Florida Business Administrative, Licensing & Regulatory Requirements
Administrative registration, licensing and regulation affects many types of industries operating in Florida, especially those engaged in providing financial, legal, healthcare and other professional services to the public. These are rules and regulations promulgated by Florida’s administrative agencies as the Florida Administrative Code. It is important to remember that a business may also be subject to occupational license requirements for both the county and the municipality in which it is located. Information about these licenses can usually be found on the county or city’s website.
If the success of your business, project or professional is dependent on a permit, license or approval from one of Florida’s administrative agencies, we have the experience and insight to effectively represent your interests and achieve your ideal circumstances. If action is being taken by a Florida administrative agency against your license, we can step in to negotiate a favorable compromise and mitigate unnecessary loss and risk moving forward.
Florida Office of Financial Regulation (“OFR”)
Financial professionals are licensed and regulated by the Florida Office of Financial Regulation (“OFR”) including foreign and domestic banks, trusts, investment advisers, securities broker-dealers and issuers, and stock-brokers. OFR regulates all of Florida’s financial services industries and responds to complaints about state chartered banks and financial services providers licensed in the state of Florida.
Florida continues to attract a wide variety of financial professionals and businesses every year. OFR has a hand in regulating nearly every one of them. Our attorneys are businessmen, and have represented the interests of financial professionals before OFR in a wide variety of matters, including written negotiations and settling administrative enforcement actions without admission of guilt or liability. The regulatory issues faced by many in Florida’s financial sector are numerous and include books and records requirements, custody minimums, securities registration and exemptions, continuing education requirements, advertising restrictions and a host of others. Our attorneys are experienced in
OFR’s internal structure is divided into the Division of Financial Services, Division of Consumer Finance, and Division of Securities. OFR’s enforcement arm is the Bureau of Financial Investigations. What are they enforcing? Administrative agency rules and regulations. How are they enforcing it? Administrative enforcement actions before the Division of Administrative Hearings.
The Division of Securities regulates the sale of securities in, to or from Florida by firms (securities dealers, issuer dealers and investment advisers), branch offices and individuals affiliated with these firms to determine compliance with Florida law. This arm also regulates Florida’s recently enacted crowdfunding rules governing intermediaries and issuers. Other entities in the securities business regulated by OFR are FINRA and non-FINRA securities dealers, state and federal registered investment advisers, issuer dealers. The attorneys at Markarian & Hayes have particular depth of experience in representing Florida’s state-registered investment advisers before OFR. We are familiar with the intricacies and requirements of Form ADV.
The Division of Financial Services licenses and regulates all state-chartered financial institutions, including commercial banks, credit unions, family trust companies, non-deposit trust companies, and international bank offices.
The Division of Consumer Finance licenses and regulates non-depository financial service industries and individuals, including collection agencies, consumer finance companies, loan originators, brokers and lenders, current exchanges, retail installment sales, and title loan companies.
Florida Department of Financial Services (“DFS”)
Insurance professionals, including both agents and agencies, are licensed and regulated by the Florida Department of Financial Services (“DFS”) Division of Agent and Agency Services.
Upon being licensed by the Department of Financial Services and appointed by an authorized appointing entity, you are authorized to transact business within your respective license class. With this authorization comes the responsibility to conduct business according to the rules and statutes of the Florida Insurance Code. In most of the major license classes issued by the department, a pre-licensing course is required that gives you a foundation for being compliant in your particular area of licensure.
One definition of compliance is that “it is a state of being in accordance with established guidelines, specifications, or legislation.”
No matter what class of license you hold, the business of insurance engages the public trust. Therefore, being in compliance means that you are conducting yourself and your business practices in accordance with the laws and regulations of Florida.
There are areas of compliance that are pertinent to all or most classes of licenses issued by the Department of Financial Services. Certain license classes will have additional, specific requirements that must be met in order to be in compliance. The attorneys at Markarian & Hayes are adept in navigating the insurance licensure process and ongoing requirements to properly maintain agent and agency licensure.
Florida Office of Insurance Regulation (“OIR”)
OIR licenses and regulates insurance companies. The attorneys at Markarian & Hayes have particular experience in dealing with the company admissions section of OIR that is responsible for receipt and review of company applications for licensure.
What all of these disparate agencies have in common is that they are governed by the Florida Administrative Procedure Act (“APA”).
Florida Department of Business and Professional Regulation (“DBPR”)
DBPR oversees the regulation of a wide variety of industries, including cosmetologists, veterinarians, real estate agents and pari-mutuel wagering facilities. Certain professional activities fall outside of DBPR’s scope, however. Our skilled and knowledgeable attorneys have experience in working with DBPR to amicably resolve administrative disputes and avoid suspension or revocation of licensure.
Florida Department of Health (“DOH”)
Health care professionals are licensed and regulated by the Florida Department of Health, including physicians, nurses and other health care professionals. The road to becoming a health care professional is not easy. If the state takes action against your license, it is a serious matter. The attorneys at Markarian & Hayes are practiced in mitigating the consequences of administrative enforcement actions against your licensure to practice medicine.
The Florida Administrative Procedure Act, Chapter 120 Florida Statutes
In Chapter 120, the Florida Legislature has created a comprehensive administrative decision-making process which provides a road map for the exercise of authority delegated to agencies by the legislature, and, at the same time, provides full opportunities for public participation. Utilization of these processes results in informed decision-making by government officials, and further lends legitimacy to the decision-making process through encouraging public participation. The APA delegates authority to Florida’s administrative agencies to promulgate rules and regulations which comprise the Florida Administrative Code. These are the rules and regulations with which you and your business must comply, or face financial penalty or licensure suspension or revocation.
Is licensing subject to the APA?
The APA establishes a timeframe in which an agency must act on an application for licensure. The failure of the agency to respond to the application for licensure within the prescribed time results in default licensure, so long as the applicant successfully completes any examination required and satisfies other statutory requirements. Upon receipt of an application for licensure, an agency has 30 days in which to examine the application and notify the applicant of any errors or omissions as well as request any additional information as permitted by law. If the agency takes such action within 30 days, an application may be denied if an applicant fails to correct errors or omissions or supply additional information as requested.
Under the APA, license applications must be approved or denied within 90 days of the original application or the agency’s request for additional information. This period may be tolled as a result of the initiation of administrative proceedings under §120.57, F.S., with the time resuming after the administrative law judge issues a recommended order. An agency must provide to the applicant written notice of its proposed action, as well as information regarding administrative and judicial review options and the applicable time limits and procedures to be followed.
Before an agency may revoke, suspend, amend, or withdraw a license, it must notify the licensee by personal service or certified mail of the circumstances justifying the agency’s pending action. In this event, the licensee has the right to request a hearing under §120.57, F.S. An agency may summarily suspend, restrict, or limit a license if it finds that an immediate serious danger to the public health, safety, or welfare requires an emergency suspension.
There are numerous instances in which it will benefit your business to consult an attorney experienced in navigating Florida’s administrative licensing and regulatory frameworks, including:
- Initial application for licensure
- Compliance with regulations
- Defending an administrative enforcement action
These are crucial points in any interaction with Florida’s administrative agencies. Consulting with an attorney before submitting an initial application for licensure can streamline the process and increase the likelihood of a successful application. Often the rules and regulations describing the application process are vague and confusing. Our attorneys are proficient in interpreting the requirements to obtain licensure for your particular business and will advise you throughout the entire process. We have direct experience in negotiating with Florida’s administrative agencies to ensure proper interpretation of statutory and regulatory requirements of new applicants.
Once your business has obtained a license, it is important to create the appropriate processes required for compliance with the law from day one. Your obligations and relationship with the state usually does not end after you become licensed or registered. Many regulatory frameworks require ongoing compliance with rules, and often require affirmative action within specific timeframes by businesses and professionals when certain circumstances change. Most of Florida’s regulatory frameworks are convoluted and difficult to synthesize. Often multiple rules and regulations must be read in conjunction with one another to properly understand the full extent of your obligations under the law. If you are unsure whether your operating business is currently compliant with applicable Florida laws, rules and regulations, contact our office today. Ensuring compliance before an administrative enforcement action is filed against you will ultimately save resources.
Failure to adhere to the rules and regulations applicable to your business may result in an administrative enforcement action against you. These lawsuits are different than civil suits, and are resolved through different procedures. Parties have different options under the law and employ different strategies to achieve resolution. These actions against you typically have one or several purposes: to fine you, suspend your license, or revoke your license. Often the penalties sought in these actions overreach and do not comply with guidelines. Our attorneys are experienced in negotiating with agency counsel to mitigate financial penalties and avoid costly suspension or revocation of licensure. Consult with an attorney experienced in interpreting Florida’s APA to mitigate your financial penalty or potentially save your business’ license.
Other matters that may affect your business and in which you deserve your interests represented include:
- Rule challenges
- Petitions for waivers and variances
- Florida procurements and bid protests
Rulemaking is the process by which Florida administrative agencies propose and consider adoption of rules and regulations that will impact your business and its operations. Agencies rely on rule adoption in order to function. By retaining an attorney experienced in the administrative process, your business will have an opportunity to submit comments, suggestions and recommendations in shaping a proposed rule or regulation. Engaging the opportunity to help shapes rules that potentially affect your business is another way for your business to gain competitive advantage in the marketplace.
Occasionally businesses and professional individuals will have grounds to challenge an existing rule, or its application in your particular circumstances. These proceedings are labeled rule challenges, or petitions for waiver or variance. The attorneys at Markarian & Hayes have experience in framing your particular circumstances in a manner that will give you the best opportunity for favorable treatment under Florida law.
Businesses that contract with the state must comply with the narrow procurement and bid protest process. There are various steps to the procurement process, and the attorneys at Markarian & Hayes have experience in guiding clients through all of them, including invitations to bid (ITB); request for quotes(RFQ); State term contracts; invitations to negotiate (ITN); and request for proposals (RFP).
- Formal and informal administrative hearings and agency proceedings
- All aspects of rulemaking proceedings, including rule challenges
- General regulatory matters
- Petitions for variances and waivers from requirements of the Florida Administrative Code
- Bid protests and procurement proceedings
- Representation in initial applications for licensure
- Establishment of representative offices
- Defending professional disciplinary actions and hearings before the Division of Administrative Hearings
- Maintaining Forms ADV & U4
- Registering international trust company representative offices
- Registering international banking representative offices
- Litigation and negotiation of administrative enforcement actions
- Mitigation of financial penalties associated with enforcement actions
Link to a visual representation of the Florida Electorate, including administrative agencies: http://www.oppaga.state.fl.us/profiles/images/storgchart.pdf