Senate Bill sb0590c1

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    Florida Senate - 2005                            CS for SB 590

    By the Committee on Regulated Industries; and Senator Bennett





    580-1693-05

  1                      A bill to be entitled

  2         An act relating to mold assessment and mold

  3         remediation; creating pt. IV of ch. 489, F.S.;

  4         providing legislative purpose; providing scope

  5         of the act; providing exemptions; defining

  6         terms; providing for fees relating to licensure

  7         of mold assessors and mold remediators;

  8         providing for licensure examinations; requiring

  9         good moral character; providing prerequisites

10         to licensure; providing for the licensure of

11         business organizations; providing for

12         qualifying agents; providing for fees;

13         providing responsibilities of primary and

14         secondary qualifying agents and of financially

15         responsible officers; establishing requirements

16         for continuing education; requiring that the

17         Construction Industry Licensing Board approve

18         training courses and training providers for

19         mold assessors and mold remediators; providing

20         for assessing penalties; providing for renewal

21         of licensure; providing for rulemaking;

22         providing for reactivation of licensure;

23         providing for disciplinary proceedings;

24         establishing prohibitions; providing penalties;

25         allowing the board to provide, by rule, for

26         multiple services; providing presumptions in

27         civil actions against persons or entities

28         licensed under the act; providing severability;

29         amending s. 489.107, F.S.; adding to the board

30         a member who is a mold assessor or mold

31         remediator; providing an appropriation and

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    Florida Senate - 2005                            CS for SB 590
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 1         authorizing positions; providing an effective

 2         date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Part IV of chapter 489, Florida Statutes,

 7  entitled "Mold Assessment and Mold Remediation" and consisting

 8  of ss. 489.601, 489.602, 489.603, 489.604, 489.605, 489.606,

 9  489.607, 489.608, 489.609, 489.61, 489.611, 489.612, 489.613,

10  489.614, 489.615, 489.616, 489.617, and 489.618, is created.

11         Section 2.  Section 489.601, Florida Statutes, is

12  created to read:

13         489.601  Legislative purpose.--The Legislature finds it

14  necessary in the interest of the public health, safety, and

15  welfare in order to prevent damage to the real and personal

16  property of the residents of this state and to avert economic

17  injury to the residents of this state to regulate individuals

18  and companies that hold themselves out to the public as

19  qualified to perform mold-related activities.

20         Section 3.  Section 489.602, Florida Statutes, is

21  created to read:

22         489.602  Scope of act.--Sections 489.601-489.618 apply

23  only to individuals and companies conducting mold assessment

24  and mold remediation for compensation.

25         Section 4.  Section 489.603, Florida Statutes, is

26  created to read:

27         489.603  Exemptions.--Sections 489.601-489.618 do not

28  apply to:

29         (1)  A Division I and Division II contractor licensed

30  under this chapter, an individual in the manufactured housing

31  industry who is licensed under chapter 320, or an engineer

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 1  licensed under chapter 471, when engaged in mold-related

 2  activities incidental to activities within the scope of his or

 3  her license.

 4         (2)  An authorized employee of the United States, this

 5  state, or any municipality, county, or other political

 6  subdivision, public or private school, or private business

 7  organization who has completed mold assessment or mold

 8  remediation training courses approved by the board or a

 9  certification program approved by the board and who is

10  conducting mold assessment or mold remediation within the

11  scope of that employment, as long as the employee does not

12  hold out for hire or otherwise engage in mold assessment or

13  mold remediation.

14         (3)  A full-time employee engaged in routine

15  maintenance of public and private buildings, structures, and

16  facilities as long as the employee does not hold out for hire

17  or otherwise engage in mold assessment or mold remediation.

18         Section 5.  Section 489.604, Florida Statutes, is

19  created to read:

20         489.604  Definitions.--As used in this part, the term:

21         (1)  "Board" means the Construction Industry Licensing

22  Board.

23         (2)  "Business organization" means any partnership,

24  corporation, business trust, joint venture, or other business

25  organization.

26         (3)  "Department" means the Department of Business and

27  Professional Regulation.

28         (4)  "Mold" means an organism of the class fungi that

29  causes disintegration of organic matter and produces spores,

30  and includes any spores, hyphae, and mycotoxins produced by

31  mold.

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 1         (5)  "Mold assessment" means:

 2         (a)  An inspection, investigation, or survey of a

 3  dwelling or other structure to provide the owner or occupant

 4  with information regarding the presence, identification, or

 5  evaluation of mold;

 6         (b)  The development of a mold-management plan or

 7  remediation protocol; or

 8         (c)  The collection or analysis of a mold sample.

 9         (6)  "Mold assessor" means any person or business

10  organization that performs a mold assessment.

11         (7)  "Mold remediation" means the removal, cleaning,

12  sanitizing, demolition, or other treatment, including

13  preventive activities, of mold or mold-contaminated matter

14  that was not purposely grown at that location.

15         (8)  "Mold remediator" means any person or business

16  organization that performs mold remediation. A mold remediator

17  may not perform any work that requires a license under any

18  other part of this chapter unless the mold remediator is also

19  licensed under that part.

20         (9)  "Primary qualifying agent" means a person who

21  possesses the requisite skill, knowledge, and experience, and

22  has the responsibility, to supervise, direct, manage, and

23  control the mold assessment or mold remediation activities of

24  the business organization with which he or she is connected;

25  who has the responsibility to supervise, direct, manage, and

26  control mold assessment or mold-remediation activities; and

27  whose technical and personal qualifications have been

28  determined by investigation and examination as provided in

29  this part, as attested by the department.

30         (10)  "Secondary qualifying agent" means a person who

31  possesses the requisite skill, knowledge, and experience, and

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    Florida Senate - 2005                            CS for SB 590
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 1  has the responsibility, to supervise, direct, manage, and

 2  control mold assessment and mold-remediation activities, and

 3  whose technical and personal qualifications have been

 4  determined by investigation and examination as provided in

 5  this part, as attested by the department.

 6         Section 6.  Section 489.605, Florida Statutes, is

 7  created to read:

 8         489.605  Fees.--The board shall, by rule, establish

 9  reasonable fees to be paid for applications, examinations,

10  licensing and renewal, recordmaking, and recordkeeping. Fees

11  for application, initial licensure, license renewal, or

12  license reactivation for mold assessors or mold remediators

13  may not exceed $500 per applicant. The board may, by rule,

14  establish late renewal penalty fees, in an amount not to

15  exceed the initial licensure fee.

16         Section 7.  Section 489.606, Florida Statutes, is

17  created to read:

18         489.606  Examination.--

19         (1)  A person who desires to be licensed as a mold

20  assessor or mold remediator must apply to the department for

21  licensure.

22         (2)  An applicant may take the licensure examination to

23  practice in this state as a mold assessor or mold remediator

24  if the applicant is of good moral character, is a graduate of

25  an approved course of study in mold assessment or mold

26  remediation, and has a specific experience record as

27  prescribed by rule.

28         (3)  The board shall adopt rules providing for the

29  review and approval of training programs in mold assessment

30  and mold remediation. The board may adopt rules providing for

31  the acceptance of the approval and accreditation of schools

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 1  and courses of study by nationally accepted accreditation

 2  organizations.

 3         (4)(a)  Good moral character means a personal history

 4  of honesty, fairness, and respect for the rights of others and

 5  for the laws of this state and nation.

 6         (b)  The board may refuse to certify an applicant for

 7  failure to satisfy this requirement only if:

 8         1.  The board finds that there is a substantial

 9  connection between the lack of good moral character of the

10  applicant and the professional responsibilities of a mold

11  assessor or mold remediator; and

12         2.  This finding is supported by clear and convincing

13  evidence.

14         (c)  If an applicant is found to be unqualified for a

15  license because of a lack of good moral character, the board

16  must furnish to the applicant a statement containing the

17  findings of the board, a complete record of the evidence upon

18  which the determination was based, and a notice of the rights

19  of the applicant to a rehearing and appeal.

20         Section 8.  Section 489.607, Florida Statutes, is

21  created to read:

22         489.607  Licensure.--The department shall license any

23  applicant who the board certifies is qualified to practice

24  mold assessment or mold remediation and who:

25         (1)  Pays the initial licensing fee;

26         (2)  Submits with the application for licensure as a

27  mold assessor or a mold remediator evidence that he or she has

28  successfully completed the board-approved courses as

29  prescribed by rule;

30         (3)  Provides evidence of financial stability; and

31  

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 1         (4)(a)  Passes a department-approved examination of

 2  qualifications and knowledge relating to mold assessment and

 3  mold remediation; or

 4         (b)  In lieu of passing a department-approved

 5  examination, shows proof that he or she has been certified by

 6  an organization that requires the same testing and examination

 7  as the department requires.

 8         Section 9.  Section 489.608, Florida Statutes, is

 9  created to read:

10         489.608  Licensure of business organizations;

11  qualifying agents.--

12         (1)  If an individual proposes to engage in mold

13  remediation or mold assessment in that individual's own name,

14  the license may be issued only to that individual.

15         (2)(a)  If the applicant proposes to engage in mold

16  remediation or mold assessment as a business organization in

17  any name other than the applicant's legal name, the business

18  organization must apply for licensure through a qualifying

19  agent or the individual applicant must apply for licensure

20  under the fictitious name.

21         (b)  The application must state the name of the

22  business organization and of each of its partners, the name of

23  the corporation and of each of its officers and directors and

24  the name of each of its stockholders who is also an officer or

25  director, the name of the business trust and of each of its

26  trustees, or the name of such other business organization and

27  of each of its members.

28         1.  The application for primary qualifying agent must

29  include an affidavit on a form provided by the department

30  which attests that the applicant's signature is required on

31  all checks, drafts, or payments, regardless of the form of

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 1  payment, made by the business organization, and that the

 2  applicant has final approval authority for all work performed

 3  by the business organization.

 4         2.  The application for financially responsible officer

 5  must include an affidavit on a form provided by the department

 6  which attests that the applicant's signature is required on

 7  all checks, drafts, or payments, regardless of the form of

 8  payment, made by the business organization, and that the

 9  applicant has authority to act for the business organization

10  in all financial matters.

11         3.  The application for secondary qualifying agent must

12  include an affidavit on a form provided by the department

13  which attests that the applicant has authority to supervise

14  all mold assessment or mold-remediation work performed by the

15  business organization as provided in s. 489.609.

16         (c)  As a prerequisite to the issuance of a license

17  under this section, the applicant must submit:

18         1.  An affidavit on a form provided by the department

19  which attests that the applicant has obtained workers'

20  compensation insurance as required by chapter 440, public

21  liability insurance, and property damage insurance, in amounts

22  determined by board rule. Such insurance must include coverage

23  for an applicant's failure to properly perform mold assessment

24  or mold remediation. The department shall, by rule, establish

25  a procedure to verify the accuracy of such affidavits based

26  upon a random sample method.

27         2.  Evidence of financial responsibility. The board

28  shall adopt rules to determine financial responsibility which

29  specify grounds on which the department may deny licensure.

30  Such criteria must include, but need not be limited to, credit

31  history and limits of bondability and credit.

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 1  

 2  Continuing proof of all insurance coverages referenced in this

 3  paragraph shall be a requisite condition to maintaining a

 4  license issued under this part.

 5         (d)  A joint venture, including a joint venture

 6  composed of qualified business organizations, is a separate

 7  and distinct organization that must be qualified in accordance

 8  with department rules.

 9         (e)  A license that is issued upon application of a

10  business organization must be in the name of the business

11  organization, and the name of the qualifying agent must be

12  noted thereon. If there is a change in any information that is

13  required to be stated on the application, the business

14  organization shall, within 45 days after the change occurs,

15  mail the correct information to the department.

16         (f)  The applicant must furnish evidence of statutory

17  compliance if a fictitious name is used, notwithstanding s.

18  865.09(7).

19         (3)  The qualifying agent must be licensed under this

20  part in order for the business organization to be licensed. If

21  the qualifying agent ceases to be affiliated with the business

22  organization, the agent must so inform the department. In

23  addition, if the qualifying agent is the only licensed

24  individual affiliated with the business organization, the

25  business organization must notify the department of the

26  termination of the qualifying agent, and the business

27  organization has 60 days after the termination of the

28  qualifying agent's affiliation with the business organization

29  in which to employ another qualifying agent. The business

30  organization may not engage in mold assessment or mold

31  remediation until a qualifying agent is employed, unless the

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 1  department has granted a temporary nonrenewable license to the

 2  financially responsible officer, the president, a partner, or,

 3  in the case of a limited partnership, the general partner, who

 4  assumes all responsibilities of a primary qualifying agent for

 5  the business organization. This temporary license allows the

 6  business organization to proceed only with incomplete

 7  contracts.

 8         (4)(a)  The qualifying agent shall inform the

 9  department in writing if the agent proposes to engage in mold

10  assessment or mold remediation in the agent's own name or in

11  affiliation with another business organization, and the agent

12  or the new business organization shall supply the same

13  information to the department as is required of initial

14  applicants under this part.

15         (b)  Upon a favorable determination by the board, after

16  investigation of the financial responsibility, credit, and

17  business reputation of the qualifying agent and the new

18  business organization, the board shall issue, without any

19  examination, a new license in the business organization's

20  name, and the name of the qualifying agent must be noted

21  thereon.

22         (5)(a)  Each mold assessor or mold remediator shall

23  affix the mold assessor's or mold remediator's signature and

24  license number to each document prepared or approved for use

25  by the licensee which is related to any mold assessment or

26  mold-remediation project and filed for public record with a

27  governmental agency, and to any offer, bid, or contract

28  submitted to a client.

29         (b)  The license number of each mold assessor or mold

30  remediator must appear in any printed matter or any newspaper,

31  airwave transmission, phone directory, or other advertising

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 1  medium offering or related to mold assessment or mold

 2  remediation, as provided by department rule.

 3         (6)  Each qualifying agent shall pay the department an

 4  amount equal to the original fee for licensure of a new

 5  business organization. If the qualifying agent for a business

 6  organization desires to qualify additional business

 7  organizations, the board shall require the agent to present

 8  evidence of ability and financial responsibility of each such

 9  organization. The issuance of such certificate of authority is

10  discretionary with the board.

11         Section 10.  Section 489.609, Florida Statutes, is

12  created to read:

13         489.609  Responsibilities.--

14         (1)  A qualifying agent is a primary qualifying agent

15  unless he or she is a secondary qualifying agent under this

16  section.

17         (a)  All primary qualifying agents for a business

18  organization are jointly and equally responsible for

19  supervising all operations of the business organization; for

20  all field work at all sites; and for financial matters, both

21  for the organization in general and for each specific job.

22         (b)  Upon approval by the board, a business

23  organization may designate a financially responsible officer

24  for purposes of licensure. A financially responsible officer

25  shall be responsible for all financial aspects of the business

26  organization and may not be designated as the primary

27  qualifying agent. The designated financially responsible

28  officer shall furnish evidence of his or her financial

29  responsibility, credit, and business reputation, or that of

30  the business organization he or she desires to qualify, as

31  determined appropriate by the board.

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 1         (c)  If a business organization has a licensed

 2  financially responsible officer, the primary qualifying agent

 3  is responsible for all mold assessment or mold-remediation

 4  activities of the business organization, both in general and

 5  for each specific job.

 6         (d)  The board shall adopt rules prescribing the

 7  qualifications for financially responsible officers, including

 8  net worth, cash, and bonding requirements. These

 9  qualifications must be at least as extensive as the

10  requirements for the financial responsibility of qualifying

11  agents.

12         (2)(a)  One of the qualifying agents for a business

13  organization that has more than one qualifying agent may be

14  designated as the sole primary qualifying agent for the

15  business organization by a joint agreement that is executed,

16  on a form provided by the board, by all qualifying agents for

17  the business organization.

18         (b)  The joint agreement must be submitted to the board

19  for approval. If the board determines that the joint agreement

20  is in good order, it must approve the designation and

21  immediately notify the qualifying agents of its approval. The

22  designation made by the joint agreement is effective upon

23  receipt of the notice by the qualifying agents.

24         (c)  The qualifying agent designated for a business

25  organization by a joint agreement is the sole primary

26  qualifying agent for the business organization, and all other

27  qualifying agents for the business organization are secondary

28  qualifying agents.

29         (d)  A designated sole primary qualifying agent has all

30  the responsibilities and duties of a primary qualifying agent,

31  notwithstanding that there are secondary qualifying agents for

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 1  specified jobs. The designated sole primary qualifying agent

 2  is jointly and equally responsible with secondary qualifying

 3  agents for supervising field work.

 4         (e)  A secondary qualifying agent is responsible only

 5  for any work for which he or she accepts responsibility.

 6         (f)  A secondary qualifying agent is not responsible

 7  for supervising financial matters.

 8         (3)(a)  A qualifying agent who has been designated by a

 9  joint agreement as the sole primary qualifying agent for a

10  business organization may terminate this status by giving

11  actual notice to the business organization, to the board, and

12  to all secondary qualifying agents of his or her intention to

13  terminate this status. The notice to the board must include

14  proof satisfactory to the board that the qualifying agent has

15  given the notice required in this paragraph.

16         (b)  The status of the qualifying agent ceases upon the

17  designation of a new primary qualifying agent or 60 days after

18  satisfactory notice of termination has been provided to the

19  board, whichever occurs first.

20         (c)  If a new primary qualifying agent has not been

21  designated within 60 days, all secondary qualifying agents for

22  the business organization become primary qualifying agents

23  unless the joint agreement specifies that one or more of them

24  become sole qualifying agents under such circumstances, in

25  which case only the specified secondary qualifying agents

26  become sole qualifying agents.

27         (d)  Any change in the status of a qualifying agent is

28  prospective only. A qualifying agent is not responsible for

29  his or her predecessor's actions but is responsible, even

30  after a change in status, for matters for which he or she was

31  responsible while in a particular status.

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 1         Section 11.  Section 489.61, Florida Statutes, is

 2  created to read:

 3         489.61  Continuing education.--

 4         (1)  A licensee must annually complete 15 hours of

 5  continuing education courses as prescribed by board rule.

 6         (2)  The courses required under this section must be

 7  offered and provided by mold training providers licensed under

 8  this part and must be approved by the board.

 9         (3)  The licensee must submit proof of compliance with

10  the continuing education requirements along with the

11  licensee's application for license renewal.

12         Section 12.  Section 489.611, Florida Statutes, is

13  created to read:

14         489.611  Approval of mold assessor and mold remediator

15  training courses and providers.--

16         (1)  The board shall approve training courses and the

17  providers of such courses as are required under this part. The

18  board must also approve training courses and the providers of

19  such courses who offer training for persons who are exempt

20  from licensure under this part.

21         (2)  The board shall, by rule, prescribe criteria for

22  approving training courses and course providers and may, by

23  rule, modify the training required by this part.

24         (3)  The board may enter into agreements with other

25  states for the reciprocal approval of training courses or the

26  providers of training courses.

27         (4)  The board shall, by rule, establish reasonable

28  fees in an amount not to exceed the cost of evaluation,

29  approval, and recordmaking and recordkeeping of training

30  courses and providers of training courses.

31  

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 1         (5)  The board may impose against a provider of

 2  training courses any penalty that it may impose against a

 3  licensee under this part or s. 455.227, may decline to approve

 4  courses, and may withdraw approval of courses proposed by a

 5  provider who has, or whose agent has, been convicted of, pled

 6  guilty or nolo contendere to, or entered into a stipulation or

 7  consent agreement relating to, without regard to adjudication,

 8  any crime or administrative violation in any jurisdiction

 9  which involves fraud, deceit, or false or fraudulent

10  representations made in the course of seeking approval of or

11  providing training courses.

12         Section 13.  Section 489.612, Florida Statutes, is

13  created to read:

14         489.612  Renewal of license.--

15         (1)  The department shall renew a license upon receipt

16  of the renewal application and fee, upon proof of compliance

17  with the continuing education requirements of s. 489.61, and,

18  if a demonstration of competency is required by law or rule,

19  upon certification by the board that the licensee has

20  satisfactorily demonstrated his or her competence in mold

21  assessment and mold remediation.

22         (2)  The department shall adopt rules establishing a

23  procedure for the biennial renewal of licenses.

24         Section 14.  Section 489.613, Florida Statutes, is

25  created to read:

26         489.613  Reactivation.--

27         (1)  The board shall, by rule, prescribe continuing

28  education requirements for reactivating a license. The

29  continuing education requirements for reactivating a license

30  for a licensed mold assessor or mold remediator may not exceed

31  15 classroom hours for each year the license was inactive.

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 1         (2)  The board shall adopt rules relating to licenses

 2  that have become inactive and for the renewal of inactive

 3  licenses. The board shall, by rule, prescribe a fee not to

 4  exceed $50 for the reactivation of an inactive license and a

 5  fee not to exceed $50 for the renewal of an inactive license.

 6         Section 15.  Section 489.614, Florida Statutes, is

 7  created to read:

 8         489.614  Disciplinary proceedings.--

 9         (1)  The board may revoke, suspend, or deny the

10  issuance or renewal of a license; reprimand, censure, or place

11  on probation any mold assessor or mold remediator; require

12  financial restitution to a consumer; impose an administrative

13  fine not to exceed $5,000 per violation; require continuing

14  education; or assess costs associated with any investigation

15  and prosecution if the mold assessor or mold remediator is

16  found guilty of any of the following acts:

17         (a)  Obtaining a license or certificate of authority by

18  fraud or misrepresentation.

19         (b)  Being convicted or found guilty of, or entering a

20  plea of nolo contendere to, regardless of adjudication, a

21  crime in any jurisdiction which directly relates to the

22  practice of mold assessment or mold remediation or the ability

23  to practice mold assessment or mold remediation.

24         (c)  Violating any provision of chapter 455.

25         (d)  Performing any act that assists a person or entity

26  in engaging in the prohibited unlicensed practice of mold

27  assessment or mold remediation, if the licensee knows or has

28  reasonable grounds to know that the person or entity is

29  unlicensed.

30         (e)  Knowingly combining or conspiring with an

31  unlicensed person by allowing his or her license or

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 1  certificate of authority to be used by the unlicensed person

 2  with intent to evade any provision of this part. If a licensee

 3  allows his or her license to be used by one or more business

 4  organizations without having any active participation in the

 5  operations, management, or control of the business

 6  organizations, such an act constitutes prima facie evidence of

 7  an intent to evade the provisions of this part.

 8         (f)  Acting in the capacity of a mold assessor or mold

 9  remediator under any license issued under this part except in

10  the name of the licensee as set forth on the issued license.

11         (g)  Committing mismanagement or misconduct in the

12  practice of mold assessment or mold remediation which causes

13  financial harm to a customer. Financial mismanagement or

14  misconduct occurs when:

15         1.  Valid liens have been recorded against the property

16  of a mold assessor's or mold remediator's customer for

17  supplies or services ordered by the mold assessor or mold

18  remediator for the customer's job; the mold assessor or mold

19  remediator has received funds from the customer to pay for the

20  supplies or services; and the mold assessor or mold remediator

21  has not had the liens removed from the property, by payment or

22  by bond, within 75 days after the date of such liens;

23         2.  The mold assessor or mold remediator has abandoned

24  a customer's job and the percentage of completion is less than

25  the percentage of the total contract price paid to the mold

26  assessor or mold remediator as of the time of abandonment,

27  unless the contractor is entitled to retain such funds under

28  the terms of the contract or refunds the excess funds within

29  30 days after the date the job is abandoned; or

30         3.  The mold assessor's or mold remediator's job has

31  been completed, and it is shown that the customer has had to

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 1  pay more for the contracted job than the original contract

 2  price, as adjusted for subsequent change orders, unless the

 3  increase in cost was the result of circumstances beyond the

 4  control of the assessor or remediator, was the result of

 5  circumstances caused by the customer, or was otherwise

 6  permitted by the terms of the contract between the mold

 7  assessor or mold remediator and the customer.

 8         (h)  Being disciplined by a municipality or county for

 9  an act or violation of this part.

10         (i)  Failing in any material respect to comply with

11  this part or violating a rule or lawful order of the

12  department.

13         (j)  Abandoning a mold assessment or mold-remediation

14  project in which the mold assessor or mold remediator is

15  engaged or under contract as a mold assessor or mold

16  remediator. A project is presumed abandoned after 20 days if

17  the mold assessor or mold remediator has terminated the

18  project without just cause and without proper notification to

19  the owner, including the reason for termination; if the mold

20  assessor or mold remediator has failed to reasonably secure

21  the project to safeguard the public while work is stopped; or

22  if the mold assessor or mold remediator fails to perform work

23  without just cause for 20 days.

24         (k)  Signing a statement with respect to a project or

25  contract falsely indicating that the work is bonded; falsely

26  indicating that payment has been made for all subcontracted

27  work, labor, and materials which results in a financial loss

28  to the owner, purchaser, or mold assessor or mold remediator;

29  or falsely indicating that the insurance coverage required

30  under this act is or has been provided.

31  

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 1         (l)  Committing fraud or deceit in the practice of mold

 2  assessment or mold remediation.

 3         (m)  Committing incompetency or misconduct in the

 4  practice of mold assessment or mold remediation.

 5         (n)  Committing gross negligence, repeated negligence,

 6  or negligence resulting in a significant danger to life or

 7  property in the practice of mold assessment or mold

 8  remediation.

 9         (o)  Failing to satisfy, within a reasonable time, the

10  terms of a civil judgment obtained against the licensee, or

11  the business organization qualified by the licensee, relating

12  to the practice of the licensee's profession.

13  

14  For the purposes of this subsection, mold assessment or mold

15  remediation is considered to be commenced when the contract is

16  executed and the mold assessor or mold remediator has accepted

17  funds from the customer or lender.

18         (2)  If a mold assessor or mold remediator disciplined

19  under subsection (1) is a qualifying agent for a business

20  organization and the violation was performed in connection

21  with any mold assessment, mold assessment-related activities,

22  mold remediation, or mold remediation-related activities

23  undertaken by that business organization, the board may impose

24  an additional administrative fine not to exceed $5,000 per

25  violation against the business organization or against any

26  partner, officer, director, trustee, or member of the

27  organization if that person participated in the violation or

28  knew or should have known of the violation and failed to take

29  reasonable corrective action.

30         (3)  The board may, by rule, specify the acts or

31  omissions that constitute violations of this section.

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 1         (4)  In recommending penalties in any proposed

 2  recommended final order, the department shall follow the

 3  penalty guidelines established by the board by rule. The

 4  department shall advise the administrative law judge of the

 5  appropriate penalty, including mitigating and aggravating

 6  circumstances, and the specific rule citation.

 7         (5)  The board may not reinstate the license or

 8  certificate of authority of, or cause a license or certificate

 9  of authority to be issued to, a person who or business

10  organization that the board has determined is unqualified or

11  whose license or certificate of authority the board has

12  suspended, until it is satisfied that the person or business

13  organization has complied with all the terms and conditions

14  set forth in the final order and is capable of competently

15  engaging in the business of mold assessment or mold

16  remediation.

17         (6)  The board may assess interest or penalties on all

18  fines imposed under this part against any person or business

19  organization that has not paid the imposed fine by the due

20  date established by rule or final order. Chapter 120 does not

21  apply to such assessment. Interest rates to be imposed must be

22  established by rule and may not be usurious.

23         (7)  The board may not issue a license or certificate

24  of authority, or a renewal thereof, to any person or business

25  organization that has been assessed a fine, interest, or costs

26  associated with investigation and prosecution, or has been

27  ordered to pay restitution, until the fine, interest, or costs

28  associated with investigation and prosecution or restitution

29  are paid in full or until all terms and conditions of the

30  final order have been satisfied.

31  

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 1         (8)  Any person licensed pursuant to this part who has

 2  had his or her license revoked is ineligible to be a partner,

 3  officer, director, or trustee of a business organization

 4  defined by this section or to be employed in a managerial or

 5  supervisory capacity for a 5-year period. The person is also

 6  ineligible to reapply for licensure under this part for a

 7  period of 5 years after the effective date of the revocation.

 8         (9)  If a business organization or any of its partners,

 9  officers, directors, trustees, or members is or has previously

10  been fined for violating subsection (2) the board may, on that

11  basis alone, revoke, suspend, place on probation, or deny

12  issuance of a license to a qualifying agent or financially

13  responsible officer of that business organization.

14         (10)(a)  Notwithstanding chapters 120 and 455, upon

15  receipt of a legally sufficient consumer complaint alleging a

16  violation of this part, the department may provide by rule for

17  binding arbitration between the complainant and the

18  certificateholder or registrant, if:

19         1.  There is evidence that the complainant has suffered

20  or is likely to suffer monetary damages resulting from the

21  violation of this part;

22         2.  The licensee does not have a history of repeated or

23  similar violations;

24         3.  Reasonable grounds exist to believe that the public

25  interest will be better served by arbitration than by

26  disciplinary action; and

27         4.  The complainant and licensee have not previously

28  entered into private arbitration, and a civil court action

29  based on the same transaction has not been filed.

30         (b)  The licensee and the complainant may consent in

31  writing to binding arbitration within 15 days following

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 1  notification of this process by the department. The department

 2  may suspend all action in the matter for 45 days when notice

 3  of consent to binding arbitration is received by the

 4  department. If the arbitration process is successfully

 5  concluded within the 60-day period, the department may close

 6  the case file with a notation of the disposition, and the

 7  licensee's record must reflect only that a complaint was filed

 8  and resolved through arbitration.

 9         (c)  If a complaint meets the criteria for arbitration

10  set forth in paragraph (a) and the damages at issue are less

11  than $2,500, the department shall refer the complaint for

12  mandatory binding arbitration.

13         (d)  The arbitrator's order shall be adopted as a final

14  order of the board.

15         (11)  If an investigation of a mold assessor or mold

16  remediator is undertaken, the department shall promptly

17  furnish to the mold assessor or mold remediator or the mold

18  assessor's or mold remediator's attorney a copy of the

19  complaint or document that resulted in the initiation of the

20  investigation. The department shall make the complaint and

21  supporting documents available to the mold assessor or mold

22  remediator. The complaint or supporting documents must contain

23  information regarding the specific facts that serve as the

24  basis for the complaint. The mold assessor or mold remediator

25  may submit a written response to the information contained in

26  the complaint or document within 20 days after service to the

27  mold assessor or mold remediator of the complaint or document.

28  The mold assessor's or mold remediator's written response must

29  be considered by the probable cause panel. The right to

30  respond does not prohibit the issuance of a summary emergency

31  order if necessary to protect the public. However, if the

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 1  secretary, or the secretary's designee, and the chair of the

 2  board or the chair of the probable cause panel agree in

 3  writing that such notification would be detrimental to the

 4  investigation, the department may withhold notification. The

 5  department may conduct an investigation without notification

 6  to a mold assessor or mold remediator if the act under

 7  investigation is a criminal offense.

 8         Section 16.  Section 489.615, Florida Statutes, is

 9  created to read:

10         489.615  Prohibitions; penalties.--

11         (1)  A person may not:

12         (a)  Falsely hold himself or herself or a business

13  organization out as a licensee;

14         (b)  Falsely impersonate a licensee;

15         (c)  Present as his or her own the license or

16  certificate of authority of another;

17         (d)  Knowingly give false or forged evidence to the

18  board or a member thereof;

19         (e)  Use or attempt to use a license that has been

20  suspended or revoked;

21         (f)  Engage in the business or act in the capacity of a

22  mold assessor or mold remediator or advertise himself or

23  herself or a business organization as available to engage in

24  the business or act in the capacity of a mold assessor or mold

25  remediator without being duly licensed; or

26         (g)  Operate a business organization engaged in mold

27  assessment or mold remediation after 60 days following the

28  termination of its only qualifying agent without designating

29  another primary qualifying agent, except as provided in ss.

30  489.608 and 489.609;

31  

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 1  For purposes of this subsection, a person or business

 2  organization operating on an inactive or suspended license or

 3  certificate of authority is considered unlicensed.

 4         (2)(a)  An unlicensed person who violates subsection

 5  (1) commits a misdemeanor of the first degree, punishable as

 6  provided in s. 775.082 or s. 775.083.

 7         (b)  An unlicensed person who commits a violation of

 8  subsection (1) after having been previously found guilty of

 9  such a violation commits a felony of the third degree,

10  punishable as provided in s. 775.082 or s. 775.083.

11         (c)  An unlicensed person who commits a violation of

12  subsection (1) during the existence of a state of emergency

13  declared by executive order of the Governor commits a felony

14  of the third degree, punishable as provided in s. 775.082 or

15  s. 775.083.

16         (3)(a)  A licensed mold assessor or mold remediator may

17  not enter into an agreement, oral or written, whereby his or

18  her license number is used, or is to be used, by a person who

19  is not licensed as provided for in this part, or is used, or

20  is to be used, by a business organization that is not duly

21  qualified as provided for in this part, to engage in the

22  business or act in the capacity of a mold assessor or mold

23  remediator.

24         (b)  A licensed mold assessor or mold remediator may

25  not knowingly allow his or her license number to be used by a

26  person who is not licensed as provided for in this part, or

27  used by a business organization that is not qualified as

28  provided for in this part, to engage in the business or act in

29  the capacity of a mold assessor or mold remediator.

30         Section 17.  Section 489.616, Florida Statutes, is

31  created to read:

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 1         489.616  Multiple services.--The board shall, by rule,

 2  provide when and in what manner a licensee may perform both

 3  mold assessment and mold remediation on the same contract or

 4  project.

 5         Section 18.  Section 489.618, Florida Statutes, is

 6  created to read:

 7         489.618  Presumption.--Notwithstanding any law to the

 8  contrary, in a civil action against a person or entity duly

 9  licensed under and in compliance with the requirements of this

10  part and alleging mold or fungal injuries to persons or

11  damages to property, there is a rebuttable presumption that

12  any work performed in accordance with all applicable building

13  codes and all assessment and remediation standards adopted by

14  the board is not negligent. This presumption applies to any

15  person or entity that, in return for compensation, obtains and

16  relies on the opinion of a person or entity duly licensed

17  under and in compliance with the requirements of this part.

18  There is a rebuttable presumption that any work not performed

19  in accordance with all applicable building codes and all

20  assessment and remediation standards adopted by the board is

21  negligent per se. The presumptions set forth in this section

22  do not apply to actions alleging gross negligence.

23         Section 19.  If any provision of this act or its

24  application to any person or circumstance is held invalid, the

25  invalidity does not affect other provisions or applications of

26  the act which can be given effect without the invalid

27  provision or application, and to this end the provisions of

28  this act are severable.

29         Section 20.  Subsection (2) of section 489.107, Florida

30  Statutes, is amended to read:

31         489.107  Construction Industry Licensing Board.--

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 1         (2)  The board shall consist of 19 18 members, of whom:

 2         (a)  Four are primarily engaged in business as general

 3  contractors;

 4         (b)  Three are primarily engaged in business as

 5  building contractors or residential contractors, however, at

 6  least one building contractor and one residential contractor

 7  shall be appointed;

 8         (c)  One is primarily engaged in business as a roofing

 9  contractor;

10         (d)  One is primarily engaged in business as a sheet

11  metal contractor;

12         (e)  One is primarily engaged in business as an

13  air-conditioning contractor;

14         (f)  One is primarily engaged in business as a

15  mechanical contractor;

16         (g)  One is primarily engaged in business as a pool

17  contractor;

18         (h)  One is primarily engaged in business as a plumbing

19  contractor;

20         (i)  One is primarily engaged in business as an

21  underground utility and excavation contractor;

22         (j)  One is primarily engaged in business as a mold

23  assessor or mold remediator;

24         (k)(j)  Two are consumer members who are not, and have

25  never been, members or practitioners of a profession regulated

26  by the board or members of any closely related profession; and

27         (l)(k)  Two are building officials of a municipality or

28  county.

29         Section 21.  For the 2005-2006 fiscal year, the sum of

30  $294,776 is appropriated from the Professional Regulation

31  Trust Fund and three additional positions are authorized to

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 1  the Department of Business and Professional Regulation for the

 2  purpose of conducting licensing and regulatory activities

 3  associated with mold assessment and remediation.

 4         Section 22.  This act shall take effect October 1,

 5  2005.

 6  

 7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 8                              SB 590

 9                                 

10  The committee substitute exempts from licensure, an individual
    in the manufactured housing industry who is licensed under
11  chapter 320.

12  It modifies the definition of mold by clarifying that mold
    means an organism of the class fungi that causes
13  disintegration of organic matter and produces spores, and
    includes any spores, hyphae, and mycotoxins produced by mold.
14  
    It clarifies that a mold remediator cannot perform work
15  required by a contractor licensed under ch. 489 unless they
    are also licensed under ch. 489 to perform that type of work.
16  
    It replaces workers' compensation and public liability
17  insurance with "insurance coverage required under the act" to
    the types of insurance the licensee cannot falsely claim to
18  have.

19  It includes the word "binding" in the phrase mandatory
    arbitration and it provides that a mandatory binding
20  arbitration order shall be a final order of the board.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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