In 2008, could a complainant obtain a Florida professional-licensing investigation after no probable cause was found?

Plain-English summary

In this 2008 informal response, the Florida Attorney General's office considered proposed legislation that would have allowed a complainant to obtain a professional-licensing complaint and investigation after the case ended without a probable-cause finding.

At the time, Section 455.225 made a dismissed probable-cause report confidential and exempt from the public-records law. The statute allowed access in specified circumstances, including inspection by the subject after the investigation and disclosure to law-enforcement or other regulatory agencies, but it did not provide the proposed access for complainants.

The office applied the principle that when the Legislature specifies how an act must be done and lists exceptions, other methods and exceptions are not implied. It therefore said the proposed language would change existing law rather than duplicate it.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

What happened to an investigation dismissed before probable cause was found?

Under the statute discussed in 2008, the report remained confidential and exempt from Section 119.07(1).

Could the person who filed the complaint receive the confidential investigation?

The office said the existing statute did not provide that exception. The proposed amendment would have created it.

Could the subject of the investigation inspect the file?

Section 455.225(10), as quoted in the response, allowed the subject to inspect or request a copy after the investigation was completed.

What information did the complainant receive under the existing law?

The department had to provide periodic notice of the investigation's status, whether probable cause had been found, and the status of any civil action, administrative proceeding, or appeal.

Background and statutory framework

A state representative asked whether proposed language allowing complainant access within 30 days after a no-probable-cause notice would be redundant. The office analyzed the confidentiality and disclosure provisions in Section 455.225.

The response distinguished access to the confidential file from the department's duty under Section 455.225(9) to keep the complainant informed about the proceeding's status.

Citations discussed

• Section 455.225, Florida Statutes, governing disciplinary investigations and confidentiality
• Section 119.07(1), Florida Statutes, the public-records provision from which the dismissed report was exempt
• Alsop v. Pierce, Thayer v. State, and Dobbs v. Sea Isle Hotel, cited for the rule that a prescribed statutory method excludes other methods

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/probable-cause-reports
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1808

Original opinion text

The Honorable Paige V. Kreegel

Representative, District 72

410 Taylor Street

Punta Gorda, Florida 33950

Dear Representative Kreegel:

You have asked this office for an opinion as to whether legislation which you are considering will be redundant to existing legislation. You propose an amendment to section 455.225, Florida Statutes, adding the following language:

"(10) If no probable cause has been found to exist by the probable cause panel or by the department and the investigation is thereby terminated, the complaint and all information obtained pursuant to the investigation may be obtained by the Complainant within 30 days of the date of the department’s letter notifying the Complainant of the finding. "

Section 455.225, Florida Statutes, addresses disciplinary proceedings for boards within the Department of Business and Professional Regulation. Subsection (1)(a) of the section recognizes that the department investigates any complaint that is filed before it, if the complaint is in writing, signed by the complainant, and is legally sufficient.[1] Section 455.225(2), Florida Statutes, prescribes the manner which the department investigates complaints and prepares a report to be submitted to the probable cause panel of the appropriate regulatory board. If a case is dismissed prior to a finding of probable cause, the subsection makes the report confidential and exempt from section 119.07(1), Florida Statutes.

Section 455.225(10), Florida Statutes, currently states:

"The complaint and all information obtained pursuant to the investigation by the department are confidential and exempt from s. 119.07(1) until 10 days after probable cause has been found to exist by the probable cause panel or by the department, or until the regulated professional or subject of the investigation waives his or her privilege of confidentiality, whichever occurs first. However, this exemption does not apply to actions against unlicensed persons pursuant to s. 455.228 or the applicable practice act. Upon completion of the investigation and pursuant to a written request by the subject, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject’s expense, forward to the subject a copy of the investigative file. The subject may file a written response to the information contained in the investigative file. Such response must be filed within 20 days, unless an extension of time has been granted by the department. This subsection does not prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency." (e.s.)

The department is directed to "periodically notify the person who filed the complaint of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal."[2]

When the Legislature has directed how something is to be done, it effectively operates as a prohibition against its being done in another manner.[3] Likewise, when a statute enumerates exceptions, such as in section 455.225(10), Florida Statutes, which currently provides that the department is allowed to provide otherwise confidential information to any law enforcement agency or to any other regulatory agency, no other exceptions may be inferred. While this office is authorized to issue opinions only on the provisions of existing statutes, the language you propose would appear to alter the exception in section 455.225, Florida Statutes, to allow the release of information to the complainant in an investigation by the department which currently would be exempt and confidential.

I trust that these informal observations are of assistance to you.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

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[1] A complaint is considered legally sufficient if it contains ultimate facts showing the occurrence of a violation of Chapter 455, Florida Statutes, any practice act relating to professions regulated by the department, or of any rule adopted by the department or a regulatory board in the department.

[2] Section 455.225(9), Fla. Stat.

[3] Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla.1944); Thayer v. State, 335 So. 2d 815, 817 (Fla.1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla.1952).