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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2959
Experience:  Civil litigation attorney for individuals and businesses.
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With regards XXXXX XXXXX "Pre-Need" Sales Agents Licenses and

Resolved Question:

With regards XXXXX XXXXX "Pre-Need" Sales Agents Licenses and Licensee(s): What would the penalties be for a Licensee should they knowingly allow/permit a sales agent to sell pre-need funeral and/or cemetery services without a pre-need sales license? Would they have they "licensee" status revoked or become invalid? Is there a tiered punishment based on how many times (or offenses) they accept? Is there a time period for these infractions?

These all based off of the first question which is what is the comprehensive penalty/penalties for this "turning a blind eye" way of doing business.
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.
Dear Customer, thank you for choosing Just Answer. I would like to assist you today. While I have researched this matter thoroughly, I do not have access to the administrative rulings and history to be able to give you an understanding of how the department will exercise its discretion in this matter. I can however provide you with the following. As you are aware, it is required that any seller of pre-needs services be licensed: FL 497.452; also, any revocation or rejection of licensing must be disclosed in an application FL 497.453. I could not find where the Board inquires into or otherwise evaluates unauthorized sales of pre-need services during the application phase.

Understanding that this pre-application conduct is illegal, and that the conduct may arise during the application process, I reviewed the disciplinary guidelines for the department. Unfortunately, there is no entry for the sale of pre-need services without a license, therefore it is difficult to know how the department will rule on such a violation. The guidelines themselves have a certain amount of room for the committee to exercise its discretion in determining whether the nature and scope of the conduct is sufficient to require a dramatic penalty, or a minor one.

While I hope the above is helpful, I understand it is not a definite answer as there is no "stepped" or "tiered" penalty phase for this department. A local attorney that specializes in administrative law may be able to give you a more accurate analysis of the potential outcome of any board decision, but this is a very small market so you will need to look carefully (usually around your state capital). You can find a specialist through the Florida State Bar Website Lawyer Referral Service.
Customer: replied 1 year ago.

Good morning.


 


While I appreciate your attempt in trying to answer my question, your reply provided no forward movement from where I started, as I'm sure you agree. Since the need for this license is required to practice the area of pre-need sales, there must be consequences, fines, revocation ... something outlining the negative impact a company/licensee will endure if they try to skate around the system. We have this type of accountability in all we say and do. Just requires a bit more digging and since this is best done by experts such as yourselves, that's my reason behind this inquiry in the first place.


 


Thank you for your time.

Expert:  William B. Esq. replied 1 year ago.

Dear Customer,

I believe I may have misunderstood your question in this regard. I was under the impression you were asking specifically whether or not a non-licensed seller could become licensed even after he or she had made "unlicensed" sales. My answer is above - if disclosed by the applicant during the application process the committee can exercise its discretion in determining whether or not the applicant meets the character requirements to hold this license for future sales.

From your follow up, it appears that I was mistaken in your goal, and thus my information may not have been as helpful as it could have been. Any contract that is entered into with an unlicensed seller is subject to revocation. Such contracts are unenforceable by the seller, and the pre-needs buyer has a right to both make a complaint to the department and if necessary to pursue a civil claim against the seller in civil court. This will be a traditional civil case with causes of action for breach of contract and declaratory relief (and potentially fraud or any other applicable claims associated with the transaction). The liability portion in such a case will be based on the non-licensed status of the defendant. Once this type of claim is filed, it will need to be disclosed on the seller's potential application to become licensed.

I hope that this better answers your question. If not, or if you have any further follow ups, please do let me know. I do want to fully respond to your inquiry, and I apologize for any misunderstanding I had of your initial post.

Expert:  William B. Esq. replied 1 year ago.
Dear XXXXX am following up on your question. I hope that my follow up response was of better assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!
Customer: replied 1 year ago.

Hi Bill. Still not really the direction I was going with this. I'll try to be a bit more clear. If a licensee (company) allows the selling of pre-need services to the public from an employee that is not yet or refused the license (but they sell anyway), what is the ramifications the licensee (not the employee) will get? Basically, is the "licensee" susceptible to losing their ability to sell pre-need because they continued to allow their employees to sell without the required license ... just to turn a profit? Hope this helps a bit more.

Expert:  William B. Esq. replied 1 year ago.
That does clear up the confusion. Give me a little bit to research the issue of liability of the licensee with regard to non-licensed employees.

I can tell you directly, from a civil liability standpoint, that the the employer is responsible for all conduct by its employee during the course and scope of employment, therefore any illicit or illegal acts done by an employee they know to be unlicensed will be there responsibility as well.

I will get back to you directly regarding any statutory or regulatory restrictions or sanctions for the employer.
Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

I have found the statute that expressly holds the employer or licensee liable for the acts of an agent in the circumstances you are describing.

497.466 (8)(d) "A preneed licensee shall be responsible for the activities of all preneed sales agents, and all funeral directors acting as preneed sales agents, who are affiliated with the preneed licensee and who perform any type of preneed-related activity on behalf of the preneed licensee. In addition to the preneed sales agents and funeral directors acting as preneed sales agents, each preneed licensee shall also be subject to discipline if its preneed sales agents or funeral directors acting as preneed sales agents violate any provision of this chapter."

The section does not expressly identify the sanctions that will be levied against the licensee for a violation of this chapter, but leaves the rule making in this regard to the department or agency (this is very common in legislative rule making).

497.466 (8)
(a) "The licensing authority shall have rule making authority to prescribe forms and procedures for implementation of this section."

Returning to the disciplinary guidelines that I provided earlier (https://www.flrules.org/gateway/RuleNo.asp?title=DISCIPLINARY%20GUIDELINES&ID=69K-11.001), the department has not specifically set aside a minimum punishment for a violation of 497.466, however, it has reserved the power to enforce the entire section. Again, this is common in regulatory government as the agency focuses on its primary legal violations, but it does make it difficult to identify what the potential punishment will be for specific acts that are not listed.

To address your issue, the licensee is responsible for the acts of its non-licensed agent. The code expressly creates liability for the licensee. Furthermore, the department is empowered to enforce these rules as it sees fit. While there is no set punishment, the scale of punishments within the department works as follows:
(1) letter of guidance
(2) reprimand
(3) fine
(4) probation
(5) suspension
(6) revocation
The committee is required to take into account a number of factors when determining the severity of punishment (this will be your best indicator based on the facts and issues in your specific situation as to how a punishment will be issued to a licensee):

(b) Aggravating or mitigating circumstances may include, but are not limited to, the following:

1. The severity of the violation.

2. The degree of harm to the consumer or public.

3. The number of times the violations previously have been committed by the licensee.

4. The disciplinary history of the licensee.

5. The status of the licensee at the time the violation was committed.


I hope that this is more helpful. The statutory liability for the licensee is clear, the right of the department to punish the licensee is also clear, the only variable that I am unable to answer for you on this forum is the severity of any potential enforcement action by the committee as there is no minimum penalty, and the punishment is based on severity of conduct as opposed to a strict violation.

Please do not hesitate to follow up if you have further questions or if we are still not on the same page (sometimes it can be difficult to get a "meeting of the minds" in this type of forum).
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2959
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 5 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Good morning. This information is much more helpful and definitely answered my question. Thank you.

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