| 1 | A bill to be entitled |
| 2 | An act relating to in-home service and residential |
| 3 | delivery companies; providing a popular name; creating s. |
| 4 | 768.097, F.S.; defining terms; requiring in-home service |
| 5 | and residential delivery companies to perform background |
| 6 | checks on certain employees and others; providing for |
| 7 | application; providing a rebuttable presumption that the |
| 8 | in-home service company or residential delivery company |
| 9 | had not acted negligently if certain requirements were |
| 10 | met; providing a rebuttable presumption that certain |
| 11 | persons who contract with a residential delivery company |
| 12 | or in-home service company are not negligent if certain |
| 13 | requirements were met; providing applicability; providing |
| 14 | an effective date. |
| 15 |
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| 16 | Be It Enacted by the Legislature of the State of Florida: |
| 17 |
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| 18 | Section 1. This act may be cited as the "Sue Weaver Act." |
| 19 | Section 2. Section 768.097, Florida Statutes, is created |
| 20 | to read: |
| 21 | 768.097 In-home service and residential delivery |
| 22 | companies; liability for negligent hiring, retention, and |
| 23 | supervision.-- |
| 24 | (1) DEFINITIONS.--For purposes of this section: |
| 25 | (a) "In-home service company" means a company that |
| 26 | provides, through an employee, agent, subcontractor, or |
| 27 | independent contractor, service, repair, replacement, |
| 28 | maintenance, cleaning, or other work to a customer's residential |
| 29 | dwelling. |
| 30 | (b) "Residential delivery company" means a company that |
| 31 | provides, through an employee, agent, subcontractor, or |
| 32 | independent contractor, delivery of an item to a residential |
| 33 | dwelling and enters the dwelling to place, assemble, or install |
| 34 | the item. |
| 35 | (c) "Private vendor" means a consumer reporting agency |
| 36 | with the ability to access Department of Law Enforcement |
| 37 | criminal records and whose database contains more than |
| 38 | 150,000,000 criminal records, has substantial national coverage, |
| 39 | and receives regularly scheduled updates. |
| 40 | (2) BACKGROUND CHECK.--An in-home service company or |
| 41 | residential delivery company shall obtain from the Florida |
| 42 | Department of Law Enforcement or a private vendor the criminal |
| 43 | history record information relating to any employee, agent, |
| 44 | subcontractor, or independent subcontractor whose job duties |
| 45 | require or will require entry into another person's dwelling for |
| 46 | in-home service or residential delivery purposes. This |
| 47 | background check shall be completed prior to the employee, |
| 48 | agent, subcontractor, or independent contractor entering a |
| 49 | dwelling for in-home service or residential delivery purposes. |
| 50 | (3) APPLICATION.--This section applies only to an action |
| 51 | against an in-home service company or residential delivery |
| 52 | company that: |
| 53 | (a) Arises out of a criminal act or omission by an |
| 54 | employee, agent, subcontractor, or independent contractor of the |
| 55 | company as to whom the company is required to obtain criminal |
| 56 | history record information under subsection (2). |
| 57 | (b) Is brought by or on behalf of a person whose dwelling |
| 58 | was entered into by an employee, agent, subcontractor, or |
| 59 | independent contractor of the in-home service company or |
| 60 | residential delivery company while in the performance of those |
| 61 | job duties, without regard to where or when the criminal act or |
| 62 | omission occurred. |
| 63 | (c) Seeks damages from the company for the negligent |
| 64 | hiring, retention, or supervision of the employee, agent, |
| 65 | subcontractor, or independent contractor. |
| 66 |
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| 67 | In an action to which this section applies, the provisions of |
| 68 | this section supersede those of s. 768.096. |
| 69 | (4) PRESUMPTION AGAINST COMPANY NEGLIGENCE.--In an action |
| 70 | to which this section applies, an in-home service company or |
| 71 | residential delivery company is rebuttably presumed to have not |
| 72 | acted negligently if: |
| 73 | (a) The company obtained criminal history record |
| 74 | information regarding employees, agents, subcontractors, or |
| 75 | independent contractors required under subsection (2). |
| 76 | (b) The criminal history record information shows that, in |
| 77 | the 20 years preceding the date the information was obtained for |
| 78 | a felony or in the 10 years preceding the date the information |
| 79 | was obtained for a misdemeanor, the employee, agent, |
| 80 | subcontractor, or independent contractor had not been found |
| 81 | guilty of, regardless of adjudication, or entered a plea of nolo |
| 82 | contendere or guilty to any offense listed in s. 435.03(2) or |
| 83 | any offense in another jurisdiction that would have been listed |
| 84 | in s. 435.03(2) if the offense had occurred in this state. |
| 85 | (5) PRESUMPTION AGAINST CUSTOMER NEGLIGENCE.--A person who |
| 86 | contracts with a residential delivery company to deliver an item |
| 87 | or who contracts with an in-home service company to place, |
| 88 | assemble, repair, replace, service, clean, or install an item is |
| 89 | rebuttably presumed to have not acted negligently in doing so |
| 90 | if: |
| 91 | (a) The residential delivery company or in-home service |
| 92 | company is in compliance with subsection (4). |
| 93 | (b) The residential delivery company or in-home service |
| 94 | company is not required to perform background checks on |
| 95 | subcontractors and independent contractors if the background |
| 96 | check required under subsection (2) has been performed within |
| 97 | the preceding year by the subcontractor or independent |
| 98 | contractor's employer. |
| 99 | Section 3. This act shall take effect July 1, 2005, and |
| 100 | applies only to a cause of action that accrues on or after that |
| 101 | date. |