2.2 Grounds for Discipline, Administrative Sanctions & Criminal Penalties (ss. 493.6118, 493.6120 & 493.6121)
Key Takeaways
- Section 493.6118(2), F.S., authorizes five sanctions: denial, reprimand, an administrative fine in the Class I category, probation, and suspension or revocation.
- A Class I administrative fine under s. 570.971(1)(a), F.S., may not exceed $1,000 for every count or separate offense.
- A first violation of the unlicensed-activity prohibition in s. 493.6120(1)(a) is a first-degree misdemeanor; a second or subsequent violation is a third-degree felony and the department may seek a civil penalty up to $10,000.
- Section 493.6118(7), F.S., bars an applicant or licensee from reapplying for the SAME class of license for 1 year after final agency action denying or revoking it, subject to four listed exceptions.
- A person convicted of any violation of Chapter 493 is ineligible for licensure for 5 years under s. 493.6120(4), F.S.
Grounds for Discipline, Administrative Sanctions & Criminal Penalties
Quick Answer: Section 493.6118 lists the grounds and the sanctions. Section 493.6120 supplies the criminal penalties. Section 493.6121 supplies the department's investigative and enforcement powers. Candidates lose points by attributing the penalty schedule to s. 493.6121 - the sanctions are in s. 493.6118(2).
1. Grounds for Disciplinary Action (s. 493.6118(1), F.S.)
These grounds apply to "any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter." Learn the paragraph letters - examination items cite them.
| Para. | Ground |
|---|---|
| (a) | Fraud or willful misrepresentation in applying for or obtaining a license |
| (b) | Use of a fictitious or assumed name by an agency without department approval and s. 865.09 qualification |
| (c) | Being found guilty of, pleading guilty or nolo contendere to (regardless of adjudication), or being convicted of a crime that directly relates to the business for which the license is held or sought. A nolo plea creates a rebuttable presumption of guilt, and the licensee may present mitigating circumstances |
| (d) | A false statement by the licensee that any individual is or has been in his or her employ |
| (e) | Willful betrayal of a professional secret or any unauthorized release of information acquired through regulated activity |
| (f) | Fraud or deceit, or negligence, incompetency, or misconduct, in the practice of regulated activities |
| (g) | Conducting regulated activities without a license or with a revoked or suspended license |
| (h) | Failure to maintain in full force the commercial general liability insurance required by s. 493.6110 |
| (i) | Impersonating, or permitting or aiding an employee to impersonate, a law enforcement officer or an employee of the state, the United States, or a political subdivision - by identifying oneself as such, by wearing a uniform, by presenting or displaying a badge or credentials that would cause a reasonable person to believe the licensee is a law enforcement officer or has official authority, by displaying any flashing or warning vehicular lights other than amber colored, or by any act intended to falsely convey official status |
| (j) | Commission of an act of violence or the use of force on any person except in the lawful protection of oneself or another from physical harm |
| (k) | Knowingly violating, advising, encouraging, or assisting the violation of any statute, court order, capias, warrant, injunction, or cease and desist order in the course of regulated business |
| (l) | Soliciting business for an attorney in return for compensation |
| (m) | Transferring or attempting to transfer a license |
| (n) | Employing or contracting with any unlicensed or improperly licensed person or agency, or performing any act that assists, aids, or abets unlicensed activity, when the status was known or ascertainable by reasonable inquiry |
| (o) | Failure or refusal to cooperate with, or refusal of access to, an authorized department representative conducting an official investigation |
| (p) | Failure of any partner, principal corporate officer, or licensee to have the identification card in possession while on duty |
| (q) | Failure of any licensee to have the license in possession while on duty, as specified in s. 493.6111(1) |
| (r) | Failure or refusal by a sponsor to certify a biannual written report on an intern, or to certify completion or termination of an internship, within 15 working days |
| (s) | Failure to report to the department any person the licensee knows to be in violation of the chapter or department rules |
| (t) | Violating any provision of this chapter |
| (u) | For a Class "G" licensee, failing to timely complete requalification training required by s. 493.6113(3)(b) |
| (v) | For a Class "K" licensee, failing to maintain active certification under s. 493.6105(6) |
| (w) | For a Class "G" or "K" applicant or licensee, being prohibited from purchasing or possessing a firearm by state or federal law |
| (x) | Additional prohibitions applicable to recovery agencies and agents (Class "R," "E," "EE") |
| (y) | Installation, placement, or use of a tracking device or tracking application in violation of s. 934.425 |
| (z) | Failure of a licensee to notify his or her employer within 3 calendar days if arrested for any offense |
[!IMPORTANT] Paragraph (z) is one of the most commonly missed items in the whole chapter. The duty is to notify the employer, not the department, and the deadline is 3 calendar days from arrest - not from conviction.
2. Administrative Sanctions (s. 493.6118(2), F.S.)
When the department finds a violation of subsection (1), it may do one or more of the following:
| Para. | Sanction |
|---|---|
| (a) | Deny an application for issuance or renewal of a license |
| (b) | Issue a reprimand |
| (c) | Impose an administrative fine in the Class I category pursuant to s. 570.971 for every count or separate offense |
| (d) | Place the licensee on probation for a period and subject to conditions the department specifies |
| (e) | Suspend or revoke a license |
How large is a Class I fine? Section 570.971(1), F.S., sets the FDACS fine categories: Class I - not to exceed $1,000 per violation; Class II - not to exceed $5,000; Class III - not to exceed $10,000; Class IV - $10,000 or more. Because s. 493.6118(2)(c) selects Class I, the administrative fine ceiling for a Chapter 493 disciplinary violation is $1,000 per count or separate offense.
Good moral character denials (s. 493.6118(3))
The department may deny an application citing lack of good moral character only if supported by clear and convincing evidence, and it must furnish the applicant a statement of findings, the complete record of evidence relied upon, and notice of the right to an administrative hearing and appeal.
Consequences that follow the order
- s. 493.6118(5) - on revocation or suspension, the licensee must forthwith return the license.
- s. 493.6118(6) - an agency, Class "DS," or "RS" license, and the approval or license of each officer, partner, or owner, is automatically suspended if an administrative fine remains unpaid 30 calendar days after entry of the final order, and remains suspended until paid. All owners and corporate or agency officers or partners are jointly and severally liable for fines levied against the entity, and licenses may not be renewed while an outstanding fine is owed - unless an appeal is pending in an appellate court.
- s. 493.6118(7) - an applicant or licensee is ineligible to reapply for the same class of license for 1 year following final agency action denying or revoking a license. This bar does not apply where the denial was based on (a) an inadvertent error or omission on the application, (b) insufficient documented experience at the time of application, (c) inability to complete the criminal background investigation due to insufficient information from FDLE, the FBI, or another agency, or (d) failure to submit required fees.
- s. 493.6118(8) - the department shall temporarily suspend a Class "G" or "K" license upon verified notification that the licensee has been arrested or charged with a disqualifying firearms-related crime, with a limited-purpose chapter 120 hearing available.
- s. 493.6118(9) - the department shall temporarily suspend any license upon verified notification that the licensee has been arrested or charged with a forcible felony as defined in s. 776.08.
[!CAUTION] The reapplication bar in s. 493.6118(7) is 1 year, not 5. The 5-year figure belongs to a different provision - s. 493.6120(4), which makes a person convicted of any violation of the chapter ineligible for licensure for 5 years.
3. Criminal Penalties (s. 493.6120, F.S.)
| Provision | Conduct | Classification / penalty |
|---|---|---|
| (1)(a)1. | Engaging in activity requiring a license without holding it - first violation | Misdemeanor of the first degree (s. 775.082 / s. 775.083) |
| (1)(a)2. | Unlicensed activity - second or subsequent violation | Felony of the third degree, and the department may seek a civil penalty not to exceed $10,000 |
| (1)(b) | Grace window | Paragraph (1)(a) does not apply if the person engages in unlicensed activity within 90 days after the expiration of his or her license |
| (2)(a) | While impersonating a licensed professional, knowingly and intentionally forcing another person to assist in an activity within the scope of a licensed professional's duty | Felony of the third degree |
| (2)(b) | The same conduct during the course of committing a felony | Felony of the second degree |
| (2)(c) | The same conduct during a felony resulting in death or serious bodily injury | Felony of the first degree |
| (3) | Any other violation of the chapter (except subsection (7)) | Misdemeanor of the first degree; the department may also seek a civil penalty in the Class II category under s. 570.971 (up to $5,000) upon a withhold or adjudication of guilt |
| (4) | Conviction of any violation of the chapter | Ineligible for licensure for 5 years |
| (5) | Violating or disregarding a cease and desist order | Misdemeanor of the first degree, plus a Class II civil penalty (up to $5,000) |
| (6) | Being an owner, officer, partner, or manager who knew or should have known of the activity that caused revocation of an agency or school license | Personal licenses or approval suspended for 3 years; no financial interest in or employment by any licensed agency or school during the suspension |
| (7) | Knowingly possessing, issuing, causing to be issued, selling, submitting, or offering a fraudulent training certificate, proficiency form, or official document | Felony of the third degree |
Penalty reference: a first-degree misdemeanor carries up to 1 year in county jail and a fine up to $1,000; a third-degree felony carries up to 5 years in state prison and a fine up to $5,000; a second-degree felony up to 15 years and $10,000; a first-degree felony up to 30 years and $10,000 (ss. 775.082, 775.083, F.S.).
4. Enforcement and Investigation (s. 493.6121, F.S.)
Section 493.6121 is a powers statute, not a penalty statute:
- (1) The department may enforce the chapter regardless of where the violation occurred and may investigate on complaint or on its own initiative, including the business and business methods of unlicensed persons.
- (2) Every licensed or unlicensed person, applicant, agency, or employee must, on request, provide records and truthfully answer questions. Records must be maintained in this state for 2 years at the principal place of business (or another Florida location, for a person whose license has been terminated, canceled, or revoked) and must be made available immediately unless the department grants an extension.
- (3) The department may investigate anyone advertising or performing services requiring licensure and may issue a cease and desist order, seek an injunction, or act under s. 493.6118(2)(a) or (c).
- (4) The department may subpoena persons and papers, administer oaths, and take depositions; refusal is enforceable by the circuit court in Leon County or the person's county of residence and is itself grounds for revocation, suspension, or other discipline.
- (5) Division employees may access criminal justice information; that information is confidential and exempt from s. 119.07(1).
- (7) A department investigation is exempt from public inspection until probable cause is determined, the case is closed without a probable-cause determination, or the subject waives confidentiality.
Related transparency provisions: s. 493.6123, F.S., requires the department to publish statutory and rule changes to the industry; s. 493.6125, F.S., requires the department to maintain information about administrative complaints and disciplinary actions.
5. Due Process Under Chapter 120
Chapter 493 discipline runs through the Administrative Procedure Act, chapter 120, F.S.:
- Investigation and probable cause. Division investigators develop the file; if probable cause exists, the department files an Administrative Complaint identifying the facts and the statutory provisions violated.
- Election of rights. The licensee elects an informal hearing before the department (no disputed material facts) or a formal hearing before an Administrative Law Judge at the Division of Administrative Hearings (DOAH) (disputed material facts).
- Final order. After any recommended order, the department enters a Final Order imposing sanctions authorized by s. 493.6118(2).
- Emergency suspension. Under s. 120.60(6), F.S., an agency may summarily suspend a license without a prior hearing if it makes specific factual findings of an immediate serious danger to the public health, safety, or welfare, using a procedure fair under the circumstances, followed by expedited proceedings.
[!WARNING]
Exam traps in this section
- Sanctions live in s. 493.6118(2), not s. 493.6121. Section 493.6121 is enforcement and investigation.
- The administrative fine is a Class I fine - $1,000 maximum per count under s. 570.971(1)(a).
- 1 year to reapply after denial or revocation (s. 493.6118(7)); 5 years ineligible after conviction of a chapter violation (s. 493.6120(4)); 3 years suspension for a culpable owner or officer of a revoked agency (s. 493.6120(6)).
- The 90-day post-expiration window in s. 493.6120(1)(b) shields a lapsed licensee from the unlicensed-activity crime - it does not authorize practice, which remains prohibited by s. 493.6113(6) and disciplinable under s. 493.6118(1)(g).
- Impersonation is paragraph (i); aiding unlicensed activity is paragraph (n); refusing department access is paragraph (o); betraying a professional secret is paragraph (e).
What is the maximum administrative fine FDACS may impose per count for a Chapter 493 disciplinary violation, and where does that ceiling come from?
An individual previously convicted of unlicensed private investigative activity is caught again conducting paid surveillance without a license. What does s. 493.6120(1)(a)2., F.S., provide?
FDACS enters a final order revoking a Class "C" license. When may that individual reapply for a Class "C" license under s. 493.6118(7), F.S.?
A licensed Class "C" investigator is arrested for shoplifting on a Saturday. What does s. 493.6118(1)(z), F.S., require?