2012 Florida Statutes
Conditions for recovery; eligibility.
Conditions for recovery; eligibility.
489.141 Conditions for recovery; eligibility.—
(1) Any claimant is eligible to seek recovery from the recovery fund after having made a claim and exhausting the limits of any available bond, cash bond, surety, guarantee, warranty, letter of credit, or policy of insurance, provided that each of the following conditions is satisfied:
(a) The claimant has received final judgment in a court of competent jurisdiction in this state or has received an award in arbitration or the Construction Industry Licensing Board has issued a final order directing the licensee to pay restitution to the claimant. The board may waive this requirement if:
1. The claimant is unable to secure a final judgment against the licensee due to the death of the licensee; or
2. The claimant has sought to have assets involving the transaction that gave rise to the claim removed from the bankruptcy proceedings so that the matter might be heard in a court of competent jurisdiction in this state and, after due diligence, the claimant is precluded by action of the bankruptcy court from securing a final judgment against the licensee.
(b) The judgment, award, or restitution is based upon a violation of s. 489.129(1)(g), (j), or (k) or s. 713.35.
(c) The violation was committed by a licensee.
(d) The judgment, award, or restitution order specifies the actual damages suffered as a consequence of such violation.
(e) The contract was executed and the violation occurred on or after July 1, 1993, and provided that:
1. The claimant has caused to be issued a writ of execution upon such judgment, and the officer executing the writ has made a return showing that no personal or real property of the judgment debtor or licensee liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor’s or licensee’s property pursuant to such execution was insufficient to satisfy the judgment;
2. If the claimant is unable to comply with subparagraph 1. for a valid reason to be determined by the board, the claimant has made all reasonable searches and inquiries to ascertain whether the judgment debtor or licensee is possessed of real or personal property or other assets subject to being sold or applied in satisfaction of the judgment and by his or her search has discovered no property or assets or has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment but the amount thereby realized was insufficient to satisfy the judgment; and
3. The claimant has made a diligent attempt, as defined by board rule, to collect the restitution awarded by the board.
(f) A claim for recovery is made within 1 year after the conclusion of any civil, criminal, or administrative action or award in arbitration based on the act. This paragraph applies to any claim filed with the board after October 1, 1998.
(g) Any amounts recovered by the claimant from the judgment debtor or licensee, or from any other source, have been applied to the damages awarded by the court or the amount of restitution ordered by the board.
(h) The claimant is not a person who is precluded by this act from making a claim for recovery.
(2) A claimant is not qualified to make a claim for recovery from the recovery fund, if:
(a) The claimant is the spouse of the judgment debtor or licensee or a personal representative of such spouse;
(b) The claimant is a licensee who acted as the contractor in the transaction which is the subject of the claim;
(c) The claim is based upon a construction contract in which the licensee was acting with respect to the property owned or controlled by the licensee;
(d) The claim is based upon a construction contract in which the contractor did not hold a valid and current license at the time of the construction contract;
(e) The claimant was associated in a business relationship with the licensee other than the contract at issue;
(f) The claimant has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713; or
(g) The claimant has contracted with a licensee to perform a scope of work described in s. 489.105(3)(d)-(p).
(3) The board may determine by rule documentation that is required to complete a claim.
History.—s. 21, ch. 93-166; s. 266, ch. 94-119; s. 489, ch. 97-103; s. 32, ch. 98-419; s. 39, ch. 2000-154; s. 4, ch. 2004-84; s. 16, ch. 2011-222; s. 17, ch. 2012-72.