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Regulation of Unlicensed Activity by the Florida Department of Health

In the State of Florida, the Department of Health regulates the unlicensed practices of health care professionals. Florida Statute § 456.065 states that any practice, performance, or delivery of health care services by an individual without a valid and active license to practice that profession is strictly prohibited. 

Not only can practicing without a valid license accumulate hefty fines for an offender, but it can also impose criminal penalties and/or sentences. The Unlicensed Activity Unit works with law enforcement and the state attorney’s offices to prosecute any individuals practicing without a license.

Among the list of regulated healthcare professions that require licensure, some include:

  • Massage Therapists;
  • Physicians;
  • Tattoo Artists;
  • Nurses;
  • Occupational Therapists;
  • Pharmacists;
  • Dietitians/Nutritionists;

Cease and Desist Notices

Once the Department of Health has probable cause to believe someone is practicing without an appropriate license, the department may issue a notice to the violator or any person who has aided and abetted the unlicensed person through employment, to cease and desist from the violation. If the cease-and-desist notice is violated, the department may seek an injunction or a writ of mandamus in the court to further enforce it. For each day that the unlicensed person continues to practice after the cease-and-desist notice is issued, it creates a separate violation.

Citations

In addition to cease-and-desist notices, the suspected violator may receive a citation of a minimum of $500 and up to $5,000 per incident. Subsequent costs the department is entitled to recover could include the cost of the investigation, prosecution, and attorney’s fees and costs if the department was required to seek enforcement for the cease-and-desist notice. Once the citation is served, the respondent has 30 days to dispute the matter, otherwise the citation becomes a final order.

Within 30 days of the finalized agency action, the affected party has a right to seek judicial review under Florida Statute § 120.68. Pursuant to the Florida Rule of Appellate Procedure 9.110(c), the proceedings are initiated by filing a notice of appeal with the Agency Clerk of the Department of Health, filing a second copy, and paying the filing fees required.

The reviewing court may decide any of the following:

  • Order agency action required by the law;
  • Order agency exercise of discretion;
  • Set aside agency action;
  • Remand the case;
  • Decide the issue between the parties.

In addition to one of the options stated above, the court may also order such ancillary relief that the court deems necessary to redress the effects of official actions that were wrongfully taken or withheld.

Criminal Penalties

Florida differentiates between practicing without a license for up to 12 months or more than 12 months. The severity of penalties may also increase if any activities performed while practicing unlicensed leads to serious bodily harm or injury.

Practicing without a valid license for a period of more than 12 months is a third-degree felony that is punishable with a minimum fine of $1,000 and a minimum mandatory period of incarceration for 1 year. This third-degree felony also includes individuals who apply for a position requiring a license without notifying the employer they do not have an active license and those who purport themselves as able to provide a healthcare service for which they are not properly licensed. 

Those who are practicing unlicensed for a period of up to 12 months can be convicted of a misdemeanor of the first degree and subject to a minimum of 30 days in prison and a $500 fine.

For individuals who practice without a valid license and subsequently cause bodily injury, it is a felony of the second degree. Serious bodily injury can mean a multitude of situations including death, brain damage, spinal damage, disfigurement, fracture of bones, dislocations of joints, limited sensory functions, or a condition that requires surgical repair following the unlicensed treatment. The minimum penalty is a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.

The Takeaways

The unlicensed practice of health care can have serious impositions on the administrative side and criminal side. An individual practicing without a valid license may be delivered a cease-and-desist notice to halt their practice which can have further implications if the notice is not abided by. Furthermore, individuals practicing unlicensed may be subject to citations and criminal proceedings that include fines and imprisonment.  

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Jamaal Jones

jrj@joneshealthlaw.com

This post was authored by Jamaal R. Jones, Esquire (Partner) of Jones Health Law, P.A. where we provide "On-Call Legal Services to Healthcare Professionals". For more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com

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