JOE NEGRON RICHARD CORCORAN THE FLORIDA LEGISLATURE JOINT ADMINISTRATIVE PROCEDURES COMMITTEE. Representative George R. Moraitis, Jr.

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1 JOE NEGRON RICHARD CORCORAN President Speaker THE FLORIDA LEGISLATURE JOINT ADMINISTRATIVE PROCEDURES COMMITTEE Senator Kevin Rader, Chair KENNETH J. PLANTE Representative George R. Moraitis, Jr., Vice Chair COORDINATOR Senator Daphne Campbell Room 680, Pepper Building Senator George B. Gainer 111 W. Madison Street Senator Rene Garcia Tallahassee, Florida Senator Keith Perry Telephone (850) Representative Jason Fischer Fax (850) Representative Michael Grant Representative Sam H. Killebrew Representative Amy Mercado Representative Barrington A. Barry Russell Ms. Lee Ann Gustafson Deputy Bureau Chief Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida Re: Department of Health: Board of Massage Therapy Proposed Rule 64B Dear Ms. Gustafson: I have reviewed proposed rule 64B , Disciplinary Guidelines, which was advertised in the Florida Administrative Register on January 22, I have the following comments. 64B : 64B (2): 64B (3): It appears that section (2) should be added as a law implemented. Each of the penalties in this subsection has a $10,000 recommended fine if the offense is for fraud or making a false or fraudulent representation. Please explain why the guideline states the penalty is recommended. It appears the $10,000 fine is mandatory. See (2)(d), Fla. ( If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of $10,000 per count or offense. ). It appears this rule subsection should be revised. See (8)(c), Fla. The penalty guidelines outlined in this subsection in paragraphs (a) through (ee) list one column for a first offense and another column for a second offense. Some of the violations list penalty guidelines for the first violation, but none for the second violation. Section (2) states in part that, The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses.... It appears the penalty guidelines

2 Page 2 should specify penalties for subsequent offenses as well. Please revise these guidelines or explain why revision is not required. See (8)(c), Fla. 64B (3)(b): 64B (3)(c): 64B (3)(d): 64B (3)(e): 64B (3)(f): The penalty of discipline up to revocation for a first offense does not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. The penalty of reprimand to revocation for a first offense does not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. Please explain why the violation of section (7) does not include violations of section (7)(n), (o), (p), (q), (r), and (s). The penalty guidelines for a first violation of section (1)(ii) is, denial of application or revocation. While rule subsection (2) establishes that there is recommended penalty of $10,000 if the offense is for fraud, the guideline for the offense in rule paragraph (3)(e) does not include the mandatory $10,000 penalty pursuant to section (2)(d). It appears the description of this violation should be clarified. See (1)(i), Fla. The potential penalties for a first offense are, reprimand, $500 fine to probation, $ fine. Please explain why there guidelines includes a $750 fine when the guidelines indicate the penalties include a $500 fine to probation. These guidelines do not appear to provide a meaningful The penalty guidelines for a second offense is probation, $1,000 fine to

3 Page 3 64B (3)(h): 64B (3)(k): The penalty range for a second violation is reprimand, $2,500 fine, to The penalty guidelines for a first offense is reprimand, $1,000 fine to $1,000 fine, suspension. These guidelines do not appear to provide a The penalty guidelines for a second offense is reprimand, $1,000 fine, suspension to revocation. These guidelines do not appear to provide a 64B (3)(l): The penalty guidelines for a first offense is, $1,000 fine, probation to Please explain what penalties guidelines apply to a second or subsequent violation. See (2), Fla. 64B (3)(m): 64B (3)(n): The penalty guidelines for a first offense is, $250 fine and suspension until compliant to revocation. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. The penalty guidelines for a first offense is, $500 find [sic], suspension to $1,000 fine, suspension. These guidelines do not appear to provide a

4 Page 4 Please correct find to fine. The penalty guidelines for a second offense is, $1,500 fine, suspension to 64B (3)(o): The penalty guidelines for a first offense is, reprimand, $250 fine to $1,000 fine, suspension. These guidelines do not appear to provide a The penalty guidelines for a second offense is, $2,500 fine, suspension to 64B (3)(p): The penalty guidelines for a first offense is, reprimand, $100 fine for 1 st month and $50 for each succeeding month to $2,000 fine, suspension. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. The penalty guidelines for a second offense is, $2,500 fine, suspension to 64B (3)(q): The penalty guidelines for a first offense is, reprimand, $250 fine to

5 Page 5 64B (3)(q)1.: The penalty guidelines for a first offense is, reprimand, $500 fine to 64B (3)(q)2.: The penalty guidelines for a first offense is, $2,500 fine, revocation. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. 64B (3)(q)3.: The violations described in this subparagraph appear identical to those in subsection 4. The penalty guidelines, however, are different. Please revise the guidelines as appropriate. See (1)(i), Fla. 64B (3)(q)5.: The penalty guidelines for a first offense is, $1,000 fine, suspension to

6 Page 6 64B (3)(q)10.: This rule subparagraph sets forth a violation of rule 64B , and quotes the language of that rule. Included in the text of this violation is a reference to a licensed massage therapist, duly qualified under Rule 64B , F.A.C. Rule 64B was repealed effective January 31, It appears this violation should be revised. See (1)(i), Fla. The penalty guidelines for a first offense is, 2,500 fine, revocation. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. 64B (3)(r): The penalty guidelines for a first offense is, 500 fine and suspension to 64B (3)(s): The penalty guidelines for a first offense is, $500 fine and reprimand to 64B (3)(t): 64B (3)(u): The penalty guidelines for a first offense is, $500 fine and probation to $2,000 fine and revocation. These guidelines do not appear to provide

7 Page 7 64B (3)(v): The penalty guidelines for a first offense is, $500 fine and probation to 64B (3)(x): The penalty guidelines for a first offense is, $500 fine and continuing education to $1,000 fine and revocation. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. 64B (3)(y): The penalty guidelines for a first offense is, $500 fine and probation to 64B (3)(z): The penalty guidelines for a first offense is, suspension until PRN evaluation, contract if recommended to revocation. These guidelines do not appear to provide a meaningful range of penalties as required by section (2). Further, the wide range of possible penalties

8 Page 8 appears to vest unbridled discretion in the board. Please revise the penalties for this violation or explain why revision is not required. See (8)(c) and (d), Fla. 64B (3)(aa): The penalty guidelines for a first offense is, $500 fine and reprimand to 64B (3)(bb): The penalty guidelines for a first offense is, $1,000 fine and reprimand to 64B (3)(dd): The penalty guidelines for a first offense is, suspension until compliant with PRN to revocation. These guidelines do not appear to provide a 64B (3)(ee): 64B (5): This rule paragraph does not list any penalty guidelines for the described violation. Please amend the rule consistent with the board s intent. See (1)(i), Fla. Please explain why this subsection is included in the rule. It appears the potential penalties that may be imposed are set forth in the penalty

9 Page 9 guidelines in subsection (3). Moreover, it appears this subsection is reiterating section (2)(a) through (g). Please let me know if you have any questions. Otherwise, I look forward to your response. Sincerely, Marjorie C. Holladay Chief Attorney cc: Mr. Edward A. Tellechea, Chief Assistant Attorney General MCH:DF WORD/MARJORIE/64B7_ LS020718_164154