61G4-21.002. Definitions  


Effective on Tuesday, December 20, 2016
  • 1(1) “All reasonable searches and inquiries,” as provided in Section 12489.141(1), F.S., 14shall mean that exhaustive efforts have been made to determine whether the contractor possesses any property or assets with which to satisfy the underlying judgment, order of restitution, or award in arbitration, in whole or in part, and that no such property or assets have been identified or located. Reasonable searches and inquiries shall constitute the following, if applicable, documentation showing that exhaustive effects have been taken:

    81(a) To locate the contractor;

    86(b) To discover if the contractor has assets from which to collect the judgment, including but not limited to accounts and real or personal property and equipment;

    113(c) To determine whether or not the contractor is insured and if insured, that claimant has filed a claim with the contractor’s insurance carrier;

    137(d) To file a valid lien against the contractor;

    146(e) To collect against any applicable bond issued with the contractor as the principal; and,

    161(f) To file a garnishment against the contractor.

    169Such documentation shall include, but is not limited to, proof from the claimant that the claimant has conducted a property records search in the licensee’s state(s) of residence and principal place of business, and has made inquiries with the Department of Highway Safety and Motor Vehicles, the Federal Aviation Administration, and the Department of State, Uniform Commercial Code filings section and such other proof as the Construction Industry Licensing Board may from time to time require in particular instances. A claimant shall not be excused from making all reasonable searches and inquires because the contractor has filed for protection under the bankruptcy code.

    272(2) “Diligent Attempt,” as provided in Section 280489.141, F.S., 282shall have the same meaning as “all reasonable searches and inquiries” in subsection (1), above.

    297(3) “Same Transaction” as used in Section 304489.143(3), F.S., 306and for purposes of this rule, means a contract, or any series of contracts, between the claimant and a contractor or qualified business, where such contract or contracts involve the same property, or contiguous properties and are either entered into at one time or serially.

    351(4) “Recovery Fund” as used in these rules shall mean the Florida Homeowners’ Construction Recovery Fund.

    367(5) “Contractor” as used in these rules shall mean any licensee, operating individually or as a business entity, licensed under Chapter 489, Part I, F.S., when a claim is filed prior to July 1, 2007, and the contract was executed and the violation occurred on or before January 1, 2005. When the contract was executed and the violation occurred after January 1, 2005, “Contractor” as used in these rules shall mean a Division I contractor performing services described in Sections 447489.105(3)(a)-448(c), F.S. When the contract was executed and the violation occurred after July 1, 2016, “Contractor” as used in these rules shall mean any licensee, operating individually or as a business entity, licensed under Chapter 489, Part I, F.S.

    487(6) “Actual Damages” as used in Section 494489.143(2), F.S., 496shall mean the general measure of damages suffered as a direct result of a licensee’s violation of Section 514489.129(1)(g), 515(j), (k), or 518713.35, F.S., 520for failing to perform a construction contract. Actual Damages are calculated as the difference between the contract price, together with the change orders, and the cost of construction completion by another builder, where the cost of completion is for the same scope of work and materials set out in the original contract. However, if the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, actual damages shall not exceed the exact dollar amount of the deposit or down payment.

    608(7) “Natural Person” as used in Section 615489.140, F.S., 617shall mean the same as that in Article I, Sections 2, 21, Florida Constitution: female and male alike, and not firms, associations, joint ventures, partnerships, estates, trusts, syndicates, fiduciaries, corporations, or any other groups or combinations.

    653Rulemaking Authority 655489.108 FS. 657Law Implemented 659489.141, 660489.143, 661489.1402 FS. 663History–New 7-11-95, Amended 11-13-97, 3-10-03, 7-7-05, 4-27-08, 12-20-16.