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Licensure & Disciplinary Procedures Under A Regulatory Board

Consideration of Legislative Changes to Restructure the Division of Licensing

Bringing Subject Matter Expertise to the Regulatory Functions

Introduction

The most common form of oversight for most regulated professions, those whose authority is specifically granted or limited by a particular law, is some sort of board where the membership consists largely of professionals regulated under the same law. In its current form, the FDACS Division of Licensing regulates the professions under FS 493 without the guidance, assistance, or direction of a regulatory board. The division investigates and prosecutes licensees based on the decision making of state employees. These state employees typically do not hold any of the licenses nor have they run any of the types of businesses regulated by FS 493. They are not elected, either by the people or by licensees. Decisions such as who to investigate, how thoroughly to investigate, who to prosecute, and how severe a penalty should be all are made without peer review in any part of the process. Sadly, persons who have never been licensed or operated a business in private security, private investigations, or asset recovery operations, are making major decisions that severely impact those who are so licensed. Decisions affecting the fates of those in the profession and the public are being made by state employees who have no accountability to either.

When a complaint is investigated, when a prosecution is pursued, and when a penalty is imposed against a licensee, the disciplinary process cries out for peer review and demands the input of experienced licensees. How can any inexperienced person reasonably be expected to make informed decisions about the activities of experienced ones? How can one who has never worked in a given industry or profession make sound judgments about that industry or profession? The obvious answer is, in most circumstances, they cannot. Statutory authority to make such decisions does not also grant the knowledge to do it in an informed manner.

This article explains a proposed regulatory board model, its functions and authority.


Authority of the Board

Under a proposed regulatory board model, the board, rather than the Division of Licensing, would oversee the investigative and prosecutorial functions required by law.

The investigative duties of the proposed board would include reviewing complaints and providing oversight to DOL investigators in the conduct of disciplinary investigations. In determining if a completed investigation has developed sufficient evidence to prosecute, the board may, as a function of its rule making authority, have a probable cause panel made up of board members, perhaps three members of our industry. Cases in which probable cause is not found by the panel would returned to the field for further investigation or dismissed. Cases in which probable cause is found would forwarded to a DOL prosecutor for preparation of the administrative complaint and ensuing legal actions.

Actual prosecutorial services, include preparing cases for presentation to a probable cause panel, preparing administrative complaints, prosecuting complaints at disciplinary hearings, litigating appeals, and reporting alleged criminal violations to the appropriate authorities will be performed by an attorney from the DOL assigned to the board. This assigned prosecutor would handle cases involving both licensees as well as unlicensed individuals and businesses.


Membership of a Regulatory Board

The Board would consist of thirteen members, eight of whom who would be licensees under FS 493. Following a model similar to other regulatory boards, four members would be licensed in the security field, two in the private investigative field, and two in the recovery field. Two of the other members would be consumers who are not licensees but are users of services provided by licensees of FS 493. One member would be a law enforcement officer. The last two would be laypersons who have no connection to any of the other categories. Board members would be appointed by the Commissioner of Agriculture for a term of 4 years. The Director of the FDACS Division of Licensing would serve as the secretary to the board. The DOL would provide all administrative and legal support.

Where most laws that regulate a specific industry affect only one profession, FS 493 covers three distinct professions. So, where most regulatory boards are composed of like professionals, the professional membership of the proposed board would consist of licensees from three different industries. This would create a natural check and balance on the board, in addition to including consumer and layperson members, and prevent any one represented industry from assuming majority control. Even our industry, private security, with the largest licensee representation, only has four members of the total thirteen.


Changes Under a Regulatory Board

A major benefit of a regulatory board is the incorporation of the expertise and knowledge of licensed individuals in the investigative and prosecutorial processes. Under a board structure, all licensing and disciplinary cases are subject to review by the board. Peer involvement in the investigative function of both licensed and unlicensed individuals would occur.

One of the biggest impacts the board model will have is in the area of determining whether a complaint is legally sufficient. Since legal sufficiency must be found before a complaint may proceed to the investigative stage, it is a critical step in the investigative process. Currently, cases taken or initiated by the DOL are not subject to any review at this point. Under the proposed board model, the board could undertake this function. The board can make the decision as to the legal sufficiency of a given complaint.

Under the proposed regulatory board, each completed investigation could also be reviewed by a probable cause panel made up of board members. It is helpful to incorporate the knowledge and experience of a licensee in the investigative stage. At present, there is not a single investigator or attorney at DOL with the knowledge or experience of a licensed individual who has actually practiced in the profession for a number of years. This background is essential for a thorough and complete investigation. It simply is illogical and cannot be in the best interests of the public to expect any person with no practical experience in a given profession to be able to investigate, comprehend, and analyze the activities of one who does work and operate within that profession, and to do so with fair and due diligence.

All cases involving unlicensed activity would also fall under the board's jurisdiction. The board could review each complaint, decide if there is legal sufficiency, order the investigation to proceed, review the findings of the investigation, and then make a final determination and prescribe sanctions. Historically speaking, across the United States, such peer review has increased greatly the prosecution of unlicensed cases.

The number of unlicensed cases investigated and prosecuted has continued to increase each year under regulatory board models. Driving this in many cases are the educational efforts of the board. The board can educate and inform the public through statewide speaking engagements and issuance of disciplinary press releases in the areas where violations are occurring. The proposed model requires an annual report submitted to the governor and the legislature summarizing all such activity. If the public recognizes that disciplinary action is indeed being taken, it might discourage someone from engaging in the same or similar conduct in the future. The imposition of fines has a very strong deterrent effect on unlicensed activity and misconduct of licensees. Public reporting of investigations and sanctions also tends to encourage victims to report possible violations. They would know their complaints are taken seriously and that something is being done. Surely, this is in the best interests of the public. Under the current structure, DOL does not routinely issue such press releases.

Where the proposed board would maintain oversight of all of these processes, it is not expected to assume control of the day-to-day affairs of the DOL. DOL will continue to issue licenses, conduct routine investigations on its own initiative, and issue sanctions for minor offenses. It will, however, keep the board apprised of its activities and be subject to the board’s oversight and direction. As part of its peer review function, the board is expected to maintain even closer oversight regarding major cases. This is especially important when the predicating incident of the investigation is one that may involve or push the limits of industry standards. Who should determine industry standards, after all; state employees or those who actually work in the industry?


Conclusion

The board model is serving the public very well everywhere it is in use. It is much better at protecting the health, safety and welfare of the people. Prosecutions for misconduct increase, which has in turn led to an increase in the number of complaints being filed. Unlicensed activity is vigorously prosecuted.

The Division of Licensing has a difficult task. It is required to regulate professions without the professional experience to do so. Its investigators are required to investigate operational activities and management decisions without the benefit of professional input from those who have been required to carry out those activities and make those management decisions. It is a daunting task in which the regulated professions should be involved.

The time has come for the professions regulated under FS 493 to decide if they want to become involved in the regulatory and disciplinary process. The division simply cannot do it alone.

The current regulatory structure is no longer the most effective means to protect the public and the licensees who serve them. Cops regulate cops, CPAs regulate CPAs, dentists, doctors, nurses, lawyers, contractors, cosmetologists, veterinarians, etc. etc. all are regulated by a regulatory board of their peers. Private investigators, private security agencies and officers, and recovery agents should be regulated by their peers as well.

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