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The Florida Senate

2018 Florida Statutes

Title XXXII REGULATION OF PROFESSIONS AND OCCUPATIONS
Chapter 489 CONTRACTING Entire Chapter
SECTION 127
Prohibitions; penalties.
F.S. 489.127
489.127 Prohibitions; penalties.—
(1) No person shall:
(a) Falsely hold himself or herself or a business organization out as a licensee, certificateholder, or registrant;
(b) Falsely impersonate a certificateholder or registrant;
(c) Present as his or her own the certificate or registration of another;
(d) Knowingly give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a certificate or registration that has been suspended or revoked;
(f) Engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified;
(g) Operate a business organization engaged in contracting after 60 days following the termination of its only qualifying agent without designating another primary qualifying agent, except as provided in ss. 489.119 and 489.1195;
(h) Commence or perform work for which a building permit is required pursuant to part IV of chapter 553 without such building permit being in effect; or
(i) Willfully or deliberately disregard or violate any municipal or county ordinance relating to uncertified or unregistered contractors.

For purposes of this subsection, a person or business organization operating on an inactive or suspended certificate or registration is not duly certified or registered and is considered unlicensed. A business tax receipt issued under the authority of chapter 205 is not a license for purposes of this part.

(2)(a) Any unlicensed person who violates any of the provisions of subsection (1) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any unlicensed person who commits a violation of subsection (1) after having been previously found guilty of such violation commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(c) Any unlicensed person who commits a violation of subsection (1) during the existence of a state of emergency declared by executive order of the Governor commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(d) Any person who operates as a pollutant storage systems contractor, precision tank tester, or internal pollutant storage tank lining applicator in violation of subsection (1) commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

The remedies set forth in this subsection are not exclusive and may be imposed in addition to the remedies set forth in s. 489.129(2).

(3) The department may issue a stop-work order for all unlicensed work on a project upon finding probable cause to believe that construction work which requires certification or registration is being performed without a current, valid certificate or registration. Stop-work orders may be enforced using any cease and desist or other related action by the department as set forth in s. 455.228.
(4)(a) A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not enter into an agreement, oral or written, whereby his or her certification number or registration number is used, or to be used, by a person who is not certified or registered as provided for in this chapter, or used, or to be used, by a business organization that is not duly qualified as provided for in this chapter to engage in the business, or act in the capacity, of a contractor.
(b) A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not knowingly allow his or her certification number or registration number to be used by a person who is not certified or registered as provided for in this chapter, or used by a business organization that is not qualified as provided for in this chapter to engage in the business, or act in the capacity of, a contractor.
(c) A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not apply for or obtain a building permit for construction work unless the certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, or business organization duly qualified by said contractor, has entered into a contract to make improvements to, or perform the contracting at, the real property specified in the application or permit. This paragraph does not prohibit a contractor from applying for or obtaining a building permit to allow the contractor to perform work for another person without compensation or to perform work on property that is owned by the contractor.
(d)1. A person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
2. A person who violates this subsection after having been previously found guilty of such violation commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(5) Each county or municipality may, at its option, designate one or more of its code enforcement officers, as defined in chapter 162, to enforce, as set out in this subsection, the provisions of subsection (1) and s. 489.132(1) against persons who engage in activity for which a county or municipal certificate of competency or license or state certification or registration is required.
(a) A code enforcement officer designated pursuant to this subsection may issue a citation for any violation of subsection (1) or s. 489.132(1) whenever, based upon personal investigation, the code enforcement officer has reasonable and probable grounds to believe that such a violation has occurred.
(b) A citation issued by a code enforcement officer shall be in a form prescribed by the local governing body of the county or municipality and shall state:
1. The time and date of issuance.
2. The name and address of the person to whom the citation is issued.
3. The time and date of the violation.
4. A brief description of the violation and the facts constituting reasonable cause.
5. The name of the code enforcement officer.
6. The procedure for the person to follow in order to pay the civil penalty or to contest the citation.
7. The applicable civil penalty if the person elects not to contest the citation.
(c) The local governing body of the county or municipality may enforce codes and ordinances against unlicensed contractors under the provisions of this subsection and may enact an ordinance establishing procedures for implementing this subsection, including a schedule of penalties to be assessed by the code enforcement officer. The maximum civil penalty which may be levied may not exceed $2,000. Moneys collected pursuant to this subsection shall be retained locally, as provided for by local ordinance, and may be set aside in a specific fund to support future enforcement activities against unlicensed contractors.
(d) The act for which the citation is issued shall be ceased upon receipt of the citation; and the person charged with the violation shall elect either to correct the violation and pay the civil penalty in the manner indicated on the citation or, within 10 days of receipt of the citation, exclusive of weekends and legal holidays, request an administrative hearing before the enforcement or licensing board or designated special magistrate to appeal the issuance of the citation by the code enforcement officer.
1. Hearings shall be held before an enforcement or licensing board or designated special magistrate as established by s. 162.03(2), and such hearings shall be conducted pursuant to the requirements of ss. 162.07 and 162.08.
2. Failure of a violator to appeal the decision of the code enforcement officer within the time period set forth in this paragraph shall constitute a waiver of the violator’s right to an administrative hearing. A waiver of the right to an administrative hearing shall be deemed an admission of the violation, and penalties may be imposed accordingly.
3. If the person issued the citation, or his or her designated representative, shows that the citation is invalid or that the violation has been corrected prior to appearing before the enforcement or licensing board or designated special magistrate, the enforcement or licensing board or designated special magistrate may dismiss the citation unless the violation is irreparable or irreversible.
4. Each day a willful, knowing violation continues shall constitute a separate offense under the provisions of this subsection.
(e) A person cited for a violation pursuant to this subsection is deemed to be charged with a noncriminal infraction.
(f) If the enforcement or licensing board or designated special magistrate finds that a violation exists, the enforcement or licensing board or designated special magistrate may order the violator to pay a civil penalty of not less than the amount set forth on the citation but not more than $2,500 per day for each violation. In determining the amount of the penalty, the enforcement or licensing board or designated special magistrate shall consider the following factors:
1. The gravity of the violation.
2. Any actions taken by the violator to correct the violation.
3. Any previous violations committed by the violator.
(g) Upon written notification by the code enforcement officer that a violator had not contested the citation or paid the civil penalty within the timeframe allowed on the citation, or if a violation has not been corrected within the timeframe set forth on the notice of violation, the enforcement or licensing board or the designated special magistrate shall enter an order ordering the violator to pay the civil penalty set forth on the citation or notice of violation, and a hearing shall not be necessary for the issuance of such order.
(h) A certified copy of an order imposing a civil penalty against an uncertified contractor may be recorded in the public records and thereafter shall constitute a lien against any real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judgment by the sheriffs of this state, including a levy against personal property; however, such order shall not be deemed to be a court judgment except for enforcement purposes. A civil penalty imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this subsection, whichever occurs first. After 3 months from the filing of any such lien which remains unpaid, the enforcement board or licensing board or designated special magistrate may authorize the local governing body’s attorney to foreclose on the lien. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution.
(i) This subsection does not authorize or permit a code enforcement officer to perform any function or duty of a law enforcement officer other than a function or duty that is authorized in this subsection.
(j) An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board or licensing board or designated special magistrate to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board or licensing board or designated special magistrate. An appeal shall be filed within 30 days of the execution of the order to be appealed.
(k) All notices required by this subsection shall be provided to the alleged violator by certified mail, return receipt requested; by hand delivery by the sheriff or other law enforcement officer or code enforcement officer; by leaving the notice at the violator’s usual place of residence with some person of his or her family above 15 years of age and informing such person of the contents of the notice; or by including a hearing date within the citation.
(l) For those counties which enact ordinances to implement this subsection and which have local construction licensing boards or local government code enforcement boards, the local construction licensing board or local government code enforcement board shall be responsible for the administration of such citation program and training of code enforcement officers. The local governing body of the county shall enter into interlocal agreements with any municipalities in the county so that such municipalities may, by ordinance, resolution, policy, or administrative order, authorize individuals to enforce the provisions of this subsection. Such individuals shall be subject to the requirements of training as specified by the local construction licensing board.
(m) Any person who willfully refuses to sign and accept a citation issued by a code enforcement officer commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(n) Nothing contained in this subsection shall prohibit a county or municipality from enforcing its codes or ordinances by any other means.
(o) Nothing in this subsection shall be construed to authorize local jurisdictions to exercise disciplinary authority or procedures established in this subsection against an individual holding a proper valid certificate issued pursuant to this part.
(6) Local building departments may collect outstanding fines against registered or certified contractors issued by the Construction Industry Licensing Board and may retain 75 percent of the fines they are able to collect, provided that they transmit 25 percent of the fines they are able to collect to the department according to a procedure to be determined by the department.
History.—ss. 13, 17, ch. 79-200; ss. 13, 15, 25, 30, 34, 58, 62, ch. 80-406; s. 370, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 30, 31, ch. 86-159; s. 11, ch. 87-310; ss. 13, 20, 21, ch. 88-156; s. 3, ch. 89-343; s. 39, ch. 90-228; s. 38, ch. 91-137; s. 255, ch. 91-224; s. 4, ch. 91-429; s. 5, ch. 92-55; s. 69, ch. 92-149; s. 16, ch. 93-166; s. 264, ch. 94-119; s. 3, ch. 95-240; s. 8, ch. 96-298; s. 73, ch. 96-388; s. 1128, ch. 97-103; s. 10, ch. 97-228; s. 23, ch. 98-287; s. 86, ch. 2004-11; s. 117, ch. 2007-5; s. 131, ch. 2008-4; s. 32, ch. 2009-195; s. 9, ch. 2013-193.
Note.—Subsection (4) former s. 489.1265.