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.