Fla. Admin. Code Ann. R. 61-42.002 - Investigations and Legal Services

(1)

(a) The department shall investigate, on behalf of the commission, any complaint that is filed with the department in writing, signed by the complainant, legally sufficient, and under the jurisdiction of the State of Florida. A complaint is legally sufficient if it contains facts that show a violation of Chapter 548, F.S. or the rules of the commission relating to the professions regulated by the commission. In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate and take appropriate final action on a complaint even though the original complaint is withdrawn or the complainant indicates a desire not to cause the complaint to be investigated or prosecuted to completion.

(b) The department may investigate an anonymous complaint if the complaint 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 violations alleged in the complaint are true.

(c) 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.

(d) The department may initiate an investigation if it has reasonable cause to believe that a licensee or a group of licensees has violated a Florida statute or a rule of a commission.

(e) When an investigation of any subject is undertaken, the department shall promptly furnish to the subject or the subject's attorney a copy of the complaint or document that resulted in the initiation of the investigation. The subject may submit a written response to the information contained in such complaint or document within 20 days after service to the subject of the complaint or document. The subject's written response shall be considered by the department. The right to respond does not prohibit the issuance of a summary emergency order if necessary to protect the public health, safety, and welfare. However, if the secretary, or the secretary's designee, and the chair of the commission 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 subject if the act under investigation is a criminal offense.

(f) When an investigation of an amateur sanctioning organization is undertaken, if possible, investigators shall conduct a compliance check on any matches held by the amateur sanctioning organization to ensure compliance with Chapter 548, F.S., and the rules adopted by the commission.

(g) For the purposes of investigation, any individuals designated by the executive director and department to conduct investigations shall be admitted to each event or match and provided reasonable access to all areas, including but not limited to dressing rooms or locker rooms by the amateur sanctioning organization.

(2) The department shall designate sufficient and adequately trained staff or other qualified persons to investigate all legally sufficient complaints. The department shall allocate sufficient and adequately trained staff to expeditiously and thoroughly determine legal sufficiency.

(3) For the purposes of this rule, the Department may use any of the individuals designated to conduct compliance checks, as forth in Rule 61K1-4.001, F.A.C., to conduct or assist in investigations. Those individuals are:

(a) Referees currently or formerly licensed under Chapter 548, F.S;

(b) Judges currently or formerly licensed under Chapter 548, F.S;

(c) Inspectors, including Chief Inspectors;

(d) Ringside physicians currently or formerly licensed under Chapter 548, F.S;

(e) Commission staff;

(g) The executive director;

(h) Commissioners.

(4) When its investigation is complete and deemed legally sufficient, the department shall prepare and submit to the Office of the General Counsel the investigative report. The report shall contain the investigative findings and the recommendations concerning the existence of probable cause of any violation of Chapter 548, F.S., or of any rule adopted by the commission. 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.

(5) As an alternative to the provisions of subsections (1), (2), and (3), when a complaint is received, the department may provide a licensee with a notice of noncompliance for an initial offense of a minor violation, as listed in Rules 61K1-3.024 and 61K1-4.013, F.A.C. 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.

(6) The determination of whether probable cause exists shall be made by the Office of the General Counsel within the Department. The Office of the General Counsel may retain independent legal counsel, employ investigators, and continue the investigation as it deems necessary; and all costs thereof shall be paid from the Professional Regulation Trust Fund.

(7) When probable cause of a violation of Chapter 548, F.S., or the rules of the commission has been found by the Office of the General Counsel, the Office of the General Counsel shall serve notice of the alleged violation(s) in an Administrative Complaint in accordance with Section 120.60(5), F.S. If the subject of a complaint disagrees with the allegations set forth in the Administrative Complaint, a formal hearing before an administrative law judge may be requested from the Division of Administrative Hearings, pursuant to a petition or request for hearing, as set forth in Section 120.569, F.S., and the rules adopted thereto. Hearings shall be held pursuant to Chapter 120, F.S., and the rules adopted thereto.

(8) The commission 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 commission.

(9) The department shall have standing to seek judicial review of any final order of the commission, pursuant to Section 120.68, F.S.

(10) The department shall periodically notify the complainant of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal.

(11) Upon completion of the investigation and pursuant to a written request by the subject, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file. The subject may file a written response to the information contained in the investigative file. Such response must be filed within 20 days, unless an extension of time has been granted by the department. This subsection does not prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency.

(12) All fines, fees, and costs collected through the procedures set forth in this section shall be allocated to the Professional Regulation Trust Fund for the allocation of the fees assessed and collected to combat unlicensed practice of a profession.

Notes

Fla. Admin. Code Ann. R. 61-42.002

Rulemaking Authority 548.003(8) FS. Law Implemented 548.003(8) FS.

New 12-20-12.

New 12-20-12.