House Bill 0681e1
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CS/HB 681, First Engrossed
1 A bill to be entitled
2 An act relating to construction; creating s.
3 47.025, F.S.; providing that certain venue
4 provisions in a contract for improvement of
5 real property are void; specifying appropriate
6 venue for actions against resident contractors,
7 subcontractors, sub-subcontractors, and
8 materialmen; amending s. 468.621, F.S.;
9 amending certain grounds for disciplinary
10 action against building code administrators and
11 building officials; amending s. 255.05, F.S.,
12 relating to payment bonds of contractors
13 constructing public buildings; providing that
14 the time periods required for providing certain
15 notices or bringing certain actions are not
16 determined by the issuance of a certificate of
17 occupancy or a certificate of substantial
18 completion; amending s. 713.06, F.S.;
19 clarifying certain notice requirements with
20 respect to perfecting a lien for labor,
21 services, or materials furnished under
22 contract; amending s. 713.08, F.S.; providing
23 that the time period required for recording a
24 claim of lien is not determined by the issuance
25 of a certificate of occupancy or a certificate
26 of substantial completion; amending s. 713.135,
27 F.S.; clarifying circumstances under which an
28 entity issuing a building permit is subject to
29 disciplinary procedures; providing an
30 exception; amending s. 713.16, F.S.; providing
31 a definition; providing legislative intent;
1
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CS/HB 681, First Engrossed
1 amending s. 713.18, F.S., relating to service
2 of notices and other instruments; amending s.
3 713.23, F.S.; providing that the time periods
4 required for serving a notice of nonpayment or
5 bringing certain actions are not determined by
6 the issuance of a certificate of occupancy or a
7 certificate of substantial completion;
8 providing effective dates.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Section 47.025, Florida Statutes, is
13 created to read:
14 47.025 Actions against contractors.--Any venue
15 provision in a contract for improvement to real property which
16 requires legal action involving a resident contractor,
17 subcontractor, sub-subcontractor, or materialman, as defined
18 in s. 713.01, to be brought outside this state is void as a
19 matter of public policy. To the extent that the venue
20 provision in the contract is void under this section, any
21 legal action arising out of that contract shall be brought
22 only in this state in the county where the defendant resides,
23 where the cause of action accrued, or where the property in
24 litigation is located, unless, after the dispute arises, the
25 parties stipulate to another venue.
26 Section 2. Paragraph (a) of subsection (2) of section
27 255.05, Florida Statutes, 1998 Supplement, is amended to read:
28 255.05 Bond of contractor constructing public
29 buildings; form; action by materialmen.--
30 (2)(a)1. If a claimant is no longer furnishing labor,
31 services, or materials on a project, a contractor or the
2
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CS/HB 681, First Engrossed
1 contractor's agent or attorney may elect to shorten the
2 prescribed time in this paragraph within which an action to
3 enforce any claim against a payment bond provided pursuant to
4 this section may be commenced by recording in the clerk's
5 office a notice in substantially the following form:
6
7 NOTICE OF CONTEST OF CLAIM
8 AGAINST PAYMENT BOND
9
10
11 To: ...(Name and address of claimant)...
12 You are notified that the undersigned contests your
13 notice of nonpayment, dated ............, ........, and served
14 on the undersigned on ............, ........, and that the
15 time within which you may file suit to enforce your claim is
16 limited to 60 days after the date of service of this notice.
17
18 DATED on ............, .........
19
20
21 Signed:...(Contractor or Attorney)...
22
23
24 The claim of any claimant upon whom such notice is served and
25 who fails to institute a suit to enforce his or her claim
26 against the payment bond within 60 days after service of such
27 notice shall be extinguished automatically. The clerk shall
28 mail a copy of the notice of contest to the claimant at the
29 address shown in the notice of nonpayment or most recent
30 amendment thereto and shall certify to such service on the
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CS/HB 681, First Engrossed
1 face of such notice and record the notice. Service is complete
2 upon mailing.
3 2. A claimant, except a laborer, who is not in privity
4 with the contractor shall, before commencing or not later than
5 45 days after commencing to furnish labor, materials, or
6 supplies for the prosecution of the work, furnish the
7 contractor with a notice that he or she intends to look to the
8 bond for protection. A claimant who is not in privity with the
9 contractor and who has not received payment for his or her
10 labor, materials, or supplies shall deliver to the contractor
11 and to the surety written notice of the performance of the
12 labor or delivery of the materials or supplies and of the
13 nonpayment. The notice of nonpayment may be served at any time
14 during the progress of the work or thereafter but not before
15 45 days after the first furnishing of labor, services, or
16 materials, and not later than 90 days after the final
17 furnishing of the labor, services, or materials by the
18 claimant or, with respect to rental equipment, not later than
19 90 days after the date that the rental equipment was last on
20 the job site available for use. No action for the labor,
21 materials, or supplies may be instituted against the
22 contractor or the surety unless both notices have been given.
23 Notices required or permitted under this section may be served
24 in accordance with s. 713.18. An action, except for an action
25 exclusively for recovery of retainage, must be instituted
26 against the contractor or the surety on the payment bond or
27 the payment provisions of a combined payment and performance
28 bond within 1 year after the performance of the labor or
29 completion of delivery of the materials or supplies. An action
30 exclusively for recovery of retainage must be instituted
31 against the contractor or the surety within 1 year after the
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CS/HB 681, First Engrossed
1 performance of the labor or completion of delivery of the
2 materials or supplies, or within 90 days after the
3 contractor's receipt of final payment (or the payment estimate
4 containing the owner's final reconciliation of quantities if
5 no further payment is earned and due as a result of deductive
6 adjustments) by the contractor or surety, whichever comes
7 last. A claimant may not waive in advance his or her right to
8 bring an action under the bond against the surety. In any
9 action brought to enforce a claim against a payment bond under
10 this section, the prevailing party is entitled to recover a
11 reasonable fee for the services of his or her attorney for
12 trial and appeal or for arbitration, in an amount to be
13 determined by the court, which fee must be taxed as part of
14 the prevailing party's costs, as allowed in equitable actions.
15 The time periods for service of a notice of nonpayment or for
16 bringing an action against a contractor or a surety shall be
17 measured from the last day of furnishing labor, services, or
18 materials by the claimant and shall not be measured by other
19 standards, such as the issuance of a certificate of occupancy
20 or the issuance of a certificate of substantial completion.
21 Section 3. Effective upon becoming a law, subsection
22 (2) of section 713.06, Florida Statutes, 1998 Supplement, is
23 amended to read:
24 713.06 Liens of persons not in privity; proper
25 payments.--
26 (2)(a) All lienors under this section, except
27 laborers, as a prerequisite to perfecting a lien under this
28 chapter and recording a claim of lien, must serve a notice on
29 the owner setting forth the lienor's name and address, a
30 description sufficient for identification of the real
31 property, and the nature of the services or materials
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CS/HB 681, First Engrossed
1 furnished or to be furnished. A sub-subcontractor or a
2 materialman to a subcontractor must serve a copy of the notice
3 on the contractor as a prerequisite to perfecting a lien under
4 this chapter and recording a claim of lien. A materialman to a
5 sub-subcontractor must serve a copy of the notice to owner on
6 the contractor as a prerequisite to perfecting a lien under
7 this chapter and recording a claim of lien. A materialman to a
8 sub-subcontractor shall serve the notice to owner on the
9 subcontractor if the materialman knows the name and address of
10 the subcontractor. The notice must be served before
11 commencing, or not later than 45 days after commencing, to
12 furnish his or her labor, services, or materials, but, in any
13 event, before the date of the owner's disbursement of the
14 final payment after the contractor has furnished the affidavit
15 under subparagraph (3)(d)1. The notice must be served
16 regardless of the method of payments by the owner, whether
17 proper or improper, and does not give to the lienor serving
18 the notice any priority over other lienors in the same
19 category; and the failure to serve the notice, or to timely
20 serve it, is a complete defense to enforcement of a lien by
21 any person. The serving of the notice does not dispense with
22 recording the claim of lien. The notice is not a lien, cloud,
23 or encumbrance on the real property nor actual or constructive
24 notice of any of them.
25 (b) If the owner, in his or her notice of
26 commencement, has designated a person in addition to himself
27 or herself to receive a copy of such lienor's notice, as
28 provided in s. 713.13(1)(b), the lienor shall serve a copy of
29 his or her notice on the person so designated. The failure by
30 the lienor to serve such copy, however, does not invalidate an
31 otherwise valid lien.
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CS/HB 681, First Engrossed
1 (c) The notice may must be in substantially the
2 following form and must include the information and the
3 warning contained in the following form:
4
5 WARNING TO OWNER: UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE
6 THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY
7 AND YOUR PAYING TWICE.
8
9 TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN
10 RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR.
11
12 NOTICE TO OWNER
13
14 To ...(Owner's name and address)...
15
16 The undersigned hereby informs you that he or she has
17 furnished or is furnishing services or materials as follows:
18 ...(General description of services or materials)... for the
19 improvement of the real property identified as ...(property
20 description)... under an order given by.............
21
22 Florida law prescribes the serving of this notice and
23 restricts your right to make payments under your contract in
24 accordance with Section 713.06, Florida Statutes.
25
26 IMPORTANT INFORMATION FOR
27 YOUR PROTECTION
28
29 Under Florida's laws, those who work on your property
30 or provide materials and are not paid have a right to enforce
31
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CS/HB 681, First Engrossed
1 their claim for payment against your property. This claim is
2 known as a construction lien.
3 If your contractor fails to pay subcontractors or
4 material suppliers or neglects to make other legally required
5 payments, the people who are owed money may look to your
6 property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN
7 FULL.
8
9 PROTECT YOURSELF:
10 --RECOGNIZE that this Notice to Owner may result in a
11 lien against your property unless all those supplying a Notice
12 to Owner have been paid.
13 --LEARN more about the Construction Lien Law, Chapter
14 713, Part I, Florida Statutes, and the meaning of this notice
15 by contacting an attorney or the Florida Department of
16 Business and Professional Regulation.
17 ...(Lienor's Signature)...
18 ...(Lienor's Name)...
19 ...(Lienor's Address)...
20
21 Copies to: ...(Those persons listed in Section 713.06(2)(a)
22 and (b), Florida Statutes)...
23
24 The form may be combined with a notice to contractor given
25 under s. 713.23 or s. 255.05 and, if so, may be entitled
26 "NOTICE TO OWNER/NOTICE TO CONTRACTOR."
27
28 (d) A notice to an owner served on a lender must be in
29 writing, must be served in accordance with s. 713.18, and
30 shall be addressed to the persons designated, if any, and to
31 the place and address designated in the notice of
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CS/HB 681, First Engrossed
1 commencement. Any lender who, after receiving a notice
2 provided under this subsection, pays a contractor on behalf of
3 the owner for an improvement shall make proper payments as
4 provided in paragraph (3)(c) as to each such notice received
5 by the lender. The failure of a lender to comply with this
6 paragraph renders the lender liable to the owner for all
7 damages sustained by the owner as a result of that failure.
8 This paragraph does not give any person other than an owner a
9 claim or right of action against a lender for the failure of
10 the lender to comply with this paragraph. Further, this
11 paragraph does not prohibit a lender from disbursing
12 construction funds at any time directly to the owner, in which
13 event the lender has no obligation to make proper payments
14 under this paragraph.
15 (e) A lienor, in the absence of a recorded notice of
16 commencement, may rely on the information contained in the
17 building permit application to serve the notice prescribed in
18 paragraphs (a), (b), and (c).
19 (f) If a lienor has substantially complied with the
20 provisions of paragraphs (a), (b), and (c), errors or
21 omissions do not prevent the enforcement of a claim against a
22 person who has not been adversely affected by such omission or
23 error. However, a lienor must strictly comply with the time
24 requirements of paragraph (a).
25 Section 4. Subsection (5) of section 713.08, Florida
26 Statutes, 1998 Supplement, is amended to read:
27 713.08 Claim of lien.--
28 (5) The claim of lien may be recorded at any time
29 during the progress of the work or thereafter but not later
30 than 90 days after the final furnishing of the labor or
31 services or materials by the lienor; or, with respect to
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CS/HB 681, First Engrossed
1 rental equipment, within 90 days after the date that the
2 rental equipment was last on the job site available for use;
3 provided if the original contractor defaults or the contract
4 is terminated under s. 713.07(4), no claim for a lien
5 attaching prior to such default shall be recorded after 90
6 days from the date of such default or 90 days after the final
7 performance of labor or services or furnishing of materials,
8 whichever occurs first. The time period for recording a claim
9 of lien shall be measured from the last day of furnishing
10 labor, services, or materials by the lienor and shall not be
11 measured by other standards, such as the issuance of a
12 certificate of occupancy or the issuance of a certificate of
13 substantial completion. The claim of lien shall be recorded in
14 the clerk's office. If such real property is situated in two
15 or more counties, the claim of lien shall be recorded in the
16 clerk's office in each of such counties. The recording of the
17 claim of lien shall be constructive notice to all persons of
18 the contents and effect of such claim. The validity of the
19 lien and the right to record a claim therefor shall not be
20 affected by the insolvency, bankruptcy, or death of the owner
21 before the claim of lien is recorded.
22 Section 5. Subsection (1) of section 713.135, Florida
23 Statutes, 1998 Supplement, is amended to read:
24 713.135 Notice of commencement and applicability of
25 lien.--
26 (1) When any person applies for a building permit, the
27 authority issuing such permit shall:
28 (a) Print on the face of each permit card in no less
29 than 18-point, capitalized, boldfaced type: "WARNING TO
30 OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY
31 RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.
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CS/HB 681, First Engrossed
1 IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR
2 AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT."
3 (b) Provide the applicant and the owner of the real
4 property upon which improvements are to be constructed with a
5 printed statement stating that the right, title, and interest
6 of the person who has contracted for the improvement may be
7 subject to attachment under the Construction Lien Law. The
8 Department of Business and Professional Regulation shall
9 furnish, for distribution, the statement described in this
10 paragraph, and the statement must be a summary of the
11 Construction Lien Law and must include an explanation of the
12 provisions of the Construction Lien Law relating to the
13 recording, and the posting of copies, of notices of
14 commencement and a statement encouraging the owner to record a
15 notice of commencement and post a copy of the notice of
16 commencement thereof in accordance with s. 713.13. However,
17 the failure by the authorities to provide the summary does not
18 subject the issuing authority to liability.
19 (c) Inform each applicant who is not the person whose
20 right, title, and interest is subject to attachment that, as a
21 condition to the issuance of a building permit, the applicant
22 must promise in good faith that the statement will be
23 delivered to the person whose property is subject to
24 attachment.
25 (d) Furnish to the applicant two or more copies of a
26 form of notice of commencement conforming with s. 713.13. If
27 the direct contract is greater than $2,500, the applicant
28 shall file with the issuing authority prior to the first
29 inspection either a certified copy of the recorded notice of
30 commencement or a notarized statement that the notice of
31 commencement has been filed for recording, along with a copy
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CS/HB 681, First Engrossed
1 thereof. In the absence of the filing of a certified copy of
2 the recorded notice of commencement, the issuing authority
3 shall not perform or approve subsequent inspections until the
4 applicant files by mail, facsimile, hand delivery, or any
5 other means such certified copy with the issuing authority.
6 The certified copy of the notice of commencement must contain
7 the name and address of the owner, the name and address of the
8 contractor, and the location or address of the property being
9 improved. The issuing authority shall verify that the name and
10 address of the owner, the name of the contractor, and the
11 location or address of the property being improved which is
12 contained in the certified copy of the notice of commencement
13 is consistent with the information in the building permit
14 application. The issuing authority shall provide the recording
15 information on the certified copy of the recorded notice of
16 commencement to any person upon request. This subsection does
17 not require Nothing herein shall be interpreted as requiring
18 or encouraging the recording of a notice of commencement prior
19 to the issuance of a building permit. If a local government
20 requires a separate permit or inspection for installation of
21 temporary electrical service or other temporary utility
22 service, land clearing, or other preliminary site work, such
23 permits may be issued and such inspections may be conducted
24 without providing the issuing authority with a certified copy
25 of a recorded notice of commencement or a notarized statement
26 regarding a recorded notice of commencement. This subsection
27 does not apply to a direct contract to repair or replace an
28 existing heating or air-conditioning system in an amount less
29 than $5,000.
30
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CS/HB 681, First Engrossed
1 Section 6. (1) Upon this act becoming a law,
2 subsection (6) is added to section 713.16, Florida Statutes,
3 to read:
4 713.16 Demand for copy of contract and statements of
5 account; form.--
6 (6) For purposes of this section, the term
7 "information" means the nature and quantity of the labor,
8 services, and materials furnished or to be furnished by a
9 lienor and the amount paid, the amount due, and the amount to
10 become due on the lienor's account. The failure to furnish the
11 statement under oath does not constitute an omission of
12 information and shall deprive the lienor of his or her lien.
13 (2) The amendment to this section is remedial in
14 nature. The amendment is consistent with the plain meaning and
15 the original intent of s. 319 of chapter 94-119, Laws of
16 Florida. Accordingly, it is the intent of the Legislature that
17 the amendment to this section shall become effective
18 immediately upon becoming law, and shall apply retroactively
19 to May 4, 1994.
20 Section 7. Section 713.18, Florida Statutes, 1998
21 Supplement, is amended to read:
22 713.18 Manner of serving notices and other
23 instruments.--
24 (1) Service of notices, claims of lien, affidavits,
25 assignments, and other instruments permitted or required under
26 this part, or copies thereof when so permitted or required,
27 unless otherwise specifically provided in this part, must be
28 made by one of the following methods:
29 (a) By actual delivery to the person to be served; or,
30 if a partnership, to one of the partners; or, if a
31
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CS/HB 681, First Engrossed
1 corporation, to an officer, director, managing agent, or
2 business agent thereof.
3 (b) By mailing the same, postage prepaid, by
4 registered or certified mail to the person to be served at her
5 or his last known address and evidence of delivery. If a
6 notice to owner or a notice to contractor under s. 713.23 is
7 mailed pursuant to this paragraph within 40 days after the
8 date the lienor first furnishes labor, services, or materials,
9 service of that notice is effective as of the date of mailing
10 if the person who served the notice maintains a registered or
11 certified mail log that shows the date the notice was served,
12 the registered or certified mail number issued by the United
13 States Postal Service, the name and address of the person
14 served, and the date stamp of the United States Postal Service
15 confirming the date of mailing. If an instrument served
16 pursuant to this paragraph to the last address shown in the
17 notice of commencement or any amendment thereto or, in the
18 absence of a notice of commencement, to the last address shown
19 in the building permit application is not received, but is
20 returned by the United States Postal Service as being
21 "refused," "moved, not forwardable," or "unclaimed," or is
22 otherwise not delivered or deliverable through no fault of the
23 person serving the item, then service is effective as of the
24 date of mailing.
25 (c) If neither of the foregoing methods can be
26 accomplished, by posting on the premises.
27 (2) If the real property is owned by more than one
28 person, a lienor may serve any notices or other papers under
29 this part on any one of such owners, and such notice is deemed
30 notice to all owners.
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1 (3) Service of notices or copies thereof, permitted or
2 required under this part, may be made by facsimile
3 transmission when the person being served has listed that
4 person's facsimile phone number in the Notice of Commencement.
5 The lienor's facsimile confirmation sheet with the correct
6 facsimile phone number shall be proof of the date and time the
7 notice was served.
8 Section 8. Paragraphs (d) and (e) of subsection (1) of
9 section 713.23, Florida Statutes, 1998 Supplement, are amended
10 to read:
11 713.23 Payment bond.--
12 (1)
13 (d) In addition, a lienor is required, as a condition
14 precedent to recovery under the bond, to serve a written
15 notice of nonpayment to the contractor and the surety not
16 later than 90 days after the final furnishing of labor,
17 services, or materials by the lienor. A written notice
18 satisfies this condition precedent with respect to the payment
19 described in the notice of nonpayment and with respect to any
20 other payments which become due to the lienor after the date
21 of the notice of nonpayment. The time period for serving a
22 written notice of nonpayment shall be measured from the last
23 day of furnishing labor, services, or materials by the lienor
24 and shall not be measured by other standards, such as the
25 issuance of a certificate of occupancy or the issuance of a
26 certificate of substantial completion. The failure of a lienor
27 to receive retainage sums not in excess of 10 percent of the
28 value of labor, services, or materials furnished by the lienor
29 is not considered a nonpayment requiring the service of the
30 notice provided under this paragraph. The notice under this
31 paragraph may be in substantially the following form:
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CS/HB 681, First Engrossed
1
2 NOTICE OF NONPAYMENT
3
4 To ...(name of contractor and address)...
5
6 ...(name of surety and address)...
7
8 The undersigned notifies you that he or she has furnished
9 ...(describe labor, services, or materials)... for the
10 improvement of the real property identified as ...(property
11 description).... The amount now due and unpaid is $.....
12
13 ...(signature and address of lienor)...
14
15 (e) No action for the labor or materials or supplies
16 may be instituted or prosecuted against the contractor or
17 surety unless both notices have been given. No action shall
18 be instituted or prosecuted against the contractor or against
19 the surety on the bond under this section after 1 year from
20 the performance of the labor or completion of delivery of the
21 materials and supplies. The time period for bringing an action
22 against the contractor or surety on the bond shall be measured
23 from the last day of furnishing labor, services, or materials
24 by the lienor and shall not be measured by other standards,
25 such as the issuance of a certificate of occupancy or the
26 issuance of a certificate of substantial completion. A
27 contractor or the contractor's agent or attorney may elect to
28 shorten the prescribed time within which an action to enforce
29 any claim against a payment bond provided pursuant to this
30 section or s. 713.245 may be commenced by recording in the
31 clerk's office a notice in substantially the following form:
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CS/HB 681, First Engrossed
1
2 NOTICE OF CONTEST OF CLAIM
3 AGAINST PAYMENT BOND
4
5 To: ...(Name and address of lienor)...
6 You are notified that the undersigned contests your
7 notice of nonpayment, dated ...., ...., and served on the
8 undersigned on ...., ...., and that the time within which you
9 may file suit to enforce your claim is limited to 60 days from
10 the date of service of this notice.
11
12 DATED on ...., .....
13
14 Signed: ...(Contractor or Attorney)...
15
16
17 The claim of any lienor upon whom such notice is served and
18 who fails to institute a suit to enforce his or her claim
19 against the payment bond within 60 days after service of such
20 notice shall be extinguished automatically. The clerk shall
21 mail a copy of the notice of contest to the lienor at the
22 address shown in the notice of nonpayment or most recent
23 amendment thereto and shall certify to such service on the
24 face of such notice and record the notice. Service is complete
25 upon mailing.
26 Section 9. Paragraph (g) of subsection (1) of section
27 468.621, Florida Statutes, 1998 Supplement, is amended to
28 read:
29 468.621 Disciplinary proceedings.--
30 (1) The following acts constitute grounds for which
31 the disciplinary actions in subsection (2) may be taken:
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1 (g) Failing to properly enforce applicable building
2 codes by committing willful misconduct, gross negligence,
3 gross misconduct, repeated negligence, or negligence resulting
4 in a significant danger to life or property by failure to
5 properly enforce applicable building codes.
6 Section 10. Except as otherwise provided herein, this
7 act shall take effect October 1, 1999.
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