Senate Bill sb1016c1

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    Florida Senate - 2005                           CS for SB 1016

    By the Committee on Regulated Industries; and Senator
    Argenziano




    580-1780-05

  1                      A bill to be entitled

  2         An act relating to construction contracting;

  3         amending s. 255.05, F.S.; making certain

  4         restrictions in bonds issued for public works

  5         projects unenforceable; amending ss. 489.129

  6         and 489.533, F.S.; increasing an administrative

  7         fine under certain disciplinary proceeding

  8         provisions; amending s. 713.015, F.S.; revising

  9         a direct contract provision requirement;

10         providing that failure to include such

11         provision in such contracts limits certain lien

12         rights under the contract; providing

13         construction relating to validity and

14         enforceability; preserving lien rights of

15         certain persons; amending s. 713.02, F.S.;

16         protecting the rights of certain persons to

17         enforce certain contract, lien, or bond

18         remedies or contractual obligations under

19         certain circumstances; precluding certain

20         defenses; amending s. 713.04, F.S.; revising

21         certain final payment requirements; amending s.

22         713.08, F.S.; requiring a claim of lien to be

23         served on an owner; amending s. 713.13, F.S.;

24         revising provisions authorizing use of certain

25         payment bonds to transfer certain recorded

26         liens; specifying application of certain notice

27         requirements to certain claims; revising time

28         limits for serving certain required notices;

29         amending s. 713.135, F.S.; revising certain

30         notice of commencement and applicability of

31         lien requirements for certain authorities

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 1         issuing building permits; providing

 2         construction; amending s. 713.24, F.S.;

 3         preserving jurisdiction in the county court

 4         over certain transfer bond claims for

 5         nonpayment; preserving certain lien rights when

 6         filing a transfer bond after commencing certain

 7         lien enforcement proceedings; amending s.

 8         713.345, F.S.; increasing certain criminal

 9         penalties for misapplication of construction

10         funds; amending s. 713.3471, F.S.; revising a

11         provision requiring a lender to provide notice

12         to a borrower when making a disbursement on a

13         construction loan secured by residential

14         property; providing an effective date.

15  

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

17  

18         Section 1.  Paragraph (a) of subsection (1) of section

19  255.05, Florida Statutes, is amended to read:

20         255.05  Bond of contractor constructing public

21  buildings; form; action by materialmen.--

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

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

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

25  public building, for the prosecution and completion of a

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

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

28  recommencing the work after a default or abandonment, to

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

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

31  payment and performance bond with a surety insurer authorized

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    Florida Senate - 2005                           CS for SB 1016
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 1  to do business in this state as surety. A public entity may

 2  not require a contractor to secure a surety bond under this

 3  section from a specific agent or bonding company. The bond

 4  must state on its front page: the name, principal business

 5  address, and phone number of the contractor, the surety, the

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

 7  the owner, the contracting public entity; the contract number

 8  assigned by the contracting public entity; and a description

 9  of the project sufficient to identify it, such as a legal

10  description or the street address of the property being

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

12  bond shall be conditioned upon the contractor's performance of

13  the construction work in the time and manner prescribed in the

14  contract and promptly making payments to all persons defined

15  in s. 713.01 who furnish labor, services, or materials for the

16  prosecution of the work provided for in the contract. Any

17  claimant may apply to the governmental entity having charge of

18  the work for copies of the contract and bond and shall

19  thereupon be furnished with a certified copy of the contract

20  and bond. The claimant shall have a right of action against

21  the contractor and surety for the amount due him or her,

22  including unpaid finance charges due under the claimant's

23  contract. Such action shall not involve the public authority

24  in any expense. When such work is done for the state and the

25  contract is for $100,000 or less, no payment and performance

26  bond shall be required. At the discretion of the official or

27  board awarding such contract when such work is done for any

28  county, city, political subdivision, or public authority, any

29  person entering into such a contract which is for $200,000 or

30  less may be exempted from executing the payment and

31  performance bond. When such work is done for the state, the

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 1  Secretary of the Department of Management Services may

 2  delegate to state agencies the authority to exempt any person

 3  entering into such a contract amounting to more than $100,000

 4  but less than $200,000 from executing the payment and

 5  performance bond. In the event such exemption is granted, the

 6  officer or officials shall not be personally liable to persons

 7  suffering loss because of granting such exemption. The

 8  Department of Management Services shall maintain information

 9  on the number of requests by state agencies for delegation of

10  authority to waive the bond requirements by agency and project

11  number and whether any request for delegation was denied and

12  the justification for the denial. Any provision in a bond

13  furnished for public work contracts as provided by this

14  subsection restricting the classes or persons protected by

15  such bond or the venue of any proceeding relating to such bond

16  is unenforceable.

17         Section 2.  Subsection (1) of section 489.129, Florida

18  Statutes, is amended to read:

19         489.129  Disciplinary proceedings.--

20         (1)  The board may take any of the following actions

21  against any certificateholder or registrant: place on

22  probation or reprimand the licensee, revoke, suspend, or deny

23  the issuance or renewal of the certificate, registration, or

24  certificate of authority, require financial restitution to a

25  consumer for financial harm directly related to a violation of

26  a provision of this part, impose an administrative fine not to

27  exceed $10,000 $5,000 per violation, require continuing

28  education, or assess costs associated with investigation and

29  prosecution, if the contractor, financially responsible

30  officer, or business organization for which the contractor is

31  a primary qualifying agent, a financially responsible officer,

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 1  or a secondary qualifying agent responsible under s. 489.1195

 2  is found guilty of any of the following acts:

 3         (a)  Obtaining a certificate, registration, or

 4  certificate of authority by fraud or misrepresentation.

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

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

 7  crime in any jurisdiction which directly relates to the

 8  practice of contracting or the ability to practice

 9  contracting.

10         (c)  Violating any provision of chapter 455.

11         (d)  Performing any act which assists a person or

12  entity in engaging in the prohibited uncertified and

13  unregistered practice of contracting, if the certificateholder

14  or registrant knows or has reasonable grounds to know that the

15  person or entity was uncertified and unregistered.

16         (e)  Knowingly combining or conspiring with an

17  uncertified or unregistered person by allowing his or her

18  certificate, registration, or certificate of authority to be

19  used by the uncertified or unregistered person with intent to

20  evade the provisions of this part. When a certificateholder or

21  registrant allows his or her certificate or registration to be

22  used by one or more business organizations without having any

23  active participation in the operations, management, or control

24  of such business organizations, such act constitutes prima

25  facie evidence of an intent to evade the provisions of this

26  part.

27         (f)  Acting in the capacity of a contractor under any

28  certificate or registration issued hereunder except in the

29  name of the certificateholder or registrant as set forth on

30  the issued certificate or registration, or in accordance with

31  the personnel of the certificateholder or registrant as set

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 1  forth in the application for the certificate or registration,

 2  or as later changed as provided in this part.

 3         (g)  Committing mismanagement or misconduct in the

 4  practice of contracting that causes financial harm to a

 5  customer. Financial mismanagement or misconduct occurs when:

 6         1.  Valid liens have been recorded against the property

 7  of a contractor's customer for supplies or services ordered by

 8  the contractor for the customer's job; the contractor has

 9  received funds from the customer to pay for the supplies or

10  services; and the contractor has not had the liens removed

11  from the property, by payment or by bond, within 75 days after

12  the date of such liens;

13         2.  The contractor has abandoned a customer's job and

14  the percentage of completion is less than the percentage of

15  the total contract price paid to the contractor as of the time

16  of abandonment, unless the contractor is entitled to retain

17  such funds under the terms of the contract or refunds the

18  excess funds within 30 days after the date the job is

19  abandoned; or

20         3.  The contractor's job has been completed, and it is

21  shown that the customer has had to pay more for the contracted

22  job than the original contract price, as adjusted for

23  subsequent change orders, unless such increase in cost was the

24  result of circumstances beyond the control of the contractor,

25  was the result of circumstances caused by the customer, or was

26  otherwise permitted by the terms of the contract between the

27  contractor and the customer.

28         (h)  Being disciplined by any municipality or county

29  for an act or violation of this part.

30  

31  

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 1         (i)  Failing in any material respect to comply with the

 2  provisions of this part or violating a rule or lawful order of

 3  the board.

 4         (j)  Abandoning a construction project in which the

 5  contractor is engaged or under contract as a contractor. A

 6  project may be presumed abandoned after 90 days if the

 7  contractor terminates the project without just cause or

 8  without proper notification to the owner, including the reason

 9  for termination, or fails to perform work without just cause

10  for 90 consecutive days.

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

12  contract falsely indicating that the work is bonded; falsely

13  indicating that payment has been made for all subcontracted

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

15  to the owner, purchaser, or contractor; or falsely indicating

16  that workers' compensation and public liability insurance are

17  provided.

18         (l)  Committing fraud or deceit in the practice of

19  contracting.

20         (m)  Committing incompetency or misconduct in the

21  practice of contracting.

22         (n)  Committing gross negligence, repeated negligence,

23  or negligence resulting in a significant danger to life or

24  property.

25         (o)  Proceeding on any job without obtaining applicable

26  local building department permits and inspections.

27         (p)  Intimidating, threatening, coercing, or otherwise

28  discouraging the service of a notice to owner under part I of

29  chapter 713 or a notice to contractor under chapter 255 or

30  part I of chapter 713.

31  

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 1         (q)  Failing to satisfy within a reasonable time, the

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

 3  the business organization qualified by the licensee, relating

 4  to the practice of the licensee's profession.

 5  

 6  For the purposes of this subsection, construction is

 7  considered to be commenced when the contract is executed and

 8  the contractor has accepted funds from the customer or lender.

 9  A contractor does not commit a violation of this subsection

10  when the contractor relies on a building code interpretation

11  rendered by a building official or person authorized by s.

12  553.80 to enforce the building code, absent a finding of fraud

13  or deceit in the practice of contracting, or gross negligence,

14  repeated negligence, or negligence resulting in a significant

15  danger to life or property on the part of the building

16  official, in a proceeding under chapter 120.

17         Section 3.  Paragraph (c) of subsection (2) of section

18  489.533, Florida Statutes, is amended to read:

19         489.533  Disciplinary proceedings.--

20         (2)  When the board finds any applicant, contractor, or

21  business organization for which the contractor is a primary

22  qualifying agent or secondary qualifying agent responsible

23  under s. 489.522 guilty of any of the grounds set forth in

24  subsection (1), it may enter an order imposing one or more of

25  the following penalties:

26         (c)  Imposition of an administrative fine not to exceed

27  $10,000 $5,000 for each count or separate offense.

28         Section 4.  Section 713.015, Florida Statutes, is

29  amended to read:

30         713.015  Mandatory provisions for direct

31  contracts.--Any direct contract between an owner and a

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 1  contractor, related to improvements to real property

 2  consisting of single or multiple family dwellings up to and

 3  including four units, must contain the following provision

 4  printed in capital letters no less than 14-point 18-point,

 5  capitalized, boldfaced type on the front of the contract:

 6  

 7  ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS

 8  713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR

 9  PROPERTY OR PROVIDE MATERIALS AND ARE NOT PAID IN FULL HAVE A

10  RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR

11  PROPERTY. THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR

12  CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS,

13  SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS OR NEGLECTS TO MAKE

14  OTHER LEGALLY REQUIRED PAYMENTS, THE PEOPLE WHO ARE OWED MONEY

15  MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE PAID

16  YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR,

17  YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR PROPERTY. THIS

18  MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE SOLD AGAINST

19  YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER SERVICES THAT

20  YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED TO PAY.

21  FLORIDA'S CONSTRUCTION LIEN LAW IS COMPLEX AND IT IS

22  RECOMMENDED THAT WHENEVER A SPECIFIC PROBLEM ARISES, YOU

23  CONSULT AN ATTORNEY.

24  

25  Nothing in this section shall be construed to adversely affect

26  the lien and bond rights of lienors who are not in privity

27  with the owner. This section does not apply when the owner is

28  also a licensed contractor or a construction professional who

29  is in the business of developing property.

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

31  Statutes, is amended to read:

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 1         713.02  Types of lienors and exemptions.--

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

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

 4  or sub-subcontractor who is unlicensed as provided in s.

 5  489.128 or s. 489.532. Notwithstanding any other provision of

 6  this part, if a contract is rendered unenforceable by an

 7  unlicensed contractor, subcontractor, or sub-subcontractor

 8  pursuant to s. 489.128 or s. 489.532, such unenforceability

 9  shall not affect the rights of any other persons to enforce

10  contract, lien, or bond remedies and shall not affect the

11  obligations of a surety that has provided a bond on behalf of

12  the unlicensed contractor, subcontractor, or

13  sub-subcontractor. It shall not be a defense to any claim on a

14  bond or indemnity agreement that the principal or indemnitor

15  is unlicensed as provided in s. 489.128 or s. 489.532.

16         Section 6.  Subsection (3) of section 713.04, Florida

17  Statutes, is amended, and subsection (4) is added to that

18  section, to read:

19         713.04  Subdivision improvements.--

20         (3)  The owner shall not pay any money on account of a

21  direct contract before actual furnishing of labor and services

22  or materials for subdivision improvements. Any such The

23  payment not complying with such requirement shall not qualify

24  as a proper payment under this chapter section.

25         (4)  The owner shall make final payment on account of a

26  direct contract only after the contractor complies with s.

27  713.06(3)(d). Any such payment not complying with such

28  requirement shall not qualify as a proper payment under this

29  chapter.

30         Section 7.  Paragraph (c) of subsection (4) of section

31  713.08, Florida Statutes, is amended to read:

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 1         713.08  Claim of lien.--

 2         (4)

 3         (c)  The claim of lien shall be served on the owner.

 4  Failure to serve any claim of lien in the manner provided in

 5  s. 713.18 before recording or within 15 days after recording

 6  shall render the claim of lien voidable to the extent that the

 7  failure or delay is shown to have been prejudicial to any

 8  person entitled to rely on the service.

 9         Section 8.  Paragraph (e) of subsection (1) of section

10  713.13, Florida Statutes, is amended to read:

11         713.13  Notice of commencement.--

12         (1)

13         (e)  A copy of any payment bond must be attached at the

14  time of recordation of the notice of commencement. The failure

15  to attach a copy of the bond to the notice of commencement

16  when the notice is recorded negates the exemption provided in

17  s. 713.02(6). However, if such a payment bond under s. 713.23

18  exists but was is not attached at the time of recordation of

19  the notice of commencement, the bond may be used to transfer

20  any recorded lien of a lienor except that of the contractor by

21  the recordation and service of a notice of bond pursuant to s.

22  713.23(2). The notice requirements of s. 713.23 apply to any

23  claim against the bond; however, the time limits for serving

24  any required notices shall begin running from the later of the

25  time specified in s. 713.23 or the date the notice of bond is

26  served on the lienor recorded, the bond may be used as a

27  transfer bond pursuant to s. 713.24.

28         Section 9.  Paragraph (b) of subsection (1) and

29  subsection (4) of section 713.135, Florida Statutes, are

30  amended, and paragraph (e) is added to subsection (1) of that

31  section, to read:

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 1         713.135  Notice of commencement and applicability of

 2  lien.--

 3         (1)  When any person applies for a building permit, the

 4  authority issuing such permit shall:

 5         (b)  Provide the applicant and the owner of the real

 6  property upon which improvements are to be constructed with a

 7  printed statement stating that the right, title, and interest

 8  of the person who has contracted for the improvement may be

 9  subject to attachment under the Construction Lien Law. The

10  Department of Business and Professional Regulation shall

11  furnish, for distribution, the statement described in this

12  paragraph, and the statement must be a summary of the

13  Construction Lien Law and must include an explanation of the

14  provisions of the Construction Lien Law relating to the

15  recording, and the posting of copies, of notices of

16  commencement and a statement encouraging the owner to record a

17  notice of commencement and post a copy of the notice of

18  commencement in accordance with s. 713.13. The statement must

19  also contain an explanation of the owner's rights if a lienor

20  fails to furnish the owner with a notice as provided in s.

21  713.06(2) and an explanation of the owner's rights as provided

22  in s. 713.22. The authority that issues the building permit

23  must obtain from the Department of Business and Professional

24  Regulation the statement required by this paragraph and must

25  mail, deliver by electronic mail or other electronic format or

26  facsimile, or personally deliver that statement to the owner

27  or, in a case in which the owner is required to personally

28  appear to obtain the permit, provide that statement to any

29  owner making improvements to real property consisting of a

30  single or multiple family dwelling up to and including four

31  

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 1  units. However, the failure by the authorities to provide the

 2  summary does not subject the issuing authority to liability.

 3         (e)  Nothing in this subsection shall be construed to

 4  require a notice of commencement to be recorded as a condition

 5  to the issuance of a building permit.

 6         (4)  The several boards of county commissioners,

 7  municipal councils, or other similar bodies may by ordinance

 8  or resolution establish reasonable fees for furnishing copies

 9  of the forms and the printed statement provided in paragraphs

10  paragraph (1)(b) and (d) in an amount not to exceed $5 to be

11  paid by the applicant for each permit in addition to all other

12  costs of the permit; however, no forms or statement need be

13  furnished, mailed, or otherwise provided to, nor may such

14  additional fee be obtained from, applicants for permits in

15  those cases in which the owner of a legal or equitable

16  interest (including that of ownership of stock of a corporate

17  landowner) of the real property to be improved is engaged in

18  the business of construction of buildings for sale to others

19  and intends to make the improvements authorized by the permit

20  on the property and upon completion will offer the improved

21  real property for sale.

22         Section 10.  Subsections (3) and (4) of section 713.24,

23  Florida Statutes, are amended to read:

24         713.24  Transfer of liens to security.--

25         (3)  Any party having an interest in such security or

26  the property from which the lien was transferred may at any

27  time, and any number of times, file a complaint in chancery in

28  the circuit court of the county where such security is

29  deposited, or file a motion in a pending action to enforce a

30  lien, for an order to require additional security, reduction

31  of security, change or substitution of sureties, payment of

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 1  discharge thereof, or any other matter affecting said

 2  security. If the court finds that the amount of the deposit or

 3  bond in excess of the amount claimed in the claim of lien is

 4  insufficient to pay the lienor's attorney's fees and court

 5  costs incurred in the action to enforce the lien, the court

 6  must increase the amount of the cash deposit or lien transfer

 7  bond. Nothing in this section shall be construed to vest

 8  exclusive jurisdiction in the circuit courts over transfer

 9  bond claims for nonpayment of an amount within the monetary

10  jurisdiction of the county courts.

11         (4)  If a proceeding to enforce a transferred lien is

12  not commenced within the time specified in s. 713.22 or if it

13  appears that the transferred lien has been satisfied of

14  record, the clerk shall return said security upon request of

15  the person depositing or filing the same, or the insurer. If a

16  proceeding to enforce a lien is commenced in a court of

17  competent jurisdiction within the time specified in s. 713.22

18  and, during such proceeding, the lien is transferred pursuant

19  to this section or s. 713.13(1)(e), an action commenced in the

20  same county or circuit court to recover against the security

21  shall be deemed to have been brought as of the date of filing

22  the action to enforce the lien, and the court shall have

23  jurisdiction over the action.

24         Section 11.  Paragraph (b) of subsection (1) of section

25  713.345, Florida Statutes, is amended to read:

26         713.345  Moneys received for real property

27  improvements; penalty for misapplication.--

28         (1)

29         (b)  Any person who knowingly and intentionally fails

30  to comply with paragraph (a) is guilty of misapplication of

31  construction funds, punishable as follows:

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 1         1.  If the amount of payments misapplied has an

 2  aggregate value of $100,000 or more, the violator is guilty of

 3  a felony of the first degree, punishable as provided in s.

 4  775.082, s. 775.083, or s. 775.084.

 5         2.  If the amount of payments misapplied has an

 6  aggregate value of $1,000 $20,000 or more but less than

 7  $100,000, the violator is guilty of a felony of the second

 8  degree, punishable as provided in s. 775.082, s. 775.083, or

 9  s. 775.084.

10         3.  If the amount of payments misapplied has an

11  aggregate value of less than $1,000 $20,000, the violator is

12  guilty of a felony of the third degree, punishable as provided

13  in s. 775.082, s. 775.083, or s. 775.084.

14         Section 12.  Subsection (1) of section 713.3471,

15  Florida Statutes, is amended to read:

16         713.3471  Lender responsibilities with construction

17  loans.--

18         (1)  Prior to a lender making any loan disbursement on

19  any construction loan secured by residential real property

20  directly to the owner, which, for purposes of this subsection,

21  means only a natural person, into the owner's account or

22  accounts, or jointly to the owner and any other party, the

23  lender must mail, deliver by electronic mail or other

24  electronic format or facsimile, or personally deliver shall

25  give the following written notice to the borrowers in bold

26  type larger than any other type on the page:

27  

28                             WARNING!

29  

30         YOUR LENDER IS MAKING A LOAN DISBURSEMENT

31         DIRECTLY TO YOU AS THE BORROWER, OR JOINTLY TO

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 1         YOU AND ANOTHER PARTY. TO PROTECT YOURSELF FROM

 2         HAVING TO PAY TWICE FOR THE SAME LABOR,

 3         SERVICES, OR MATERIALS USED IN MAKING THE

 4         IMPROVEMENTS TO YOUR PROPERTY, BE SURE THAT YOU

 5         REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN

 6         RELEASES FROM EACH LIENOR WHO HAS SENT YOU A

 7         NOTICE TO OWNER EACH TIME YOU MAKE A PAYMENT TO

 8         YOUR CONTRACTOR.

 9  

10  This subsection does not apply to owners of real property when

11  acting as licensed contractors pursuant to chapter 489 or as

12  developers who create parcels or offer parcels for sale or

13  lease in the ordinary course of business.

14         Section 13.  This act shall take effect October 1,

15  2005.

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    580-1780-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1016

 3                                 

 4  The committee substitute (CS) requires that the notice of lien
    law be in capital letters no less than 14-point, capitalized,
 5  boldfaced type on the front of standard construction
    contracts.
 6  
    It deletes the word "proper" in front of payment bond to
 7  conform to correct terminology.

 8  It clarifies that the time for serving notices regarding
    payment bonds begins to run as specified in the act.
 9  
    It clarifies the jurisdiction of the county and circuit court
10  in transfers of lien actions.

11  It clarifies the provision affecting the transfer of lien
    during a lien enforcement proceeding.
12  
    It increases the criminal penalty for misapplication of
13  construction funds between $1,000 and $20,000.

14  It maintains the requirements that a loan disbursement notice
    go out with every disbursement.  It also expands the method of
15  delivery to mail, electronic mail, facsimile, or personally
    delivery.  It deletes language that states that the
16  disbursement notice will be the only noticed received.

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CODING: Words stricken are deletions; words underlined are additions.