Senate Bill sb1016c2

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    Florida Senate - 2005                    CS for CS for SB 1016

    By the Committees on Governmental Oversight and Productivity;
    Regulated Industries; and Senator Argenziano




    585-2012-05

  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. 713.23, F.S.;

 3         providing that a contractor may commence an

 4         action to enforce a claim any time after a

 5         notice of nonpayment has been served; amending

 6         s. 713.24, F.S.; preserving jurisdiction in the

 7         county court over certain transfer bond claims

 8         for nonpayment; preserving certain lien rights

 9         when filing a transfer bond after commencing

10         certain lien enforcement proceedings; amending

11         s. 713.345, F.S.; increasing certain criminal

12         penalties for misapplication of construction

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

14         provision requiring a lender to provide notice

15         to a borrower when making a disbursement on a

16         construction loan secured by residential

17         property; providing an effective date.

18  

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

20  

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

22  255.05, Florida Statutes, is amended to read:

23         255.05  Bond of contractor constructing public

24  buildings; form; action by materialmen.--

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

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

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

28  public building, for the prosecution and completion of a

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

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

31  recommencing the work after a default or abandonment, to

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

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

 3  payment and performance bond with a surety insurer authorized

 4  to do business in this state as surety. A public entity may

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

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

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

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

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

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

11  assigned by the contracting public entity; and a description

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

13  description or the street address of the property being

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

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

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

17  contract and promptly making payments to all persons defined

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

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

20  claimant may apply to the governmental entity having charge of

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

22  thereupon be furnished with a certified copy of the contract

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

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

25  including unpaid finance charges due under the claimant's

26  contract. Such action shall not involve the public authority

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

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

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

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

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

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

 2  less may be exempted from executing the payment and

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

 4  Secretary of the Department of Management Services may

 5  delegate to state agencies the authority to exempt any person

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

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

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

 9  officer or officials shall not be personally liable to persons

10  suffering loss because of granting such exemption. The

11  Department of Management Services shall maintain information

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

13  authority to waive the bond requirements by agency and project

14  number and whether any request for delegation was denied and

15  the justification for the denial. Any provision in a payment

16  bond furnished for public work contracts as provided by this

17  subsection which restricts the classes of persons as defined

18  in s. 713.01, protected by the bond or the venue of any

19  proceeding relating to such bond is unenforceable.

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

21  Statutes, is amended to read:

22         489.129  Disciplinary proceedings.--

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

24  against any certificateholder or registrant: place on

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

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

27  certificate of authority, require financial restitution to a

28  consumer for financial harm directly related to a violation of

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

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

31  education, or assess costs associated with investigation and

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 1  prosecution, if the contractor, financially responsible

 2  officer, or business organization for which the contractor is

 3  a primary qualifying agent, a financially responsible officer,

 4  or a secondary qualifying agent responsible under s. 489.1195

 5  is found guilty of any of the following acts:

 6         (a)  Obtaining a certificate, registration, or

 7  certificate of authority by fraud or misrepresentation.

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

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

10  crime in any jurisdiction which directly relates to the

11  practice of contracting or the ability to practice

12  contracting.

13         (c)  Violating any provision of chapter 455.

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

15  entity in engaging in the prohibited uncertified and

16  unregistered practice of contracting, if the certificateholder

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

18  person or entity was uncertified and unregistered.

19         (e)  Knowingly combining or conspiring with an

20  uncertified or unregistered person by allowing his or her

21  certificate, registration, or certificate of authority to be

22  used by the uncertified or unregistered person with intent to

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

24  registrant allows his or her certificate or registration to be

25  used by one or more business organizations without having any

26  active participation in the operations, management, or control

27  of such business organizations, such act constitutes prima

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

29  part.

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

31  certificate or registration issued hereunder except in the

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 1  name of the certificateholder or registrant as set forth on

 2  the issued certificate or registration, or in accordance with

 3  the personnel of the certificateholder or registrant as set

 4  forth in the application for the certificate or registration,

 5  or as later changed as provided in this part.

 6         (g)  Committing mismanagement or misconduct in the

 7  practice of contracting that causes financial harm to a

 8  customer. Financial mismanagement or misconduct occurs when:

 9         1.  Valid liens have been recorded against the property

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

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

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

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

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

15  the date of such liens;

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

17  the percentage of completion is less than the percentage of

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

19  of abandonment, unless the contractor is entitled to retain

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

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

22  abandoned; or

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

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

25  job than the original contract price, as adjusted for

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

27  result of circumstances beyond the control of the contractor,

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

29  otherwise permitted by the terms of the contract between the

30  contractor and the customer.

31  

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 1         (h)  Being disciplined by any municipality or county

 2  for an act or violation of this part.

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

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

 5  the board.

 6         (j)  Abandoning a construction project in which the

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

 8  project may be presumed abandoned after 90 days if the

 9  contractor terminates the project without just cause or

10  without proper notification to the owner, including the reason

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

12  for 90 consecutive days.

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

14  contract falsely indicating that the work is bonded; falsely

15  indicating that payment has been made for all subcontracted

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

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

18  that workers' compensation and public liability insurance are

19  provided.

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

21  contracting.

22         (m)  Committing incompetency or misconduct in the

23  practice of contracting.

24         (n)  Committing gross negligence, repeated negligence,

25  or negligence resulting in a significant danger to life or

26  property.

27         (o)  Proceeding on any job without obtaining applicable

28  local building department permits and inspections.

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

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

31  

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

 2  part I of chapter 713.

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

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

 5  the business organization qualified by the licensee, relating

 6  to the practice of the licensee's profession.

 7  

 8  For the purposes of this subsection, construction is

 9  considered to be commenced when the contract is executed and

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

11  A contractor does not commit a violation of this subsection

12  when the contractor relies on a building code interpretation

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

14  553.80 to enforce the building code, absent a finding of fraud

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

16  repeated negligence, or negligence resulting in a significant

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

18  official, in a proceeding under chapter 120.

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

20  489.533, Florida Statutes, is amended to read:

21         489.533  Disciplinary proceedings.--

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

23  business organization for which the contractor is a primary

24  qualifying agent or secondary qualifying agent responsible

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

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

27  the following penalties:

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

29  $10,000 $5,000 for each count or separate offense.

30         Section 4.  Section 713.015, Florida Statutes, is

31  amended to read:

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 1         713.015  Mandatory provisions for direct

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

 3  contractor, related to improvements to real property

 4  consisting of single or multiple family dwellings up to and

 5  including four units, must contain the following provision

 6  printed in no less than 14-point 18-point, capitalized,

 7  boldfaced type on the front page of the contract:

 8  

 9  ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS

10  713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR

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

12  RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR

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

14  CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS,

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

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

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

18  ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR

19  CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR

20  PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE

21  SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER

22  SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE

23  FAILED TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN

24  THIS CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR

25  IS REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM

26  ANY PERSON OR COMPANY THAT HAS PROVIDED TO YOU A "NOTICE TO

27  OWNER." FLORIDA'S CONSTRUCTION LIEN LAW IS COMPLEX AND IT IS

28  RECOMMENDED THAT WHENEVER A SPECIFIC PROBLEM ARISES, YOU

29  CONSULT AN ATTORNEY.

30  

31  

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 1  Nothing in this section shall be construed to adversely affect

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

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

 4  a licensed contractor under chapter 489 or is a person who

 5  creates parcels or offers parcels for sale or lease in the

 6  ordinary course of business.

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

 8  Statutes, is amended to read:

 9         713.02  Types of lienors and exemptions.--

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

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

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

13  489.128 or s. 489.532. Notwithstanding any other provision of

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

15  unlicensed contractor, subcontractor, or sub-subcontractor

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

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

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

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

20  the unlicensed contractor, subcontractor, or

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

22  bond or indemnity agreement that the principal or indemnitor

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

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

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

26  section, to read:

27         713.04  Subdivision improvements.--

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

29  direct contract before actual furnishing of labor and services

30  or materials for subdivision improvements. Any The payment not

31  

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 1  complying with this requirement shall not qualify as a proper

 2  payment under this chapter section.

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

 4  direct contract only after the contractor complies with s.

 5  713.06(3)(d). Any payment not complying with this requirement

 6  shall not qualify as a proper payment under this chapter.

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

 8  713.08, Florida Statutes, is amended to read:

 9         713.08  Claim of lien.--

10         (4)

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

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

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

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

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

16  person entitled to rely on the service.

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

18  713.13, Florida Statutes, is amended to read:

19         713.13  Notice of commencement.--

20         (1)

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

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

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

24  when the notice is recorded negates the exemption provided in

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

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

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

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

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

30  713.23(2). The notice requirements of s. 713.23 apply to any

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

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

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

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

 4  transfer bond pursuant to s. 713.24.

 5         Section 9.  Paragraphs (b) and (d) of subsection (1)

 6  and subsection (4) of section 713.135, Florida Statutes, are

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

 8  section, to read:

 9         713.135  Notice of commencement and applicability of

10  lien.--

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

12  authority issuing such permit shall:

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

14  property upon which improvements are to be constructed with a

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

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

17  subject to attachment under the Construction Lien Law. The

18  Department of Business and Professional Regulation shall

19  furnish, for distribution, the statement described in this

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

21  Construction Lien Law and must include an explanation of the

22  provisions of the Construction Lien Law relating to the

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

24  commencement and a statement encouraging the owner to record a

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

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

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

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

29  713.06(2) and an explanation of the owner's rights as provided

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

31  must obtain from the Department of Business and Professional

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 1  Regulation the statement required by this paragraph and must

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

 3  facsimile, or personally deliver that statement to the owner

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

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

 6  owner making improvements to real property consisting of a

 7  single or multiple family dwelling up to and including four

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

 9  summary does not subject the issuing authority to liability.

10         (d)  Furnish to the applicant two or more copies of a

11  form of notice of commencement conforming with s. 713.13.  If

12  the direct contract is greater than $2,500, the applicant

13  shall file with the issuing authority prior to the first

14  inspection either a certified copy of the recorded notice of

15  commencement or a notarized statement that the notice of

16  commencement has been filed for recording, along with a copy

17  thereof.  In the absence of the filing of a certified copy of

18  the recorded notice of commencement, the issuing authority or

19  a private provider performing inspection services may shall

20  not perform or approve subsequent inspections until the

21  applicant files by mail, facsimile, hand delivery, or any

22  other means such certified copy with the issuing authority.

23  The certified copy of the notice of commencement must contain

24  the name and address of the owner, the name and address of the

25  contractor, and the location or address of the property being

26  improved. The issuing authority shall verify that the name and

27  address of the owner, the name of the contractor, and the

28  location or address of the property being improved which is

29  contained in the certified copy of the notice of commencement

30  is consistent with the information in the building permit

31  application. The issuing authority shall provide the recording

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 1  information on the certified copy of the recorded notice of

 2  commencement to any person upon request. This subsection does

 3  not require the recording of a notice of commencement prior to

 4  the issuance of a building permit. If a local government

 5  requires a separate permit or inspection for installation of

 6  temporary electrical service or other temporary utility

 7  service, land clearing, or other preliminary site work, such

 8  permits may be issued and such inspections may be conducted

 9  without providing the issuing authority with a certified copy

10  of a recorded notice of commencement or a notarized statement

11  regarding a recorded notice of commencement. This subsection

12  does not apply to a direct contract to repair or replace an

13  existing heating or air-conditioning system in an amount less

14  than $7,500 $5,000.

15         (e)  An issuing authority or building official may not

16  require that a notice of commencement be recorded as a

17  condition of the application, processing, or issuance of a

18  building permit. However, this paragraph does not modify or

19  waive the inspection requirements set forth in this

20  subsection.

21         (4)  The several boards of county commissioners,

22  municipal councils, or other similar bodies may by ordinance

23  or resolution establish reasonable fees for furnishing copies

24  of the forms and the printed statement provided in paragraphs

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

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

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

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

29  additional fee be obtained from, applicants for permits in

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

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

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

 2  the business of construction of buildings for sale to others

 3  and intends to make the improvements authorized by the permit

 4  on the property and upon completion will offer the improved

 5  real property for sale.

 6         Section 10.  Paragraph (e) of subsection (1) of section

 7  713.23, Florida Statutes, is amended to read:

 8         713.23  Payment bond.--

 9         (1)

10         (e)  No action for the labor or materials or supplies

11  may be instituted or prosecuted against the contractor or

12  surety unless both notices have been given.  No action shall

13  be instituted or prosecuted against the contractor or against

14  the surety on the bond under this section after 1 year from

15  the performance of the labor or completion of delivery of the

16  materials and supplies. The time period for bringing an action

17  against the contractor or surety on the bond shall be measured

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

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

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

21  issuance of a certificate of substantial completion. A

22  contractor or the contractor's agent or attorney may elect to

23  shorten the prescribed time within which an action to enforce

24  any claim against a payment bond provided under pursuant to

25  this section or s. 713.245 may be commenced at any time after

26  a notice of nonpayment has been served for the claim by

27  recording in the clerk's office a notice in substantially the

28  following form:

29  

30                    NOTICE OF CONTEST OF CLAIM

31                       AGAINST PAYMENT BOND

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 1  

 2  To:  ...(Name and address of lienor)...

 3         You are notified that the undersigned contests your

 4  notice of nonpayment, dated ...., ...., and served on the

 5  undersigned on ...., ...., and that the time within which you

 6  may file suit to enforce your claim is limited to 60 days from

 7  the date of service of this notice.

 8  

 9  DATED on ...., .....

10  

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

12  

13  

14  The claim of any lienor upon whom the such notice is served

15  and who fails to institute a suit to enforce his or her claim

16  against the payment bond within 60 days after service of the

17  such notice shall be extinguished automatically. The clerk

18  shall mail a copy of the notice of contest to the lienor at

19  the address shown in the notice of nonpayment or most recent

20  amendment thereto and shall certify to the such service on the

21  face of the such notice and record the notice. Service is

22  complete upon mailing.

23         Section 11.  Subsections (3) and (4) of section 713.24,

24  Florida Statutes, are amended to read:

25         713.24  Transfer of liens to security.--

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

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

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

29  the circuit court of the county where such security is

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

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

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    Florida Senate - 2005                    CS for CS for SB 1016
    585-2012-05




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

 2  discharge thereof, or any other matter affecting said

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

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

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

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

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

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

 9  exclusive jurisdiction in the circuit courts over transfer

10  bond claims for nonpayment of an amount within the monetary

11  jurisdiction of the county courts.

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

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

14  appears that the transferred lien has been satisfied of

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

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

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

18  competent jurisdiction within the time specified in s. 713.22

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

20  to this section or s. 713.13(1)(e), an action commenced within

21  1 year of the transfer, unless otherwise shortened by

22  operation of law, in the same county or circuit court to

23  recover against the security shall be deemed to have been

24  brought as of the date of filing the action to enforce the

25  lien, and the court shall have jurisdiction over the action.

26         Section 12.  Paragraph (b) of subsection (1) of section

27  713.345, Florida Statutes, is amended to read:

28         713.345  Moneys received for real property

29  improvements; penalty for misapplication.--

30         (1)

31  

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    Florida Senate - 2005                    CS for CS for SB 1016
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 1         (b)  Any person who knowingly and intentionally fails

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

 3  construction funds, punishable as follows:

 4         1.  If the amount of payments misapplied has an

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

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

 7  775.082, s. 775.083, or s. 775.084.

 8         2.  If the amount of payments misapplied has an

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

10  $100,000, the violator is guilty of a felony of the second

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

12  s. 775.084.

13         3.  If the amount of payments misapplied has an

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

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

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

17         Section 13.  Subsection (1) of section 713.3471,

18  Florida Statutes, is amended to read:

19         713.3471  Lender responsibilities with construction

20  loans.--

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

22  any construction loan secured by residential real property

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

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

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

26  lender must mail, deliver by electronic mail or other

27  electronic format or facsimile, or personally deliver shall

28  give the following written notice to the borrowers in bold

29  type larger than any other type on the page:

30  

31                             WARNING!

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    Florida Senate - 2005                    CS for CS for SB 1016
    585-2012-05




 1  

 2         YOUR LENDER IS MAKING A LOAN DISBURSEMENT

 3         DIRECTLY TO YOU AS THE BORROWER, OR JOINTLY TO

 4         YOU AND ANOTHER PARTY. TO PROTECT YOURSELF FROM

 5         HAVING TO PAY TWICE FOR THE SAME LABOR,

 6         SERVICES, OR MATERIALS USED IN MAKING THE

 7         IMPROVEMENTS TO YOUR PROPERTY, BE SURE THAT YOU

 8         REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN

 9         RELEASES FROM EACH LIENOR WHO HAS SENT YOU A

10         NOTICE TO OWNER EACH TIME YOU MAKE A PAYMENT TO

11         YOUR CONTRACTOR.

12  

13  This subsection does not apply when the owner is a licensed

14  contractor under chapter 489 or is a person who creates

15  parcels or offers parcels for sale or lease in the ordinary

16  course of business.

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

18  2005.

19  

20          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
21                     CS for Senate Bill 1016

22                                 

23  Modifies the mandatory provisions for direct contracts between
    owners and contractors by deleting a provision identifying
24  certain claims as construction liens, and adding a suggestion
    concerning written releases of liens.
25  
    Provides clarification of the time period in which to commence
26  an action to enforce a claim against a payment bond.

27  

28  

29  

30  

31  

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