Senate Bill sb1894c1
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Florida Senate - 2006 CS for SB 1894
By the Committee on Regulated Industries; and Senators Baker
and Bennett
580-2434-06
1 A bill to be entitled
2 An act relating to professional regulation by
3 the Department of Business and Professional
4 Regulation; amending s. 489.128, F.S.;
5 providing that individuals performing certain
6 construction contracting work are not
7 considered unlicensed for purposes of contract
8 enforceability; providing for retroactive
9 application; amending s. 489.503, F.S.;
10 exempting nationally recognized testing
11 laboratories from certain alarm system
12 contracting provisions; amending s. 489.505,
13 F.S.; defining the term "nationally recognized
14 testing laboratory"; amending s. 489.516, F.S.;
15 exempting certain electrical and alarm system
16 contractors from ordinances or codes of local
17 governments or special districts requiring
18 various types of recognition by certain
19 national entities; authorizing local
20 governments or special districts to require
21 such contractors to provide certain
22 documentation at the final inspection of an
23 alarm system; reserving the authority of local
24 governments and special districts to require
25 compliance with the Florida Fire Prevention
26 Code and NFPA No. 72; amending s. 489.532,
27 F.S.; providing that individuals performing
28 certain electrical and alarm system contracting
29 work are not considered unlicensed for purposes
30 of contract enforceability; providing for
31 retroactive application; amending s. 468.385,
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1 F.S.; requiring an applicant for an auctioneer
2 license to submit fingerprints with the
3 application; revising information that must be
4 submitted with an application regarding the
5 applicant; amending s. 468.609, F.S.; providing
6 additional eligibility requirements for a
7 person to take the examination for
8 certification as a building code inspector or
9 plans examiner; revising a reference to the
10 organization administering certain
11 examinations; amending s. 468.617, F.S.;
12 authorizing certain limited certificateholders
13 to provide services to specified jurisdictions;
14 amending s. 468.619, F.S.; providing for the
15 application of the building code enforcement
16 officials' bill of rights to certain
17 disciplinary investigations and proceedings;
18 amending s. 468.621, F.S.; providing for
19 disciplinary proceedings for violations
20 involving failure to follow building code or
21 permit requirements, obstructing an
22 investigation, and accepting services at a
23 noncompetitive rate from any person whose work
24 is under the enforcement authority of the
25 official, under certain circumstances; amending
26 ss. 489.113 and 489.117, F.S.; exempting
27 certain contractors and specialty contractors
28 who are working under the supervision of a
29 property owner who is acting as his or her own
30 contractor from certification or registration
31 requirements; amending s. 468.627, F.S.;
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1 providing requirements for continuing education
2 in ethics; removing provisions relating to an
3 option of taking an equivalency test in lieu of
4 taking core curriculum classes; amending s.
5 489.115, F.S.; requiring applicants for initial
6 issuance of a certificate or registration as a
7 contractor to submit to criminal history
8 records checks; authorizing the board to deny
9 licensure to certain applicants; specifying
10 matters the board must consider concerning
11 licensure; prohibiting the denial of licensure
12 based solely on a felony conviction or the
13 status of the civil rights of the applicant;
14 specifying that guidelines for determining
15 financial stability may include minimum
16 requirements for net worth, cash, and bonding;
17 providing that a portion of financial
18 requirements may be met by completing specified
19 coursework; providing an effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Paragraphs (a) and (b) of subsection (1) of
24 section 489.128, Florida Statutes, are amended to read:
25 489.128 Contracts entered into by unlicensed
26 contractors unenforceable.--
27 (1) As a matter of public policy, contracts entered
28 into on or after October 1, 1990, by an unlicensed contractor
29 shall be unenforceable in law or in equity by the unlicensed
30 contractor.
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1 (a) For purposes of this section, an individual is
2 unlicensed if the individual does not have a license required
3 by this part concerning the scope of the work to be performed
4 under the contract. A business organization is unlicensed if
5 the business organization does not have a primary or secondary
6 qualifying agent in accordance with this part concerning the
7 scope of the work to be performed under the contract. For
8 purposes of this section, if no state or local license is
9 required for the scope of work to be performed under the
10 contract, the individual performing that work shall not be
11 considered unlicensed.
12 (b) For purposes of this section, an individual or
13 business organization may shall not be considered unlicensed
14 for failing to have an occupational license certificate issued
15 under the authority of chapter 205. A business organization
16 may shall not be considered unlicensed for failing to have a
17 certificate of authority as required by ss. 489.119 and
18 489.127. For purposes of this section, a business organization
19 entering into the contract may not be considered unlicensed
20 if, before the date established by paragraph (c), an
21 individual possessing a license required by this part
22 concerning the scope of the work to be performed under the
23 contract has submitted an application for a certificate of
24 authority designating that individual as a qualifying agent
25 for the business organization entering into the contract, and
26 the application was not acted upon by the department or
27 applicable board within the time limitations imposed by s.
28 120.60.
29 Section 2. Subsection (21) is added to section
30 489.503, Florida Statutes, to read:
31 489.503 Exemptions.--This part does not apply to:
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1 (21) Alarm system inspections, audits, or quality
2 assurance services performed by a nationally recognized
3 testing laboratory that the Occupational Safety and Health
4 Administration has recognized as meeting the requirements of
5 29 C.F.R. s. 1910.7.
6 Section 3. Subsection (29) is added to section
7 489.505, Florida Statutes, to read:
8 489.505 Definitions.--As used in this part:
9 (29) "Nationally recognized testing laboratory" means
10 an organization that the Occupational Safety and Health
11 Administration has legally recognized to be in compliance with
12 29 C.F.R. s. 1910.7 and that provides quality assurance,
13 product testing, or certification services.
14 Section 4. Subsection (5) is added to section 489.516,
15 Florida Statutes, to read:
16 489.516 Qualifications to practice; restrictions;
17 prerequisites.--
18 (5) Notwithstanding any other provision to the
19 contrary, a certified electrical contractor, registered alarm
20 system contractor I, registered alarm system contractor II, or
21 alarm system contractor I or alarm system contractor II that
22 is a certified alarm system contractor is exempt from any
23 local law, ordinance, or code that requires a contractor to be
24 listed or placarded by a nationally recognized testing
25 laboratory or to be certified by any regionally or nationally
26 recognized certification organization. However, a county,
27 municipality, or special district may require any such
28 electrical contractor or alarm system contractor to provide,
29 at the final inspection of a fire alarm system, the
30 documentation required by NFPA No. 72, "National Fire Alarm
31 Code," for installation and monitoring. This subsection does
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1 not prohibit a county, municipality, or special district from
2 requiring compliance with the Florida Fire Prevention Code or
3 with NFPA No. 72.
4 Section 5. Paragraph (a) of subsection (1) of section
5 489.532, Florida Statutes, is amended to read:
6 489.532 Contracts entered into by unlicensed
7 contractors unenforceable.--
8 (1) As a matter of public policy, contracts entered
9 into on or after October 1, 1990, by an unlicensed contractor
10 shall be unenforceable in law or in equity by the unlicensed
11 contractor.
12 (a) For purposes of this section, an individual is
13 unlicensed if the individual does not have a license required
14 by this part concerning the scope of the work to be performed
15 under the contract. A business organization is unlicensed if
16 the business organization does not have a primary or secondary
17 qualifying agent in accordance with this part concerning the
18 scope of the work to be performed under the contract. For
19 purposes of this section, if no state or local license is
20 required for the scope of work to be performed under the
21 contract, the individual performing that work shall not be
22 considered unlicensed.
23 Section 6. Sections 1 and 5 are intended to be
24 remedial in nature and to clarify existing law. Sections 1 and
25 5 shall apply retroactively to all actions, including any
26 action on a lien or bond claim, initiated on or after, or
27 pending as of, July 1, 2006. If the retroactivity of any
28 provision of section 1 or section 5 or its retroactive
29 application to any person or circumstance is held invalid, the
30 invalidity does not affect the retroactivity or retroactive
31 application of other provisions of sections 1 and 5.
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1 Section 7. Subsections (4) and (7) of section 468.385,
2 Florida Statutes, are amended, present subsection (8) of that
3 section is renumbered as subsection (9), and a new subsection
4 (8) is added to that section, to read:
5 468.385 Licenses required; qualifications;
6 examination.--
7 (4) Any person seeking a license as an auctioneer must
8 pass a written examination approved by the board which tests
9 his or her general knowledge of the laws of this state
10 relating to provisions of the Uniform Commercial Code which
11 that are relevant to auctions, the laws of agency, and the
12 provisions of this act. Each applicant must also file a
13 complete set of fingerprints taken by an authorized law
14 enforcement officer. The department must submit the
15 fingerprints to the Department of Law Enforcement for state
16 processing and to the Federal Bureau of Investigation for
17 federal processing. The cost of processing shall be borne by
18 the applicant.
19 (7)(a) Any auction that is subject to the provisions
20 of this part must be conducted by an auctioneer who has an
21 active license or an apprentice who has an active apprentice
22 auctioneer license and who has received prior written sponsor
23 consent.
24 (b) A No business may not shall auction or offer to
25 auction any property in this state unless it is licensed as an
26 auction business by the board or is exempt from licensure
27 under this act. Each application for licensure shall include
28 the names of the owner and the business, the business mailing
29 address and location, and any other information which the
30 board may require. The owner of an auction business shall
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1 report to the board within 30 days of any change in this
2 required information.
3 (8)(a) If an applicant for licensure is a sole
4 proprietorship, the application must identify the owner. If a
5 fictitious name is used, the applicant must furnish evidence
6 of compliance with fictitious-name provisions in s. 865.09.
7 (b) If an applicant is a partnership, corporation,
8 business trust, or other legal entity other than a sole
9 proprietorship, the application must provide the name of the
10 partnership and its partners; the name of the corporation and
11 its officers, directors, and stockholders who are also
12 officers or directors; the name of the business trust and its
13 trustees; or the name of any other form of legal entity and
14 its members. If a fictitious name is used, the applicant must
15 furnish evidence of compliance with fictitious-name
16 provisions. If any information that is required to be stated
17 on the application changes, the applicant must, within 45 days
18 after any change, mail the correct information to the
19 department.
20 (c) Any person licensed under this part whose license
21 has been revoked may not be an owner, partner, officer,
22 director, or trustee of an auction business for 5 years
23 following such revocation. The person is also ineligible to
24 reapply for licensure for 5 years following such revocation.
25 (d) An applicant must furnish evidence of financial
26 responsibility, credit history, and business reputation in the
27 auction business. The board shall adopt rules that specify the
28 financial-responsibility grounds upon which the board may deny
29 licensure and that define financial responsibility based upon
30 the applicant's credit history, ability to be bonded, and any
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1 history of bankruptcy, insolvency proceedings, or assignment
2 of receivers.
3 (e) The board may deny licensure to an applicant if
4 any owner, partner, officer, director, trustee, or member of
5 the applicant has committed an act or offense in any
6 jurisdiction which would constitute a basis for disciplinary
7 action under s. 468.389.
8 Section 8. Subsection (2) and paragraph (a) of
9 subsection (5) of section 468.609, Florida Statutes, are
10 amended to read:
11 468.609 Administration of this part; standards for
12 certification; additional categories of certification.--
13 (2) A person may take the examination for
14 certification as a building code inspector or plans examiner
15 pursuant to this part if the person:
16 (a) Is at least 18 years of age.
17 (b) Is of good moral character.
18 (c) Meets eligibility requirements according to one of
19 the following criteria:
20 1. Demonstrates 5 years' combined experience in the
21 field of construction or a related field, building code
22 inspection, or plans review corresponding to the certification
23 category sought;
24 2. Demonstrates a combination of postsecondary
25 education in the field of construction or a related field and
26 experience which totals 4 years, with at least 1 year of such
27 total being experience in construction, building code
28 inspection, or plans review;
29 3. Demonstrates a combination of technical education
30 in the field of construction or a related field and experience
31 which totals 4 years, with at least 1 year of such total being
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1 experience in construction, building code inspection, or plans
2 review; or
3 4. Currently holds a standard certificate as issued by
4 the board and satisfactorily completes a building code
5 inspector or plans examiner training program of not less than
6 200 hours in the certification category sought. The board
7 shall establish by rule criteria for the development and
8 implementation of the training programs;.
9 5. Demonstrates a combination of technical education
10 in the field of building code inspection or plans review and
11 experience which totals 2 years, with at least 1 year of such
12 total being experience in construction, building code
13 inspection, or plans review. The technical education portion
14 of this requirement shall require proof of satisfactory
15 completion of a technical education program of not fewer than
16 400 hours in the chosen category of building code inspection
17 or plans review in the certification category sought with not
18 fewer than 20 hours of the technical education program
19 covering ethics and professional standards. The board shall
20 coordinate with the Building Officials Association of Florida,
21 Inc., to establish by rule the development and implementation
22 of the technical education programs; or
23 6. Has completed, at a minimum, an associate degree
24 program in construction management from an accredited
25 institution with a major in building code administration.
26 (d) After the Building Code Training Program is
27 established under s. 553.841, demonstrates successful
28 completion of the core curriculum approved by the Florida
29 Building Commission, appropriate to the licensing category
30 sought.
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1 (5)(a) To obtain a standard certificate, an individual
2 must pass an examination approved by the board which
3 demonstrates that the applicant has fundamental knowledge of
4 the state laws and codes relating to the construction of
5 buildings for which the applicant has building code
6 administration, plans examination, or building code inspection
7 responsibilities. It is the intent of the Legislature that
8 the examination approved for certification pursuant to this
9 part be substantially equivalent to the examinations
10 administered by the International Code Council Southern
11 Building Code Congress International and the Council of
12 American Building Officials.
13 Section 9. Subsection (4) is added to section 468.617,
14 Florida Statutes, to read:
15 468.617 Joint building code inspection department;
16 other arrangements.--
17 (4) Nothing in this part prohibits any building code
18 inspector, plans examiner, or building code administrator
19 holding a limited certificate who is employed by a
20 jurisdiction within a statutorily defined small county from
21 providing building code inspection, plans review, or building
22 code administration services to another jurisdiction within a
23 statutorily defined small county.
24 Section 10. Subsection (10) is added to section
25 468.619, Florida Statutes, to read:
26 468.619 Building code enforcement officials' bill of
27 rights.--
28 (10) This bill of rights applies to disciplinary
29 investigations and proceedings against licenses issued under
30 this part and disciplinary investigations and proceedings
31 relating to the official duties of an enforcement official.
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1 This bill of rights does not apply to disciplinary
2 investigations and proceedings against other licenses that the
3 enforcement official holds or disciplinary investigations and
4 proceedings unrelated to the enforcement official's official
5 duties.
6 Section 11. Paragraphs (f) and (g) of subsection (1)
7 of section 468.621, Florida Statutes, are amended, and
8 paragraphs (k) and (l) are added to that subsection, to read:
9 468.621 Disciplinary proceedings.--
10 (1) The following acts constitute grounds for which
11 the disciplinary actions in subsection (2) may be taken:
12 (f) Making or filing a report or record which the
13 certificateholder knew knows to be false, or knowingly
14 inducing another to file a false report or record, or
15 knowingly failing to file a report or record required by state
16 or local law, or knowingly impeding or obstructing such
17 filing, or knowingly inducing another person to impede or
18 obstruct such filing.
19 (g) Failing to properly enforce applicable building
20 codes or permit requirements within this state which the
21 certificateholder knew were applicable or by committing
22 willful misconduct, gross negligence, gross misconduct,
23 repeated negligence, or negligence resulting in a significant
24 danger to life or property.
25 (k) Obstructing an investigation or providing or
26 inducing another to provide forged documents, false forensic
27 evidence, or false testimony to a local or state board or
28 member thereof or to a licensing investigator.
29 (l) Accepting labor, services, or materials at no
30 charge or at a noncompetitive rate from any person who
31 performs work that is under the enforcement authority of the
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1 enforcement official and who is not an immediate family member
2 of the enforcement official. The term "immediate family
3 member" includes a spouse, child, parent, sibling,
4 grandparent, aunt, uncle, or first cousin of the person or the
5 person's spouse or any person who resides in the primary
6 residence of the enforcement official.
7 Section 12. Subsection (2) of section 489.113, Florida
8 Statutes, is amended to read:
9 489.113 Qualifications for practice; restrictions.--
10 (2) No person who is not certified or registered shall
11 engage in the business of contracting in this state. However,
12 for purposes of complying with the provisions of this chapter,
13 a person who is not certified or registered may perform
14 construction work under the supervision of a person who is
15 certified or registered, or under the supervision of the
16 property owner who is acting as his or her own contractor
17 pursuant to s. 489.103(7), if provided that the work is within
18 the scope of the supervisor's license and provided that the
19 person being supervised is not engaged in construction work
20 that which would require a license as a contractor under any
21 of the categories listed in s. 489.105(3)(d)-(o). This
22 subsection does not affect the application of any local
23 construction licensing ordinances. To enforce this
24 subsection:
25 (a) The department shall issue a cease and desist
26 order to prohibit any person from engaging in the business of
27 contracting who does not hold the required certification or
28 registration for the work being performed under this part.
29 For the purpose of enforcing a cease and desist order, the
30 department may file a proceeding in the name of the state
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1 seeking issuance of an injunction or a writ of mandamus
2 against any person who violates any provision of such order.
3 (b) A county, municipality, or local licensing board
4 created by special act may issue a cease and desist order to
5 prohibit any person from engaging in the business of
6 contracting who does not hold the required certification or
7 registration for the work being performed under this part.
8 Section 13. Paragraph (e) of subsection (4) of section
9 489.117, Florida Statutes, is amended to read:
10 489.117 Registration; specialty contractors.--
11 (4)
12 (e) Any person who is not required to obtain
13 registration or certification pursuant to s. 489.105(3)(d)-(o)
14 may perform specialty contracting services for the
15 construction, remodeling, repair, or improvement of
16 single-family residences, including a townhouse as defined in
17 the Florida Building Code, without obtaining a local
18 professional license if such person is under the supervision
19 of a certified or registered general, building, or residential
20 contractor or is under the supervision of the property owner
21 who is acting as his or her own contractor pursuant to s.
22 489.103(7). As used in this paragraph, supervision shall not
23 be deemed to require the existence of a direct contract
24 between the certified or registered general, building, or
25 residential contractor and the person performing specialty
26 contracting services.
27 Section 14. Subsections (5) and (6) of section
28 468.627, Florida Statutes, are amended to read:
29 468.627 Application; examination; renewal; fees.--
30 (5) The certificateholder shall provide proof, in a
31 form established by board rule, that the certificateholder has
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1 completed at least 14 classroom hours of at least 50 minutes
2 each of continuing education courses during each biennium
3 since the issuance or renewal of the certificate, including
4 the specialized or advanced coursework approved by the Florida
5 Building Commission, as part of the Building Code Training
6 Program established pursuant to s. 553.841, appropriate to the
7 licensing category sought. A minimum of 2 of the required 14
8 classroom hours must be on ethics relating to professional
9 standards of practice, duties, and responsibilities of the
10 certificateholder. The board shall by rule establish criteria
11 for approval of continuing education courses and providers,
12 and may by rule establish criteria for accepting alternative
13 nonclassroom continuing education on an hour-for-hour basis.
14 (6) Each certificateholder shall provide to the board
15 proof of completion of the core curriculum courses, or passing
16 the equivalency test of the Building Code Training Program
17 established by s. 553.841, within 2 years after commencement
18 of the program. Continuing education hours spent taking such
19 core curriculum courses shall count toward the number required
20 for license renewal. A licensee who passes the equivalency
21 test in lieu of taking the core curriculum courses shall
22 receive full credit for core curriculum course hours.
23 Section 15. Present subsection (6) of section 489.115,
24 Florida Statutes, is renumbered as subsection (7) and amended,
25 present subsection (7) of that section is renumbered as
26 subsection (8), and a new subsection (6) is added to that
27 section, to read:
28 489.115 Certification and registration; endorsement;
29 reciprocity; renewals; continuing education.--
30 (6) An applicant for initial issuance of a certificate
31 or registration shall submit to a criminal history records
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1 check to determine moral character. If the applicant has been
2 convicted of a felony, the board may deny licensure to the
3 applicant based upon the severity of the crime, the
4 relationship of the crime to contracting, or the potential for
5 public harm. The board shall also, in denying or approving
6 licensure, consider the length of time since the commission of
7 the crime and the rehabilitation of the applicant. The board
8 may not deny licensure to an applicant based solely upon a
9 felony conviction or the applicant's failure to provide proof
10 of restoration of civil rights.
11 (7)(6) An initial applicant shall, along with the
12 application, and a certificateholder or registrant shall, upon
13 requesting a change of status, submit to the board a credit
14 report from a nationally recognized credit agency that
15 reflects the financial responsibility of the applicant or
16 certificateholder or registrant. The credit report required
17 for the initial applicant shall be considered the minimum
18 evidence necessary to satisfy the board that he or she is
19 financially responsible to be certified, has the necessary
20 credit and business reputation to engage in contracting in the
21 state, and has the minimum financial stability necessary to
22 avoid the problem of financial mismanagement or misconduct.
23 The board shall, by rule, adopt guidelines for determination
24 of financial stability, which may include minimum requirements
25 for net worth, cash, and bonding for Division I
26 certificateholders of no more than $20,000 and for Division II
27 certificateholders of no more than $10,000. Fifty percent of
28 the financial requirements may be met by completing a 14-hour
29 financial responsibility course approved by the board.
30 Section 16. This act shall take effect July 1, 2006.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1894
3
4 The CS provides that if no state or local license is required
for the scope of work to be performed under the contract, the
5 individual performing the work shall not be considered
unlicensed.
6
The CS prescribes conditions under which certain business
7 organizations will be insulated from being deemed unlicensed
under the construction contracting law and the
8 electrical/alarm system contracting law.
9 It provides an exemption from the regulatory provisions
governing electric/alarm system contractors (part II of ch.
10 489, F.S.,) for inspections, audits or quality-assurance
services that are performed by a nationally recognized testing
11 laboratory recognized by the Occupational Safety and Health
Administration as meeting certain federal regulatory
12 requirements.
13 It exempts certain certified or registered electrical or alarm
system contractors from any local law, ordinance, or code that
14 requires a contractor to be listed or placarded by a
nationally recognized certification organization.
15
It requires that applicants for licensure as auctioneers file
16 a complete set of fingerprints for submittal to the Florida
Department of Law Enforcement and the Federal Bureau of
17 Investigation, and pay the cost of processing.
18 It requires that a license application identify the owner, and
furnish evidence of compliance with fictitious name provisions
19 if the business is a sole proprietorship and uses a fictitious
name.
20
It requires that a business applicants provide to the Florida
21 Board of Auctioneers the name of the partnership and its
partners, the name of the corporation and its officers,
22 directors, and stockholders who are also officers or
directors, the name of the business and its trustees.
23
It provides for a five-year disqualification from licensure as
24 an auctioneer or apprentice, or as holding an ownership
interest in an auction business, for any person whose license
25 has been revoked. The bill requires that the applicant
provide a statement of financial responsibility, credit
26 history, and business reputation in the auction business to
the department.
27
It provides that the department may deny licensure to an
28 applicant if any owner, partner, officer, director, trustee,
or member of the applicant has committed an act or offense in
29 any jurisdiction that would constitute a basis for discipline
of a licensed auctioneer.
30
It permits an applicant to qualify for licensure as a building
31 code inspector or plans examiner if he or she demonstrates a
combination of technical education in the field of building
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1 code inspection or plans review and experience which totals
two years with at least 1 year of the experience in
2 construction, building code inspection, or plans review with
no fewer than 20 hours of technical education in ethics and
3 professional standards.
4 It requires that the certification examinations for building
code enforcement officials be substantially similar to the
5 examinations administered by the International Code Council.
It permits building code enforcement officials employed by
6 small counties to provide building code services to another
small county.
7
The bill amends the building code enforcement official's bill
8 of rights to limit the application of the bill of rights to
disciplinary investigations and proceedings against licenses
9 under part XII of ch. 468, F.S., and to disciplinary
investigations and proceedings against licenses under part XII
10 of ch. 468, F.S., and to disciplinary investigations and
proceedings relating to the official duties of an enforcement
11 official. It authorizes the Florida Building Code
Administrators and Inspectors Board to discipline building
12 code enforcement officials.
13 It prohibits an enforcement official from accepting labor,
services, or materials for free or at a noncompetitive rate
14 from any person, except immediate family members, who performs
work that may be under his or her official enforcement
15 authority. It also requires a minimum of two hours continuing
education in ethics.
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