identified in this paragraph.

(e)  All applications shall be signed by the applicant. Signatures of the applicant shall be as follows:

1.  Where the applicant is a natural person, the application shall be signed by the applicant.

2.  Where the applicant is a corporation, the application shall be signed by the corporation's president.

3.  Where the applicant is a partnership, the application shall be signed by a partner, who shall provide proof satisfactory to the licensing authority of that partner's authority to sign on behalf of the partnership.

4.  Where the applicant is a limited liability company, the application shall be signed by a member of the company, who shall provide proof satisfactory to the licensing authority of that member's authority to sign on behalf of the company.

(f)  The licensing authority may adopt rules for the implementation of this section, including required procedures and forms.

(g)  No license regulated under this chapter is assignable or transferable except as provided in this chapter.

History.--s. 11, ch. 2004-301; s. 6, ch. 2005-155.

497.142  Licensing; fingerprinting and criminal background checks.--

(1)  In any instance that this chapter requires submission of fingerprints in connection with an application for license, the provisions of this section shall apply.

(2)  The fingerprints shall be taken by a law enforcement agency or other agency or entity approved by the department and in such a way as to allow their use to obtain a criminal history check through the Department of Law Enforcement.

(3)  The department shall submit the fingerprints to or cause them to be submitted to the Department of Law Enforcement for the purpose of ascertaining whether the person fingerprinted has a criminal history in any state or before the Federal Government and, if so, the nature of the criminal history.

(4)  The Department of Law Enforcement may accept fingerprints of any applicant under this chapter, any principal of any such applicant, and any other person who is examined or investigated or who is subject to examination or investigation under the provisions of this chapter.

(5)  The Department of Law Enforcement may, to the extent provided for by federal law, exchange state, multistate, and federal criminal history records with the department and the board for the purpose of the issuance, denial, suspension, or revocation of any license or other application under this chapter.

(6)  The Department of Law Enforcement shall, upon receipt of fingerprints from the department, submit the fingerprints to the Federal Bureau of Investigation to check federal criminal history records.

(7)  Statewide criminal records obtained through the Department of Law Enforcement, federal criminal records obtained through the Federal Bureau of Investigation, and local criminal records obtained through local law enforcement agencies shall be used by the department and board for the purpose of issuance, denial, suspension, or revocation of licenses issued to operate in this state.

(8)  For the purposes of criminal background checks, applicants and principals of applicants for any approval or license under this chapter may be required to disclose whether they have ever had their name legally changed and any prior name or names they have used.

(9)  If any applicant under this chapter has been, within the 10 years preceding the application under this chapter, convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, any crime in any jurisdiction, the application shall not be deemed complete until such time as the applicant provides such certified true copies of the court records evidencing the conviction, finding, or plea, as the licensing authority may by rule require.

(10)(a)  When applying for any license under this chapter, every applicant shall be required to disclose the applicant's criminal records in accordance with this subsection.

(b)  The criminal record required to be disclosed shall be any crime listed in paragraph (c) of which the person or entity required to make disclosure has been convicted or to which that person or entity entered a plea in the nature of no contest. Disclosure shall be required pursuant to this subsection regardless of whether adjudication was entered or withheld by the court in which the case was prosecuted.

(c)  Crimes to be disclosed are:

1.  Any felony or misdemeanor, no matter when committed, that was directly or indirectly related to or involving any aspect of the practice or business of funeral directing, embalming, direct disposition, cremation, funeral or cemetery preneed sales, funeral establishment operations, cemetery operations, or cemetery monument or marker sales or installation.

2.  Any other felony not already disclosed under subparagraph 1. that was committed within the 20 years immediately preceding the application under this chapter.

3.  Any other misdemeanor not already disclosed under subparagraph 1. that was committed within the 5 years immediately preceding the application under this chapter.

(d)  Criminal records subject to paragraphs (b) and (c) shall be disclosed regardless of whether the criminal conduct occurred inside or outside the state and regardless of whether the criminal prosecution occurred in state court or in the court of another state, the United States, or a foreign country. As to crimes prosecuted in courts other than the courts of this state, the designation of the crime as a felony or misdemeanor by the law of the jurisdiction prosecuting the crime shall control. If the prosecuting jurisdiction does not use the term "felony" or "misdemeanor" in classifying the crime, the crime shall be deemed a felony for purposes of this subsection if punishable under the law of the prosecuting jurisdiction by a term of imprisonment in excess of 1 year; otherwise, the crime shall be classified as a misdemeanor for purposes of this subsection. Excessive speed in the operation of a motor vehicle and other noncriminal traffic infractions are not required to be reported under this section.

(e)  For purposes of this subsection, the persons required to make disclosure of their criminal records in relation to an application shall be as follows:

1.  Where the applicant is a natural person, only the natural person making application has the duty to disclose.

2.  Where the applicant is a corporation, all officers and directors of that corporation have the duty to disclose.

3.  Where the applicant is a limited liability company, all managers and members of the limited liability company have the duty to disclose.

4.  Where the applicant is a partnership, all partners have the duty to disclose.

5.  Where the applicant is required by this chapter to identify in the application the individual licensee under this chapter who will be in charge of the applicant, the identified individual licensee in charge, in addition to the applicant, shall make disclosure of criminal records as part of the application.

(f)  In addition to persons identified in paragraph (e) as being required to provide a criminal history in relation to an application for licensure, the department may, during its prelicensing investigation of the applicant pursuant to subsection (3), on a case-by-case basis, require disclosure of criminal records from any other employee or principal of the applicant if the department has grounds to believe that such employee or principal has committed any crime and that such employee's or principal's relationship to the applicant may render the applicant a danger to the public if the license applied for is issued.

(g)  The licensing authority may adopt rules specifying forms and procedures to be utilized by persons required to disclose criminal records under this subsection. The licensing authority may conduct investigation and further inquiry of any person regarding any criminal record disclosed pursuant to this section.

(11)(a)  When an applicant is required by this chapter to submit fingerprints in applying for a license, the following persons shall be required to submit such fingerprints:

1.  Where the applicant is a natural person, the fingerprints of the natural person making application.

2.  Where the applicant is a corporation, the fingerprints of the persons serving in the following capacities: chief executive officer and president, or both persons if the positions are filled by different persons; chief financial officer; chief of operations; general counsel if a corporation employee; and members of the board.

3.  Where the applicant is a limited liability company, the fingerprints of all managers and members of the limited liability company.

4.  Where the applicant is a partnership, the fingerprints of all partners.

(b)  In addition to persons identified in paragraph (a) as being required to provide fingerprints, the department may, during its prelicensing investigation of the applicant pursuant to subsection (3), on a case-by-case basis, require fingerprints from any other employee of the applicant if the department has grounds to believe that any such employee may have committed any crime and that such employee's relationship to the applicant may render the applicant a danger to the public if the license applied for is issued.

(12)  The licensing authority may by rule establish forms, procedures, and fees for the submission and processing of fingerprints required to be submitted in accordance with this chapter. The licensing authority may by rule waive the requirement for submission of fingerprints otherwise required by this chapter if the person has within the preceding 24 months submitted fingerprints to the licensing authority and the licensing authority has obtained a criminal history report utilizing those prior fingerprints. The cost for the fingerprint processing shall be paid to the Department of Law Enforcement and may be borne by the Department of Financial Services, the employer, or the person subject to the background check.

History.--s. 12, ch. 2004-301; s. 7, ch. 2005-155.

497.143  Licensing; limited licenses for retired professionals.--

(1)  It is the intent of the Legislature that, absent a threat to the health, safety, and welfare of the public, the use of retired professionals in good standing to serve the indigent, underserved, or critical need populations of this state should be encouraged. To that end, rules may be adopted to permit practice by retired professionals as limited licensees under this section.

(2)  Any person desiring to obtain a limited license, when permitted by rule, shall submit to the department an application and fee, not to exceed $300, and an affidavit stating that the applicant has been licensed to practice in any jurisdiction in the United States for at least 10 years in the profession for which the applicant seeks a limited license. The affidavit shall also state that the applicant has retired or intends to retire from the practice of that profession and intends to practice only pursuant to the restrictions of the limited license granted pursuant to this section. If the applicant for a limited license submits a notarized statement from the employer stating that the applicant will not receive monetary compensation for any service involving the practice of her or his profession, the application and all licensure fees shall be waived. In no event may a person holding a limited license under this section engage in preneed sales under such limited license.

(3)  Limited licensure may be denied to an applicant who has committed, or is under investigation or prosecution for, any act which would constitute the basis for discipline under this chapter.

(4)  The recipient of a limited license may practice only in the employ of public agencies or institutions or nonprofit agencies or institutions which meet the requirements of 26 U.S.C. 501(c)(3) of the Internal Revenue Code and which provide professional liability coverage for acts or omissions of the limited licensee. A limited licensee may provide services only to the indigent, underserved, or critical need populations within the state. The standard for determining indigency shall be that recognized by the Federal Poverty Income Guidelines produced by the United States Department of Health and Human Services. Rules may be adopted to define underserved and critical need areas and to ensure implementation of this section.

(5)  The department may provide by rule for supervision of limited licensees to protect the health, safety, and welfare of the public.

(6)  Each applicant granted a limited license is subject to all the provisions of this chapter under which the limited license is issued which are not in conflict with this section.

History.--s. 13, ch. 2004-301; s. 8, ch. 2005-155.

497.144  Licensing; examinations, general provisions.--

(1)  The department shall, with the approval of the board, provide, contract, or approve services for the development, preparation, administration, scoring, score reporting, and evaluation of all examinations and may use professional testing services for the development, preparation, and evaluation of examinations, when such services are available. The department may contract with the Department of Business and Professional Regulation for any examination services.

(2)  After an examination has been administered, the board may reject any question that does not reliably measure the required competency.

(3)  For each examination there shall by rule be specified the general areas of competency to be covered by the examination, the relative weight to be assigned in grading each area tested, the score necessary to achieve a passing grade, and the fees, where applicable, to cover the actual cost for any purchase, development, and administration of the required examination. However, statutory fee caps shall apply. This subsection does not apply to national examinations approved and administered pursuant to subsection (5).

(4)  If a practical examination is utilized, rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade. Procedures for practical examinations shall be specified by rule. Board members may serve as examiners at a practical examination with the consent of the board.

(5)  The board may approve the use of any national examination. Providers of examinations may be either profit or nonprofit entities. The name and number of a candidate may be provided to a national contractor for the limited purpose of preparing the grade tape and information to be returned to the department or, to the extent otherwise specified by rule, the candidate may apply directly to the vendor of the national examination. The department may delegate to the board the duty to provide and administer the examination.

(6)  Rules may be adopted establishing procedures and requirements for the security and monitoring of examinations. In order to maintain the security of examinations, the department may seek fines and injunctive relief in the courts of this state against an examinee who violates applicable security rules. The department, or any agent thereof, may, for the purposes of investigation, confiscate any written, photographic, or recording material or device in the possession of the examinee at the examination site which the department deems necessary to enforce the security of examinations.

(7)  The department may, with the approval of the board and for a fee, share with any other state's licensing authority an examination developed by or for the board unless prohibited by a contract entered into by the department for development or purchase of the examination. The department shall establish guidelines that ensure security of a shared examination and shall require that any other state's licensing authority comply with those guidelines.

(8)  If both a written and a practical examination are given, an applicant shall be required to retake only the portion of the examination for which she or he failed to achieve a passing grade, if she or he successfully passes that portion within a reasonable time of her or his passing the other portion. Rules may be adopted establishing procedures and reasonable times for retaking failed portions of any examination.

(9)  Except for national examinations approved and administered pursuant to this section, procedures shall be established by rule for applicants who have taken and failed a written examination to review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. Applicants shall bear the actual cost for the department to provide examination review pursuant to this subsection. An applicant may waive in writing the confidentiality of her or his examination grades. Rules may be adopted establishing procedures for such reviews.

(10)  For each examination administered under this chapter, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than 2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section.

(11)  In addition to meeting any other requirements for licensure by examination or by endorsement, an applicant may be required by the board to pass an examination pertaining to state laws and rules applicable to the practice of the profession regulated under this chapter.

(12)  Examinations and reexaminations for any license under this chapter shall be administered in the English language unless 15 or more applicants request that the examination or reexamination be administered in their native language. Such requests must be received at least 6 months prior to the examination or reexamination. In the event that such examination or reexamination is administered in a foreign language, the full cost to the board and department of preparing and administering the examination shall be borne by the applicants. Where the taking of a national examination is required by this chapter or rule adopted under this chapter, the examination may not be required to be given in any language other than English unless the national examination is available in the requested language. Rules may be adopted establishing procedures for requesting examinations in languages other than English and establishing the costs related to such examinations.

(13)  When any licensed applicant under this chapter requests a hearing to challenge a decision that the applicant's answer to any licensure test question was not a correct answer, or to seek a determination that a challenged question should be stricken, unless the applicant notifies the department at least 5 days prior to the examination hearing of the applicant's inability to attend or unless the applicant can demonstrate an extreme emergency for failing to attend, the department may require the applicant who fails to attend to pay reasonable attorney's fees, costs, and court costs of the department for the examination hearing.

History.--s. 14, ch. 2004-301; s. 9, ch. 2005-155.

497.145  Licensing; use of professional testing services.--Notwithstanding any other provision of law to the contrary, the department may use a professional testing service to prepare, administer, grade, and evaluate any computerized examination, when that service is available and approved by the board.

History.--s. 15, ch. 2004-301.

497.146  Licensing; address of record; changes; licensee responsibility.--Each licensee under this chapter is responsible for notifying the department in writing of the licensee's current business and residence mailing address and the street address of the licensee's primary place of practice and shall notify the department in writing within 30 days after any change in such information, in accordance with procedures and forms prescribed by rule. Notwithstanding any other provision of law, service by regular mail to a licensee's last known address of record with the department constitutes adequate and sufficient notice to the licensee for any official communication to the licensee by the board or the department, except when other service is expressly required by this chapter. Rules may be adopted establishing forms and procedures for licensees to provide the notice required by this section.

History.--s. 16, ch. 2004-301.

497.147  Continuing education; general provisions.--

(1)  As to any licensure under this chapter that requires prelicensure training or continuing education for renewal of a license, no such training or continuing education shall be accepted in satisfaction of the requirements of this chapter, unless approved by the board.

(2)  There shall be adopted rules by the board to establish the criteria for such training or continuing education courses.

(3)  The licensing authority may pr