Who Regulates You

About 28 minutes · ss. 480.035, 480.036 and 480.039, F.S.; s. 456.004, F.S.; Rule 64B7-24.017, F.A.C.

4.1 The cast

Chapter 1 explained that law comes in layers. This chapter explains the people and offices who make, apply and enforce those layers. Five institutions matter to a Florida massage therapist, and it helps to keep their jobs separate.

• The Legislature writes the statutes. It does not license, inspect or discipline anyone.
• The Governor appoints the members of the Board of Massage Therapy, and holds them accountable.
• The Board of Massage Therapy adopts the rules for the profession and, in disciplinary cases, decides what the final outcome will be.
• The Department of Health does the daily work: licensing, renewals, inspections, investigations and prosecutions, with a unit of staff for each profession it regulates.
• The Division of Administrative Hearings is an independent forum where disputed facts are decided and rules can be challenged. (Chapters 1 and 19 cover it.)

A simple way to remember the Board-and-Department relationship: the Board sets the standards and makes the final decisions; the Department carries out the work. The Act says so in its definitions (Chapter 2): when it assigns a task, it names the Board or the Department, and the choice of word tells you who is responsible.

4.2 Why the system is divided this way

At first glance it might seem simpler to have one office do everything: write the rules, license the applicants, investigate complaints and decide discipline. The Legislature chose a different design, and the reasons are worth understanding because they explain many of the rules you will study later.

The first reason is the separation of functions. A body that writes standards should not also be the body that investigates and prosecutes alleged violations of them, because a person who wrote a rule and then judged a case under it could be tempted to read the rule in whatever way produces the result she wants. By placing investigation and prosecution with the Department and final decisions with the Board, the Act creates a check. The Department builds the case. The Board, through its decision-makers, decides it. And disputes about facts can be heard by an independent forum, the Division of Administrative Hearings.

The second reason is expertise. The people best placed to judge whether a therapist's conduct met professional standards are other therapists, which is why a majority of the Board must be licensed practitioners with five consecutive years of experience. The people best placed to run an investigation, process thousands of applications and maintain public records are professional staff, which is why the Department supplies the machinery.

The third reason is the public's voice. Two of the seven members are laypersons who have never practiced the profession, and the proceedings of every board are recorded. A regulator that included only practitioners, and kept no record, would invite the suspicion that it protects its own. The design answers that suspicion by building in outsiders and a record.

The fourth reason is accountability. The Governor appoints Board members and holds them accountable. The Senate confirms appointments. Term limits prevent any person from holding a seat indefinitely. Each of these features answers the question "Who watches the regulators?" with a specific office or rule.

When you meet a new feature of the regulatory structure in this chapter or later, try asking which of these four purposes it serves: separation, expertise, public voice or accountability. The answer will often explain why the feature exists and how it is likely to be applied.

4.3 The Board of Massage Therapy

Section 480.035 creates the Board "within the department." The section is short but dense. Read it as a list of design choices the Legislature made.

Size and composition. The Board has seven members, all appointed by the Governor. Five must be licensed massage therapists who have been engaged in the practice of massage therapy for not less than five consecutive years before the date of appointment. Two must be laypersons. In the language of Chapter 456, the laypersons are consumer members: people who are not, and never have been, practitioners of the profession or a closely related one (Chapter 2 gave the definition).

The reasoning behind the mix is straightforward. A majority of working therapists brings the practical knowledge needed to write workable rules and judge conduct against professional standards. Two members from outside the profession keep the public's point of view in the room and reduce the risk that the Board will protect its own members at the public's expense.

Qualifications. Every member must be a high school graduate or hold a high school equivalency diploma, must be a United States citizen, and must have been a resident of Florida for at least five years. The five professional members must also have the five years of practice described above.

Appointment and terms. The Governor appoints each member to a four-year term. Appointments are subject to confirmation by the Senate. If a seat becomes vacant, the Governor may fill it at any time, but only for the remainder of the unexpired term. A member who reaches the end of a term does not leave a gap: each member "shall hold over after the expiration of her or his term until her or his successor has been duly appointed and qualified."

Term limits. No member may serve more than two terms, "whether full or partial." That last phrase matters. A person appointed to complete the final year of someone else's term has used up one of the two terms, even though the service was brief. A practitioner who joins the Board that way may therefore serve only one more full term afterward.

Officers and meetings. In January each year the Board elects a chair and a vice chair from among its members. The Board meets as often as it decides is necessary, and one meeting each year is designated the annual meeting. The chair may call additional meetings at her or his discretion. A quorum is "not less than a majority of the current membership of the board." The word current is important: the quorum is a majority of the seats presently filled, not a majority of seven. With a full Board of seven, four members make a quorum. If two seats are vacant, leaving five members, a quorum is three.

Compensation. Members receive per diem and mileage under section 112.061 from the place of residence to the place of meeting and return. Under s. 456.011(4), a member is also paid $50 for each day in attendance at an official meeting and each day of other business involving the Board, and the same section provides that three consecutive unexcused absences, or absences at half or more of the Board's meetings in any 12 months, void the member's seat.

Rulemaking power. Subsection (7) gives the Board authority to adopt rules under sections 120.536(1) and 120.54 to implement Chapter 480. You met this sentence in Chapter 1; this is where it lives.

4.4 What the membership rules tell you

The rules about who may sit on the Board and for how long are easy to memorize and easy to forget. Looking at the reasons behind them makes them stick.

The requirement that five of seven members be licensed massage therapists with at least five consecutive years of practice ensures that the people writing rules and judging conduct understand what the work actually involves. A person who had never practiced could not easily tell whether a proposed rule on room standards or record keeping is workable. The five-year requirement filters out newcomers whose experience is thin.

The two consumer seats do the opposite job. A member who has never been a practitioner, or a practitioner of a closely related profession, can ask the question a client would ask: why does this rule exist, and who does it protect? That question is easy to stop asking when everyone in the room is a member of the profession.

The citizenship, residency and education requirements are minimum qualifications. They are easy to verify and they connect the member to the state she serves. The four-year term, with Governor's appointment to the Board.">Senate confirmation, gives each appointment a defined horizon and an outside check. The holdover provision prevents a gap: if a term ends before a successor is qualified, the member continues serving so the Board does not lose its quorum or its decision-makers. The two-term limit, which counts partial terms, prevents any one person from becoming permanent, and it explains why a person who fills the last year of someone else's term has already used one of her two terms.

A reasonable explanation for the quorum rule is practical. If a quorum were a majority of seven regardless of vacancies, a few empty seats could freeze the Board and leave the profession without the ability to adopt rules or decide cases. Counting a majority of current members lets the Board keep working when seats are vacant.

4.5 Holding the Board accountable

Regulators are themselves regulated. Section 480.036 provides that each Board member "shall be held accountable to the Governor for the proper performance of all duties and obligations" of the office. The Governor must cause to be investigated any complaints or unfavorable reports about the actions of the Board or of an individual member, and must take appropriate action, which may include removing a member for malfeasance, misfeasance, neglect of duty, commission of a felony, incompetency, or permanent inability to perform official duties.

Two practical points. First, there is a formal channel for complaints about the Board's own conduct, and that channel runs to the Governor, not to the Board or the Department. Second, the grounds for removal are conduct-based. Disagreeing with how a member voted on a rule or a case is not malfeasance; a member who misuses the office, neglects the job, or commits a felony is within the statute.

4.6 Accountability in practice

Section 480.036 is short, but it raises practical questions that students often ask. What does it look like to hold a regulator accountable, and what does it not look like?

A well-founded concern is specific, factual and about conduct. For example, if a member votes on a matter in which she has a personal business interest, a concerned licensee might write down the date of the meeting, the agenda item, the member's interest as the licensee understands it and the vote. That is a statement of facts that someone can verify. A letter that says only "the Board is unfair" gives an investigator nothing to examine.

It also helps to separate three kinds of dissatisfaction. The first is disagreement with a rule or a decision. The proper channels are the rulemaking process, public comment, a rule challenge before the Division of Administrative Hearings when a rule exceeds the Board's authority, or, for a decision in your own case, the procedures that Chapter 19 describes. The second is dissatisfaction with how the Department handled a licensing matter, such as a delayed application. The first step is usually to ask the Department's licensing staff, and if the issue is not resolved, to put the problem in writing. The third is concern about a member's personal conduct, which belongs with the Governor under section 480.036.

The structure also protects members. Because the removal grounds are specific, a member cannot be removed simply because licensees dislike her votes. That protects the independence that regulators need to make unpopular but necessary decisions.

4.7 The Department of Health

The Board is within the Department, and the Department supplies the machinery. Three provisions describe what it does.

Investigative services. Section 480.039 is a single sentence: "The department shall provide all investigative services required in carrying out the provisions of this act." The Board does not run its own investigators. When a complaint comes in or an inspection is needed, Department staff do the work and report to the Board's decision-makers. (Chapter 19 follows a case through the process.)

Licensing and inspection. Chapter 480 repeatedly assigns the licensing tasks to the Department: processing applications, issuing licenses, receiving fees, investigating proposed establishments, and inspecting. Later chapters show how each works; the point here is that when you apply for a license, send a renewal or ask a licensing question, you are dealing with the Department.

General duties under Chapter 456. Section 456.004 lists what the Department must do for every profession it regulates. The items most relevant to you are:

• Renewal rules. Adopt rules establishing a procedure for biennial renewal, specifying expiration dates and a process for tracking compliance with continuing education and other renewal conditions (subsection (1)). Chapter 9 explains how those rules apply to you.
• The executive director. Appoint the executive director of each board, subject to the board's approval (subsection (2)).
• Board member training. Develop a training program for newly appointed board members, covering the substantive and procedural law, fiscal information and the Department's structure (subsection (4)).
• Rules. Adopt rules under sections 120.536(1) and 120.54 to implement Chapter 456 (subsection (5)). Note the parallel with the Board's own rulemaking power: the Board writes rules under Chapter 480; the Department writes rules under Chapter 456.
• Expert advice. Establish by rule procedures for using the expert or technical advice of the appropriate board in investigations, inspections, evaluating applications, and other duties (subsection (6)).
• Recording of proceedings. Require that all proceedings of any board or panel, and all formal or informal licensing or disciplinary proceedings conducted by the Department, an administrative law judge or a hearing officer, be electronically recorded in a manner sufficient for accurate transcription (subsection (7)). This is a protection for licensees: what is said at a disciplinary proceeding is on the record.
• Investigator standards. Select only investigators or consultants who meet criteria established with the advice of the respective boards (subsection (8)).
• Examination fees. Set an examination fee that covers all costs of developing, purchasing, validating, administering and defending the examination (subsection (10)).

An unexpected duty: child support. Subsection (9) directs the Department to work with the Department of Revenue so that information about current licensees can be shared. When directed by a court or the Department of Revenue, the Department must suspend or deny the license of a licensee found not to be in compliance with a support order, a subpoena, an order to show cause, or a written agreement with the Department of Revenue. The license is issued or reinstated without additional charge when the court or the Department of Revenue reports that the licensee has complied. The Department is not liable for a suspension or denial resulting from carrying out this duty. The lesson is that a license can be affected by matters outside the practice itself, and that a suspension of this kind is administrative: it ends when the underlying obligation is resolved.

4.8 The Department's general duties up close

The list of duties in section 456.004 can look like administrative detail, but each item affects licensees in a concrete way. Looking at them one by one shows how the Department supports the Board and protects the people it regulates.

Renewal procedures. The Department adopts the rules for biennial renewal, sets expiration dates and runs the system that tracks continuing education and other renewal conditions. The practical result is that two offices are involved in every renewal: the Board's rules say what is required, and the Department's system records whether you met it. A deficiency that appears on your renewal is a Department record, and Chapter 9 explains how to cure one. The habit that follows is to check your own record before the deadline rather than waiting for the Department's notice.

The executive director. The Department appoints the executive director of each board, subject to the board's approval. This is a small example of shared control. The staff leader works for the Department but must be acceptable to the Board, which keeps the two institutions cooperating. Check the Board's website for how its staff can be reached with procedural questions.

Training for new members. The Department must develop a training program for newly appointed members that covers substantive and procedural law, fiscal information and the Department's structure. A volunteer who has practiced for five years may know the profession well and still be unfamiliar with administrative procedure, public records and budgets. The training narrows that gap and promotes consistent decision-making.

Rulemaking under Chapter 456. The Department adopts rules to implement Chapter 456, using the same procedures the Board uses for Chapter 480. For you this means two rule sets can apply to your practice: the Board's rules in Division 64B7, and the Department's general rules that implement Chapter 456 for all health professions. When a question concerns something that applies to every health profession, such as general procedures, look for the Department's rule as well as the Board's.

Expert advice. The Department must establish by rule how it will use the expert or technical advice of the appropriate board in investigations, inspections, application review and other duties. The Department does the work, but the advice of the board helps it judge what professional standards require. That is the separation of functions and the use of expertise working together.

Recording of proceedings. As discussed earlier, proceedings must be electronically recorded in a form sufficient for transcription. The requirement covers the proceedings of any board or panel and licensing or disciplinary proceedings conducted by the Department, an administrative law judge or a hearing officer.

Investigator standards. The Department may select only investigators or consultants who meet criteria established with the advice of the respective boards. Again, practitioners help shape who investigates them, and the investigators work to standards that the profession has had a voice in setting.

Examination fees. The Department sets an examination fee that covers all costs of developing, purchasing, validating, administering and defending the examination. This explains why the fee is a fixed amount tied to cost and not a source of profit, and why the examination is administered under the Department's rules.

Support orders. The Department's cooperation with the Department of Revenue is a reminder that a license is a legal status that other public duties can affect. The suspension is administrative and ends when the obligation is resolved.

4.9 Where the Board sits: the Division of Medical Quality Assurance

Chapter 456 refers to the Division of Medical Quality Assurance, and you will see the initials MQA in Department materials. The Board of Massage Therapy is one of the boards within that division. The division is where the Department's licensing and regulatory work for health professions is organized, which is why the same procedures for applications, renewals and complaints look similar across professions.

For a licensee the significance is practical. Because many professions share a division, general rules and procedures apply across them, and Chapter 456 is the common law of that system. A massage therapist is therefore regulated by two sets of norms at once: the profession-specific norms in Chapter 480 and Division 64B7, and the general norms in Chapter 456. Chapter 2 introduced the definitions that tie them together, and Chapters 18 and 19 show how the general discipline provisions in Chapter 456 apply to you.

This also helps when you search for information. If you cannot find an answer in the massage rules, ask whether the question is one that applies to every health profession. If it is, the answer may be in Chapter 456 or in the Department's general rules and not in Chapter 480.

4.10 Who decides what

Keeping the Board and the Department straight is the single most useful thing in this chapter. The following summary shows the usual division of labor. Each item is developed in the chapter noted.

• Rules for the profession: the Board (Chapter 1 explained how they are made).
• Applications, licenses and renewals: the Department processes them under standards the Board sets (Chapters 5 and 9).
• Investigations and inspections: the Department (Section 4.7 above; Chapter 19).
• Whether to bring formal charges, and what discipline to impose: a process in which the Department investigates and prosecutes and the Board, through its decision-makers, decides (Chapter 19 gives the sequence in full).
• Complaints about Board members: the Governor (Section 4.5).
• Disputed facts and rule challenges: the Division of Administrative Hearings (Chapters 1 and 19).

4.11 Who do I contact? A quick directory

New licensees often lose time because they send a question or a document to the wrong place. The table below turns the division of labor into a practical directory. It is a guide to which office has the responsibility, not a promise about how any office will respond.

If you are unsure, begin with the text of the Act: it names the Board or the Department for nearly every task. A short note to the likely office, written clearly and keeping a copy, is better than a series of phone calls with no record.

4.12 How the Board works in public

The Board operates in the open, with narrow exceptions for confidential investigative matters (explained in Chapter 19). Three tools let you follow it.

The Board's website. The Board of Massage Therapy maintains a website, floridasmassagetherapy.gov, that posts meeting notices, agendas, workshop and rule notices, minutes and licensing information. Rule development and proposed-rule notices appear there as well as in the Florida Administrative Register (Chapter 1).

Board business. A Board member's duties extend beyond full Board meetings. Rule 64B7-24.017 defines "other business involving the Board" for purposes of section 456.011(4), Florida Statutes, as: (1) all regularly scheduled meetings of Board committees; (2) any occasion when a member has been requested by the State Surgeon General or Department staff to participate in a meeting or in the preparation, administration or grading of the examination; and (3) meetings or business at the direction or request of the Board. In plain terms, the Board's work includes committees and examination work, not only the main meeting.

Public participation. The rules include a chapter on the Board's organization, which contains a rule titled "Public Comment" (Rule 64B7-24.020). You do not need to be a licensee to attend a public meeting. Practitioners who care about a pending rule can comment during the rulemaking steps described in Chapter 1 and at meetings. If you plan to speak, check the Board's current rule and agenda for the procedure.

4.13 Walking through a Board meeting

Meetings are where the Board does its public work, so it is useful to picture what happens at one. Details vary from meeting to meeting, and the Board's current rules and agenda control, but the general sequence is familiar.

Before the meeting, the Board gives public notice and posts an agenda. The agenda lists the items the Board expects to take up: reports, applications that need a decision, rule development, disciplinary matters that are ready for a decision, and other business. The notice and agenda are the best place to learn what will be discussed, and licensees who care about a topic can read them in advance.

At the meeting the chair calls the Board to order. The first question is whether a quorum is present. If there is a majority of the current membership, the Board may conduct business. If not, it cannot act, however many members and guests have come. The Board then works through the agenda. On many items staff or a committee presents information, members ask questions, the public may be given an opportunity to comment, and the members vote. A decision is made by vote, and the Board's actions are recorded in minutes.

Under Chapter 456 the Department must require that the proceedings of any board be electronically recorded in a form sufficient for accurate transcription. That requirement protects everyone. It gives licensees a reliable record of what was said, and it lets the Board correct its own minutes. A licensee who believes a statement was misreported can ask to see the record.

Some parts of a Board's work are not public. The Act provides confidentiality for certain investigative matters, as Chapter 19 explains. When the Board takes up a confidential matter, it follows the legal rules for doing so, and the public portion of the meeting continues with the other items.

A Board member's duties go beyond the main meeting. As Rule 64B7-24.017 explains, "other business involving the Board" includes committee meetings, participation at the request of the State Surgeon General or Department staff in meetings or in the preparation, administration or grading of the examination, and business at the Board's direction. A member who attends such work receives the per diem described earlier. A member who misses too many meetings risks losing the seat: three consecutive unexcused absences, or absences at half or more of the meetings in any twelve months, void it.

4.14 How to comment effectively

Public comment is one of the few ways a practitioner can influence a rule before it takes effect, and effective comments are written differently from complaints. The following approach works at a Board meeting or in a written comment on a proposed rule.

Start by identifying the exact rule and the notice you are commenting on, using the citation. A comment that says "the new rule is bad" is much less useful than one that says "Proposed Rule 64B7-XX.XXX(2)(b) would require X." Say who you are and why the rule affects you. A short description of your practice or your school gives the Board context.

State what the rule would do in practice, and be specific about the effect. If a requirement would impose a cost, estimate the cost. If it would create a safety benefit, say so. If it is unclear, explain which sentence a reasonable reader could understand in two ways. Remember the purpose clause from Chapter 1: the Board is told to restrict only as far as necessary to protect the public from significant and discernible danger. A comment that connects a proposal to that standard speaks the Board's own language.

Propose an alternative when you can. "Require a written confirmation instead of a notarized one" gives the Board something to consider and shows that you want a workable rule, not merely to stop one. Be concise, be courteous, and be on time. Chapter 1 explained that the notice period is generally at least 28 days and that a request for a public hearing generally must be made within 21 days of the notice. Check the notice for the exact dates.

Finally, remember that a comment is a public record. Do not include confidential information about clients or other people, and do not make personal accusations. Facts and reasons are persuasive. Insults are not.

4.15 Other agencies you will meet

Massage therapists and establishments also deal with agencies that are not part of the massage regulatory structure. A brief orientation:

• The Department of Education licenses the schools that train massage therapists. It appears in the Act's definition of a board-approved school (Chapter 2) and in the school rules (Chapter 8).
• Law enforcement can ask to see identification and records in a massage establishment, and the Department's investigators have the same power. (Chapter 14 covers that.)
• The Department of Revenue is the child-support agency that triggers the license consequence described above, and also the state's tax authority.
• The Division of Corporations keeps the registry of fictitious business names, relevant to the "doing business as" name an establishment must use (Chapter 2 gave the definition; Chapter 12 applies it).
• Counties and municipalities regulate within their jurisdictions as described in Chapter 11.

4.16 Five encounters with the regulators

Most licensees meet the regulatory system through a handful of ordinary events. Knowing in advance who is involved and what is expected takes much of the anxiety out of them.

The renewal. Every two years you renew, and the Department tracks the continuing education and other conditions the rules require. You deal with the Department's licensing staff, but the standards come from the Board's rules and Chapter 9 explains the details. Start early and keep your records.

The inspection. A Department inspector may visit an establishment. The inspector works for the Department, and the standards come from the Act and the Board's rules. Chapter 13 and Chapter 14 describe what establishments must have in place. Be courteous, ask for identification of the person inspecting and keep a record of what was requested.

The complaint. If a client or another person complains, the Department investigates. The Board does not investigate. You will receive notice, and Chapter 19 describes how to respond. The most important early step is to read the notice carefully and to consider obtaining the advice of a Florida attorney who handles licensing matters.

The rule change. When the Board proposes a rule that affects your work, you can follow it through the notices and comment on it. Do not wait until the rule is in force to learn what it says.

The unexpected suspension. A license can be affected by matters outside practice, as the support-order provision shows. The remedy lies in resolving the underlying obligation with the court or the Department of Revenue, and the license is reinstated without additional charge when the obligation is met. Do not ignore a notice, because deadlines run even when you disagree.

Each encounter involves a different office and a different kind of obligation, but the same habits help in all of them: know who is responsible, keep records, read notices carefully and respond on time.

4.17 Case scenarios

Scenario A: Counting a quorum. The Board has five sitting members because two seats are vacant. Three show up for a meeting. Can it conduct business?

Discussion. Yes. A quorum is a majority of the current membership, and a majority of five is three. If the Board were at its full strength of seven, three would not be enough. The statute ties the quorum to the seats presently filled.

Scenario B: Who do I call? A therapist has three problems: (1) her license renewal shows a deficiency in continuing education hours; (2) she believes a Board member behaved improperly by voting on a matter involving his own business; (3) she wants to know whether a technique she learned is within the definition of massage therapy. Where should each go?

Discussion. (1) The Department handles renewals, applying the Board's rule on continuing education; the details are in Chapter 9. (2) The Governor, under s. 480.036, which makes members accountable to the Governor and requires investigation of complaints about their actions. (3) The Board, which can answer through a declaratory statement addressed to her specific facts (Chapter 1); the rule text and the Board's published materials are the starting points.

Scenario C: The two-term limit. A therapist is appointed to the Board to fill the last 18 months of a departed member's term. At the end of that period she is reappointed to a full four-year term. At the end of that term, may she be appointed again?

Discussion. No. Her 18-month service was a partial term, and the statute counts "full or partial" terms toward the limit of two. She has now served two terms. (She would continue to hold over only until a successor is appointed and qualified.)

Scenario D: The support order. A therapist stops making court-ordered support payments and receives a notice that her license will be suspended. She says the Board has no authority to punish her for something unrelated to massage. Is she right?

Discussion. The suspension is not a Board disciplinary penalty for practice conduct. Section 456.004(9) directs the Department, when directed by a court or the Department of Revenue, to suspend or deny the license of a licensee not in compliance with a support order. The license is reinstated, without additional charge, when the court or the Department of Revenue says the licensee has complied. Her remedy lies in resolving the support obligation.

4.18 More scenarios to practice

Scenario E: The absent member. A Board member misses three consecutive meetings without an excuse. A licensee asks whether the member can be removed immediately by a vote of the Board. What is the analysis?

Discussion. Under s. 456.011(4), three consecutive unexcused absences, or absences at half or more of the Board's meetings in any twelve months, void the member's seat. The statute provides the consequence itself. Removal for malfeasance and similar grounds, by contrast, runs through the Governor under s. 480.036.

Scenario F: The wrong office. A therapist sends a written complaint about a Board member's vote on a rule to the Department's licensing staff. Months later she has received no answer. What went wrong?

Discussion. The complaint was sent to the wrong office. The Act makes Board members accountable to the Governor and directs the Governor to investigate complaints about the actions of the Board or an individual member. The therapist should send a factual statement to the Governor, with dates and details. A disagreement with a vote on a rule is also better pursued through public comment or, if appropriate, a rule challenge.

Scenario G: The investigator's visit. A Department investigator arrives at a massage establishment with a request to see records. The manager asks whether the Board must be present. What should she be told?

Discussion. The Board does not run investigations. Under s. 480.039 the Department provides all investigative services required to carry out the Act. The manager should be courteous, ask for the investigator's identification, learn what is being requested and keep a record of the visit. Chapter 14 explains which records an establishment must make available.

Scenario H: The vacancy. Two of the seven seats on the Board are vacant when the Governor has not yet made appointments. The Board needs to adopt a rule at its next meeting. Can it?

Discussion. Yes, if a quorum attends. A quorum is a majority of the current membership. With five members sitting, three are enough, and a vote of the members present may adopt the rule if the other procedural requirements are met. The vacancies do not stop the Board from acting.

Scenario I: The unrelated suspension. A therapist receives notice that her license will be suspended because of a support-order issue and says she will ask the Board to overturn the suspension. Is the Board the right place?

Discussion. Not primarily. Section 456.004(9) directs the Department, when directed by a court or the Department of Revenue, to suspend or deny the license of a licensee not in compliance with a support order. The route to reinstatement runs through the court or the Department of Revenue, which report to the Department when the licensee has complied. The license is then issued or reinstated without additional charge.

Chapter summary

Five institutions matter to a Florida massage therapist. The Legislature writes the statutes. The Governor appoints and holds accountable the members of the Board. The Board adopts rules and decides discipline. The Department does the daily work of licensing, renewals, inspections, investigations and prosecutions. The Division of Administrative Hearings is an independent forum for disputed facts and rule challenges. The structure separates functions, draws on professional expertise, includes a public voice and builds in accountability.

The Board has seven members appointed by the Governor and confirmed by the Senate: five licensed massage therapists with at least five consecutive years of practice and two laypersons. Members serve four-year terms, hold over until a qualified successor is appointed, and may serve no more than two terms, full or partial. The Board elects a chair and vice chair each January, and a quorum is a majority of the current membership. Members receive per diem and mileage and are paid $50 a day for official meetings and Board business, and unexcused absences can void a seat.

Board members are accountable to the Governor, who must investigate complaints about the Board or an individual member and may remove a member for malfeasance, misfeasance, neglect of duty, commission of a felony, incompetency or permanent inability to perform. Disagreement with a vote is not a ground for removal.

The Department provides all investigative services, handles licensing and inspection and performs the general duties of section 456.004, including renewal procedures, the executive director, training, recording of proceedings, investigator standards and examination fees. It must also suspend or deny a license when directed by a court or the Department of Revenue because of a support-order failure, and it reinstates the license without additional charge when the licensee complies.

The Board works in public. Its website posts notices, agendas and minutes, its proceedings are recorded, and anyone may attend public meetings and comment. Other agencies, including the Department of Education, law enforcement, the Department of Revenue, the Division of Corporations and local governments, touch the profession in specific ways. Knowing which office is responsible, keeping records and acting on notices promptly are the habits that keep a licensee out of trouble.