Florida Senate - 2013                                    SB 1462
       
       
       
       By Senator Dean
       
       
       
       
       5-01415-13                                            20131462__
    1                        A bill to be entitled                      
    2         An act relating to the Homeowners’ Construction
    3         Recovery Fund; amending s. 489.140, F.S.; revising the
    4         surcharge funding calculation; amending s. 489.1401,
    5         F.S.; requiring Division II contractors to participate
    6         in the fund; amending s. 489.1402, F.S.; revising
    7         definitions and removing obsolete definitions;
    8         amending s. 489.141, F.S.; revising the eligibility
    9         conditions for recovery; amending s. 489.1425, F.S.;
   10         revising the notice to residential property owners
   11         regarding recovery from the fund; amending s. 489.143,
   12         F.S.; revising the limits for payments for claims;
   13         providing limits for claims made for Division II
   14         claims; removing obsolete provisions; providing an
   15         effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 489.140, Florida Statutes, is amended to
   20  read:
   21         489.140 Florida Homeowners’ Construction Recovery Fund.
   22  There is created the Florida Homeowners’ Construction Recovery
   23  Fund as a separate account in the Professional Regulation Trust
   24  Fund. The recovery fund is shall be funded out of the receipts
   25  deposited in the Professional Regulation Trust Fund from the
   26  one-half cent per square foot surcharge on building permits
   27  collected and disbursed pursuant to s. 468.631.
   28         Section 2. Subsection (3) of section 489.1401, Florida
   29  Statutes, is amended to read:
   30         489.1401 Legislative intent.—
   31         (3) It is the intent of the Legislature that Division I and
   32  Division II contractors set apart funds for the specific
   33  objective of participating in the fund.
   34         Section 3. Section 489.1402, Florida Statutes, is amended
   35  to read:
   36         489.1402 Homeowners’ Construction Recovery Fund;
   37  definitions.—
   38         (1) The following definitions apply to ss. 489.140-489.144:
   39         (1)(a) “Arbitration” means alternative dispute resolution
   40  entered into between a claimant and a contractor either pursuant
   41  to a construction contract that contains a mandatory arbitration
   42  clause or through any binding arbitration under the Florida
   43  Arbitration Code.
   44         (2)(b) “Board” means the Construction Industry Licensing
   45  Board.
   46         (3)(c) “Claimant” means a homeowner.
   47         (4)(d) “Contractor” means a Division I or Division II
   48  contractor performing services described in s. 489.105(3)(a)-(q)
   49  489.105(3)(a)-(c).
   50         (5)(e) “Court of competent jurisdiction” means a civil or
   51  criminal court in the State of Florida, or a bankruptcy court.
   52         (6)(f) “Homeowner” means the owner of an owner-occupied
   53  residence, including a trustee based upon a trust instrument
   54  granting a person a beneficial interest for life in the
   55  residence.
   56         (7)(g) “Licensee” means a contractor, financially
   57  responsible officer, or business organization licensed under
   58  this part at the time the violation was committed.
   59         (8)(h) “Notice” means service as described in s. 455.275.
   60         (9)(i) “Residence” means a single-family residence or an
   61  individual residential condominium or cooperative unit or a
   62  residential building containing not more than two residential
   63  units in which the owner contracting for the improvement is
   64  residing or will reside 6 months or more each calendar year upon
   65  completion of the improvement.
   66         (10)(j) “Recovery fund” means the Florida Homeowners’
   67  Construction Recovery Fund.
   68         (11)(k) “Same transaction” means a contract, or a any
   69  series of contracts, between a claimant and a contractor or
   70  qualified business, when such contract or contracts involve the
   71  same property or contiguous properties and are entered into
   72  either at one time or serially.
   73         (12)(l) “Valid and current license,” for the purpose of s.
   74  489.141(2)(d), means a any license issued pursuant to this part
   75  to a licensee, including a license in an active, inactive,
   76  delinquent, or suspended status.
   77         (2) The following definitions apply to claims made prior to
   78  July 1, 2007, when the contract was executed and the violation
   79  occurred on or before January 1, 2005.
   80         (a) “Claimant” means a natural person.
   81         (b) “Licensee” means a contractor, financially responsible
   82  officer, or business organization licensed under this part at
   83  the time the violation was committed.
   84         Section 4. Subsection (2) of section 489.141, Florida
   85  Statutes, is amended to read:
   86         489.141 Conditions for recovery; eligibility.—
   87         (2) A claimant is not qualified to make a claim for
   88  recovery from the recovery fund, if:
   89         (a) The claimant is the spouse of the judgment debtor or
   90  licensee or a personal representative of such spouse;
   91         (b) The claimant is a licensee who acted as the contractor
   92  in the transaction that which is the subject of the claim;
   93         (c) The claim is based upon a construction contract in
   94  which the licensee was acting with respect to the property owned
   95  or controlled by the licensee;
   96         (d) The claim is based upon a construction contract in
   97  which the contractor did not hold a valid and current license at
   98  the time of the construction contract; or
   99         (e) The claimant was associated in a business relationship
  100  with the licensee other than the contract at issue.;
  101         (f) The claimant has suffered damages as the result of
  102  making improper payments to a contractor as defined in part I of
  103  chapter 713; or
  104         (g) The claimant has contracted with a licensee to perform
  105  a scope of work described in s. 489.105(3)(d)-(p).
  106         Section 5. Section 489.1425, Florida Statutes, is amended
  107  to read:
  108         489.1425 Duty of contractor to notify residential property
  109  owner of recovery fund.—
  110         (1) Each Any agreement or contract for repair, restoration,
  111  improvement, or construction to residential real property must
  112  contain a written statement explaining the consumer’s rights
  113  under the recovery fund, except where the value of all labor and
  114  materials does not exceed $2,500. The written statement must be
  115  substantially in the following form:
  116  
  117                  FLORIDA HOMEOWNERS’ CONSTRUCTION                 
  118                            RECOVERY FUND                          
  119                 (For contracts that exceed $2,500)                
  120  
  121         PAYMENT, UP TO A LIMITED AMOUNT, MAY BE AVAILABLE FROM
  122         THE FLORIDA HOMEOWNERS’ CONSTRUCTION RECOVERY FUND IF
  123         YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT,
  124         WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF
  125         FLORIDA LAW BY A LICENSED CONTRACTOR, WHERE THE VALUE
  126         OF ALL LABOR AND MATERIALS EXCEEDS $2,500, AND WHERE A
  127         CLAIMANT HAS MET EACH OF THE CONDITIONS PRESCRIBED IN
  128         SECTION 489.141, FLORIDA STATUTES. PAYMENT CANNOT BE
  129         GUARANTEED. FOR INFORMATION ABOUT THE RECOVERY FUND
  130         AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION
  131         INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE
  132         NUMBER AND ADDRESS:
  133  
  134         (contractor’s signature and date)
  135         (homeowner’s signature and date)
  136  
  137  The statement must shall be immediately followed by the board’s
  138  address and telephone number as established by board rule.
  139         (2)(a) Upon finding a first violation of subsection (1),
  140  the board may fine the contractor up to $500, and the moneys
  141  must be deposited into the recovery fund.
  142         (b) Upon finding a second or subsequent violation of
  143  subsection (1), the board shall fine the contractor $1,000 per
  144  violation, and the moneys must be deposited into the recovery
  145  fund.
  146         Section 6. Subsections (2) and (5) of section 489.143,
  147  Florida Statutes, are amended to read:
  148         489.143 Payment from the fund.—
  149         (2) A Any claimant who meets all of the conditions
  150  prescribed in s. 489.141 may apply to the board to cause payment
  151  to be made to a claimant from the recovery fund in an amount
  152  equal to the judgment, award, or restitution order or $25,000,
  153  whichever is less, or an amount equal to the unsatisfied portion
  154  of such person’s judgment, award, or restitution order, but only
  155  to the extent and amount of actual damages suffered by the
  156  claimant. Payment from the fund for other costs related to or
  157  pursuant to civil proceedings such as postjudgment interest,
  158  attorney attorney’s fees, court costs, medical damages, and
  159  punitive damages is prohibited. The recovery fund is not
  160  obligated to pay a any judgment, award, or restitution order, or
  161  any portion thereof, which is not expressly based on one of the
  162  grounds for recovery set forth in s. 489.141. Beginning January
  163  1, 2005, for each contract entered after July 1, 2004, payment
  164  from the recovery fund is shall be subject to a $50,000 maximum
  165  payment for each Division I claim. Beginning January 1, 2014,
  166  for each contract entered into on or after July 1, 2013, payment
  167  from the recovery fund is subject to a $25,000 maximum payment
  168  for each Division II claim.
  169         (5) Payments for claims against a any one licensee may
  170  shall not exceed, in the aggregate, $100,000 annually, up to a
  171  total aggregate cap of $500,000 for each Division I licensee and
  172  up to a total aggregate cap of $250,000 for each Division II
  173  licensee. For a any claim approved by the board which is in
  174  excess of the annual cap per licensee, the amount in excess of
  175  $100,000 up to the total aggregate cap per licensee of $250,000
  176  is eligible for payment in the next and succeeding fiscal years,
  177  but only after all claims for the then-current calendar year
  178  have been paid. Payments may not exceed the aggregate annual or
  179  per claimant limits under law. Beginning January 1, 2005, for
  180  each contract entered into after July 1, 2004, payment from the
  181  recovery fund is subject only to a total aggregate cap of
  182  $500,000.
  183         Section 7. This act shall take effect July 1, 2013.