Florida Senate - 2018 SB 1322 By Senator Powell 30-00541A-18 20181322__ 1 A bill to be entitled 2 An act relating to open and expired building permits; 3 amending s. 489.129, F.S.; authorizing the 4 Construction Industry Licensing Board to take 5 specified actions against any certificateholder or 6 registrant if a contractor, a financially responsible 7 officer, or a certain business organization is found 8 guilty of failing to properly close any permit or 9 satisfy any applicable permit requirement; creating s. 10 553.7905, F.S.; requiring a building permit to be 11 considered an open permit if it is issued for any 12 portion of construction of any commercial, 13 residential, or mixed-use project that has not 14 received final inspection approval and that has not 15 complied with other requirements of the permit at 16 issue within a specified period; requiring an open 17 permit that expires without receiving final inspection 18 approval and complying with other requirements of the 19 permit at issue to be considered an expired permit; 20 specifying conditions under which a permit is a closed 21 permit; authorizing uncompleted permitted projects to 22 be transferred, or sold, and completed by a new owner 23 in accordance with procedures or requirements of a 24 local governmental jurisdiction; authorizing open or 25 expired permits to be closed by or on behalf of the 26 current property owner by complying with certain 27 requirements; providing applicability; prohibiting the 28 permitting authority from denying issuance of permits 29 to, issuing notices of violation to, or fining, 30 penalizing, sanctioning, or assessing fees against a 31 subsequent arms-length purchaser of the subject 32 property for value solely because a building permit 33 was not properly closed within certain periods; 34 requiring the permitting authority to continue to have 35 all rights and remedies against the property owner and 36 contractor identified on the permit; requiring the 37 Florida Building Commission to adopt rules and amend 38 the applicable Florida Building Code to enact 39 procedures designed to encourage property owners and 40 contractors to close permits properly; authorizing 41 individual trade permits or certain other permit types 42 to be closed under certain circumstances; providing 43 applicability; authorizing local boards or 44 governmental jurisdictions to adopt stricter standards 45 to govern the closure of building permits under 46 certain circumstances; authorizing the owner of a home 47 for sale to assume the role of an owner-builder in 48 order to resolve an open permit for a substantially 49 completed project under certain circumstances; 50 prohibiting such owner from being required to continue 51 to reside in the home for a specified period; 52 authorizing a local building official to refuse to 53 accept new permit applications from any contractor who 54 holds expired or inactive permits under a specified 55 circumstance; authorizing a contractor to hold an 56 unlimited number of active permits; providing that 57 provisions in the Florida Building Code authorizing 58 permits to be administratively closed by the local 59 building official are not applicable to a permit 60 subject to regulation by an agency not specifically 61 enforcing the Florida Building Code, except where the 62 local building official has regulatory authority over 63 other areas related to the permit; requiring the local 64 building department to provide to the property owner a 65 certain mandatory written notice when issuing a 66 building permit, subject to certain requirements; 67 authorizing a governmental entity to charge only one 68 search fee for searching for and identifying certain 69 open or unexpired building permits in an amount 70 commensurate with research and time costs incurred by 71 the jurisdiction; requiring, for a permit issued after 72 a certain date, the local building department to send 73 a written notice to the current property owner within 74 a specified period after issuance of such permit if 75 the permit has not been properly closed within that 76 period; providing requirements for the notice; 77 providing that failure to receive written notice does 78 not relieve the contractor or property owner from 79 taking the necessary actions to legally close a 80 permit; providing construction; providing an effective 81 date. 82 83 Be It Enacted by the Legislature of the State of Florida: 84 85 Section 1. Paragraph (o) of subsection (1) of section 86 489.129, Florida Statutes, is amended to read: 87 489.129 Disciplinary proceedings.— 88 (1) The board may take any of the following actions against 89 any certificateholder or registrant: place on probation or 90 reprimand the licensee, revoke, suspend, or deny the issuance or 91 renewal of the certificate or registration, require financial 92 restitution to a consumer for financial harm directly related to 93 a violation of a provision of this part, impose an 94 administrative fine not to exceed $10,000 per violation, require 95 continuing education, or assess costs associated with 96 investigation and prosecution, if the contractor, financially 97 responsible officer, or business organization for which the 98 contractor is a primary qualifying agent, a financially 99 responsible officer, or a secondary qualifying agent responsible 100 under s. 489.1195 is found guilty of any of the following acts: 101 (o) Proceeding on any job without obtaining applicable 102 local building department permits and inspections, or failing to 103 properly close any permit or satisfy any applicable permit 104 requirement. 105 106 For the purposes of this subsection, construction is considered 107 to be commenced when the contract is executed and the contractor 108 has accepted funds from the customer or lender. A contractor 109 does not commit a violation of this subsection when the 110 contractor relies on a building code interpretation rendered by 111 a building official or person authorized by s. 553.80 to enforce 112 the building code, absent a finding of fraud or deceit in the 113 practice of contracting, or gross negligence, repeated 114 negligence, or negligence resulting in a significant danger to 115 life or property on the part of the building official, in a 116 proceeding under chapter 120. 117 Section 2. Section 553.7905, Florida Statutes, is created 118 to read: 119 553.7905 Open and expired permits; procedures for closing; 120 notices to owners applying for permits.— 121 (1) A building permit shall be considered an open permit if 122 it is issued for any portion of construction of any commercial, 123 residential, or mixed-use project that has not received final 124 inspection approval and that has not complied with other 125 requirements of the permit at issue within one of the following 126 periods: 127 (a) One year after the expiration of the notice of 128 commencement or last amendment thereto. 129 (b) In the absence of a notice of commencement: 130 1. One year after the last inspection conducted under the 131 permit. 132 2. If an inspection has not been performed on the project, 133 2 years after the date of issuance of the permit. 134 (2) If an open permit expires without receiving final 135 inspection approval and complying with other requirements of the 136 permit at issue, the open permit shall be considered an expired 137 permit as provided in s. 105.4 of the Florida Building Code. 138 (3) A closed permit is a building permit in which any of 139 the following apply: 140 (a) A final inspection approval has been obtained upon 141 satisfaction of permit requirements. 142 (b) No work is started under the original permit within 6 143 months after issuance of the permit. 144 (c) The requirements of paragraph (4)(b) are satisfied. 145 (4)(a) An uncompleted permitted project may be transferred, 146 or sold, and completed by a new owner in accordance with 147 procedures or requirements of a local governmental jurisdiction. 148 (b) An open or expired permit may be closed by or on behalf 149 of the current property owner, regardless of whether the 150 property owner is the same owner who originally applied for the 151 permit or is a subsequent owner, by complying with the 152 requirements for closing permits pursuant to a mutual agreement 153 between the current property owner and the local building 154 department that issued the permit or, absent such an agreement, 155 by complying with the following requirements: 156 1. The property owner may retain the original contractor 157 who obtained the permit or hire a different contractor licensed 158 in this state who possesses any license required for the 159 performance of any work necessary to satisfy conditions of the 160 permit at issue, in order to close the open or expired permit; 161 reactivate the permit if it is expired; or satisfy any 162 requirement of the permit at issue not yet satisfied, including 163 correction of any code violation in accordance with the code in 164 effect when the application for the permit was filed and 165 obtaining any necessary inspection. The state license of 166 whichever contractor performs these functions must be current 167 and active. The contractor and the owner must comply with the 168 local building department’s change of contractor process, after 169 which the contractor may not be liable for any existing defect 170 or existing work failing to comply with any applicable code, 171 rule, regulation, ordinance, requirement of the permit at issue, 172 or law other than the work actually performed by the contractor. 173 The property owner and the permitholder under the original open 174 or expired permit remain liable, within the period of any 175 applicable statute of limitations or repose and as provided by 176 applicable law, for any defect in the work or for failure to 177 comply with any applicable code, rule, regulation, ordinance, 178 permit requirement, or law. To the extent required by chapter 179 489, the owner or the contractor may hire licensed 180 subcontractors in the scope of the permitted work who may 181 perform the functions of the contractor as outlined in this 182 subsection to the extent of work covered by the subcontractor’s 183 license. All work required to properly close an open or expired 184 permit under this section shall be performed in accordance with 185 the building code in effect on the date of filing of the 186 application for the open or expired permit. 187 2.a. As an alternative to the procedure in subparagraph 1., 188 the property owner may hire an engineer or architect who 189 possesses a current and active license in this state; is 190 experienced in designing, supervising, or inspecting work of the 191 nature covered by the open or expired permit at issue; and has 192 at least 3 years of experience in performing field inspections 193 regarding such work, in order to inspect the construction work 194 subject to the open or expired building permit, direct any 195 repair necessary to comply with all the requirements of the 196 permit at issue, and then confirm compliance therewith by 197 submitting an affidavit bearing the seal of the engineer or 198 architect to the issuing local building department. The 199 affidavit must be substantially in the following form: 200 201 I, ...(specify name)..., possess a current and active 202 ...(specify engineering or architectural)... license 203 within the State of Florida. I am experienced in 204 designing, supervising, or inspecting work of the 205 nature covered by the open or expired permit at the 206 real property located at ...(specify address).... I 207 have at least three years of experience in performing 208 field inspections as to such work. I have inspected 209 the construction work subject to the open or expired 210 building permit number ...(specify number)..., and I 211 confirm that the construction work complies with all 212 known requirements of the permit at issue. 213 214 Signed: 215 216 ...(affix licensing seal)... 217 218 b. If any of the permitted work includes construction 219 outside the engineer’s or architect’s area of expertise, the 220 property owner, engineer, or architect may hire an engineer or 221 architect licensed in the scope of the permitted work who may 222 direct any necessary repair to comply with all requirements of 223 the permit at issue. The engineer or architect hired by the 224 property owner, engineer, or architect must confirm compliance 225 by submitting to the local building department issuing the 226 permit a signed and sealed affidavit attesting to compliance 227 with all requirements of the permit at issue. The local building 228 department issuing the permit shall accept the affidavit or 229 affidavits referenced in sub-subparagraph a. as satisfaction of 230 all requirements of the permit at issue and shall thereafter 231 close the building permit, unless it conducts its own final 232 inspections within 7 business days after receipt of the 233 affidavit or affidavits. If the local building department 234 conducts its own final inspection and discovers conditions 235 constituting code or permit violations within the scope of work 236 covered by the permit, the conditions must be repaired to the 237 local building department’s satisfaction as a condition to 238 closing the permit. All work required to properly close an open 239 or expired permit under this section shall be performed in 240 accordance with the building code in effect on the date of 241 filing the application for the open or expired permit. 242 (5) The requirements of paragraph (4)(b) apply regardless 243 of whether the building permit is still open or has expired. 244 (6)(a) The permitting authority may not deny issuance of a 245 building permit to; issue a notice of violation to; or fine, 246 penalize, sanction, or assess fees against a subsequent arms 247 length purchaser of the subject property for value solely 248 because a building permit was not properly closed within one of 249 the following periods: 250 1. Five years after expiration of the date of recordation 251 of the notice of commencement or last amendment thereto. 252 2. If a notice of commencement was not recorded, within 7 253 years after the building permit was issued. 254 (b) The permitting authority shall continue to have all 255 rights and remedies against the property owner and contractor 256 identified on the permit. The Florida Building Commission shall 257 adopt rules and amend the applicable Florida Building Code to 258 enact procedures designed to encourage property owners and 259 contractors to close permits properly. 260 (7)(a) An individual trade permit or any other permit type 261 as determined by the local building official as defined in s. 262 553.791(1)(g) may be closed when no apparent safety hazard 263 exists, and for which no code violation has been previously 264 documented, after 6 years after issuance of the permit. This 265 paragraph does not apply to a building permit for a building 266 project still under construction with a legally granted permit 267 extension. 268 (b) A local board or governmental jurisdiction may adopt 269 stricter standards to govern the closure of a building permit if 270 the stricter standards apply only prospectively and not 271 retroactively to previously issued permits, regardless of 272 whether the permits remain open or have expired, and if the 273 stricter standards do not change the requirements of paragraph 274 (4)(b) and do not supersede this section. 275 (8) As an alternative to the requirements of paragraph 276 (4)(b) on real property consisting of single or multiple family 277 dwellings up to and including four units, with the approval of 278 the local building official, the owner of a home for sale may 279 assume the role of an owner-builder in order to resolve an open 280 permit for a substantially completed project when the project is 281 abandoned or otherwise not completed by the licensed contractor 282 who obtained the permit. The owner may not be required to 283 continue to reside in the home for 1 year. 284 (9)(a) A local building official may refuse to accept a new 285 building permit application from a contractor who holds expired 286 or inactive permits in excess of a specific publicized threshold 287 number of expired or inactive permits which is set in advance by 288 written policy or ordinance in a local jurisdiction. 289 (b) A contractor may hold an unlimited number of active 290 permits. 291 (10) Provisions in the Florida Building Code authorizing 292 permits to be administratively closed by the local building 293 official are not applicable to a permit subject to regulation by 294 an agency not specifically enforcing the Florida Building Code, 295 except where the local building official has regulatory 296 authority over other areas related to the permit, such as zoning 297 or other land development code provisions. The regulations not 298 subject to such provisions in the Florida Building Code include, 299 but are not limited to, local zoning and land use rules, local 300 stormwater management rules, local platting and subdivision 301 requirements, rules implemented by the Department of Health, 302 rules implemented by the Department of Business and Professional 303 Regulation, local utility standards, and provisions of the 304 National Flood Insurance Program Community Rating System. 305 (11) When issuing a building permit, the local building 306 department shall provide to the property owner a mandatory 307 written notice, which may be electronically provided if the 308 permit package is electronically provided, in the following 309 form: 310 311 IMPORTANT NOTICE REGARDING COMPLYING WITH THE 312 INSPECTION AND APPROVAL PROCESS FOR ALL BUILDING 313 PERMITS 314 315 You are receiving a building permit authorizing the 316 construction referenced in the application that was 317 submitted to this local building department by you or 318 on your behalf. The permit is issued with conditions, 319 including required building inspections and assurances 320 that the construction complies with the design 321 submitted with the permit application and any other 322 conditions referenced in the permit. It is critical 323 that you ensure that all necessary building 324 inspections are passed before the expiration of any 325 notice of commencement or amendment thereto, as these 326 inspections are important to ensure that construction 327 has been performed in a safe and proper manner. If you 328 have any questions regarding these procedures, please 329 call the local building department. Your failure to 330 comply may also result in unsafe conditions arising 331 from your construction. 332 333 (12) The applicable governmental entity may charge only one 334 search fee for searching for and identifying open or unexpired 335 building permits for any unit or subunit assigned by a 336 municipality or county to a particular tax parcel identification 337 number, in an amount commensurate with research and time costs 338 incurred by the jurisdiction. 339 (13) For all building permits issued after July 1, 2018, 340 the local building department must send a written notice to the 341 current property owner within 1 year to 3 years after issuance 342 of any building permit that has not been properly closed out 343 within that period. The notice must advise the property owner of 344 the need to properly close the permit upon completion of the 345 work covered by the permit. Failure to receive written notice 346 does not relieve the contractor or the property owner from 347 taking the necessary actions to legally close the permit. 348 (14) This act does not prevent a local governmental entity 349 from enforcing any provision of a local land development code or 350 other local ordinance to the extent not inconsistent with this 351 section or prevent a local governmental entity from enacting a 352 provision that adds more requirements to the process of closing 353 out open or expired permits. 354 Section 3. This act shall take effect July 1, 2018.