Senate Bill sb0440

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    Florida Senate - 2007                                   SB 440

    By Senator Bennett





    21-457-07

  1                      A bill to be entitled

  2         An act relating to mold assessment and mold

  3         remediation; providing legislative intent;

  4         creating pt. IV of ch. 489, F.S.; providing

  5         legislative purpose; providing exemptions;

  6         defining terms; providing for fees relating to

  7         licensure of mold assessors and mold

  8         remediators; providing for licensure

  9         examinations; requiring good moral character;

10         providing prerequisites to licensure; providing

11         for the licensure of business organizations;

12         providing for qualifying agents; providing for

13         fees; providing responsibilities of primary and

14         secondary qualifying agents and of financially

15         responsible officers; establishing requirements

16         for continuing education; requiring that the

17         Construction Industry Licensing Board approve

18         training courses and training providers for

19         mold assessors and mold remediators; providing

20         for assessing penalties; providing for renewal

21         of licensure; providing for rulemaking by the

22         Department of Business and Professional

23         Regulation and the Construction Industry

24         Licensing Board; providing for reactivation of

25         licensure; providing for disciplinary

26         proceedings; establishing prohibitions;

27         providing penalties; allowing the board to

28         provide, by rule, for multiple services;

29         providing presumptions in civil actions against

30         persons or entities licensed under the act;

31         providing severability; amending s. 489.107,

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 1         F.S.; adding to the board a member who is a

 2         mold assessor or mold remediator; providing an

 3         appropriation and authorizing additional

 4         positions; providing an effective date.

 5  

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

 7  

 8         Section 1.  It is the intent of the Legislature

 9  pursuant to s. 11.62, Florida Statutes, that the professions

10  and occupations covered by this act be regulated in a manner

11  that does not unnecessarily restrict entry into the profession

12  or occupation pursuant to this act. The Legislature finds that

13  this provides a measure of protection for homeowners by

14  providing the requirements for education, experience, and

15  testing which are necessary to protect homeowners' investments

16  in their homes.

17         Section 2.  Part IV of chapter 489, Florida Statutes,

18  consisting of ss. 489.601, 489.603, 489.604, 489.605, 489.606,

19  489.607, 489.608, 489.609, 489.61, 489.611, 489.612, 489.613,

20  489.614, 489.615, 489.616, and 489.618, is created to read:

21                             PART IV

22       MOLD ASSESSMENT AND MOLD REMEDIATION IN RESIDENTIAL,

23      INSTITUTIONAL, GOVERNMENTAL, AND COMMERCIAL BUILDINGS

24         489.601  Legislative purpose.--The Legislature finds it

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

26  welfare and in order to prevent damage to the real and

27  personal property of the residents of this state and avert

28  economic injury to the residents of this state to regulate

29  individuals and companies that hold themselves out to the

30  public as qualified to perform mold-related activities in

31  

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 1  residential, institutional, governmental, and commercial

 2  buildings.

 3         489.603  Exemptions.--Sections 489.601-489.618 do not

 4  apply to:

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

 6  under this chapter, an individual in the manufactured housing

 7  industry who is licensed under chapter 320, or individuals or

 8  business organizations licensed under chapter 471 or part I of

 9  chapter 481, when engaged in mold-related activities

10  incidental to activities within the scope of his or her

11  license.

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

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

14  subdivision; of a public or private school; or of a private

15  business organization who has completed training courses in

16  mold assessment or mold remediation approved by the board or a

17  certification program approved by the board and who is

18  conducting mold assessment or mold remediation within the

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

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

21  mold remediation.

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

23  maintenance of public and private buildings, structures, and

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

25  or otherwise engage in mold assessment or mold remediation.

26         489.604  Definitions.--As used in this part, the term:

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

28  Board.

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

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

31  organization.

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

 2  Professional Regulation.

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

 4  causes disintegration of organic matter and produces spores,

 5  and includes any spores, hyphae, and secondary metabolites

 6  produced by mold.

 7         (5)  "Mold assessment" means:

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

 9  dwelling or other structure to provide the owner or occupant

10  with information regarding the presence, identification, or

11  evaluation of mold;

12         (b)  The development of a mold-management plan,

13  development of a remediation protocol, and a postabatement

14  evaluation of a property;

15         (c)  The collection or analysis of a mold sample; or

16         (d)  The evaluation of a property for moisture damage

17  or moisture-incursion conditions that are likely to result in

18  fungal growth. A pre-purchase evaluation of a property must

19  include an assessment of moisture incursion and fungal growth.

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

21  organization that performs a mold assessment.

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

23  sanitizing, demolition, or other treatment, including

24  preventive activities, of mold or mold-contaminated matter

25  that was not purposely grown at that location.

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

27  organization that performs mold remediation. A mold remediator

28  may not perform any work that requires a license under any

29  other part of this chapter unless the mold remediator is also

30  licensed under that part.

31  

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

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

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

 4  control the mold assessment or mold-remediation activities of

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

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

 7  control mold assessment or mold-remediation activities; and

 8  whose technical and personal qualifications have been

 9  determined by investigation and examination as provided in

10  this part, as attested by the department.

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

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

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

14  control mold assessment and mold-remediation activities, and

15  whose technical and personal qualifications have been

16  determined by investigation and examination as provided in

17  this part, as attested by the department.

18         489.605  Fees.--The board shall, by rule, establish

19  reasonable fees to be paid for applications, examinations,

20  licensing and renewal, recordmaking, and recordkeeping. Fees

21  for application, initial licensure, license renewal, or

22  license reactivation for mold assessors or mold remediators

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

24  establish late renewal fees, in an amount not to exceed the

25  initial licensure fee.

26         489.606  Examination.--

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

28  assessor or mold remediator must apply to the department for

29  licensure.

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

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

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

 2  an approved course of study in mold assessment or mold

 3  remediation, and has a specific experience record as

 4  prescribed by rule.

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

 6  review and approval of training programs in mold assessment

 7  and mold remediation. The board may adopt rules providing for

 8  the acceptance of the approval and accreditation of schools

 9  and courses of study by nationally accepted accreditation

10  organizations.

11         (4)(a)  As used in this section, "good moral character"

12  means a personal history of honesty, fairness, and respect for

13  the rights of others and for the laws of this state and

14  nation.

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

16  failure to satisfy this requirement only if:

17         1.  The board finds that there is a substantial

18  connection between the lack of good moral character of the

19  applicant and the professional responsibilities of a mold

20  assessor or mold remediator; and

21         2.  This finding is supported by clear and convincing

22  evidence.

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

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

25  must furnish to the applicant a statement containing the

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

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

28  of the applicant to a rehearing and appeal.

29         489.607  Licensure.--The department shall license any

30  applicant who the board certifies is qualified to practice

31  mold assessment or mold remediation and who:

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 1         (1)  Pays the initial licensing fee;

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

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

 4  successfully completed the board-approved courses as

 5  prescribed by rule;

 6         (3)  Provides evidence of financial stability; and

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

 8  qualifications and knowledge relating to mold assessment and

 9  mold remediation; or

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

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

12  an organization that requires the same testing and examination

13  as the department requires.

14         489.608  Licensure of business organizations;

15  qualifying agents.--

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

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

18  the license may be issued only to that individual.

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

20  remediation or mold assessment as a business organization in

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

22  organization must apply for licensure through a qualifying

23  agent or the individual applicant must apply for licensure

24  under the fictitious name.

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

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

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

28  of each of its stockholders who is also an officer or

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

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

31  of each of its members.

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 1         1.  The application for primary qualifying agent must

 2  include an affidavit on a form provided by the department

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

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

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

 6  applicant has final approval authority for all work performed

 7  by the business organization.

 8         2.  The application for financially responsible officer

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

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

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

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

13  applicant has authority to act for the business organization

14  in all financial matters.

15         3.  The application for secondary qualifying agent must

16  include an affidavit on a form provided by the department

17  which attests that the applicant has authority to supervise

18  all mold assessment or mold-remediation work performed by the

19  business organization as provided in s. 489.609.

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

21  under this section, the applicant must submit:

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

23  which attests that the applicant has obtained workers'

24  compensation insurance as required by chapter 440, public

25  liability insurance, property damage insurance, and errors and

26  omissions insurance in amounts determined by board rule. Such

27  insurance must include coverage for an applicant's failure to

28  properly perform mold assessment or mold remediation. The

29  department shall, by rule, establish a procedure to verify the

30  accuracy of such affidavits based upon a method approved by

31  the board.

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 1         2.  Evidence of financial responsibility. The board

 2  shall adopt rules to determine financial responsibility which

 3  specify grounds on which the department may deny licensure.

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

 5  history and limits of bondability and credit.

 6  

 7  Continuing proof of all insurance coverages referenced in this

 8  paragraph shall be a requisite condition to maintaining a

 9  license issued under this part.

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

11  composed of qualified business organizations, is a separate

12  and distinct organization that must be qualified in accordance

13  with department rules.

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

15  business organization must be in the name of the business

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

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

18  required to be stated on the application, the business

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

20  mail the correct information to the department.

21         (f)  The applicant must furnish evidence of statutory

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

23  865.09(7).

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

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

26  the qualifying agent ceases to be affiliated with the business

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

28  addition, if the qualifying agent is the only licensed

29  individual affiliated with the business organization, the

30  business organization must notify the department of the

31  termination of the qualifying agent, and the business

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 1  organization has 60 days after the termination of the

 2  qualifying agent's affiliation with the business organization

 3  in which to employ another qualifying agent. The business

 4  organization may not engage in mold assessment or mold

 5  remediation until a qualifying agent is employed, unless the

 6  department has granted a temporary nonrenewable license to the

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

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

 9  assumes all responsibilities of a primary qualifying agent for

10  the business organization. This temporary license allows the

11  business organization to proceed only with incomplete

12  contracts.

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

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

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

16  affiliation with another business organization, and the agent

17  or the new business organization shall supply the same

18  information to the department as is required of initial

19  applicants under this part.

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

21  investigation of the financial responsibility, credit, and

22  business reputation of the qualifying agent and the new

23  business organization, the board shall issue, without any

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

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

26  thereon.

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

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

29  license number to each document prepared or approved for use

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

31  mold-remediation project and filed for public record with a

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 1  governmental agency, and to any report, specification, offer,

 2  bid, or contract submitted to a client.

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

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

 5  airwave transmission, phone directory, or other advertising

 6  medium offering or related to mold assessment or mold

 7  remediation, as provided by department rule.

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

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

10  business organization. If the qualifying agent for a business

11  organization desires to qualify additional business

12  organizations, the board shall require the agent to present

13  evidence of ability and financial responsibility of each such

14  organization. The issuance of such certificate of authority is

15  discretionary with the board.

16         489.609  Responsibilities.--

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

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

19  section.

20         (a)  All primary qualifying agents for a business

21  organization are jointly and equally responsible for

22  supervising all operations of the business organization; for

23  all field work at all sites; and for financial matters, both

24  for the organization in general and for each specific job.

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

26  organization may designate a financially responsible officer

27  for purposes of licensure. A financially responsible officer

28  is responsible for all financial aspects of the business

29  organization and may not be designated as the primary

30  qualifying agent. The designated financially responsible

31  officer shall furnish evidence of his or her financial

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

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

 3  determined appropriate by the board.

 4         (c)  If a business organization has a licensed

 5  financially responsible officer, the primary qualifying agent

 6  is responsible for all mold assessment or mold-remediation

 7  activities of the business organization, both in general and

 8  for each specific job.

 9         (d)  The board shall adopt rules prescribing the

10  qualifications for financially responsible officers, including

11  net worth, cash, and bonding requirements. These

12  qualifications must be at least as extensive as the

13  requirements for the financial responsibility of qualifying

14  agents.

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

16  organization that has more than one qualifying agent may be

17  designated as the sole primary qualifying agent for the

18  business organization by a joint agreement that is executed,

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

20  the business organization.

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

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

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

24  immediately notify the qualifying agents of its approval. The

25  designation made by the joint agreement is effective upon

26  receipt of the notice by the qualifying agents.

27         (c)  The qualifying agent designated for a business

28  organization by a joint agreement is the sole primary

29  qualifying agent for the business organization, and all other

30  qualifying agents for the business organization are secondary

31  qualifying agents.

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

 2  the responsibilities and duties of a primary qualifying agent,

 3  notwithstanding that there are secondary qualifying agents for

 4  specified jobs. The designated sole primary qualifying agent

 5  is jointly and equally responsible with secondary qualifying

 6  agents for supervising field work.

 7         (e)  A secondary qualifying agent is responsible only

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

 9         (f)  A secondary qualifying agent is not responsible

10  for supervising financial matters.

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

12  joint agreement as the sole primary qualifying agent for a

13  business organization may terminate this status by giving

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

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

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

17  proof satisfactory to the board that the qualifying agent has

18  given the notice required in this paragraph.

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

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

21  satisfactory notice of termination has been provided to the

22  board, whichever occurs first.

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

24  designated within 60 days, all secondary qualifying agents for

25  the business organization become primary qualifying agents

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

27  become sole qualifying agents under such circumstances, in

28  which case only the specified secondary qualifying agents

29  become sole qualifying agents.

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

31  prospective only. A qualifying agent is not responsible for

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

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

 3  responsible while in a particular status.

 4         489.61  Continuing education.--

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

 6  continuing education courses as prescribed by board rule.

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

 8  offered and provided by mold-training providers licensed under

 9  this part and must be approved by the board.

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

11  the continuing education requirements along with the

12  licensee's application for license renewal.

13         489.611  Approval of mold assessor and mold remediator

14  training courses and providers.--

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

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

17  board must also approve training courses and the providers of

18  such courses who offer training for persons who are exempt

19  from licensure under this part.

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

21  approving training courses and course providers and may, by

22  rule, modify the training required by this part.

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

24  states for the reciprocal approval of training courses or the

25  providers of training courses.

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

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

28  approval, and recordmaking and recordkeeping of training

29  courses and providers of training courses.

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

31  training courses any penalty that it may impose against a

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

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

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

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

 5  consent agreement relating to, without regard to adjudication,

 6  any crime or administrative violation in any jurisdiction

 7  which involves fraud, deceit, or false or fraudulent

 8  representations made in the course of seeking approval of or

 9  providing training courses.

10         489.612  Renewal of license.--

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

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

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

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

15  upon certification by the board that the licensee has

16  satisfactorily demonstrated his or her competence in mold

17  assessment and mold remediation.

18         (2)  The department shall adopt rules establishing a

19  procedure for the biennial renewal of licenses.

20         489.613  Reactivation.--

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

22  education requirements for reactivating a license. The

23  continuing education requirements for reactivating a license

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

25  15 classroom hours for each year the license was inactive.

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

27  that have become inactive and for the renewal of inactive

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

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

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

31         489.614  Disciplinary proceedings.--

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

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

 3  on probation any mold assessor or mold remediator; require

 4  financial restitution to a consumer; impose an administrative

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

 6  education; or assess costs associated with any investigation

 7  and prosecution if the mold assessor or mold remediator is

 8  found guilty of any of the following acts:

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

10  fraud or misrepresentation.

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

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

13  crime in any jurisdiction which directly relates to the

14  practice of mold assessment or mold remediation or the ability

15  to practice mold assessment or mold remediation.

16         (c)  Violating any provision of chapter 455.

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

18  in engaging in the prohibited unlicensed practice of mold

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

20  reasonable grounds to know that the person or entity is

21  unlicensed.

22         (e)  Knowingly combining or conspiring with an

23  unlicensed person by allowing his or her license or

24  certificate of authority to be used by the unlicensed person

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

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

27  organizations without having any active participation in the

28  operations, management, or control of the business

29  organizations, such an act constitutes prima facie evidence of

30  an intent to evade the provisions of this part.

31  

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

 2  remediator under any license issued under this part except in

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

 4         (g)  Committing mismanagement or misconduct in the

 5  practice of mold assessment or mold remediation which causes

 6  financial harm to a customer. Financial mismanagement or

 7  misconduct occurs when:

 8         1.  Valid liens have been recorded against the property

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

10  supplies or services ordered by the mold assessor or mold

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

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

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

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

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

16         2.  The mold assessor or mold remediator has abandoned

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

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

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

20  unless the contractor is entitled to retain such funds under

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

22  30 days after the date the job is abandoned; or

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

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

25  pay more for the contracted job than the original contract

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

27  increase in cost was the result of circumstances beyond the

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

29  circumstances caused by the customer, or was otherwise

30  permitted by the terms of the contract between the mold

31  assessor or mold remediator and the customer.

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

 2  an act or violation of this part.

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

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

 5  department.

 6         (j)  Abandoning a mold assessment or mold-remediation

 7  project in which the mold assessor or mold remediator is

 8  engaged or under contract as a mold assessor or mold

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

10  the mold assessor or mold remediator has terminated the

11  project without just cause and without proper notification to

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

13  assessor or mold remediator has failed to reasonably secure

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

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

16  without just cause for 20 days.

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

18  contract falsely indicating that the work is bonded; falsely

19  indicating that payment has been made for all subcontracted

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

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

22  or falsely indicating that the insurance coverage required

23  under this part is or has been provided.

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

25  assessment or mold remediation.

26         (m)  Committing incompetency or misconduct in the

27  practice of mold assessment or mold remediation.

28         (n)  Committing gross negligence, repeated negligence,

29  or negligence resulting in a significant danger to life or

30  property in the practice of mold assessment or mold

31  remediation.

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 1         (o)  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, mold assessment or mold

 7  remediation is considered to be commenced when the contract is

 8  executed and the mold assessor or mold remediator has accepted

 9  funds from the customer or lender.

10         (2)  If a mold assessor or mold remediator who is

11  disciplined under subsection (1) is a qualifying agent for a

12  business organization and the violation was performed in

13  connection with any mold assessment, mold-assessment-related

14  activities, mold remediation, or mold-remediation-related

15  activities undertaken by that business organization, the board

16  may impose an additional administrative fine not to exceed

17  $5,000 per violation against the business organization or

18  against any partner, officer, director, trustee, or member of

19  the organization if that person participated in the violation

20  or knew or should have known of the violation and failed to

21  take reasonable corrective action.

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

23  omissions that constitute violations of this section.

24         (4)  In recommending penalties in any proposed

25  recommended final order, the department shall follow the

26  penalty guidelines established by the board by rule. The

27  department shall advise the administrative law judge of the

28  appropriate penalty, including mitigating and aggravating

29  circumstances, and the specific rule citation.

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

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

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

 2  organization that the board has determined is unqualified or

 3  whose license or certificate of authority the board has

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

 5  organization has complied with all the terms and conditions

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

 7  engaging in the business of mold assessment or mold

 8  remediation.

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

10  fines imposed under this part against any person or business

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

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

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

14  established by rule and may not be usurious.

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

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

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

18  associated with investigation and prosecution, or has been

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

20  associated with investigation and prosecution or restitution

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

22  final order have been satisfied.

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

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

25  officer, director, or trustee of a business organization

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

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

28  ineligible to reapply for licensure under this part for a

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

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

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

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

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

 3  issuance of a license to a qualifying agent or financially

 4  responsible officer of that business organization.

 5         (10)  If an investigation of a mold assessor or mold

 6  remediator is undertaken, the department shall promptly

 7  furnish to the mold assessor or mold remediator or the mold

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

 9  complaint or document that resulted in the initiation of the

10  investigation. The department shall make the complaint and

11  supporting documents available to the mold assessor or mold

12  remediator. The complaint or supporting documents must contain

13  information regarding the specific facts that serve as the

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

15  may submit a written response to the information contained in

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

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

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

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

20  respond does not prohibit the issuance of a summary emergency

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

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

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

24  writing that such notification would be detrimental to the

25  investigation, the department may withhold notification. The

26  department may conduct an investigation without notification

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

28  investigation is a criminal offense.

29         489.615  Prohibitions; penalties.--

30         (1)  A person may not:

31  

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

 2  organization out as a licensee;

 3         (b)  Falsely impersonate a licensee;

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

 5  certificate of authority of another;

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

 7  board or a member thereof;

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

 9  suspended or revoked;

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

11  mold assessor or mold remediator or advertise himself or

12  herself or a business organization as available to engage in

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

14  remediator without being duly licensed; or

15         (g)  Operate a business organization engaged in mold

16  assessment or mold remediation after 60 days following the

17  termination of its only qualifying agent without designating

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

19  489.608 and 489.609.

20  

21  For purposes of this subsection, a person or business

22  organization operating under an inactive or suspended license

23  or certificate of authority is considered unlicensed.

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

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

26  provided in s. 775.082 or s. 775.083.

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

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

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

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

31  

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

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

 3  declared by executive order of the Governor commits a felony

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

 5  s. 775.083.

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

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

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

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

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

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

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

13  remediator.

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

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

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

17  used by a business organization that is not qualified as

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

19  the capacity of a mold assessor or mold remediator.

20         489.616  Multiple services.--The board shall, by rule,

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

22  mold assessment and mold remediation on the same contract or

23  project.

24         489.618  Presumption.--Notwithstanding any law to the

25  contrary, in a civil action against a person or entity duly

26  licensed under and in compliance with the requirements of this

27  part and alleging mold or fungal injuries to persons or

28  damages to property, there is a rebuttable presumption that

29  any work performed in accordance with all applicable building

30  codes and all assessment and remediation standards adopted by

31  the board is not negligent. This presumption applies to any

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 1  person or entity that, in return for compensation, obtains and

 2  relies on the opinion of a person or entity duly licensed

 3  under and in compliance with the requirements of this part.

 4  There is a rebuttable presumption that any work not performed

 5  in accordance with all applicable building codes and all

 6  assessment and remediation standards adopted by the board is

 7  negligent per se. The presumptions set forth in this section

 8  do not apply to actions alleging gross negligence.

 9         Section 3.  If any provision of this act or its

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

11  invalidity does not affect other provisions or applications of

12  the act which can be given effect without the invalid

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

14  this act are severable.

15         Section 4.  Subsection (2) of section 489.107, Florida

16  Statutes, is amended to read:

17         489.107  Construction Industry Licensing Board.--

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

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

20  contractors;

21         (b)  Three are primarily engaged in business as

22  building contractors or residential contractors, however, at

23  least one building contractor and one residential contractor

24  shall be appointed;

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

26  contractor;

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

28  metal contractor;

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

30  air-conditioning contractor;

31  

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

 2  mechanical contractor;

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

 4  contractor;

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

 6  contractor;

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

 8  underground utility and excavation contractor;

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

10  assessor or mold remediator;

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

12  never been, members or practitioners of a profession regulated

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

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

15  county.

16         Section 5.  For the 2007-2008 fiscal year, the sum of

17  $294,776 is appropriated from the Professional Regulation

18  Trust Fund and three additional positions are authorized to

19  the Department of Business and Professional Regulation for the

20  purpose of conducting licensing and regulatory activities

21  associated with mold assessment and remediation.

22         Section 6.  This act shall take effect October 1, 2007.

23  

24            *****************************************

25                          SENATE SUMMARY

26    Provides licensing requirements for mold assessors and
      mold remediators. Requires that the Construction Industry
27    Licensing Board approve training courses and approve
      training providers. Provides application procedures.
28    Provides for fees. Provides qualifications for
      registration. Provides for rules and orders of the
29    Department of Business and Professional Regulation and
      the Construction Industry Licensing Board. Provides for
30    disciplinary proceedings and penalties. Adds a member to
      the Construction Industry Licensing Board who is a mold
31    assessor or mold remediator. (See bill for details.)

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