Receiving a cease-and-desist letter from the Florida Department of Business and Professional Regulation (DBPR) can be a daunting experience. This article aims to provide a comprehensive guide on what steps to take, how to understand the implications, and how to respond appropriately.
Understanding a Cease-and-Desist Letter
A cease-and-desist letter is a document sent by the DBPR to an individual or business, demanding that they stop an illegal or allegedly illegal activity. The DBPR oversees various professional and business activities in Florida, ensuring compliance with state laws and regulations. The cease-and-desist letter is an action taken after the Probable Cause Panel (PCP) has reviewed the complaint and determined that probable cause exists. This is the first action taken – after the cease and desist has been determined, the DBPR will investigate further, which could result in fines, agency action, and even criminal prosecution in certain circumstances.
Common Reasons for Receiving a Cease-and-Desist Letter from the DBPR
- Unlicensed Activity: Operating a business or providing services that require a license without having one.
- Advertising Violation: Advertising a service for which you do not hold a license
- Violation of Licensing Terms: Breaching the terms of your professional license, such as ethical violations or misconduct.
- Consumer Complaints: Accumulating complaints from consumers that lead to investigations and subsequent legal actions.
Initial Steps to Take
- Stay Calm and Review the Letter: Carefully read the cease-and-desist letter to understand the allegations. Pay attention to the specific actions or activities that the DBPR wants you to stop.
- Verify Authenticity: Ensure the letter is genuine. Look for official DBPR letterhead, contact information, and any case or reference number. You can contact the DBPR directly to confirm. At the end of the letter, you will have the direct contact information for the investigator handling your matter.
- Document Everything: Keep a copy of the letter and any related documents. Document your business activities, licenses, and any communication with the DBPR.
Legal Considerations
- Consult an Attorney: Seek legal advice from an attorney who specializes in Florida business and professional regulation law. They can provide tailored guidance based on your specific situation.
- Understand the Allegations: Your attorney will help you understand the legal basis for the DBPR's claims. They will also explain the potential consequences of non-compliance, which could include fines, license suspension, or legal action.
Responding to the Cease-and-Desist Letter
- Prepare a Response: Work with your attorney to draft a response to the DBPR. Your response should address each allegation and provide evidence of compliance or steps taken to rectify the issue.
- Cease the Alleged Activity: If the letter demands that you stop a specific activity, comply immediately to avoid further penalties. For example, if you are accused of operating without a license, cease operations until the matter is resolved.
- Provide Evidence of Compliance: Gather and submit any evidence that demonstrates your compliance with the law. This could include copies of your business license, records of consumer transactions, or proof of corrective actions taken.
Is the Cease-and-Desist Public Record?
Yes. And, more importantly, it will remain a public record. It is important that you act upon any complaint or inquiry you receive from the DBPR immediately. It is imperative that you keep your license(s) up to date and that you make sure all your personal contact information connected to the license remains updated. Note: in certain professions, such as general contractors, you also must make sure that any entity you are operating under is properly filed with the DBPR
Practical Examples
Example 1: Unlicensed Contractor
Scenario: John, a contractor in Florida, receives a cease-and-desist letter from the DBPR for performing contracting work without a valid license.
Steps Taken:
- John immediately stops all contracting work.
- He consults with an attorney specializing in Florida construction law.
- John provides his attorney with evidence of his contracting qualifications and any attempts to renew his license.
- His attorney helps him respond to the DBPR, outlining his compliance efforts and any mitigating factors.
- John applies for the necessary license and submits proof of application to the DBPR.
Outcome: The DBPR acknowledges John's efforts and allows him to continue operations once his license is approved.
Example 2: Real Estate Broker Violation
Scenario: Sarah, a licensed real estate broker, receives a cease-and-desist letter for alleged misrepresentation of property details.
Steps Taken:
- Sarah ceases any advertising or transactions related to the disputed property.
- She contacts her attorney, who specializes in real estate law.
- Sarah provides documentation of her property listings, client communications, and ethical practices.
- Her attorney drafts a detailed response to the DBPR, explaining the situation and providing evidence that the misrepresentation was unintentional.
- Sarah agrees to take additional continuing education courses to ensure full compliance with real estate advertising standards.
Outcome: The DBPR accepts Sarah's response and her proactive steps, allowing her to continue her practice without further penalties.
Potential Outcomes
- Dismissal of Allegations: If your response is thorough and you provide sufficient evidence of compliance, the DBPR may dismiss the allegations.
- Settlement or Agreement: In some cases, the DBPR may propose a settlement or agreement, such as fines or additional compliance measures, to resolve the issue without further legal action.
- Legal Action: If the DBPR finds that the allegations are substantiated and you fail to comply, they may proceed with legal action, which could include fines, license suspension, or revocation. Note: be aware that violations could result in criminal prosecution.
Preventative Measures
- Regular Compliance Audits: Conduct regular audits of your business practices to ensure compliance with DBPR regulations.
- Stay Informed: Keep up to date with changes in Florida laws and regulations that pertain to your industry.
- Educate Your Team: Ensure that all employees are aware of and adhere to regulatory requirements. Provide ongoing training and resources.
- Maintain Accurate Records: Keep detailed records of all business activities, licenses, and communications. This can be crucial evidence if you ever need to respond to regulatory actions.
Conclusion
Receiving a cease-and-desist letter from the Florida DBPR is a serious matter that requires prompt and informed action. By understanding the nature of the allegations, seeking legal counsel, and responding appropriately, you can navigate this challenging situation effectively. Compliance with Florida's business regulations not only protects your business but also ensures that you maintain the trust and confidence of your clients and the public. If you have received a cease-and-desist letter from the DBPR, contact the Business lawyers at MSD-Business for a free consultation.
References
- Florida Department of Business and Professional Regulation
- Florida Statutes, Chapter 455
- Florida DBPR Complaints: A Guide to the Process, Steps to Take, and How to Avoid Future Complaints. March 14, 2024. W. Chase Carpenter.
About the Author:
Chase Carpenter is a partner in the Business Division of Law Offices of Moffa, Sutton, & Donnini, P.A. His practice revolves around business transactions and business litigation. Mr. Carpenter handles a wide range of cases including contract drafting, partnership disputes, commercial leases, and construction litigation. These cases encompass diverse industries, including healthcare, technology, real estate investment, and government contracting.
About the Firm:
The Law Offices of Moffa, Sutton, & Donnini, P.A., also known as MSD Business, is a local business law firm in Tampa, FL, serving clients throughout Fort Lauderdale and statewide. Our firm has a long history of helping clients navigate all types of complex legal matters, including local and state tax issues. In our business law practice, we assist clients with everything from mergers and acquisitions to contract disputes, business litigation, general counsel, and more.