Senate Bill sb1350e1

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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         providing for membership, meetings, removal of

28         members; setting a quorum; providing for

29         reimbursement for per diem and travel expenses;

30         requiring the department to provide staff

31         support and to maintain and make available to


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 1         the public the committee minutes and records;

 2         providing for financial review; providing

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

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

 5         mold remediator; providing an appropriation and

 6         authorizing positions; providing an effective

 7         date.

 8  

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

10  

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

12  entitled "Mold Assessment and Mold Remediation" and consisting

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

14  489.607, 489.608, 489.609, 489.61, 489.611, 489.612, 489.613,

15  489.614, 489.615, 489.616, 489.617, and 489.618, is created.

16         Section 2.  Section 489.601, Florida Statutes, is

17  created to read:

18         489.601  Legislative purpose.--The Legislature finds it

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

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

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

22  injury to the residents of this state to regulate individuals

23  and companies that hold themselves out to the public as

24  qualified to perform mold-related activities.

25         Section 3.  Section 489.602, Florida Statutes, is

26  created to read:

27         489.602  Scope of act.--Sections 489.601-489.618 apply

28  only to individuals and companies conducting mold assessment

29  and mold remediation for compensation.

30         Section 4.  Section 489.603, Florida Statutes, is

31  created to read:


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 1         489.603  Exemptions.--Sections 489.601-489.618 do not

 2  apply to:

 3         (1)  A Division I and Division II contractor licensed

 4  under this chapter, an engineer licensed under chapter 471, or

 5  an adjuster licensed under part VI of chapter 626 and acting

 6  on behalf of an insurer, when engaged in mold-related

 7  activities incidental to activities within the scope of his or

 8  her license.

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

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

11  subdivision, public or private school, or private business

12  organization who has completed mold assessment or mold

13  remediation training courses approved by the board or a

14  certification program approved by the board and who is

15  conducting mold assessment or mold remediation within the

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

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

18  mold remediation.

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

20  maintenance of public and private buildings, structures, and

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

22  or otherwise engage in mold assessment or mold remediation.

23         Section 5.  Section 489.604, Florida Statutes, is

24  created to read:

25         489.604  Definitions.--As used in this part, the term:

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

27  Board.

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

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

30  organization.

31  


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

 2  Professional Regulation.

 3         (4)  "Mold" means an organism of the class fungi that

 4  causes disintegration of organic matter and produces spores,

 5  and includes any spores, hyphae, and mycotoxins produced by

 6  mold.

 7         (5)  "Mold assessment" means:

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

 9  dwelling or other structure to provide the owner or occupant

10  with information regarding the presence, identification, or

11  evaluation of mold;

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

13  remediation protocol; or

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

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

16  organization that performs a mold assessment.

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

18  sanitizing, demolition, or other treatment, including

19  preventive activities, of mold or mold-contaminated matter

20  that was not purposely grown at that location.

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

22  organization that performs mold remediation. A mold remediator

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

24  part unless the mold remediator is also licensed under that

25  chapter.

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

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

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

29  control the mold assessment or mold remediation activities of

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

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


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 1  control mold assessment or mold remediation activities and

 2  whose technical and personal qualifications have been

 3  determined by investigation and examination as provided in

 4  this part, as attested by the department.

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

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

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

 8  control mold assessment and mold remediation activities, and

 9  whose technical and personal qualifications have been

10  determined by investigation and examination as provided in

11  this part, as attested by the department.

12         Section 6.  Section 489.605, Florida Statutes, is

13  created to read:

14         489.605  Fees.--The board shall, by rule, establish

15  reasonable fees to be paid for applications, examinations,

16  licensing and renewal, recordmaking, and recordkeeping. Fees

17  for application, initial licensure, license renewal, or

18  license reactivation for mold assessors or mold remediators

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

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

21  exceed the initial licensure fee.

22         Section 7.  Section 489.606, Florida Statutes, is

23  created to read:

24         489.606  Examination.--

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

26  assessor or mold remediator must apply to the department for

27  licensure.

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

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

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

31  an approved course of study in mold assessment or mold


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 1  remediation, and has a specific experience record as

 2  prescribed by rule.

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

 4  review and approval of mold assessment and mold remediation

 5  training programs. The board may adopt rules providing for the

 6  acceptance of the approval and accreditation of schools and

 7  courses of study by nationally accepted accreditation

 8  organizations.

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

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

11  for the laws of this state and nation.

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

13  failure to satisfy this requirement only if:

14         1.  The board finds that there is a substantial

15  connection between the lack of good moral character of the

16  applicant and the professional responsibilities of a mold

17  assessor or mold remediator; and

18         2.  This finding is supported by clear and convincing

19  evidence.

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

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

22  must furnish to the applicant a statement containing the

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

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

25  of the applicant to a rehearing and appeal.

26         Section 8.  Section 489.607, Florida Statutes, is

27  created to read:

28         489.607  Licensure.--The department shall license any

29  applicant who the board certifies is qualified to practice

30  mold assessment or mold remediation and who:

31         (1)  Pays the initial licensing fee;


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

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

 3  successfully completed the board-approved courses as

 4  prescribed by rule;

 5         (3)  Provides evidence of financial stability; and

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

 7  qualifications and knowledge relating to mold assessment and

 8  mold remediation; or

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

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

11  an organization that requires the same testing and examination

12  as the department requires.

13         Section 9.  Section 489.608, Florida Statutes, is

14  created to read:

15         489.608  Licensure of business organizations;

16  qualifying agents.--

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

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

19  the license may be issued only to that individual.

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

21  remediation or mold assessment as a business organization in

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

23  organization must apply for licensure through a qualifying

24  agent or the individual applicant must apply for licensure

25  under the fictitious name.

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

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

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

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

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

31  


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

 2  of each of its members.

 3         1.  The application for primary qualifying agent must

 4  include an affidavit on a form provided by the department

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

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

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

 8  applicant has final approval authority for all work performed

 9  by the business organization.

10         2.  The application for financially responsible officer

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

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

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

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

15  applicant has authority to act for the business organization

16  in all financial matters.

17         3.  The application for secondary qualifying agent must

18  include an affidavit on a form provided by the department

19  which attests that the applicant has authority to supervise

20  all mold assessment or mold remediation work performed by the

21  business organization as provided in s. 489.614.

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

23  under this section, the applicant must submit:

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

25  which attests that the applicant has obtained workers'

26  compensation insurance as required by chapter 440, public

27  liability insurance, and property damage insurance, in amounts

28  determined by board rule. Such insurance shall include

29  coverage for an applicant's failure to properly perform mold

30  assessment or mold remediation. The department shall, by rule,

31  


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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 board

 4  shall adopt rules to determine financial responsibility which

 5  specify grounds on which the department may deny licensure.

 6  Such criteria must include, but need not be limited to, credit

 7  history and limits of bondability and credit.

 8  

 9  Continuing proof of all insurance coverages referenced in this

10  paragraph shall be a requisite condition to maintaining a

11  license issued under this part.

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

13  composed of qualified business organizations, is a separate

14  and distinct organization that must be qualified in accordance

15  with department rules.

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

17  business organization must be in the name of the business

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

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

20  required to be stated on the application, the business

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

22  mail the correct information to the department.

23         (f)  The applicant must furnish evidence of statutory

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

25  865.09(7).

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

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

28  the qualifying agent ceases to be affiliated with the business

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

30  addition, if the qualifying agent is the only licensed

31  individual affiliated with the business organization, the


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 1  business organization must notify the department of the

 2  termination of the qualifying agent, and the business

 3  organization has 60 days after the termination of the

 4  qualifying agent's affiliation with the business organization

 5  in which to employ another qualifying agent. The business

 6  organization may not engage in mold assessment or mold

 7  remediation until a qualifying agent is employed, unless the

 8  department has granted a temporary nonrenewable license to the

 9  financially responsible officer, the president, a partner, or,

10  in the case of a limited partnership, the general partner, who

11  assumes all responsibilities of a primary qualifying agent for

12  the business organization. This temporary license allows the

13  business organization to proceed only with incomplete

14  contracts.

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

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

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

18  affiliation with another business organization, and the agent

19  or the new business organization shall supply the same

20  information to the department as is required of initial

21  applicants under this part.

22         (b)  Upon a favorable determination by the board, after

23  investigation of the financial responsibility, credit, and

24  business reputation of the qualifying agent and the new

25  business organization, the board shall issue, without any

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

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

28  thereon.

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

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

31  license number to each document prepared or approved for use


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

 2  mold remediation project and filed for public record with a

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

 4  submitted to a client.

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

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

 7  airwave transmission, phone directory, or other advertising

 8  medium offering or related to mold assessment or mold

 9  remediation, as provided by department rule.

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

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

12  business organization. If the qualifying agent for a business

13  organization desires to qualify additional business

14  organizations, the board shall require the agent to present

15  evidence of ability and financial responsibility of each such

16  organization. The issuance of such certificate of authority is

17  discretionary with the board.

18         Section 10.  Section 489.609, Florida Statutes, is

19  created to read:

20         489.609  Responsibilities.--

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

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

23  section.

24         (a)  All primary qualifying agents for a business

25  organization are jointly and equally responsible for

26  supervision of all operations of the business organization;

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

28  both for the organization in general and for each specific

29  job.

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

31  organization may designate a financially responsible officer


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 1  for purposes of licensure. A financially responsible officer

 2  shall be responsible for all financial aspects of the business

 3  organization and may not be designated as the primary

 4  qualifying agent. The designated financially responsible

 5  officer shall furnish evidence of his or her financial

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

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

 8  determined appropriate by the board.

 9         (c)  If a business organization has a licensed

10  financially responsible officer, the primary qualifying agent

11  is responsible for all mold assessment or mold remediation

12  activities of the business organization, both in general and

13  for each specific job.

14         (d)  The board shall adopt rules prescribing the

15  qualifications for financially responsible officers, including

16  net worth, cash, and bonding requirements. These

17  qualifications must be at least as extensive as the

18  requirements for the financial responsibility of qualifying

19  agents.

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

21  organization that has more than one qualifying agent may be

22  designated as the sole primary qualifying agent for the

23  business organization by a joint agreement that is executed,

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

25  the business organization.

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

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

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

29  immediately notify the qualifying agents of its approval. The

30  designation made by the joint agreement is effective upon

31  receipt of the notice by the qualifying agents.


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 1         (c)  The qualifying agent designated for a business

 2  organization by a joint agreement is the sole primary

 3  qualifying agent for the business organization, and all other

 4  qualifying agents for the business organization are secondary

 5  qualifying agents.

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

 7  the responsibilities and duties of a primary qualifying agent,

 8  notwithstanding that there are secondary qualifying agents for

 9  specified jobs. The designated sole primary qualifying agent

10  is jointly and equally responsible with secondary qualifying

11  agents for field work supervision.

12         (e)  A secondary qualifying agent is responsible only

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

14         (f)  A secondary qualifying agent is not responsible

15  for supervision of financial matters.

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

17  joint agreement as the sole primary qualifying agent for a

18  business organization may terminate this status by giving

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

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

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

22  proof satisfactory to the board that the qualifying agent has

23  given the notice required in this paragraph.

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

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

26  satisfactory notice of termination has been provided to the

27  board, whichever occurs first.

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

29  designated within 60 days, all secondary qualifying agents for

30  the business organization become primary qualifying agents

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


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 1  become sole qualifying agents under such circumstances, in

 2  which case only the specified secondary qualifying agents

 3  become sole qualifying agents.

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

 5  prospective only. A qualifying agent is not responsible for

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

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

 8  responsible while in a particular status.

 9         Section 11.  Section 489.61, Florida Statutes, is

10  created to read:

11         489.61  Continuing education.--

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

13  continuing education courses as prescribed by board rule.

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

15  offered and provided by mold training providers licensed under

16  this part and must be approved by the board.

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

18  the continuing education requirements along with the

19  licensee's application for license renewal.

20         Section 12.  Section 489.611, Florida Statutes, is

21  created to read:

22         489.611  Approval of mold assessor and mold remediator

23  training courses and providers.--

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

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

26  board must also approve training courses and the providers of

27  such courses who offer training for persons who are exempt

28  from licensure under this part.

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

30  approving training courses and course providers and may, by

31  rule, modify the training required by this part.


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

 2  states for the reciprocal approval of training courses or the

 3  providers of training courses.

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

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

 6  approval, and recordmaking and recordkeeping of training

 7  courses and providers of training courses.

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

 9  training courses any penalty that it may impose against a

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

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

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

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

14  consent agreement relating to, without regard to adjudication,

15  any crime or administrative violation in any jurisdiction

16  which involves fraud, deceit, or false or fraudulent

17  representations made in the course of seeking approval of or

18  providing training courses.

19         Section 13.  Section 489.612, Florida Statutes, is

20  created to read:

21         489.612  Renewal of license.--

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

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

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

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

26  upon certification by the board that the licensee has

27  satisfactorily demonstrated his or her competence in mold

28  assessment and mold remediation.

29         (2)  The department shall adopt rules establishing a

30  procedure for the biennial renewal of licenses.

31  


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 1         Section 14.  Section 489.613, Florida Statutes, is

 2  created to read:

 3         489.613  Reactivation.--

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

 5  education requirements for reactivating a license. The

 6  continuing education requirements for reactivating a license

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

 8  15 classroom hours for each year the license was inactive.

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

10  that have become inactive and for the renewal of inactive

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

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

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

14         Section 15.  Section 489.614, Florida Statutes, is

15  created to read:

16         489.614  Disciplinary proceedings.--

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

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

19  on probation any mold assessor or mold remediator; require

20  financial restitution to a consumer; impose an administrative

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

22  education; or assess costs associated with any investigation

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

24  found guilty of any of the following acts:

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

26  fraud or misrepresentation.

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

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

29  crime in any jurisdiction which directly relates to the

30  practice of mold assessment or mold remediation or the ability

31  to practice mold assessment or mold remediation.


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 1         (c)  Violating any provision of chapter 455.

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

 3  in engaging in the prohibited unlicensed practice of mold

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

 5  reasonable grounds to know that the person or entity was

 6  unlicensed.

 7         (e)  Knowingly combining or conspiring with an

 8  unlicensed person by allowing his or her license or

 9  certificate of authority to be used by the unlicensed person

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

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

12  organizations without having any active participation in the

13  operations, management, or control of the business

14  organizations, such an act constitutes prima facie evidence of

15  an intent to evade the provisions of this part.

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

17  remediator under any license issued under this part except in

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

19         (g)  Committing mismanagement or misconduct in the

20  practice of mold assessment or mold remediation which causes

21  financial harm to a customer. Financial mismanagement or

22  misconduct occurs when:

23         1.  Valid liens have been recorded against the property

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

25  supplies or services ordered by the mold assessor or mold

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

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

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

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

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

31  


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 1         2.  The mold assessor or mold remediator has abandoned

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

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

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

 5  unless the contractor is entitled to retain such funds under

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

 7  30 days after the date the job is abandoned; or

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

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

10  pay more for the contracted job than the original contract

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

12  increase in cost was the result of circumstances beyond the

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

14  circumstances caused by the customer, or was otherwise

15  permitted by the terms of the contract between the mold

16  assessor or mold remediator and the customer.

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

18  an act or violation of this part.

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

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

21  department.

22         (j)  Abandoning a mold assessment or mold remediation

23  project in which the mold assessor or mold remediator is

24  engaged or under contract as a mold assessor or mold

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

26  the mold assessor or mold remediator has terminated the

27  project without just cause and without proper notification to

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

29  assessor or mold remediator has failed to reasonably secure

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

31  


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

 2  without just cause for 20 days.

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

 4  contract falsely indicating that the work is bonded; falsely

 5  indicating that payment has been made for all subcontracted

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

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

 8  or falsely indicating that workers' compensation and public

 9  liability insurance are provided.

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

11  assessment or mold remediation.

12         (m)  Committing incompetency or misconduct in the

13  practice of mold assessment or mold remediation.

14         (n)  Committing gross negligence, repeated negligence,

15  or negligence resulting in a significant danger to life or

16  property in the practice of mold assessment or mold

17  remediation.

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

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

20  the business organization qualified by the licensee, relating

21  to the practice of the licensee's profession.

22  

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

24  remediation is considered to be commenced when the contract is

25  executed and the mold assessor or mold remediator has accepted

26  funds from the customer or lender.

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

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

29  organization and the violation was performed in connection

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

31  mold remediation, or mold remediation-related activities


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 1  undertaken by that business organization, the board may impose

 2  an additional administrative fine not to exceed $5,000 per

 3  violation against the business organization or against any

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

 5  organization if that person participated in the violation or

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

 7  reasonable corrective action.

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

 9  omissions that constitute violations of this section.

10         (4)  In recommending penalties in any proposed

11  recommended final order, the department shall follow the

12  penalty guidelines established by the board by rule. The

13  department shall advise the administrative law judge of the

14  appropriate penalty, including mitigating and aggravating

15  circumstances, and the specific rule citation.

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

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

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

19  organization that the board has determined is unqualified or

20  whose license or certificate of authority the board has

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

22  organization has complied with all the terms and conditions

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

24  engaging in the business of mold assessment or mold

25  remediation.

26         (6)  The board may assess interest or penalties on all

27  fines imposed under this part against any person or business

28  organization that has not paid the imposed fine by the due

29  date established by rule or final order. Chapter 120 does not

30  apply to such assessment. Interest rates to be imposed must be

31  established by rule and may not be usurious.


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

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

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

 4  associated with investigation and prosecution, or has been

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

 6  associated with investigation and prosecution or restitution

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

 8  final order have been satisfied.

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

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

11  officer, director, or trustee of a business organization

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

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

14  ineligible to reapply for licensure under this part for a

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

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

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

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

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

20  issuance of a license to a qualifying agent or financially

21  responsible officer of that business organization.

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

23  receipt of a legally sufficient consumer complaint alleging a

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

25  binding arbitration between the complainant and the

26  certificateholder or registrant, if:

27         1.  There is evidence that the complainant has suffered

28  or is likely to suffer monetary damages resulting from the

29  violation of this part;

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

31  similar violations;


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 1         3.  Reasonable grounds exist to believe that the public

 2  interest will be better served by arbitration than by

 3  disciplinary action; and

 4         4.  The complainant and licensee have not previously

 5  entered into private arbitration, and a civil court action

 6  based on the same transaction has not been filed.

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

 8  writing to binding arbitration within 15 days following

 9  notification of this process by the department. The department

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

11  of consent to binding arbitration is received by the

12  department. If the arbitration process is successfully

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

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

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

16  and resolved through arbitration.

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

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

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

20  mandatory arbitration.

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

22  the board if not challenged by the complainant or the

23  certificateholder or registrant within 30 days after filing.

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

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

26  120.57(1) and is not a de novo review.

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

28  remediator is undertaken, the department shall promptly

29  furnish to the mold assessor or mold remediator or the mold

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

31  complaint or document that resulted in the initiation of the


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 1  investigation. The department shall make the complaint and

 2  supporting documents available to the mold assessor or mold

 3  remediator. The complaint or supporting documents must contain

 4  information regarding the specific facts that serve as the

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

 6  may submit a written response to the information contained in

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

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

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

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

11  respond does not prohibit the issuance of a summary emergency

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

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

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

15  writing that such notification would be detrimental to the

16  investigation, the department may withhold notification. The

17  department may conduct an investigation without notification

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

19  investigation is a criminal offense.

20         Section 16.  Section 489.615, Florida Statutes, is

21  created to read:

22         489.615  Prohibitions; penalties.--

23         (1)  A person may not:

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

25  organization out as a licensee;

26         (b)  Falsely impersonate a licensee;

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

28  certificate of authority of another;

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

30  board or a member thereof;

31  


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 1         (e)  Use or attempt to use a license that has been

 2  suspended or revoked;

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

 4  mold assessor or mold remediator or advertise himself or

 5  herself or a business organization as available to engage in

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

 7  remediator without being duly licensed; or

 8         (g)  Operate a business organization engaged in mold

 9  assessment or mold remediation after 60 days following the

10  termination of its only qualifying agent without designating

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

12  489.608 and 489.609;

13  

14  For purposes of this subsection, a person or business

15  organization operating on an inactive or suspended license or

16  certificate of authority is considered unlicensed.

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

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

19  provided in s. 775.082 or s. 775.083.

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

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

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

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

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

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

26  declared by executive order of the Governor commits a felony

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

28  s. 775.083.

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

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

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


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

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

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

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

 5  remediator.

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

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

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

 9  used by a business organization that is not qualified as

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

11  the capacity of a mold assessor or mold remediator.

12         Section 17.  Section 489.616, Florida Statutes, is

13  created to read:

14         489.616  Multiple services.--The board shall, by rule,

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

16  mold assessment and mold remediation on the same contract or

17  project.

18         Section 18.  If any provision of this act or its

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

20  invalidity does not affect other provisions or applications of

21  the act which can be given effect without the invalid

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

23  this act are severable.

24         Section 19.  Subsection (2) of section 489.107, Florida

25  Statutes, is amended to read:

26         489.107  Construction Industry Licensing Board.--

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

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

29  contractors;

30         (b)  Three are primarily engaged in business as

31  building contractors or residential contractors, however, at


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 1  least one building contractor and one residential contractor

 2  shall be appointed;

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

 4  contractor;

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

 6  metal contractor;

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

 8  air-conditioning contractor;

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

10  mechanical contractor;

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

12  contractor;

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

14  contractor;

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

16  underground utility and excavation contractor;

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

18  assessor or mold remediator;

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

20  never been, members or practitioners of a profession regulated

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

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

23  county.

24         Section 20.  For the 2004-2005 fiscal year, the sum of

25  $294,776 is appropriated from the Professional Regulation

26  Trust Fund and three positions are authorized to the

27  Department of Business and Professional Regulation for the

28  purpose of conducting licensing and regulatory activities

29  associated with mold assessment and remediation.

30         Section 21.  This act shall take effect October 1,

31  2004.


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