Senate Bill sb1350c1

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    Florida Senate - 2004                           CS for SB 1350

    By the Committee on Regulated Industries; and Senator Bennett





    315-2149-04

  1                      A bill to be entitled

  2         An act relating to mold assessment and mold

  3         remediation; creating pt. IV of ch. 489, F.S.;

  4         providing legislative purpose; providing scope

  5         of the act; providing exemptions; defining

  6         terms; providing for fees relating to licensure

  7         of mold assessors and mold remediators;

  8         providing for licensure examinations; requiring

  9         good moral character, as specified; providing

10         prerequisites to licensure; providing for the

11         licensure of business organizations; providing

12         for qualifying agents; providing for fees;

13         providing responsibilities of primary and

14         secondary qualifying agents and of financially

15         responsible officers; establishing requirements

16         for continuing education; providing that the

17         Construction Industry Licensing Board must

18         approve training courses and training providers

19         for mold assessors and mold remediators;

20         providing for assessing penalties; providing

21         for renewal of licensure; providing for

22         rulemaking; providing for reactivation of

23         licensure; providing for disciplinary

24         proceedings; establishing prohibitions;

25         providing for penalties; allowing the board to

26         provide, by rule, for multiple services;

27         creating a technical advisory committee;

28         providing for membership, meetings, removal of

29         members; setting a quorum; providing for

30         reimbursement for per diem and travel expenses;

31         requiring the department to provide staff

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 1         support and to maintain and make available to

 2         the public the committee minutes and records;

 3         providing for financial review; requiring

 4         disclosure of the results of a mold remediation

 5         conducted shortly before a contract is executed

 6         for the sale or lease of residential property;

 7         exempting from liability a person who performs

 8         mold assessment or mold remediation in

 9         accordance with applicable building codes and

10         accepted industry protocols; providing

11         severability; amending s. 489.107, F.S.; adding

12         to the board a member who is a mold assessor or

13         mold remediator; providing an effective date.

14  

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

16  

17         Section 1.  Part IV of chapter 489, Florida Statutes,

18  entitled "Mold Assessment and Mold Remediation" and consisting

19  of ss. 489.601, 489.602, 489.603, 489.604, 489.605, 489.606,

20  489.607, 489.608, 489.609, 489.61, 489.611, 489.612, 489.613,

21  489.614, 489.615, 489.616, 489.617, and 489.618, is created.

22         Section 2.  Section 489.601, Florida Statutes, is

23  created to read:

24         489.601  Legislative purpose.--The Legislature finds it

25  necessary in the interest of the public health, safety, and

26  welfare in order to prevent damage to the real and personal

27  property of the residents of this state and to avert economic

28  injury to the residents of this state to regulate individuals

29  and companies that hold themselves out to the public as

30  qualified to perform mold-related activities.

31  

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 1         Section 3.  Section 489.602, Florida Statutes, is

 2  created to read:

 3         489.602  Scope of act.--Sections 489.601-489.618 apply

 4  only to individuals and companies conducting mold assessment

 5  and mold remediation for compensation.

 6         Section 4.  Section 489.603, Florida Statutes, is

 7  created to read:

 8         489.603  Exemptions.--Sections 489.601-489.618 do not

 9  apply to:

10         (1)  Individuals or business organizations licensed

11  under chapter 471 or chapter 482 when acting within the scope

12  of their respective licenses.

13         (2)  An authorized employee of the United States, this

14  state, or any municipality, county, or other political

15  subdivision, public or private school, or private business

16  organization who has completed mold assessment and mold

17  remediation training courses approved by the department or a

18  certification program approved by the department and who is

19  conducting mold assessment or mold remediation within the

20  scope of that employment, as long as the employee does not

21  hold out for hire or otherwise engage in mold assessment or

22  mold remediation.

23         (3)  A full-time employee engaged in routine

24  maintenance of public and private buildings, structures, and

25  facilities as long as the employee does not hold out for hire

26  or otherwise engage in mold assessment or mold remediation.

27         Section 5.  Section 489.604, Florida Statutes, is

28  created to read:

29         489.604  Definitions.--As used in this part, the term:

30         (1)  "Board" means the Construction Industry Licensing

31  Board.

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 1         (2)  "Business organization" means any partnership,

 2  corporation, business trust, joint venture, or other business

 3  organization.

 4         (3)  "Department" means the Department of Business and

 5  Professional Regulation.

 6         (4)  "Mold" means any living or dead fungi or related

 7  products or parts, including spores, hyphae, and mycotoxins.

 8         (5)  "Mold assessment" means:

 9         (a)  An inspection, investigation, or survey of a

10  dwelling or other structure to provide the owner or occupant

11  with information regarding the presence, identification, or

12  evaluation of mold;

13         (b)  The development of a mold management plan or

14  remediation protocol; or

15         (c)  The collection or analysis of a mold sample.

16         (6)  "Mold assessor" means any person or business

17  organization that performs a mold assessment.

18         (7)  "Mold remediation" means the removal, cleaning,

19  sanitizing, demolition, or other treatment, including

20  preventive activities, of mold or mold-contaminated matter

21  that was not purposely grown at that location.

22         (8)  "Mold remediator" means any person or business

23  organization that performs mold remediation. A mold remediator

24  may not perform any work that requires a license under this

25  part unless the mold remediator is also licensed under that

26  chapter.

27         (9)  "Primary qualifying agent" means a person who

28  possesses the requisite skill, knowledge, and experience, and

29  has the responsibility, to supervise, direct, manage, and

30  control the mold assessment or mold remediation activities of

31  the business organization with which he or she is connected;

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 1  who has the responsibility to supervise, direct, manage, and

 2  control mold assessment or mold remediation activities on a

 3  job for which he or she has obtained the building permit; and

 4  whose technical and personal qualifications have been

 5  determined by investigation and examination as provided in

 6  this part, as attested by the department.

 7         (10)  "Secondary qualifying agent" means a person who

 8  possesses the requisite skill, knowledge, and experience, and

 9  has the responsibility, to supervise, direct, manage, and

10  control mold assessment and mold remediation activities on a

11  job for which he or she has obtained a permit, and whose

12  technical and personal qualifications have been determined by

13  investigation and examination as provided in this part, as

14  attested by the department.

15         Section 6.  Section 489.605, Florida Statutes, is

16  created to read:

17         489.605  Fees.--The board shall, by rule, establish

18  reasonable fees to be paid for applications, examinations,

19  licensing and renewal, recordmaking, and recordkeeping. Fees

20  for application, initial licensure, license renewal, or

21  license reactivation for mold assessors or mold remediators

22  may not exceed $500 per applicant. The board may, by rule,

23  establish late renewal penalty fees, in an amount not to

24  exceed the initial licensure fee.

25         Section 7.  Section 489.606, Florida Statutes, is

26  created to read:

27         489.606  Examination.--

28         (1)  A person who desires to be licensed as a mold

29  assessor or mold remediator must apply to the department for

30  licensure.

31  

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 1         (2)  An applicant may take the licensure examination to

 2  practice in this state as a mold assessor or mold remediator

 3  if the applicant is of good moral character, is a graduate of

 4  an approved course of study in mold assessment or mold

 5  remediation, and has a specific experience record as

 6  prescribed by rule.

 7         (3)  The board shall adopt rules providing for the

 8  review and approval of mold assessment and mold remediation

 9  programs. The board may adopt rules providing for the

10  acceptance of the approval and accreditation of schools and

11  courses of study by nationally accepted accreditation

12  organizations.

13         (4)(a)  Good moral character means a personal history

14  of honesty, fairness, and respect for the rights of others and

15  for the laws of this state and nation.

16         (b)  The board may refuse to certify an applicant for

17  failure to satisfy this requirement only if:

18         1.  The board finds that there is a substantial

19  connection between the lack of good moral character of the

20  applicant and the professional responsibilities of a mold

21  assessor or mold remediator; and

22         2.  This finding is supported by clear and convincing

23  evidence.

24         (c)  If an applicant is found to be unqualified for a

25  license because of a lack of good moral character, the board

26  must furnish to the applicant a statement containing the

27  findings of the board, a complete record of the evidence upon

28  which the determination was based, and a notice of the rights

29  of the applicant to a rehearing and appeal.

30         Section 8.  Section 489.607, Florida Statutes, is

31  created to read:

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 1         489.607  Licensure.--The department shall license any

 2  applicant who the board certifies is qualified to practice

 3  mold assessment or mold remediation and who:

 4         (1)  Pays the initial licensing fee;

 5         (2)  Submits with the application for licensure as a

 6  mold assessor or a mold remediator evidence that he or she has

 7  successfully completed the department-approved courses as

 8  prescribed by rule;

 9         (3)  Provides evidence of financial stability; and

10         (4)(a)  Passes a department-approved examination of

11  qualifications and knowledge relating to mold assessment and

12  mold remediation; or

13         (b)  In lieu of passing a department-approved

14  examination, shows proof that he or she has been certified by

15  an organization that requires the same testing and examination

16  as the department requires.

17         Section 9.  Section 489.608, Florida Statutes, is

18  created to read:

19         489.608  Licensure of business organizations;

20  qualifying agents.--

21         (1)  If an individual proposes to engage in mold

22  remediation or mold assessment in that individual's own name,

23  the license may be issued only to that individual.

24         (2)(a)  If the applicant proposes to engage in mold

25  remediation or mold assessment as a business organization in

26  any name other than the applicant's legal name, the business

27  organization must apply for licensure through a qualifying

28  agent or the individual applicant must apply for licensure

29  under the fictitious name.

30         (b)  The application must state the name of the

31  business organization and of each of its partners, the name of

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 1  the corporation and of each of its officers and directors and

 2  the name of each of its stockholders who is also an officer or

 3  director, the name of the business trust and of each of its

 4  trustees, or the name of such other business organization and

 5  of each of its members.

 6         1.  The application for primary qualifying agent must

 7  include an affidavit on a form provided by the department

 8  which attests that the applicant's signature is required on

 9  all checks, drafts, or payments, regardless of the form of

10  payment, made by the business organization, and that the

11  applicant has final approval authority for all work performed

12  by the business organization.

13         2.  The application for financially responsible officer

14  must include an affidavit on a form provided by the department

15  which attests that the applicant's signature is required on

16  all checks, drafts, or payments, regardless of the form of

17  payment, made by the business organization, and that the

18  applicant has authority to act for the business organization

19  in all financial matters.

20         3.  The application for secondary qualifying agent must

21  include an affidavit on a form provided by the department

22  which attests that the applicant has authority to supervise

23  all mold assessment or mold remediation work performed by the

24  business organization as provided in s. 489.614.

25         (c)  As a prerequisite to the issuance of a license

26  under this section, the applicant must submit:

27         1.  An affidavit on a form provided by the department

28  which attests that the applicant has obtained workers'

29  compensation insurance as required by chapter 440, public

30  liability insurance, and property damage insurance, in amounts

31  determined by department rule. The department shall, by rule,

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 1  establish a procedure to verify the accuracy of such

 2  affidavits based upon a random sample method.

 3         2.  Evidence of financial responsibility. The

 4  department shall adopt rules to determine financial

 5  responsibility which specify grounds on which the department

 6  may deny licensure. Such criteria must include, but need not

 7  be limited to, credit history and limits of bondability and

 8  credit.

 9         (d)  A joint venture, including a joint venture

10  composed of qualified business organizations, is a separate

11  and distinct organization that must be qualified in accordance

12  with department rules.

13         (e)  A license that is issued upon application of a

14  business organization must be in the name of the business

15  organization, and the name of the qualifying agent must be

16  noted thereon. If there is a change in any information that is

17  required to be stated on the application, the business

18  organization shall, within 45 days after the change occurs,

19  mail the correct information to the department.

20         (f)  The applicant must furnish evidence of statutory

21  compliance if a fictitious name is used, notwithstanding s.

22  865.09(7).

23         (3)  The qualifying agent must be licensed under this

24  part in order for the business organization to be licensed. If

25  the qualifying agent ceases to be affiliated with the business

26  organization, the agent must so inform the department. In

27  addition, if the qualifying agent is the only licensed

28  individual affiliated with the business organization, the

29  business organization must notify the department of the

30  termination of the qualifying agent, and the business

31  organization has 60 days after the termination of the

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 1  qualifying agent's affiliation with the business organization

 2  in which to employ another qualifying agent. The business

 3  organization may not engage in mold assessment or mold

 4  remediation until a qualifying agent is employed, unless the

 5  department has granted a temporary nonrenewable license to the

 6  financially responsible officer, the president, the sole

 7  proprietor, a partner, or, in the case of a limited

 8  partnership, the general partner, who assumes all

 9  responsibilities of a primary qualifying agent for the

10  business organization. This temporary license allows the

11  business organization to proceed only with incomplete

12  contracts.

13         (4)(a)  The qualifying agent shall inform the

14  department in writing if the agent proposes to engage in mold

15  assessment or mold remediation in the agent's own name or in

16  affiliation with another business organization, and the agent

17  or the new business organization shall supply the same

18  information to the department as is required of initial

19  applicants under this part.

20         (b)  Upon a favorable determination by the department,

21  after investigation of the financial responsibility, credit,

22  and business reputation of the qualifying agent and the new

23  business organization, the department shall issue, without any

24  examination, a new license in the business organization's

25  name, and the name of the qualifying agent must be noted

26  thereon.

27         (5)(a)  Each mold assessor or mold remediator shall

28  affix the mold assessor's or mold remediator's signature and

29  license number to each document prepared or approved for use

30  by the licensee which is related to any mold assessment or

31  mold remediation project and filed for public record with a

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 1  governmental agency, and to any offer, bid, or contract

 2  submitted to a client.

 3         (b)  The license number of each mold assessor or mold

 4  remediator must appear in any printed matter or any newspaper,

 5  airwave transmission, phone directory, or other advertising

 6  medium offering or related to mold assessment or mold

 7  remediation, as provided by department rule.

 8         (6)  Each qualifying agent shall pay the department an

 9  amount equal to the original fee for licensure of a new

10  business organization. If the qualifying agent for a business

11  organization desires to qualify additional business

12  organizations, the department shall require the agent to

13  present evidence of the supervisory ability and financial

14  responsibility of each such business organization. A licensee

15  may qualify more than one business organization only upon

16  showing that the licensee has both the capacity and intent to

17  adequately supervise each business organization. The

18  department may not limit the number of business organizations

19  which the licensee may qualify except upon the licensee's

20  failure to provide the information required under this

21  subsection or upon a finding that the information or evidence

22  that the licensee supplied is incomplete or unpersuasive in

23  showing the licensee's capacity and intent to comply with this

24  subsection. A qualification for an additional business

25  organization may be revoked or suspended upon a finding by the

26  department that the licensee has failed in the licensee's

27  responsibility to adequately supervise the operations of the

28  business organization. Failure to adequately supervise the

29  operations of a business organization is grounds for denial to

30  qualify additional business organizations.

31  

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 1         (7)  If a business organization or any of its partners,

 2  officers, directors, trustees, or members is disciplined,

 3  other than by citation, for violating s. 469.009(2), the

 4  department may, on that basis alone, deny issuance, or issue

 5  with conditions, a license to the business organization, its

 6  financially responsible officer, or its qualifying agent.

 7         Section 10.  Section 489.609, Florida Statutes, is

 8  created to read:

 9         489.609  Responsibilities.--

10         (1)  A qualifying agent is a primary qualifying agent

11  unless he or she is a secondary qualifying agent under this

12  section.

13         (a)  All primary qualifying agents for a business

14  organization are jointly and equally responsible for

15  supervision of all operations of the business organization;

16  for all field work at all sites; and for financial matters,

17  both for the organization in general and for each specific

18  job.

19         (b)  Upon approval by the board, a business

20  organization may designate a financially responsible officer

21  for purposes of licensure. A financially responsible officer

22  shall be responsible for all financial aspects of the business

23  organization and may not be designated as the primary

24  qualifying agent. The designated financially responsible

25  officer shall furnish evidence of his or her financial

26  responsibility, credit, and business reputation, or that of

27  the business organization he or she desires to qualify, as

28  determined appropriate by the board.

29         (c)  If a business organization has a licensed

30  financially responsible officer, the primary qualifying agent

31  is responsible for all mold assessment or mold remediation

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 1  activities of the business organization, both in general and

 2  for each specific job.

 3         (d)  The board shall adopt rules prescribing the

 4  qualifications for financially responsible officers, including

 5  net worth, cash, and bonding requirements. These

 6  qualifications must be at least as extensive as the

 7  requirements for the financial responsibility of qualifying

 8  agents.

 9         (2)(a)  One of the qualifying agents for a business

10  organization that has more than one qualifying agent may be

11  designated as the sole primary qualifying agent for the

12  business organization by a joint agreement that is executed,

13  on a form provided by the board, by all qualifying agents for

14  the business organization.

15         (b)  The joint agreement must be submitted to the board

16  for approval. If the board determines that the joint agreement

17  is in good order, it must approve the designation and

18  immediately notify the qualifying agents of its approval. The

19  designation made by the joint agreement is effective upon

20  receipt of the notice by the qualifying agents.

21         (c)  The qualifying agent designated for a business

22  organization by a joint agreement is the sole primary

23  qualifying agent for the business organization, and all other

24  qualifying agents for the business organization are secondary

25  qualifying agents.

26         (d)  A designated sole primary qualifying agent has all

27  the responsibilities and duties of a primary qualifying agent,

28  notwithstanding that there are secondary qualifying agents for

29  specified jobs. The designated sole primary qualifying agent

30  is jointly and equally responsible with secondary qualifying

31  agents for field work supervision.

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 1         (e)  A secondary qualifying agent is responsible only

 2  for any work for which he or she accepts responsibility.

 3         (f)  A secondary qualifying agent is not responsible

 4  for supervision of financial matters.

 5         (3)(a)  A qualifying agent who has been designated by a

 6  joint agreement as the sole primary qualifying agent for a

 7  business organization may terminate this status by giving

 8  actual notice to the business organization, to the board, and

 9  to all secondary qualifying agents of his or her intention to

10  terminate this status. The notice to the board must include

11  proof satisfactory to the board that the qualifying agent has

12  given the notice required in this paragraph.

13         (b)  The status of the qualifying agent ceases upon the

14  designation of a new primary qualifying agent or 60 days after

15  satisfactory notice of termination has been provided to the

16  board, whichever occurs first.

17         (c)  If a new primary qualifying agent has not been

18  designated within 60 days, all secondary qualifying agents for

19  the business organization become primary qualifying agents

20  unless the joint agreement specifies that one or more of them

21  become sole qualifying agents under such circumstances, in

22  which case only the specified secondary qualifying agents

23  become sole qualifying agents.

24         (d)  Any change in the status of a qualifying agent is

25  prospective only. A qualifying agent is not responsible for

26  his or her predecessor's actions but is responsible, even

27  after a change in status, for matters for which he or she was

28  responsible while in a particular status.

29         Section 11.  Section 489.61, Florida Statutes, is

30  created to read:

31         489.61  Continuing education.--

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 1         (1)  A licensee must annually complete 15 hours of

 2  continuing education courses as prescribed by department rule.

 3         (2)  The courses required under this section must be

 4  offered and provided by mold training providers licensed under

 5  this part and must be approved by the board.

 6         (3)  The licensee must submit proof of compliance with

 7  the continuing education requirements along with the

 8  licensee's application for license renewal.

 9         Section 12.  Section 489.611, Florida Statutes, is

10  created to read:

11         489.611  Approval of mold assessor and mold remediator

12  training courses and providers.--

13         (1)  The board shall approve training courses and the

14  providers of such courses as are required under this part. The

15  board must also approve training courses and the providers of

16  such courses who offer training for persons who are exempt

17  from licensure under this part.

18         (2)  The board shall, by rule, prescribe criteria for

19  approving training courses and course providers and may, by

20  rule, modify the training required by this part.

21         (3)  The board may enter into agreements with other

22  states for the reciprocal approval of training courses or the

23  providers of training courses.

24         (4)  The board shall, by rule, establish reasonable

25  fees in an amount not to exceed the cost of evaluation,

26  approval, and recordmaking and recordkeeping of training

27  courses and providers of training courses.

28         (5)  The board may impose against a provider of

29  training courses any penalty that it may impose against a

30  licensee under this part or s. 455.227, may decline to approve

31  courses, and may withdraw approval of courses proposed by a

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 1  provider who has, or whose agent has, been convicted of, pled

 2  guilty or nolo contendere to, or entered into a stipulation or

 3  consent agreement relating to, without regard to adjudication,

 4  any crime or administrative violation in any jurisdiction

 5  which involves fraud, deceit, or false or fraudulent

 6  representations made in the course of seeking approval of or

 7  providing training courses.

 8         Section 13.  Section 489.612, Florida Statutes, is

 9  created to read:

10         489.612  Renewal of license.--

11         (1)  The department shall renew a license upon receipt

12  of the renewal application and fee, upon proof of compliance

13  with the continuing education requirements of s. 489.61, and,

14  if a demonstration of competency is required by law or rule,

15  upon certification by the board that the licensee has

16  satisfactorily demonstrated his or her competence in mold

17  assessment and mold remediation.

18         (2)  The department shall adopt rules establishing a

19  procedure for the biennial renewal of licenses.

20         Section 14.  Section 489.613, Florida Statutes, is

21  created to read:

22         489.613  Reactivation.--

23         (1)  The board shall, by rule, prescribe continuing

24  education requirements for reactivating a license. The

25  continuing education requirements for reactivating a license

26  for a licensed mold assessor or mold remediator may not exceed

27  15 classroom hours for each year the license was inactive.

28         (2)  The board shall adopt rules relating to licenses

29  that have become inactive and for the renewal of inactive

30  licenses. The board shall, by rule, prescribe a fee not to

31  

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 1  exceed $50 for the reactivation of an inactive license and a

 2  fee not to exceed $50 for the renewal of an inactive license.

 3         Section 15.  Section 489.614, Florida Statutes, is

 4  created to read:

 5         489.614  Disciplinary proceedings.--

 6         (1)  The board may revoke, suspend, or deny the

 7  issuance or renewal of a license; reprimand, censure, or place

 8  on probation any mold assessor or mold remediator; require

 9  financial restitution to a consumer; impose an administrative

10  fine not to exceed $5,000 per violation; require continuing

11  education; or assess costs associated with any investigation

12  and prosecution, if the mold assessor or mold remediator is

13  found guilty of any of the following acts:

14         (a)  Obtaining a license or certificate of authority by

15  fraud or misrepresentation.

16         (b)  Being convicted or found guilty of, or entering a

17  plea of nolo contendere to, regardless of adjudication, a

18  crime in any jurisdiction which directly relates to the

19  practice of mold assessment or mold remediation or the ability

20  to practice mold assessment or mold remediation.

21         (c)  Violating any provision of chapter 455.

22         (d)  Performing any act that assists a person or entity

23  in engaging in the prohibited unlicensed practice of mold

24  assessment or mold remediation, if the licensee knows or has

25  reasonable grounds to know that the person or entity was

26  unlicensed.

27         (e)  Knowingly combining or conspiring with an

28  unlicensed person by allowing his or her license or

29  certificate of authority to be used by the unlicensed person

30  with intent to evade any provision of this part. If a licensee

31  allows his or her license to be used by one or more business

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 1  organizations without having any active participation in the

 2  operations, management, or control of the business

 3  organizations, such an act constitutes prima facie evidence of

 4  an intent to evade the provisions of this part.

 5         (f)  Acting in the capacity of a mold assessor or mold

 6  remediator under any license issued under this part except in

 7  the name of the licensee as set forth on the issued license.

 8         (g)  Committing mismanagement or misconduct in the

 9  practice of mold assessment or mold remediation which causes

10  financial harm to a customer. Financial mismanagement or

11  misconduct occurs when:

12         1.  Valid liens have been recorded against the property

13  of a mold assessor's or mold remediator's customer for

14  supplies or services ordered by the mold assessor or mold

15  remediator for the customer's job; the mold assessor or mold

16  remediator has received funds from the customer to pay for the

17  supplies or services; and the mold assessor or mold remediator

18  has not had the liens removed from the property, by payment or

19  by bond, within 75 days after the date of such liens;

20         2.  The mold assessor or mold remediator has abandoned

21  a customer's job and the percentage of completion is less than

22  the percentage of the total contract price paid to the mold

23  assessor or mold remediator as of the time of abandonment,

24  unless the contractor is entitled to retain such funds under

25  the terms of the contract or refunds the excess funds within

26  30 days after the date the job is abandoned; or

27         3.  The mold assessor's or mold remediator's job has

28  been completed, and it is shown that the customer has had to

29  pay more for the contracted job than the original contract

30  price, as adjusted for subsequent change orders, unless the

31  increase in cost was the result of circumstances beyond the

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 1  control of the assessor or remediator, was the result of

 2  circumstances caused by the customer, or was otherwise

 3  permitted by the terms of the contract between the mold

 4  assessor or mold remediator and the customer.

 5         (h)  Being disciplined by a municipality or county for

 6  an act or violation of this part.

 7         (i)  Failing in any material respect to comply with

 8  this part or violating a rule or lawful order of the

 9  department.

10         (j)  Abandoning a mold assessment or mold remediation

11  project in which the mold assessor or mold remediator is

12  engaged or under contract as a mold assessor or mold

13  remediator. A project is presumed abandoned after 20 days if

14  the mold assessor or mold remediator has terminated the

15  project without just cause and without proper notification to

16  the owner, including the reason for termination; if the mold

17  assessor or mold remediator has failed to reasonably secure

18  the project to safeguard the public while work is stopped; or

19  if the mold assessor or mold remediator fails to perform work

20  without just cause for 20 days.

21         (k)  Signing a statement with respect to a project or

22  contract falsely indicating that the work is bonded; falsely

23  indicating that payment has been made for all subcontracted

24  work, labor, and materials which results in a financial loss

25  to the owner, purchaser, or mold assessor or mold remediator;

26  or falsely indicating that workers' compensation and public

27  liability insurance are provided.

28         (l)  Committing fraud or deceit in the practice of mold

29  assessment or mold remediation.

30         (m)  Committing incompetency or misconduct in the

31  practice of mold assessment or mold remediation.

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 1         (n)  Committing gross negligence, repeated negligence,

 2  or negligence resulting in a significant danger to life or

 3  property in the practice of mold assessment or mold

 4  remediation.

 5         (o)  Failing to satisfy, within a reasonable time, the

 6  terms of a civil judgment obtained against the licensee, or

 7  the business organization qualified by the licensee, relating

 8  to the practice of the licensee's profession.

 9  

10  For the purposes of this subsection, mold assessment or mold

11  remediation is considered to be commenced when the contract is

12  executed and the mold assessor or mold remediator has accepted

13  funds from the customer or lender.

14         (2)  If a mold assessor or mold remediator disciplined

15  under subsection (1) is a qualifying agent for a business

16  organization and the violation was performed in connection

17  with any mold assessment, mold assessment-related activities,

18  mold remediation, or mold remediation-related activities

19  undertaken by that business organization, the department may

20  impose an additional administrative fine not to exceed $5,000

21  per violation against the business organization or against any

22  partner, officer, director, trustee, or member of the

23  organization if that person participated in the violation or

24  knew or should have known of the violation and failed to take

25  reasonable corrective action.

26         (3)  The board may, by rule, specify the acts or

27  omissions that constitute violations of this section.

28         (4)  In recommending penalties in any proposed

29  recommended final order, the department shall follow the

30  penalty guidelines established by the board by rule. The

31  department shall advise the administrative law judge of the

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 1  appropriate penalty, including mitigating and aggravating

 2  circumstances, and the specific rule citation.

 3         (5)  The board may not reinstate the license or

 4  certificate of authority of, or cause a license or certificate

 5  of authority to be issued to, a person who or business

 6  organization that the board has determined is unqualified or

 7  whose license or certificate of authority the board has

 8  suspended, until it is satisfied that the person or business

 9  organization has complied with all the terms and conditions

10  set forth in the final order and is capable of competently

11  engaging in the business of mold assessment or mold

12  remediation.

13         (6)(a)  The board may assess interest or penalties on

14  all fines imposed under this part against any person or

15  business organization that has not paid the imposed fine by

16  the due date established by rule or final order. Chapter 120

17  does not apply to such assessment. Interest rates to be

18  imposed must be established by rule and may not be usurious.

19         (7)  The board may not issue a license or certificate

20  of authority, or a renewal thereof, to any person or business

21  organization that has been assessed a fine, interest, or costs

22  associated with investigation and prosecution, or has been

23  ordered to pay restitution, until the fine, interest, or costs

24  associated with investigation and prosecution or restitution

25  are paid in full or until all terms and conditions of the

26  final order have been satisfied.

27         (8)  Any person licensed pursuant to this part who has

28  had his or her license revoked is ineligible to be a partner,

29  officer, director, or trustee of a business organization

30  defined by this section or to be employed in a managerial or

31  supervisory capacity for a 5-year period. The person is also

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 1  ineligible to reapply for licensure under this part for a

 2  period of 5 years after the effective date of the revocation.

 3         (9)  If a business organization or any of its partners,

 4  officers, directors, trustees, or members is or has previously

 5  been fined for violating subsection (2) the board may, on that

 6  basis alone, revoke, suspend, place on probation, or deny

 7  issuance of a license to a qualifying agent or financially

 8  responsible officer of that business organization.

 9         (10)(a)  Notwithstanding chapters 120 and 455, upon

10  receipt of a legally sufficient consumer complaint alleging a

11  violation of this part, the department may provide by rule for

12  binding arbitration between the complainant and the

13  certificateholder or registrant, if:

14         1.  There is evidence that the complainant has suffered

15  or is likely to suffer monetary damages resulting from the

16  violation of this part;

17         2.  The licensee does not have a history of repeated or

18  similar violations;

19         3.  Reasonable grounds exist to believe that the public

20  interest will be better served by arbitration than by

21  disciplinary action; and

22         4.  The complainant and licensee have not previously

23  entered into private arbitration, and a civil court action

24  based on the same transaction has not been filed.

25         (b)  The licensee and the complainant may consent in

26  writing to binding arbitration within 15 days following

27  notification of this process by the department. The department

28  may suspend all action in the matter for 45 days when notice

29  of consent to binding arbitration is received by the

30  department. If the arbitration process is successfully

31  concluded within the 60-day period, the department may close

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 1  the case file with a notation of the disposition, and the

 2  licensee's record must reflect only that a complaint was filed

 3  and resolved through arbitration.

 4         (c)  If a complaint meets the criteria for arbitration

 5  set forth in paragraph (a) and the damages at issue are less

 6  than $2,500, the department shall refer the complaint for

 7  mandatory arbitration.

 8         (d)  The arbitrator's order becomes a final order of

 9  the board if not challenged by the complainant or the

10  certificateholder or registrant within 30 days after filing.

11  The board's review of the arbitrator's order operates in the

12  manner of the review of recommended orders pursuant to s.

13  120.57(1) and is not a de novo review.

14         (11)  If an investigation of a mold assessor or mold

15  remediator is undertaken, the department shall promptly

16  furnish to the mold assessor or mold remediator or the mold

17  assessor's or mold remediator's attorney a copy of the

18  complaint or document that resulted in the initiation of the

19  investigation. The department shall make the complaint and

20  supporting documents available to the mold assessor or mold

21  remediator. The complaint or supporting documents must contain

22  information regarding the specific facts that serve as the

23  basis for the complaint. The mold assessor or mold remediator

24  may submit a written response to the information contained in

25  the complaint or document within 20 days after service to the

26  mold assessor or mold remediator of the complaint or document.

27  The mold assessor's or mold remediator's written response must

28  be considered by the probable cause panel. The right to

29  respond does not prohibit the issuance of a summary emergency

30  order if necessary to protect the public. However, if the

31  secretary, or the secretary's designee, and the chair of the

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 1  board or the chair of the probable cause panel agree in

 2  writing that such notification would be detrimental to the

 3  investigation, the department may withhold notification. The

 4  department may conduct an investigation without notification

 5  to a mold assessor or mold remediator if the act under

 6  investigation is a criminal offense.

 7         Section 16.  Section 489.615, Florida Statutes, is

 8  created to read:

 9         489.615  Prohibitions; penalties.--

10         (1)  A person may not:

11         (a)  Falsely hold himself or herself or a business

12  organization out as a licensee;

13         (b)  Falsely impersonate a licensee;

14         (c)  Present as his or her own the license or

15  certificate of authority of another;

16         (d)  Knowingly give false or forged evidence to the

17  board or a member thereof;

18         (e)  Use or attempt to use a license or certificate of

19  authority which has been suspended or revoked;

20         (f)  Engage in the business or act in the capacity of a

21  mold assessor or mold remediator or advertise himself or

22  herself or a business organization as available to engage in

23  the business or act in the capacity of a mold assessor or mold

24  remediator without being duly licensed or having a certificate

25  of authority; or

26         (g)  Operate a business organization engaged in mold

27  assessment or mold remediation after 60 days following the

28  termination of its only qualifying agent without designating

29  another primary qualifying agent, except as provided in ss.

30  489.608 and 489.609;

31  

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 1  For purposes of this subsection, a person or business

 2  organization operating on an inactive or suspended license or

 3  certificate of authority is considered unlicensed.

 4         (2)(a)  An unlicensed person who violates subsection

 5  (1) commits a misdemeanor of the first degree, punishable as

 6  provided in s. 775.082 or s. 775.083.

 7         (b)  An unlicensed person who commits a violation of

 8  subsection (1) after having been previously found guilty of

 9  such a violation commits a felony of the third degree,

10  punishable as provided in s. 775.082 or s. 775.083.

11         (c)  An unlicensed person who commits a violation of

12  subsection (1) during the existence of a state of emergency

13  declared by executive order of the Governor commits a felony

14  of the third degree, punishable as provided in s. 775.082 or

15  s. 775.083.

16         (3)(a)  A licensed mold assessor or mold remediator may

17  not enter into an agreement, oral or written, whereby his or

18  her license number is used, or is to be used, by a person who

19  is not licensed as provided for in this part, or is used, or

20  is to be used, by a business organization that is not duly

21  qualified as provided for in this part, to engage in the

22  business or act in the capacity of a mold assessor or mold

23  remediator.

24         (b)  A licensed mold assessor or mold remediator may

25  not knowingly allow his or her license number to be used by a

26  person who is not licensed as provided for in this part, or

27  used by a business organization that is not qualified as

28  provided for in this part, to engage in the business or act in

29  the capacity of a mold assessor or mold remediator.

30         Section 17.  Section 489.616, Florida Statutes, is

31  created to read:

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 1         489.616  Multiple services.--The board shall, by rule,

 2  provide when and in what manner a licensee may perform both

 3  mold assessment and mold remediation on the same contract or

 4  project.

 5         Section 18.  Section 489.617, Florida Statutes, is

 6  created to read:

 7         489.617  Sale or lease of residential property.--If a

 8  mold remediation of residential property is conducted within a

 9  reasonable time, as determined by the Florida Real Estate

10  Commission, before executing the contract for sale or lease of

11  the residential property, the seller shall clearly and

12  accurately disclose to the purchaser or lessee the results of

13  the remediation.

14         Section 19.  Section 489.618, Florida Statutes, is

15  created to read:

16         489.618  Liability.--Notwithstanding any law to the

17  contrary, a civil action does not lie against a person

18  alleging mold or fungal damages to property or injuries to

19  persons claimed in excess of $25,000, if that person has acted

20  within acceptable codes and acceptable industry protocols.

21  This limitation does not apply to actions alleging gross

22  negligence. There is a rebuttable presumption that all work

23  performed in accordance with applicable building codes and

24  accepted industry protocols is not negligent.

25         Section 20.  If any provision of this act or its

26  application to any person or circumstance is held invalid, the

27  invalidity does not affect other provisions or applications of

28  the act which can be given effect without the invalid

29  provision or application, and to this end the provisions of

30  this act are severable.

31  

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 1         Section 21.  Subsection (2) of section 489.107, Florida

 2  Statutes, is amended to read:

 3         489.107  Construction Industry Licensing Board.--

 4         (2)  The board shall consist of 19 18 members, of whom:

 5         (a)  Four are primarily engaged in business as general

 6  contractors;

 7         (b)  Three are primarily engaged in business as

 8  building contractors or residential contractors, however, at

 9  least one building contractor and one residential contractor

10  shall be appointed;

11         (c)  One is primarily engaged in business as a roofing

12  contractor;

13         (d)  One is primarily engaged in business as a sheet

14  metal contractor;

15         (e)  One is primarily engaged in business as an

16  air-conditioning contractor;

17         (f)  One is primarily engaged in business as a

18  mechanical contractor;

19         (g)  One is primarily engaged in business as a pool

20  contractor;

21         (h)  One is primarily engaged in business as a plumbing

22  contractor;

23         (i)  One is primarily engaged in business as an

24  underground utility and excavation contractor;

25         (j)  One is primarily engaged in business as a mold

26  assessor or mold remediator;

27         (k)(j)  Two are consumer members who are not, and have

28  never been, members or practitioners of a profession regulated

29  by the board or members of any closely related profession; and

30         (l)(k)  Two are building officials of a municipality or

31  county.

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 1         Section 22.  This act shall take effect October 1,

 2  2004.

 3  

 4          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 5                         Senate Bill 1350

 6                                 

 7  The committee substitute authorizes the Construction Industry
    Licensing Board of the Department of Business and Professional
 8  Regulation to license individuals and companies conducting
    mold assessment and mold remediation for compensation.
 9  
    It provides for an additional member to the construction
10  industry licensing board who is primarily engaged in mold
    assessment or mold remediation.
11  
    It exempts engineers and pest control operators operating
12  within the scope of their respective licenses.  It also
    exempts authorized employees of the U.S.., state, city and
13  county governments performing mold assessment or mold
    remediation within the scope of their employment and full-time
14  employees engaged in routine maintenance of public and private
    buildings, structures, and facilities as long as the employee
15  does not hold out for hire or otherwise engage in mold
    assessment or mold remediation.
16  
    It provides for the procedures for mold assessors and mold
17  remediators to be licensed including license fees, education
    requirements, continuing education requirements renewal and
18  reactivation.

19  It requires that the board shall provide by rule when and in
    what manner a licensee may perform both mold assessment and
20  mold remediation on the same contract or project.

21  It provides that if a mold remediation of residential property
    has been conducted within a reasonable time as determined by
22  the Real Estate Commission before executing the contract for
    sale or lease of residential property the seller shall clearly
23  and accurately disclose to the purchaser or lessee the results
    of the remediation.
24  
    It precludes any civil action alleging mold or fungal damages
25  to property or injuries to persons claimed in excess of
    $25,000, if that person has acted within acceptable codes and
26  acceptable industry protocols.  However, this provision does
    not apply to actions involving gross negligence.
27  

28  

29  

30  

31  

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