Definition of Unlicensed Practice
The crime of Unlicensed Practice of a Healthcare Profession is defined under Section 456.065(2)(d), Florida Statutes.
Under the law, it is a felony offense for a person “to practice, attempt to practice, or offer to practice a health care profession without an active, valid Florida license [issued by the Department of Health] to practice that profession.”
Practicing a healthcare profession without an active, valid license also includes practicing on a suspended, revoked, or void license.
The proscriptions of Section 456.065(2)(d) also encompass the mere “attempt” at a healthcare practice without being duly licensed.
Specific examples referenced in the statute include the following:
- Applying for employment for a position that requires a license without notifying the employer of current non-licensure;
- Holding oneself out as able to carry out a healthcare practice despite non-licensure.
Professions Requiring License
Some of the most common healthcare professions regulated by the Department of Health and encompassed by Section 456.065 include the following:
- Body Piercer/Operator;
- Physicians / Doctors;
- Massage Therapist;
- Physical Therapist Assistant;
- Certified Nursing Assistants;
- Occupational Therapy;
- Chiropractic Medicine;
- Chiropractic Assistant;
- Athletic Training;
- X-ray Assistants;
- Mental Health Counseling.
Required Reporting by Department
Under Section 456.066, Florida Statutes, the Department of Health and any applicable regulatory board is legally required to report criminal violations of Section 456.065 “to the proper prosecuting authority for prompt prosecution.”
Penalties for Unlicensed Practice
In Florida, the Unlicensed Practice of a Healthcare Profession is a felony offense carrying minimum mandatory jail penalties.
No Serious Bodily Injury
Where the alleged incident does not cause a serious bodily injury, Unlicensed Practice is a third degree felony, with a maximum penalty of up to 5 years in prison and a $5,000 fine.
If convicted, the offense further carries a minimum mandatory sentence of 1 year in jail.
Serious Bodily Injury
Where the incident results in “serious bodily injury,” Unlicensed Healthcare Practice is upgraded to a second degree felony, with a maximum penalty of up to 15 years in prison and a $15,000 fine. The offense also carries a mandatory sentence of at least 1 year in jail.
To sustain a conviction for a second degree felony, the prosecution must establish beyond a reasonable doubt a causal link between the injury and unlawful practice alleged. Hawkins v. State, 933 So. 2d 1186, 1189 (Fla. 4th DCA 2006).
Defenses to the Charge
There are multiple defenses to contest a charge of Unlicensed Practice of a Healthcare Profession. Some of the most common defenses include the following:
- Activity not regulated by the Department of Health;
- Valid Licensure;
- Licensure not Required;
- Inadequate proof as to practice or attempted practice;
- Defendant’s acts limited to non-professional/non-regulated activity;
- The accused has been exempted from licensure.
Unlicensed Massage Therapy
One of the most common scenarios for prosecution under Section 456.065 involves unlicensed massage therapy services.
In such cases, law enforcement officers will typically receive a tip alleging unlicensed massage or prostitution, and will either pose as customers or enter the premises to observe the alleged actvitity. If the individuals observed conducting the massage fail to produce a license, an arrest an is made on a felony charge under Section 456.065(2)(d).
Even where the State’s evidence of unlicensed actvitivity is overwhelming, it is often possible to later negotiate a reduction in charge to Practicing Massage Without a License, a first degree misdemeanor under Section 480.047(1)(a), Florida Statutes.
A misdemeanor reduction eliminates the mandatory jail provisions discussed above, and spares the accused of a permanent felony record. Where the accused has little or no criminal history, it may also be possible to obtain a withhold of adjudication (no conviction) and avoid probation.
Contact an Attorney
Unlicensed Practice of a Healthcare Profession is a serious charge, and the retention of an attorney is critical to raise appropriate defenses or to negotiate for a reduction in charge. If you have been accused, contact Hussein & Webber, PL for a free consultation.