Senate Bill sb0428e1

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    SB 428                                         First Engrossed



  1                      A bill to be entitled

  2         An act relating to building construction;

  3         amending s. 95.11, F.S.; providing alternative

  4         applications to a statute of limitations for

  5         certain legal or equitable actions for actions

  6         to enforce claims against payment bonds;

  7         revising a statute of limitations for actions

  8         to enforce claims against certain payment

  9         bonds; amending s. 255.05, F.S.; clarifying

10         criteria for performance of bonds; revising a

11         provision relating to notice of nonpayment for

12         certain labor, materials, or supplies; amending

13         s. 713.01, F.S.; revising certain definitions;

14         amending s. 713.02, F.S.; clarifying a

15         criterion for a proscription against certain

16         liens; amending s. 713.13, F.S.; deleting

17         authorization for certain fax numbers in

18         notices of commencement; amending s. 713.18,

19         F.S.; revising provisions relating to manner of

20         serving notices and certain instruments;

21         amending s. 713.23, F.S.; including certain

22         unpaid finance charges under a written notice

23         of nonpayment of a payment bond; amending s.

24         713.245, F.S.; providing additional bond

25         criteria for coextension of a surety's duty to

26         pay lienors with a contractor's duty to pay;

27         amending ss. 725.06, 725.08, F.S.; revising

28         indemnification and hold harmless requirements

29         for construction contracts and design

30         professional contracts; repealing s. 713.18(3),

31         F.S., relating to service of certain notices by


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  1         facsimile transmission; providing effective

  2         dates. amending s. 489.13, F.S.; providing for

  3         issuance of a notice of noncompliance,

  4         imposition of an administrative fine, and

  5         assessment of reasonable investigative and

  6         legal costs of prosecution for unlicensed

  7         contracting; specifying that such remedies are

  8         not exclusive; providing for uses of fine

  9         proceeds; requiring the Department of Business

10         and Professional Regulation to create a web

11         page on its Internet website dedicated to

12         listing known information concerning unlicensed

13         contractors; providing an effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

16

17         Section 1.  Section 489.13, Florida Statutes, is

18  amended to read:

19         489.13  Unlicensed contracting; notice of

20  noncompliance; fine; authority to issue or receive a building

21  permit; web page.--

22         (1)  Any person performing an activity requiring

23  licensure under this part as a construction contractor is

24  guilty of unlicensed contracting if he or she does not hold a

25  valid active certificate or registration authorizing him or

26  her to perform such activity, regardless of whether he or she

27  holds a local construction contractor license or local

28  certificate of competency. Persons working outside the

29  geographical scope of their registration are guilty of

30  unlicensed activity for purposes of this part.

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  1         (2)  For a first offense, any person who holds a state

  2  or local construction license and is found guilty of

  3  unlicensed contracting under this section shall be issued a

  4  notice of noncompliance pursuant to s. 489.131(7).

  5         (3)  Notwithstanding s. 455.228, the department may

  6  impose an administrative fine of up to $10,000 on any

  7  unlicensed person guilty of unlicensed contracting. In

  8  addition, the department may assess reasonable investigative

  9  and legal costs for prosecution of the violation against the

10  unlicensed contractor. The department may waive up to one-half

11  of any fine imposed if the unlicensed contractor complies with

12  certification or registration within 1 year after imposition

13  of the fine under this subsection.

14         (4)(a)  Any fines collected under this section shall be

15  first used to cover the investigative and legal costs of

16  prosecution.

17         (b)  Any local governing body that forwards information

18  relating to any person who is an unlicensed contractor shall

19  collect 30 percent of the fine collected, after deduction of

20  the investigative and legal costs of prosecution.

21         (c)  The balance of any fines collected under this

22  section shall be used to maintain the department's unlicensed

23  contractor website page, as specified in subsection (6), and

24  to fund the Construction Industries Recovery Fund. Nothing in

25  this paragraph shall be construed to permit recovery from the

26  Construction Industries Recovery Fund if the contractor is

27  unlicensed.

28         (5)(2)  A local building department shall not issue a

29  building permit to any contractor, or to any person

30  representing himself or herself as a contractor, who does not

31  hold a valid active certificate or registration in the


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  1  appropriate category. Possession of a local certificate of

  2  competency or local construction license is not sufficient to

  3  lawfully obtain a building permit as a construction contractor

  4  if the activity in question requires licensure under this

  5  part. Nothing in this section shall be construed as

  6  prohibiting a local building department from issuing a

  7  building permit to a locally licensed or certified contractor

  8  for an activity that does not require licensure under this

  9  part.

10         (6)  The department shall create a web page, accessible

11  through its Internet website, dedicated solely to listing any

12  known information concerning unlicensed contractors. The

13  information shall be provided in such a way that any person

14  with computer on-line capabilities can access information

15  concerning unlicensed contractors by name or by county. The

16  department shall recognize that persons found guilty of

17  unlicensed contracting do not have the same rights and

18  privileges as licensees, and the department shall not restrict

19  the quality or quantity of information on the web page

20  required by this subsection, unless otherwise required by law.

21         (7)  The remedies set forth in this section are not

22  exclusive and may be imposed in addition to the remedies set

23  forth in s. 489.127(2). In addition, nothing in this section

24  is intended to prohibit the department or any local governing

25  body from filing a civil action or seeking criminal penalties

26  against an unlicensed contractor.

27         Section 2.  Paragraph (b) of subsection (2) and

28  paragraph (e) of subsection (5) of section 95.11, Florida

29  Statutes, are amended to read:

30

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  1         95.11  Limitations other than for the recovery of real

  2  property.--Actions other than for recovery of real property

  3  shall be commenced as follows:

  4         (2)  WITHIN FIVE YEARS.--

  5         (b)  A legal or equitable action on a contract,

  6  obligation, or liability founded on a written instrument,

  7  except for an action to enforce a claim against a payment

  8  bond, which shall be governed by the applicable provisions of

  9  ss. 255.05(2)(a)2. and 713.23(1)(e).

10         (5)  WITHIN ONE YEAR.--

11         (e)  An action to enforce any claim against a payment

12  bond on which the principal is a contractor, subcontractor, or

13  sub-subcontractor as defined in s. 713.01, for private work as

14  well as public work, from the last furnishing of labor,

15  services, or materials or from the last furnishing of labor,

16  services, or materials by the general contractor if the

17  general contractor is the principal on a bond on the same

18  construction project, whichever is later.

19         Section 3.  Paragraph (a) of subsection (1) and

20  paragraph (a) of subsection (2) of section 255.05, Florida

21  Statutes, are amended to read:

22         255.05  Bond of contractor constructing public

23  buildings; form; action by materialmen.--

24         (1)(a)  Any person entering into a formal contract with

25  the state or any county, city, or political subdivision

26  thereof, or other public authority, for the construction of a

27  public building, for the prosecution and completion of a

28  public work, or for repairs upon a public building or public

29  work shall be required, before commencing the work or before

30  recommencing the work after a default or abandonment, to

31  execute, deliver to the public owner, and record in the public


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  1  records of the county where the improvement is located, a

  2  payment and performance bond with a surety insurer authorized

  3  to do business in this state as surety. The bond must state on

  4  its front page: the name, principal business address, and

  5  phone number of the contractor, the surety, the owner of the

  6  property being improved, and, if different from the owner, the

  7  contracting public entity; the contract number assigned by the

  8  contracting public entity; and a description of the project

  9  sufficient to identify it, such as including, if applicable, a

10  legal description or and the street address of the property

11  being improved, and a general description of the improvement.

12  Such bond shall be conditioned upon the contractor's

13  performance of the construction work that the contractor

14  perform the contract in the time and manner prescribed in the

15  contract and promptly make payments to all persons defined in

16  s. 713.01 who furnish labor, services, or materials for whose

17  claims derive directly or indirectly from the prosecution of

18  the work provided for in the contract. Any claimant may apply

19  to the governmental entity having charge of the work for

20  copies of the contract and bond and shall thereupon be

21  furnished with a certified copy of the contract and bond. The

22  claimant shall have a right of action against the contractor

23  and surety for the amount due him or her, including unpaid

24  finance charges due under the claimant's contract. Such action

25  shall not involve the public authority in any expense.  When

26  such work is done for the state and the contract is for

27  $100,000 or less, no payment and performance bond shall be

28  required. At the discretion of the official or board awarding

29  such contract when such work is done for any county, city,

30  political subdivision, or public authority, any person

31  entering into such a contract which is for $200,000 or less


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  1  may be exempted from executing the payment and performance

  2  bond. When such work is done for the state, the Secretary of

  3  the Department of Management Services may delegate to state

  4  agencies the authority to exempt any person entering into such

  5  a contract amounting to more than $100,000 but less than

  6  $200,000 from executing the payment and performance bond. In

  7  the event such exemption is granted, the officer or officials

  8  shall not be personally liable to persons suffering loss

  9  because of granting such exemption. The Department of

10  Management Services shall maintain information on the number

11  of requests by state agencies for delegation of authority to

12  waive the bond requirements by agency and project number and

13  whether any request for delegation was denied and the

14  justification for the denial.

15

16  The state shall not be held liable to any laborer,

17  materialman, or subcontractor for any amounts greater than the

18  pro rata share as determined under this section.

19         (2)(a)1.  If a claimant is no longer furnishing labor,

20  services, or materials on a project, a contractor or the

21  contractor's agent or attorney may elect to shorten the

22  prescribed time in this paragraph within which an action to

23  enforce any claim against a payment bond provided pursuant to

24  this section may be commenced by recording in the clerk's

25  office a notice in substantially the following form:

26

27                    NOTICE OF CONTEST OF CLAIM

28                       AGAINST PAYMENT BOND

29

30

31  To: ...(Name and address of claimant)...


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  1         You are notified that the undersigned contests your

  2  notice of nonpayment, dated ............, ........, and served

  3  on the undersigned on ............, ........, and that the

  4  time within which you may file suit to enforce your claim is

  5  limited to 60 days after the date of service of this notice.

  6

  7         DATED on ............, .........

  8

  9

10  Signed:...(Contractor or Attorney)...

11

12

13  The claim of any claimant upon whom such notice is served and

14  who fails to institute a suit to enforce his or her claim

15  against the payment bond within 60 days after service of such

16  notice shall be extinguished automatically. The clerk shall

17  mail a copy of the notice of contest to the claimant at the

18  address shown in the notice of nonpayment or most recent

19  amendment thereto and shall certify to such service on the

20  face of such notice and record the notice. Service is complete

21  upon mailing.

22         2.  A claimant, except a laborer, who is not in privity

23  with the contractor shall, before commencing or not later than

24  45 days after commencing to furnish labor, materials, or

25  supplies for the prosecution of the work, furnish the

26  contractor with a notice that he or she intends to look to the

27  bond for protection. A claimant who is not in privity with the

28  contractor and who has not received payment for his or her

29  labor, materials, or supplies shall deliver to the contractor

30  and to the surety written notice of the performance of the

31  labor or delivery of the materials or supplies and of the


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  1  nonpayment. The notice of nonpayment may be served at any time

  2  during the progress of the work or thereafter but not before

  3  45 days after the first furnishing of labor, services, or

  4  materials, and not later than 90 days after the final

  5  furnishing of the labor, services, or materials by the

  6  claimant or, with respect to rental equipment, not later than

  7  90 days after the date that the rental equipment was last on

  8  the job site available for use. No action for the labor,

  9  materials, or supplies may be instituted against the

10  contractor or the surety unless both notices have been given.

11  Notices required or permitted under this section may be served

12  in accordance with s. 713.18. An action, except for an action

13  exclusively for recovery of retainage, must be instituted

14  against the contractor or the surety on the payment bond or

15  the payment provisions of a combined payment and performance

16  bond within 1 year after the performance of the labor or

17  completion of delivery of the materials or supplies. An action

18  exclusively for recovery of retainage must be instituted

19  against the contractor or the surety within 1 year after the

20  performance of the labor or completion of delivery of the

21  materials or supplies, or within 90 days after the

22  contractor's receipt of final payment (or the payment estimate

23  containing the owner's final reconciliation of quantities if

24  no further payment is earned and due as a result of deductive

25  adjustments) by the contractor or surety, whichever comes

26  last. A claimant may not waive in advance his or her right to

27  bring an action under the bond against the surety. In any

28  action brought to enforce a claim against a payment bond under

29  this section, the prevailing party is entitled to recover a

30  reasonable fee for the services of his or her attorney for

31  trial and appeal or for arbitration, in an amount to be


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  1  determined by the court, which fee must be taxed as part of

  2  the prevailing party's costs, as allowed in equitable actions.

  3  The time periods for service of a notice of nonpayment or for

  4  bringing an action against a contractor or a surety shall be

  5  measured from the last day of furnishing labor, services, or

  6  materials by the claimant and shall not be measured by other

  7  standards, such as the issuance of a certificate of occupancy

  8  or the issuance of a certificate of substantial completion.

  9         Section 4.  Subsections (26) and (27) of section

10  713.01, Florida Statutes, are amended to read:

11         713.01  Definitions.--As used in this part, the term:

12         (26)  "Subcontractor" means a person other than a

13  materialman or laborer who enters into a contract with a

14  contractor for the performance of any part of such

15  contractor's contract, including the removal of solid waste

16  from the real property. The term includes a temporary help

17  firm as defined in s. 443.101.

18         (27)  "Sub-subcontractor" means a person other than a

19  materialman or laborer who enters into a contract with a

20  subcontractor for the performance of any part of such

21  subcontractor's contract, including the removal of solid waste

22  from the real property. The term includes a temporary help

23  firm as defined in s. 443.101.

24         Section 5.  Subsection (7) of section 713.02, Florida

25  Statutes, is amended to read:

26         713.02  Types of lienors and exemptions.--

27         (7)  Notwithstanding any other provision of this part,

28  no lien shall exist in favor of any contractor, subcontractor,

29  or sub-subcontractor unless such contractor, subcontractor, or

30  sub-subcontractor is licensed, if required to be licensed, as

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  1  a contractor pursuant to the laws of the jurisdiction within

  2  which she or he is doing business.

  3         Section 6.  Effective July 1, 2002, paragraph (d) of

  4  subsection (1) of section 713.13, Florida Statutes, is amended

  5  to read:

  6         713.13  Notice of commencement.--

  7         (1)

  8         (d)  A notice of commencement must be in substantially

  9  the following form:

10

11  Permit No.....                               Tax Folio No.....

12                      NOTICE OF COMMENCEMENT

13  State of....

14  County of....

15

16  The undersigned hereby gives notice that improvement will be

17  made to certain real property, and in accordance with Chapter

18  713, Florida Statutes, the following information is provided

19  in this Notice of Commencement.

20         1.  Description of property:  ...(legal description of

21  the property, and street address if available)....

22         2.  General description of improvement:.....

23         3.  Owner information:.....

24         a.  Name and address:.....

25         b.  Interest in property:.....

26         c.  Name and address of fee simple titleholder (if

27  other than Owner):.....

28         4.a.  Contractor:  ...(name and address)....

29         b.a.  Contractor's phone number:.....

30         b.  Fax number:....(optional, if service by fax is

31  acceptable).


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  1         5.  Surety

  2         a.  Name and address:.....

  3         b.  Phone number:.....

  4         c.  Fax number:....(optional, if service by fax is

  5  acceptable).

  6         c.d.  Amount of bond: $.....

  7         6.a.  Lender:  ...(name and address)....

  8         b.a.  Lender's phone number:.....

  9         b.  Fax number:....(optional, if service by fax is

10  acceptable).

11         7.a.  Persons within the State of Florida designated by

12  Owner upon whom notices or other documents may be served as

13  provided by Section 713.13(1)(a)7., Florida Statutes:

14  ...(name and address)....

15         b.a.  Phone numbers of designated persons number:.....

16         b.  Fax number:....(optional, if service by fax is

17  acceptable).

18         8.a.  In addition to himself or herself, Owner

19  designates ............ of ............ to receive a copy of

20  the Lienor's Notice as provided in Section 713.13(1)(b),

21  Florida Statutes.

22         b.a.  Phone number of person or entity designated by

23  owner:.....

24         b.  Fax number:....(optional, if service by fax is

25  acceptable).

26         9.  Expiration date of notice of commencement (the

27  expiration date is 1 year from the date of recording unless a

28  different date is specified).....

29

30                                      ...(Signature of Owner)...

31


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  1         Sworn to (or affirmed) and subscribed before me this

  2  .... day of ...., ...(year)..., by ...(name of person making

  3  statement)....

  4

  5           ...(Signature of Notary Public - State of Florida)...

  6           ...(Print, Type, or Stamp Commissioned Name of Notary

  7  Public)...

  8

  9         Personally Known .... OR Produced Identification ....

10

11         Type of Identification Produced............

12

13         Section 7.  Subsections (1) and (2) of section 713.18,

14  Florida Statutes, are amended to read:

15         713.18  Manner of serving notices and other

16  instruments.--

17         (1)  Service of notices, claims of lien, affidavits,

18  assignments, and other instruments permitted or required under

19  this part, or copies thereof when so permitted or required,

20  unless otherwise specifically provided in this part, must be

21  made by one of the following methods:

22         (a)  By actual delivery to the person to be served; or,

23  if a partnership, to one of the partners; or, if a

24  corporation, to an officer, director, managing agent, or

25  business agent thereof.

26         (b)  By sending mailing the same, postage prepaid, by

27  registered or certified mail, with postage prepaid, or by

28  overnight or second-day delivery with to the person to be

29  served at her or his last known address and evidence of

30  delivery.

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  1         1.  If a notice to owner, or a notice to contractor

  2  under s. 713.23, or a preliminary notice under s. 255.05 is

  3  mailed by registered or certified mail with postage prepaid to

  4  the person to be served at any of the addresses set forth in

  5  subparagraph 2. pursuant to this paragraph within 40 days

  6  after the date the lienor first furnishes labor, services, or

  7  materials, service of that notice is effective as of the date

  8  of mailing if the person who served the notice maintains a

  9  registered or certified mail log that shows the date the

10  notice was served, the registered or certified mail number

11  issued by the United States Postal Service, the name and

12  address of the person served, and the date stamp of the United

13  States Postal Service confirming the date of mailing.

14         2.  If an instrument served pursuant to this section

15  paragraph to the last address shown in the notice of

16  commencement or any amendment thereto or, in the absence of a

17  notice of commencement, to the last address shown in the

18  building permit application, or to the last known address of

19  the person to be served, is not received, but is returned by

20  the United States Postal Service as being "refused," "moved,

21  not forwardable," or "unclaimed," or is otherwise not

22  delivered or deliverable through no fault of the person

23  serving the item, then service is effective on the date the

24  notice was sent as of the date of mailing.

25         (c)  If none 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 or a partnership, a lienor may serve any notices or

29  other papers under this part on any one of such owners or

30  partners, and such notice is deemed notice to all owners and

31  partners.


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  1         Section 8.  Paragraph (d) of subsection (1) of section

  2  713.23, Florida Statutes, is amended to read:

  3         713.23  Payment bond.--

  4         (1)

  5         (d)  In addition, a lienor is required, as a condition

  6  precedent to recovery under the bond, to serve a written

  7  notice of nonpayment to the contractor and the surety not

  8  later than 90 days after the final furnishing of labor,

  9  services, or materials by the lienor.  A written notice

10  satisfies this condition precedent with respect to the payment

11  described in the notice of nonpayment, including unpaid

12  finance charges due under the lienor's contract, and with

13  respect to any other payments which become due to the lienor

14  after the date of the notice of nonpayment. The time period

15  for serving a written notice of nonpayment shall be measured

16  from the last day of furnishing labor, services, or materials

17  by the lienor and shall not be measured by other standards,

18  such as the issuance of a certificate of occupancy or the

19  issuance of a certificate of substantial completion. The

20  failure of a lienor to receive retainage sums not in excess of

21  10 percent of the value of labor, services, or materials

22  furnished by the lienor is not considered a nonpayment

23  requiring the service of the notice provided under this

24  paragraph. The notice under this paragraph may be in

25  substantially the following form:

26

27                       NOTICE OF NONPAYMENT

28

29  To ...(name of contractor and address)...

30

31  ...(name of surety and address)...


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  1

  2  The undersigned notifies you that he or she has furnished

  3  ...(describe labor, services, or materials)... for the

  4  improvement of the real property identified as ...(property

  5  description)....  The amount now due and unpaid is $.....

  6

  7                         ...(signature and address of lienor)...

  8

  9         Section 9.  Subsection (1) of section 713.245, Florida

10  Statutes, is amended to read:

11         713.245  Conditional payment bond.--

12         (1)  Notwithstanding any provisions of ss. 713.23 and

13  713.24 to the contrary, if the contractor's written

14  contractual obligation to pay lienors is expressly conditioned

15  upon and limited to the payments made by the owner to the

16  contractor, the duty of the surety to pay lienors will be

17  coextensive with the duty of the contractor to pay, if the

18  following provisions are complied with:

19         (a)  The bond is listed in the notice of commencement

20  for the project as a conditional payment bond and is recorded

21  together with the notice of commencement for the project prior

22  to commencement of the project.

23         (b)  The words "conditional payment bond" are contained

24  in the title of the bond at the top of the front page.

25         (c)  The bond contains on the front page, in at least

26  10-point type, the statement:  THIS BOND ONLY COVERS CLAIMS OF

27  SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO

28  THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR,

29  SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS.  THIS BOND

30  DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING

31  A CLAIM OF LIEN ON THIS PROJECT.


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  1         Section 10.  Subsection (1) of section 725.06, Florida

  2  Statutes, is amended to read:

  3         725.06  Construction contracts; limitation on

  4  indemnification.--

  5         (1)  A construction contract may require a party to

  6  that contract to indemnify and hold harmless the other party

  7  to the contract, their officers, directors, agents, and

  8  employees, from liabilities, damages, losses and costs,

  9  including, but not limited to, reasonable attorney's fees, to

10  the extent caused by the negligence, recklessness, or

11  intentional wrongful misconduct of the indemnifying party and

12  persons employed or utilized by the indemnifying party in the

13  performance of the construction contract.

14         Section 11.  Subsection (1) of section 725.08, Florida

15  Statutes, is amended to read:

16         725.08  Design professional contracts; limitation in

17  indemnification.--

18         (1)  Notwithstanding the provisions of s. 725.06, If a

19  design professional provides professional services to or for a

20  public agency, the agency may require in a professional

21  services contract with the design professional that the design

22  professional indemnify and hold harmless the agency, and its

23  officers and employees, from liabilities, damages, losses, and

24  costs, including, but not limited to, reasonable attorneys'

25  fees, to the extent caused by the negligence, recklessness, or

26  intentionally wrongful conduct of the design professional and

27  other persons employed or utilized by the design professional

28  in the performance of the contract.

29         Section 12.  Effective July 1, 2002, subsection (3) of

30  section 713.18, Florida Statutes, is repealed.

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    SB 428                                         First Engrossed



  1         Section 13.  Except as otherwise expressly provided in

  2  this act, this act shall take effect July 1, 2001.

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