Posts Tagged ‘Department of Business and Professional Regulation’

Exemptions for Florida RNs, LPNs and CNAs

Wednesday, April 13th, 2011

On Florida’s Department of Health’s website it states that background screening for employment purposes may be required for the Registered Nurse (RN), License Practical Nurse (LPN) or Certified Nursing Assistant (CNA) depending on their place of employment. It is the responsibility of the employer to meet this requirement. When this screening is required, it is pursuant to Florida Statute 435.

Exemption

The RN, LPN or CNA may apply for an exemption hearing/review. This is a request for the Department of Health to review the applicant’s total background to determine if an exemption can be granted. The RN, LPN or CNA must provide information about his criminal history, employment history, rehabilitation, reference letters, probation notices, and whatever else may be pertinent.

Posted on the Florida Agency for Health Care  Administration website was the following information.

A person is not eligible to apply for an Exemption from Disqualification until:
o He/she has been lawfully released from confinement, probation or other sanction for a disqualifying misdemeanor criminal offense;
o At least 3 years after he/she has been lawfully released from confinement, probation or other sanction for a disqualifying felony criminal offense.
o Persons designated as sexual predators, sexual offenders or career offenders are not eligible for an Exemption from Disqualification.

Who must apply for an exemption?
Any individual employed or seeking employment with a health care provider licensed by the Agency for Health Care Administration that has been notified by the employer that they have:
  • been found guilty of, regardless of adjudication, or entered a plea of guilty or nolo contendre to any of the criminal offenses listed in sections 435.03(2) , 435.04(2), and 408.809 Florida Statutes.
The health care providers that may require you to have an exemption in order to work are:
Adult Day Care Center Health Care Services Pool Nurse Registry
Adult Family Care Home Home Health Agency Nursing Homes
Assisted Living Facility Home Medical Equipment Prescribed Pediatric Extended Care
Community Mental Health Homemaker/Companion Service Residential Treatment Facility/Center
Crisis Stabilization Unit Hospice  
Health Care Clinic ICF/DD
If you are a Florida RN, LPN or CNA or a Florida nursing student with licensing issues, Soreide Law Group, PLLC, represents nurses in disciplinary hearings in front of the Florida Department of Nursing.  If you need to speak to a lawyer regarding your nursing license please call: (888) 760-6552, or visit our website at www.floridaprofessionallicense.com.

Electrical Contractors’ Licensing Board of Florida

Wednesday, April 13th, 2011

Important information from the Florida Board of Professional Regulation’s Website:

Assessment Fee

During the August 2010 license renewal, the Electrical Contractors’ Licensing Board will charge a one-time special assessment fee of $75.00 per licensee, which will be due along with your renewal fee. The department is statutorily required to maintain a cash balance for each of the professions it regulates. The ECLB has been operating in a deficit for several years, and the board determined the best way to eliminate the deficit was to assess a one-time $75 fee, rather than permanently increase the total cost of the license.

In the article from the DBPR’s website they note that the department is very conservative with its spending, and continually works to cut costs and to operate efficiently and effectively. The licensing fees the department receives from electrical and alarm system contractors are used to pay for essential tasks associated with the profession’s licensing and enforcement activities, such as funding the contractor application process, enforcing laws and rules, and holding the required board meetings. The department has also seen an increase in unlicensed activity over the past two years, and we have focused a lot of our attention on investigating and prosecuting individuals who are doing electrical and alarm system contracting without a license.

New reporting requirement for criminal convictions

Attorney Lars Soreide, reminds Florida license holders that as of October 1, 2009, Section 455.227 (1) (t), Florida Statutes requires all professional licensees to report to the department within 30 days of being convicted or found guilty of, or having plead nolo contendere or guilty to a crime in any jurisdiction.  The statute also requires the reporting of any convictions that occurred prior to October 1, 2009.  A licensee who fails to report that information may be subject to disciplinary action, including fines, suspension or license revocation.  To report this information, complete the criminal self-reporting document and mail it to the department.

This information was obtained on the Florida Department of Business and Professional Regulation’s website.

The Soreide Law Group, PLLC, will represent you in front of the Florida Electrical Contractors’ Licensing Board regarding your licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionallicense.com.

FLORIDA’S OFFICE OF FINANCIAL REGULATION SERVES THE 100TH CEASE & DESIST ORDER AS PART OF THE STATEWIDE CRACKDOWN ON UNLAWFUL MORTGAGE MODIFICATION ACTIVITIES

Friday, April 8th, 2011
In a March, 2011, article on Florida’s Office of Financial Regulation’s website that the Florida Office of Financial Regulation (OFR) Commissioner Tom Cardwell announced the 100th Cease & Desist Order was served in Florida to companies conducting unlawful loan modification services. 
  
Commissioner Tom Cardwell cautions citizens against paying any upfront fees for loan modifications, which are illegal. “If the person asks for any money upfront, simply turn and walk away,” Cardwell advised. “Consumers are desperate for help, but they should know their rights under the law before they act so they can protect themselves from becoming victims of financial fraud during these difficult economic times. Many of our citizens find themselves in difficult financial situations, which make them easy prey for these corrupt individuals who charge for services they do not complete and make promises they have no intention of keeping. Our goal is to ensure Floridians only pay for loan modification services that are a true benefit, not an unrealistic promise, to solve their financial problems.”
 
Companies providing loan modification services such as adjusting interest rates or any other services must have an active license from OFR. Any person or entity that continues to engage in loan modifications in this state without an active license is guilty of a third-degree felony punishable by a prison term of up to five years and a fine not to exceed $5,000 per offence.
 
The Florida Office of Financial Regulation offers the following tips for consumers to identify potential fraud and avoid becoming a victim:
 
• Do your research! Check the regulatory requirements the profession adheres to and confirm the person you are working with has a professional license. Also check if any complaints have been filed against the company or individual. 
• Always get your agreement in writing and specify the services to be provided.
• NEVER pay any upfront fees for loan modification services. It is illegal to charge consumers for any services until after they have been rendered.
• Immediately get help if you feel you have been victimized.

If you are a Licensed Mortgage Broker in the State of Florida,The Soreide Law Group, PLLC, will represent you regarding licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionallicense.com.  

The State of Florida’s Division of Certified Public Accounting

Friday, April 8th, 2011

CPAs in Florida

On Florida’s DBPR’s website the definition of a Certified Public Accountant (CPA) is someone who has passed the American Institute of Certified Public Accountants (AICPA) Uniform CPA examination, met educational, and licensure requirements in the state of Florida and have been issued a license to practice public accounting.  CPAs provide accounting, auditing, tax, financial planning, and management consulting services.  Florida CPA firms must be licensed and CPAs can only practice in a licensed firm.

Please note that the items below are merely offered as examples of work that requires and does not require a license.  The list is not all inclusive.  Under certain circumstances, a CPA who holds an active license in good standing from another jurisdiction and does not have an office in Florida could practice in Florida without notification or fee under mobility provisions. You should also check with your county or city to learn whether or not a local business tax receipt or certificate of competency is required for services that do not require a state license.  If you have specific questions, please contact  Florida’s Department of Business and Professional Regulation. 

Needs a License Does not need a License
Perform audits, reviews, and compilations Prepare a tax return for yourself or others or providing advice as to federal tax matters.
Express an opinion of financial statements that provide a level of assurance as to the reliability or fairness of the financial information. Perform basic bookkeeping or accounting functions.
Use the CPA designation  
Advertise or represent oneself as a CPA

 This very valuable information comes from the Florida Department of Business and Professional Regulation’s website.

Soreide Law Group, PLLC, represents CPA’s in front of the Florida Board of Accountancy regarding licensing issues. For more information about professional licensing law please visit: www.floridaprofessionallicense.com or call to speak to an attorney at:(888) 760-6552.

Licensed Florida Landscape Architecture

Wednesday, February 16th, 2011

On Florida’s Department of Business and Professional website, they describe Landscape Architecture as including consultation, planning, design, and preparation of drawings, specifications, contract documents and reports, responsible construction supervision, or landscape management in connection with the planning and development of land and incidental water areas, where the dominant purpose is the preservation, conservation, enhancement, or determination of proper land uses, natural land features, ground cover and plantings.  Landscape Architecture also includes Xeriscape, which is landscape that conserves water, protects the environment and is adaptable to local conditions, and is drought tolerant.

In the State of Florida, if you are going to hire and compensate someone to draw plans for the planning and development of land and water areas he/she needs to be licensed.  Examples of compensation are cash, goods, services, etc.   

Important Note:  The services rendered that require licensure may be performed by other properly licensed individuals in conjunction with projects, such as engineers and architects.  Services may also be provided by design-build contractors who retain the services of a licensed landscape architect.  Please contact your local building department for clarification prior to entering into contracts for the services listed below.

These items are offered as examples of services you do need to hire a person with a Florida license and services you do not need to hire a person with a Florida license.  The list is not all inclusive.  If you have specific questions, please contact the department at 850.487.1395 or review the rules for the profession at www.myfloridalicense.com.  You should also check with your county or city to learn whether or not a local business tax receipt or certificate of competency is required for services that do not require a state license. 

Needs a License Does not need a License
Design landscape that provides for drainage and run-off that limits erosion. Landscape design, which is the design of planting plans and installingplants.
Design landscape that provides for water conservation. Design of a golf course.
  Landscape architectural services performed by employees of municipal or county governments (cannot use the title “landscape architect”).
  Lawn maintenance.

This information was obtained from Florida’s DBPR’s website.

The Soreide Law Group, PLLC, will represent you in front of the Florida Board of  Landscape Architecture regarding licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionallicense.com.

Florida Interior Designers

Friday, February 11th, 2011

This information was obtained from the Florida Department of Business and Professional Regulation’s website.

An Interior Designer is someone who designs, or provides consultation, drawings, specifications and administration of design construction contracts relating to nonstructural interior elements of a commercial building or structure.  Interior design includes reflected ceiling plans (a scale diagram of a room or building drawn as if seen from above), space planning, furnishings and the fabrication of nonstructural elements within and surrounding interior spaces of building.  If you are going to hire someone to design the interior of a commercial structure he/she needs to be licensed.

Important Note:  The services rendered that require licensure may be performed by licensed architects.  Anyone who performs interior decorating or design services for residential purposes is not required to be licensed.*  Residential work includes residence buildings, single-family homes, multifamily homes, townhouses, apartments, condominiums, and domestic outbuildings appurtenant to one-family or two-family residences.  However, it does not include common areas associated with multiple-unit residences.  Please contact your local building department for clarification prior to entering into contracts for the services listed below.

These items are offered as examples of services you do need to hire a person with a Florida license and services you do not need to hire a person with a Florida license.  The list is not all inclusive.  If you have specific questions, please contact the department at 850.487.1395 or review the rules for the profession at www.myfloridalicense.com.  You should also check with your county or city to learn whether or not a local business tax receipt or certificate of competency is required for services that do not require a state license. 

Needs a License Does not need a License
Interior design of commercial structures, including space planning, draperies, flooring, etc. Interior decorating or interior design of residences.*
Interior design of common areas of multiple-unit dwellings, such as clubhouses, lobbies, laundry rooms, swimming pool areas, etc.

 Federal District Judge Robert L. Hinkle has entered an order, Opinion on the Merits, in the case of Locke v. Shore in the United States District Court for the Northern District of Florida. Under this ruling a person must be a registered interior designer to provide commercial interior design services in the State of Florida. However, any person may use the title “interior designer” regardless of whether or not they hold a Florida license. A person may provide residential interior design services and may advertise herself/himself as an “interior designer” without a license. This ruling does not change the statutes in Chapter 481 but does impact how the Board enforces the statutes.

The Soreide Law Group, PLLC, will represent you in front of the Florida Board of  Architecture and Interior Design regarding licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionallicense.com  

What Requires Licensing for Contractors in the State of Florida?

Wednesday, February 9th, 2011

This information was found on Florida’s Department of Business and Professional Regulation’s website.

A Contractor is someone who demolishes, subtracts from, builds or improves any building or structure for compensation.  Examples of compensation are cash, goods, services, etc.  Essentially, if you pay someone to construct a building or a structure, make structural alterations to load bearing walls, or perform services such as plumbing or air conditioning work, that person has to have a state contractors’ license. 

These items are offered as examples of services you do need to hire a person with a Florida license and services you do not need to hire a person with a Florida license.  The list is not all inclusive.  If you have specific questions, please contact the department at 850.487.1395 or review the rules for the profession at www.myfloridalicense.com.  You should also check with your county or city to learn whether or not a local business tax receipt or certificate of competency is required for services that do not require a state license.  

Needs a License Does not need a license
Build a carport or sunroom for compensation. Install a driveway or install pavers/tile walkways regardless of compensation.
Construct a roof for compensation. Install awnings that do not become a fixed part of the structure regardless of compensation.
Install a dishwasher (requires connecting to drinking water) or replace a hot-water heater for compensation. Add a water filter onto a faucet regardless of compensation.
Install a central air-conditioning unit for compensation (requires structural work and wiring). Insert a plug-in A/C window unit regardless of compensation.
Clean central air and heat ducts for compensation (requires partial disassembly of the system, such as removal of air grills). Change an A/C filter or cleaning ducts that do not require removal of the air grills regardless of compensation.
Repair or replace swimming pool pumps for compensation. Clean swimming pools.Install an above-ground pool regardless of compensation.
Perform plumbing work or irrigation installation that requires the contractor to connect lines to potable (drinking) water for compensation. Install or repair irrigation systems that have a backflow preventer connected to a potable (drinking) water supply regardless of compensation.
Build a barn, metal building, or detached garage for compensation. Install prefabricated tool shed less than 250 square feet in size regardless of compensation. The shed may be up to 400 square feet if it bears the insignia of approval from the Department of Community Affairs.
Remodel a home that requires alteration or replacement of a load-bearing wall for compensation. Paint; install cabinets, wood or tile flooring, and insulation regardless of compensation.
Installation or replacement of drywall if the contract also includes work on the load bearing part of the wall, plumbing, electrical, or air conditioning work. Installation or replacement of drywall if the contract does not include other work on the load bearing part of the wall or any plumbing, electrical, or air conditioning work.

Soreide Law Group, PLLC, will represent you in front of the Florida Board of Contractors regarding licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionallicense.com   .

SUMMARY OF UNLICENSED PRACTICE OF LAW CASES IN THE STATE OF FLORIDA

Tuesday, February 8th, 2011

In order to determine whether an activity constitutes the unlicensed practice of law, a two part analysis must be made.  First, it must be determined whether the activity is the practice of law.  The second question is whether the practice is authorized.  If an activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a nonlawyer.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).

The first question which must be addressed in order to determine whether a service or activity constitutes the unlicensed practice of law is to determine whether the activity constitutes the practice of law. In The Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963) the Court found that setting forth a broad definition of the practice of law was “nigh onto impossible” and instead developed the following test to determine whether an activity is the practice of law:

…if the giving of (the) advice and performance of (the) services affect

important rights of a person under the law, and if the reasonable protection

of the rights and property of those advised and served requires that the

persons giving such advice possess legal skill and a knowledge of the law

greater than that possessed by the average citizen, then the giving of such

advice and the performance of such services by one for another as a course

of conduct constitute the practice of law.

When applying this test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.”  The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980).

Although a codified definition does not exist, there is a large body of case law applying the Sperry test to determine whether a specific activity constitutes the unlicensed practice of law.  Therefore, although one cannot go to one particular source such as a dictionary for a definition, in most instances whether an activity constitutes the unlicensed practice of law can be found in case law.

Once it is determined whether an activity is the practice of law, it must be determined whether the Court or another body has authorized a nonlawyer to engage in the activity.  An activity may be authorized by court rule, case law, an administrative rule or a federal rule or statute.

What follows is a summary of what has been held to constitute the unlicensed practice of law in various circumstances.  Any authorized activities are also noted.  (Please note that the following is only a partial list of unlicensed practice of law cases.  There are over 230 reported unlicensed practice of law cases/opinions in Florida.)

1. ACCOUNTANTS  

Generally, it constitutes the unlicensed practice of law for an accountant, whether or not a CPA, to draft corporate documents.  Although the accountant may not draft the documents, the accountant may sell the forms necessary to establish a corporation and complete the forms with information provided in writing by the individual.  The Florida Bar v. Fuentes, 190 So 2d 748 (Fla. 1966); The Florida Bar v. Town,174 So. 2d 395 (Fla. 1965), The general rule and exception applies to all nonlawyers.

A CPA may represent individuals before the IRS in tax matters.  This practice is specifically authorized by 26 C.F.R. § 601.502 and C.F.R. Part 10.  As the activity is authorized by a federal rule, Florida may not enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 363 U.S. 379 (1963).

2.  ADMINISTRATIVE PRACTICE

In the Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980) the Supreme Court of Florida held that the legislature has the constitutional authorization to oust the Court’s responsibility to protect the public from the unlicensed practice of law in administrative proceedings under Article V, Section 1 of the Florida Constitution, and when it does so any “practice of law” conduct becomes in effect, authorized representation.  In other words, the legislature may authorize nonlawyer representation in administrative proceedings.  The activity is still the practice of law, it is merely authorized.  However, in order to do so, the agency must have a properly promulgated rule and the nonlawyer must follow the dictates of the rule.  The authorization is not blanket authority to appear in any proceeding but must be sought on a case-by-case and agency-by-agency basis.

3.  APPEARANCES PRO SE

The general rule is that an individual may appear pro se and represent themselves in court.  Fla. Stat. § 454.18.  This general rule does not apply to probate proceedings or to corporations.  In a probate proceeding, unless the individual attempting to appear pro se is the sole interested party in the matter, the individual must be represented by a member of The Florida Bar.  Rule 5.030, Probate and Guardianship Rules, Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).  A corporation, as a fictitious entity, may not appear pro se.  Szteinbaum v. Kaes Invecsiones Valores, 476 So. 2d 247 (Fla. 3d DCA 1985).  The general rule that a corporation may not appear pro se does not apply to small claims court as Rule 7.050 of the Small Claims rules specifically allows a corporation to appear pro se.  However, an exception exist for evictions.  In those cases, a corporation may not appear pro se and must be represented by an attorney.  Johnstown Properties Corp. v. Gabriel, 50 Fla. Supp. 138 (Fla Polk Cty. Court 1980).

4.  FEDERAL PRACTICE

Generally speaking, you must be a member of The Florida Bar in order to represent an individual in federal court.  In the area of federal administrative practice, if there is a rule or regulation which allows an attorney admitted in another state or a nonattorney to appear before the agency, Florida cannot enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 373 U.S. 379 (1963).  The activity is still the practice of law, it is merely authorized.  Whether the activity is allowed and the extent to which the individual may appear and/or practice will be governed by the rules of that particular agency.  If the agency does not have a rule allowing the practice, any representation would constitute the unlicensed practice of law.  The Fla. Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997).

5.  HOUSE COUNSEL

An attorney licensed in a state other than Florida may work in Florida as Authorized House Counsel for a corporation if the attorney registers pursuant to Chapter 17 of the Rules Regulating The Florida Bar.  The activities which the Authorized House Counsel may perform are limited and do not include going to court.

6.  OUT-OF-STATE ATTORNEYS

An attorney admitted to the practice of law in a state other than Florida may not engage in the general practice of law in Florida or establish a law office in Florida.  An attorney licensed to practice law in a state other than Florida may establish an interstate practice in Florida only if the attorney follows the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).  An attorney admitted to the practice of law in a state other than Florida may not appear in a Florida court as the representative of a party unless the attorney first seeks permission to appear pro hac vice pursuant to Rule 2.510 of the Florida Rules of Judicial Administration.  (It should be noted that this rule does not allow a resident of Florida to appear pro hac vice.)  Rule 4-5.5 of the Rules Regulating the Florida Bar describes the legal services in an out-of-state attorney can provide in Florida on a temporary basis.

7.  BANKRUPTCY

It constitutes the unlicensed practice of law for a nonlawyer to prepare bankruptcy forms for another.  The Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998).  This includes the petition and any necessary schedules.  However, the nonlawyer may sell blank forms necessary for a bankruptcy and complete the forms with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So 2d 1186 (Fla. 1978).  It also constitutes the unlicensed practice of law for a nonlawyer to represent someone in bankruptcy court.  The Florida Bar v. Kaufman, 452 So. 2d 526 (Fla. 1984).

8.  DO-IT-YOURSELF LEGAL KITS AND BOOKS

Generally speaking, a nonlawyer may sell legal forms and kits and complete them with information provided in writing by the customer.  Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978).  If the nonlawyer is using a Supreme Court Approved form, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1(a), Rules Regulating The Florida Bar.

Generally speaking, it does not constitute the unlicensed practice of law for a nonlawyer to sell a book that contains general legal information.  New York County Lawyers Association v Dacey, 287 N.Y.S. 2d 422 (N.Y. 1967); 283 N.Y.S.2d 984 (N.Y. App. 1967).  The book may also contain legal forms.

9.  EVICTIONS

It constitutes the unlicensed practice of law for a nonlawyer to represent a third party in an eviction.  Generally speaking, a nonlawyer may not prepare evictions forms for another unless the nonlawyer is merely typing the information provided in writing by the individual or completing a Supreme Court Approved form with the factual information provided by the individual.  An exception exists for property managers.  In The Fla Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions, 605 So. 2d 867 (Fla.1992), clarified, 627 So. 2d 485 (Fla.1993) the Court held that a property manager may sign and file complaints for evictions and motions for default in uncontested residential evictions for nonpayment of rent as long as the property manager is using a Supreme Court Approved form.

10.  FEDERAL PATENT PRACTICE

Title 37 C.F.R. §§10.1(1), 10.6, and 10.36 allow an attorney admitted in another state or a registered patent agent to prepare and file patent applications before the Office of Patent and Trademark.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry,  373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.  However, the authorization granted by the federal regulations does not extend to actions in state court.  Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (Fla. 4th. DCA 2001).

11.  FEDERAL TAX PRACTICE

Title 31 C.F.R. § 10 allows attorneys admitted in any state and some nonlawyers to represent individuals before the IRS.  Similar regulations exist for Tax Court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

Federal regulations also allow nonlawyers to prepare federal income tax returns for individuals.  Arguably, this activity is also the practice of law and merely authorized.

12.  GENEALOGISTS/HEIR HUNTERS

While “heir hunting” is generally allowed and would not be considered the practice of law, the heir hunter may not solicit heirs to recover part of the estate or file pleadings to do so.  The Florida Bar v. Heller, 247 So. 2d 434 (Fla. 1971).

13.  HOLDING OUT TO PERFORM LEGAL SERVICES

It constitutes the unlicensed practice of law for a nonlawyer to hold himself out as an attorney either expressly or impliedly.  This would include using the title Esquire (The Fla. Bar v. DeToma, 501 So. 2d. 599 (Fla. 1987)), using the initials J.D. if they are being used to solicit legal services (The Florida Bar v Catarcio, 709 So. 2d 96 (Fla 1998)), using “legal” in the name of your business (The Florida Bar v. Miravalle, 761 So. 2d 1049 (Fla. 2000)), using the title “attorney” or “lawyer” (The Florida Bar v Gordon, 661 So. 2d 295 (Fla. 1995)), and using any other title, such as notario publico, which holds the person out as being able to provide legal services (The Florida Bar v. Borges-Caignet, 321 So. 2d 550 (Fla. 1975)).  It also constitutes the unlicensed practice of law for a corporation to advertise to provide legal services even if the services are being performed by a member of The Florida Bar.  The Florida Bar v. Consolidated Business and Legal Forms, 386 So. 2d 797 (Fla. 1980).  This is due to the fact that a corporation may not practice law.

The Court has also held that it constitutes the unlicensed practice of law for a group of nonlawyers to hold themselves out as a panel of judges capable of granting divorces in Florida.  The Florida Bar v. Gentz, 640 So. 2d 1105 (Fla. 1994).

Rule 10-2.1(c) of the Rules Regulating The Florida Bar defines “nonlawyer” as including members of the bars of other states.  Therefore, the general case law regarding holding out applies to out-of-state attorneys as well.  However, if the attorney is part of a properly constituted interstate practice or is engaging in an authorized activity in Florida, the attorney’s title may appear on letterhead and business cards as long as necessary limiting language is also included.  The Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981), The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).

14.  IMMIGRATION

Title 8 C.F.R.  292 permits an attorney admitted in another state to represent individuals before the INS.  This permission does not extend to federal district court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

This authorization does not generally extend to nonlawyers.  (There are some very limited circumstances in which a nonlawyer may represent someone before INS such as on a one case basis for no fee.)  Nonlawyer representation of another in an immigration matter therefore constitutues the unlicensed practice of law.  The Florida Bar v. Matus, 528 So. 2d 895 (Fla. 1988), The Florida Bar v. Becerra, 661 So. 2d 299 (Fla. 1995), The Florida Bar v. Lopez, 231 So. 2d 819 (Fla. 1970).

15.  INDIVIDUAL REPRESENTATION

Generally speaking, a nonlawyer may not represent another in court.  An out-of-state attorney who wishes to represent someone in a Florida court must seek permission to appear pro hac vice in order to do so.  Rule 2.510 Fla.R.Jud.Admin. A nonlawyer may be able to represent another individual in an administrative proceeding if the agency has a properly promulgated rule allowing the activity.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).  On a related note, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to represent an individual in a securities arbitration matter.  The Florida Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla.1997).

16.  INSURANCE ADJUSTERS

Florida Statute §626.854 sets forth the definitions and prohibitions on the activities of public adjusters.  Basically, a public adjuster may represent an insured in negotiations with their own insurance company on matters involving property damage.  The public adjuster may not negotiate on matters involving bodily injury or represent the parties in court.  Larson v. Lesser, 106 So 2d 188 (Fla. 1958).

17.  JAILHOUSE LAWYERS

 

There are several constitutional cases from the United States Supreme Court that deal with the issue of legal assistance to inmates.  From an unlicensed practice of law standpoint, the Code of Federal regulations and the Florida Administrative Code allow limited nonlawyer assistance in parole and probation matters.  However, a nonlawyer may not give an inmate legal advice, draft pleadings for the inmate or represent the inmate in court.  The Florida Bar v. Mills, 410 So. 2d 498 (Fla. 1982).

18.  LAW CLERKS/STUDENTS

A law student or law graduate may not practice law unless certified by the Supreme Court of Florida as a Certified Legal Intern pursuant to Chapter 11 of the Rules Regulating The Florida Bar.  If so certified, the law student or law graduate may represent certain individuals in limited circumstances.

19.  MECHANICS LIENS

The Supreme Court of Florida has held that a nonlawyer may prepare the notice to owner and notice to contractor required by the mechanics lien statute.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Notice to Owner and Notice to Contractor, 544 So. 2d 1013 (Fla. 1989).  However, a nonlawyer may not prepare liens or give legal advice regarding the statute.  The Fla. Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996).

20.  PREPARATION OF LEGAL DOCUMENTS

Generally speaking, a nonlawyer may sell forms and complete the form with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). If the nonlawyer is using a form approved by the Supreme Court of Florida, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1 (a), R.Reg.Fla.Bar.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.  This general rule has been applied in a variety of circumstances including the following:

     a.  BANKRUPTCY

Nonlawyers may only type bankruptcy forms from information provided by the individual in writing; they cannot offer legal advice or help select the forms.  In re: Calzadilla, 151 B.R. 622 (Bkrtcy. S. D. Fla. 1993).

     b.  CORPORATE

A nonlawyer may not prepare corporate documents for another.  This includes the articles of incorporation, the corporate charter and related documents.  The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966); The Florida Bar v. Keehley, 190 so. 2d 173 (Fla. 1966).

     c.  DIVORCE

The general rule discussed above applies to the family law area.  The forms contained in the family law rules are considered Supreme Court Approved forms.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.

     d.  INSURANCE DOCUMENTS AND PENSION PLANS

The Supreme Court of Florida has held that a nonlawyer insurance agent may not prepare legal documents, including pension plans.  The Florida Bar v. Turner, 355 So. 2d 766 (Fla. 1978).  However, in the area of pension plans, the Court has held that certain nonlawyers who are authorized to appear before the IRS are allowed to draft certain pension documents, including the plan itself.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. 1990).

     e.  PROBATE

The general rule has been applied to the probate area.  The Supreme Court of Florida has held that it constitutes the unlicensed practice of law for a nonlawyer to draft a living trust and related documents for another. The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992).  The Court also held that a nonlawyer cannot draft a will for a third party.  The Florida Bar v. Larkin, 298 So. 2d 371 (Fla. 1974).  However, a nonlawyer corporate creditor may file a statement of claim in a probate matter.  Summit Pool Supplies v. Price, 461 So. 2d 272 (Fla. 5th. DCA 1985).

     f.  REAL PROPERTY (INCLUDING REAL ESTATE LICENSEES & TITLE INSURANCE        COMPANIES)  

In 1950, the Supreme Court of Florida held that a real estate licensee may prepare the contract for sale of real estate but any other documents must be prepared by a member of The Florida Bar.  Keyes Co. v. Dade County Bar Association, 46 So. 2d 605 (Fla.1950).  The drafting of the contract is considered the practice of law, a non-licensee may not draft the contract.  The Court merely carved out an exception for licensees.

The Court later carved out an exception for title insurance companies.  In The Florida Bar v. McPhee, 195 So. 2d 552 (Fla. 1967) the Court held that a title insurance company may conduct the closing and prepare documents incident to the issuance of title insurance only if the company is actually issuing the title insurance.  Again, the activity is the practice of law, it is just authorized in these limited circumstances to these individuals.

As to others, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to prepare a warranty deed, quitclaim deed, land trusts, leases and mortgage agreements.  The Florida Bar v. Irizarry, 268 So. 2d 377 (Fla. 1972); The Florida Bar v. Hughes, 697 So. 2d 501 (Fla. 1997); The Florida Bar v. Lister, 662 So. 2d 1241 (Fla. 1995); The Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. 1985)(there are 3 Supreme Court Approved leases which nonlawyers may complete with information provided orally by the individual).  However, an authorized agent may bid at a mortgage judicial foreclosure sale.  Heilman v. Suburban Coastal Co., 506 So. 2d 1088 (Fla. 4th DCA 1987).

21.  SEMINARS ON LEGAL RIGHTS

A nonlawyer may conduct a seminar at which general legal information is given, however, the nonlawyer may not give specific legal advice.  The Florida Bar v. Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968).  Therefore, while the nonlawyer may give general information, the nonlawyer may not answer specific legal questions.

Whether you are veterinarian, cosmetologist, barber, mortgage broker,  appraiser, doctor,  lawyer,  CPA,  realtor,  architect,  engineer,  stockbroker,  nurse,  auctioneer, contractor, or  pharmacist, a professional license is a prerequisite for doing business in the State of Florida. We assist in the application process and help you understand and comply with all applicable government regulations associated with your license. We also defend you against attacks on your professional license and represent you before the appropriate administrative board. For more information regarding professional licensing law contact Soreide Law Group at: www.floridaprofessionallicense.com or call (888) 760-6552.

Qualifications for a Licensed Professional Engineer in the State of Florida

Monday, January 17th, 2011
This information was obtained from the Official Internet Site of the Florida Legislature, Online Sunshine.

471.003

Qualifications for practice; exemptions.

(1) No person other than a duly licensed engineer shall practice engineering or use the name or title of “licensed engineer,” “professional engineer,” or any other title, designation, words, letters, abbreviations, or device tending to indicate that such person holds an active license as an engineer in this state.

(2) The following persons are not required to be licensed under the provisions of this chapter as a licensed engineer:

(a) Any person practicing engineering for the improvement of, or otherwise affecting, property legally owned by her or him, unless such practice involves a public utility or the public health, safety, or welfare or the safety or health of employees. This paragraph shall not be construed as authorizing the practice of engineering through an agent or employee who is not duly licensed under the provisions of this chapter.

(b)1. A person acting as a public officer employed by any state, county, municipal, or other governmental unit of this state when working on any project the total estimated cost of which is $10,000 or less.

2. Persons who are employees of any state, county, municipal, or other governmental unit of this state and who are the subordinates of a person in responsible charge licensed under this chapter, to the extent that the supervision meets standards adopted by rule of the board.

(c) Regular full-time employees of a corporation not engaged in the practice of engineering as such, whose practice of engineering for such corporation is limited to the design or fabrication of manufactured products and servicing of such products.

(d) Regular full-time employees of a public utility or other entity subject to regulation by the Florida Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission.

(e) Employees of a firm, corporation, or partnership who are the subordinates of a person in responsible charge, licensed under this chapter.

(f) Any person as contractor in the execution of work designed by a professional engineer or in the supervision of the construction of work as a foreman or superintendent.

(g) A licensed surveyor and mapper who takes, or contracts for, professional engineering services incidental to her or his practice of surveying and mapping and who delegates such engineering services to a licensed professional engineer qualified within her or his firm or contracts for such 

professional engineering services to be performed by others who are licensed professional engineers under the provisions of this chapter.(h) Any electrical, plumbing, air-conditioning, or mechanical contractor whose practice includes the design and fabrication of electrical, plumbing, air-conditioning, or mechanical systems, respectively, which she or he installs by virtue of a license issued under chapter 489, under part I of chapter 553, or under any special act or ordinance when working on any construction project which:1. Requires an electrical or plumbing or air-conditioning and refrigeration system with a value of $125,000 or less; and

2.a. Requires an aggregate service capacity of 600 amperes (240 volts) or less on a residential electrical system or 800 amperes (240 volts) or less on a commercial or industrial electrical system;

b. Requires a plumbing system with fewer than 250 fixture units; or

c. Requires a heating, ventilation, and air-conditioning system not to exceed a 15-ton-per-system capacity, or if the project is designed to accommodate 100 or fewer persons.

(i) Any general contractor, certified or registered pursuant to the provisions of chapter 489, when negotiating or performing services under a design-build contract as long as the engineering services offered or rendered in connection with the contract are offered and rendered by an engineer licensed in accordance with this chapter.

(j) Any defense, space, or aerospace company, whether a sole proprietorship, firm, limited liability company, partnership, joint venture, joint stock association, corporation, or other business entity, subsidiary, or affiliate, or any employee, contract worker, subcontractor, or independent contractor of the defense, space, or aerospace company who provides engineering for aircraft, space launch vehicles, launch services, satellites, satellite services, or other defense, space, or aerospace-related product or services, or components thereof.

(3) Notwithstanding the provisions of this chapter or of any other law, no licensed engineer whose principal practice is civil or structural engineering, or employee or subordinate under the responsible supervision or control of the engineer, is precluded from performing architectural services which are purely incidental to her or his engineering practice, nor is any licensed architect, or employee or subordinate under the responsible supervision or control of the architect, precluded from performing engineering services which are purely incidental to her or his architectural practice. However, no engineer shall practice architecture or use the designation “architect” or any term derived therefrom, and no architect shall practice engineering or use the designation “engineer” or any term derived therefrom.

This information was obtained from the Florida “Online Sunshine” website and is not meant to be misconstrued as legal advice.

Soreide Law Group will represent you in front of the Florida Board of Professional Enginneers regarding licensing issues.  To speak to an attorney, please call: (888)760-6552 or visit our website at: ww.floridaprofessionallicense.com.

 

 

 

 

 

Requirements for Auctioneers in the State of Florida

Thursday, January 13th, 2011

On the website Online Sunshine, The Official Website for the Florida Legislature, the following requirements were listed for Florida Auctioneers: 

1) The department shall license any applicant who the board certifies is qualified to practice auctioneering.

(2) No person shall auction or offer to auction any property in this state unless he or she is licensed by the department or is exempt from licensure under this act.
(3) No person shall be licensed as an auctioneer or apprentice if he or she:
(a) Is under 18 years of age; or
(b) Has committed any act or offense in this state or any other jurisdiction which would constitute a basis for disciplinary action under s.468.389.
(4) Any person seeking a license as an auctioneer must pass a written examination approved by the board which tests his or her general knowledge of the laws of this state relating to provisions of the Uniform Commercial Code that are relevant to auctions, the laws of agency, and the provisions of this act.
(5) Each apprentice application and license shall name a licensed auctioneer who has agreed to serve as the supervisor of the apprentice. No apprentice may conduct, or contract to conduct, an auction without the express approval of his or her supervisor. The supervisor shall regularly review the apprentice’s records, which are required by the board to be maintained, to determine if such records are accurate and current.
(6) No person shall be licensed as an auctioneer unless he or she:
(a) Has held an apprentice license and has served as an apprentice for 1 year or more, or has completed a course of study, consisting of not less than 80 classroom hours of instruction, that meets standards adopted by the board;
(b)Has passed the required examination; and
(c) Is approved by the board.
(7)(a) Any auction that is subject to the provisions of this part must be conducted by an auctioneer who has an active license or an apprentice who has an active apprentice auctioneer license and who has received prior written sponsor consent.
(b) No business shall auction or offer to auction any property in this state unless it is licensed as an auction business by the board or is exempt from licensure under this act. Each application for licensure shall include the names of the owner and the business, the business mailing address and location, and any other information which the board may require. The owner of an auction business shall report to the board within 30 days of any change in this required information.
(8) A license issued by the department to an auctioneer, apprentice, or auction business is not transferable.
This information is not intended as legal advice.

Soreide Law Group, PLLC, will represent you in front of the Florida Board of Auctioneers regarding licensing issues. To make an appointment to speak with an experienced and qualified attorney please call Soreide Law Group at:  (888) 760-6552 or visit our website at:  www.floridaprofessionalhearingcom