HB 1327

1	A bill to be entitled
2	An act relating to construction contracting; amending s.
3	489.103, F.S.; revising a disclosure statement that a
4	local permitting agency must provide to property owners
5	who apply for building permits and claim certain
6	exemptions from provisions regulating construction
7	contracting; requiring an owner claiming an exemption to
8	read and sign the disclosure statement; amending s.
9	489.128, F.S.; providing that an individual or business
10	organization may not be considered unlicensed for failure
11	to have a required local jurisdiction license; providing
12	for retroactive application; providing effective dates.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1.  Effective July 1, 2009, subsection (7) of
17	section 489.103, Florida Statutes, is amended to read:
18	489.103  Exemptions.--This part does not apply to:
19	(7)  Owners of property when acting as their own contractor
20	and providing direct, onsite supervision themselves of all work
21	not performed by licensed contractors:
22	(a)  When building or improving farm outbuildings or one-
23	family or two-family residences on such property for the
24	occupancy or use of such owners and not offered for sale or
25	lease, or building or improving commercial buildings, at a cost
26	not to exceed $75,000, on such property for the occupancy or use
27	of such owners and not offered for sale or lease. In an action
28	brought under this part, proof of the sale or lease, or offering
29	for sale or lease, of any such structure by the owner-builder
30	within 1 year after completion of same creates a presumption
31	that the construction was undertaken for purposes of sale or
32	lease.
33	(b)  When repairing or replacing wood shakes or asphalt or
34	fiberglass shingles on one-family, two-family, or three-family
35	residences for the occupancy or use of such owner or tenant of
36	the owner and not offered for sale within 1 year after
37	completion of the work and when the property has been damaged by
38	natural causes from an event recognized as an emergency
39	situation designated by executive order issued by the Governor
40	declaring the existence of a state of emergency as a result and
41	consequence of a serious threat posed to the public health,
42	safety, and property in this state.
43
44	This subsection does not exempt any person who is employed by or
45	has a contract with such owner and who acts in the capacity of a
46	contractor. The owner may not delegate the owner's
47	responsibility to directly supervise all work to any other
48	person unless that person is registered or certified under this
49	part and the work being performed is within the scope of that
50	person's license. For the purposes of this subsection, the term
51	"owners of property" includes the owner of a mobile home
52	situated on a leased lot. To qualify for exemption under this
53	subsection, an owner must personally appear and sign the
54	building permit application, and must satisfy local permitting
55	agency requirements, if any, and must read and sign the
56	disclosure statement required under this subsection to
57	demonstrate proving that the owner has a complete understanding
58	of the owner's obligations under the law as specified in the
59	disclosure statement in this section. If any person violates the
60	requirements of this subsection, the local permitting agency
61	shall withhold final approval, revoke the permit, or pursue any
62	action or remedy for unlicensed activity against the owner and
63	any person performing work that requires licensure under the
64	permit issued. The local permitting agency shall provide the
65	person with the a disclosure statement in substantially the
66	following form:
67
68	DISCLOSURE STATEMENT
69
70	1.  I understand that state law requires construction to
71	be done by a licensed contractor and have applied for an
72	owner-builder permit under an exemption from the law. The
73	exemption specifies that I, as the owner of the property
74	listed, may act as my own contractor with certain
75	restrictions even though I do not have a license.
76
77	2.  I understand that building permits are not required to
78	be signed by a property owner unless he or she is
79	responsible for the construction and is not hiring a
80	licensed contractor to assume responsibility.
81
82	3.  I understand that, as an owner-builder, I am the
83	responsible party of record on a permit. I understand that
84	I may protect myself from potential financial risk by
85	hiring a licensed contractor and having the permit filed
86	in his or her name instead of my own name. I also
87	understand that a contractor is required by law to be
88	licensed and bonded in Florida and to list his or her
89	license numbers on permits and contracts.
90
91	4.  I understand that I may build or improve a one-family
92	or two-family residence or a farm outbuilding. I may also
93	build or improve a commercial building if the costs do not
94	exceed $75,000. The building or residence must be for my
95	own use or occupancy. It may not be built or substantially
96	improved for sale or lease. If a building or residence
97	that I have built or substantially improved myself is sold
98	or leased within 1 year after the construction is
99	complete, the law will presume that I built or
100	substantially improved it for sale or lease, which
101	violates the exemption.
102
103	5.  I understand that, as the owner-builder, I must
104	provide direct, onsite supervision of the construction.
105
106	6.  I understand that I may not hire an unlicensed person
107	to act as my contractor or to supervise persons working on
108	my building or residence. It is my responsibility to
109	ensure that the persons whom I employ have the licenses
110	required by law and by county or municipal ordinance.
111
112	7.  I understand that it is a frequent practice of
113	unlicensed persons to have the property owner obtain an
114	owner-builder permit that erroneously implies that the
115	property owner is providing his or her own labor and
116	materials. I, as an owner-builder, may be held liable and
117	subjected to serious financial risk for any injuries
118	sustained by an unlicensed person or his or her employees
119	while working on my property. My homeowner's insurance may
120	not provide coverage for those injuries. I am willfully
121	acting as an owner-builder and am aware of the limits of
122	my insurance coverage for injuries to workers on my
123	property.
124
125	8.  I understand that I may not delegate the
126	responsibility for supervising work to a licensed
127	contractor who is not licensed to perform the work being
128	done. Any person working on my building who is not
129	licensed must work under my direct supervision and must be
130	employed by me, which means that I must comply with laws
131	requiring the withholding of federal income tax and social
132	security contributions under the Federal Insurance
133	Contributions Act (FICA) and must provide workers'
134	compensation for the employee. I understand that my
135	failure to follow these laws may subject me to serious
136	financial risk.
137
138	9.  I agree that, as the party legally and financially
139	responsible for this proposed construction activity, I
140	will abide by all applicable laws and requirements that
141	govern owner-builders as well as employers. I also
142	understand that the construction must comply with all
143	applicable laws, ordinances, building codes, and zoning
144	regulations.
145
146	10.  I understand that I may obtain more information
147	regarding my obligations as an employer from the Internal
148	Revenue Service, the United States Small Business
149	Administration, the Florida Department of Financial
150	Services, and the Florida Department of Revenue. I also
151	understand that I may contact the Florida Construction
152	Industry Licensing Board at ...(telephone number)... or
153	... (Internet website address)... for more information
154	about licensed contractors.
155
156	11.  I am aware of, and consent to, an owner-builder
157	building permit applied for in my name and understand that
158	I am the party legally and financially responsible for the
159	proposed construction activity at the following address:
160	...(address of property)....
161
162	12.  I agree to notify ...(issuer of disclosure
163	statements)... immediately of any additions, deletions, or
164	changes to any of the information that I have provided on
165	this disclosure.
166
167	Licensed contractors are regulated by laws designed to
168	protect the public. If you contract with a person who does
169	not have a license, the Construction Industry Licensing
170	Board and Department of Business and Professional
171	Regulation may be unable to assist you with any financial
172	loss that you sustain as a result of a complaint. Your
173	only remedy against an unlicensed contractor may be in
174	civil court. It is also important for you to understand
175	that, if an unlicensed contractor or employee of an
176	individual or firm is injured while working on your
177	property, you may be held liable for damages. If you
178	obtain an owner-builder permit and wish to hire a licensed
179	contractor, you will be responsible for verifying whether
180	the contractor is properly licensed and the status of the
181	contractor's workers' compensation coverage.
182
183	Before a building permit can be issued, this disclosure
184	statement must be completed and signed by the property
185	owner and returned to the local permitting agency
186	responsible for issuing the permit. A copy of the property
187	owner's driver license, the notarized signature of the
188	property owner, or other type of verification acceptable
189	to the local permitting agency is required when the permit
190	is issued.
191
192	Signature: ...(signature of property owner)....
193	Date: ...(date)....
194
195	State law requires construction to be done by licensed
196	contractors. You have applied for a permit under an exemption to
197	that law. The exemption allows you, as the owner of your
198	property, to act as your own contractor with certain
199	restrictions even though you do not have a license. You must
200	provide direct, onsite supervision of the construction yourself.
201	You may build or improve a one-family or two-family residence or
202	a farm outbuilding. You may also build or improve a commercial
203	building, provided your costs do not exceed $75,000. The
204	building or residence must be for your own use or occupancy. It
205	may not be built or substantially improved for sale or lease. If
206	you sell or lease a building you have built or substantially
207	improved yourself within 1 year after the construction is
208	complete, the law will presume that you built or substantially
209	improved it for sale or lease, which is a violation of this
210	exemption. You may not hire an unlicensed person to act as your
211	contractor or to supervise people working on your building. It
212	is your responsibility to make sure that people employed by you
213	have licenses required by state law and by county or municipal
214	licensing ordinances. You may not delegate the responsibility
215	for supervising work to a licensed contractor who is not
216	licensed to perform the work being done. Any person working on
217	your building who is not licensed must work under your direct
218	supervision and must be employed by you, which means that you
219	must deduct F.I.C.A. and withholding tax and provide workers'
220	compensation for that employee, all as prescribed by law. Your
221	construction must comply with all applicable laws, ordinances,
222	building codes, and zoning regulations.
223	Section 2.  Subsection (1) of section 489.128, Florida
224	Statutes, is amended to read:
225	489.128  Contracts entered into by unlicensed contractors
226	unenforceable.--
227	(1)  As a matter of public policy, contracts entered into
228	on or after October 1, 1990, by an unlicensed contractor shall
229	be unenforceable in law or in equity by the unlicensed
230	contractor.
231	(a)  For purposes of this section, an individual is
232	unlicensed if the individual does not have a license required by
233	this part concerning the scope of the work to be performed under
234	the contract. A business organization is unlicensed if the
235	business organization does not have a primary or secondary
236	qualifying agent in accordance with this part concerning the
237	scope of the work to be performed under the contract. For
238	purposes of this section, if no state or local license is
239	required for the scope of work to be performed under the
240	contract, the individual performing that work shall not be
241	considered unlicensed.
242	(b)  For purposes of this section, an individual or
243	business organization may not be considered unlicensed for
244	failing to have a business tax receipt issued under the
245	authority of chapter 205. For purposes of this section, an
246	individual or business organization may not be considered
247	unlicensed for failing to have a license required by a local
248	jurisdiction. A business organization may not be considered
249	unlicensed for failing to have a certificate of authority as
250	required by ss. 489.119 and 489.127. For purposes of this
251	section, a business organization entering into the contract may
252	not be considered unlicensed if, before the date established by
253	paragraph (c), an individual possessing a license required by
254	this part concerning the scope of the work to be performed under
255	the contract has submitted an application for a certificate of
256	authority designating that individual as a qualifying agent for
257	the business organization entering into the contract, and the
258	application was not acted upon by the department or applicable
259	board within the time limitations imposed by s. 120.60.
260	(c)  For purposes of this section, a contractor shall be
261	considered unlicensed only if the contractor was unlicensed on
262	the effective date of the original contract for the work, if
263	stated therein, or, if not stated, the date the last party to
264	the contract executed it, if stated therein. If the contract
265	does not establish such a date, the contractor shall be
266	considered unlicensed only if the contractor was unlicensed on
267	the first date upon which the contractor provided labor,
268	services, or materials under the contract.
269	Section 3.  The amendments made by this act to s. 489.128,
270	Florida Statutes, apply retroactively to contracts entered into
271	on or after October 1, 2000, and apply to all actions that are
272	pending on or are filed on or after the effective date of this
273	act.
274	Section 4.  Except as otherwise expressly provided in this
275	act, this act shall take effect upon becoming a law.

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