Senate Bill sb1350c1
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By the Committee on Regulated Industries; and Senator Bennett
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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.
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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.
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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.
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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.
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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
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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.
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