The Board proposes the rule amendments to eliminate language that is duplicative of statutory provisions and to make the claim process less onerous for those seeking recovery where an attorney is cost prohibitive relative ....

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Construction Industry Licensing Board

RULE NOS.:RULE TITLES:

61G4-21.002Definitions

61G4-21.003Filing Claims

PURPOSE AND EFFECT: The Board proposes the rule amendments to eliminate language that is duplicative of statutory provisions and to make the claim process less onerous for those seeking recovery where an attorney is cost prohibitive relative to the recovery.

SUMMARY: To update and clarify the language of the rules.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 489.108 FS.

LAW IMPLEMENTED: 489.141, 489.143, 489.1402 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Daniel Biggins, Executive Director, Construction Industry Licensing Board, 2601 Blair Stone Road, Tallahassee, Florida 32399-1039 or telephone: [phone], or by electronic mail to [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

 

61G4-21.002 Definitions.

(1) “All reasonable searches and inquiries,” as provided in Section 489.141(1), F.S., shall mean that reasonable 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 can be evidenced by documentation of the following claimant’s efforts shall constitute the following, if applicable, documentation showing that exhaustive effects have been taken:

(a) No change. 

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

(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;

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

(c)(e) To collect against any applicable bond issued with the contractor as the principal and that is payable to the claimant; and,

(d)(f) To file a garnishment against the contractor when the action is financially feasible under the circumstances.

Such documentation means 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.  For claims seeking $15,000 or less, evidence that the contractor’s license is suspended due to nonpayment of ordered restitution or fines; or evidence of a Final Order of the Board showing that the contractor was prosecuted for nonpayment of a civil judgment will satisfy the requirement for all reasonable searches and inquiries.  A claimant shall not be excused from making all reasonable searches and inquires because the contractor has filed for protection under the bankruptcy code.

(2) through (4)  No change

(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 489.105(3)(a)-(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.

(6) renumbered (5)  No change.

(7) “Natural Person” as used in Section 489.140, F.S., shall 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.

Rulemaking Authority 489.108 FS. Law Implemented 489.141, 489.143, 489.1402 FS. History–New 7-11-95, Amended 11-13-97, 3-10-03, 7-7-05, 4-27-08, 12-20-16,               .

 

61G4-21.003 Filing Claims.

(1) No change.  

(2) Completed claim forms shall be forwarded to the Board, together with a copy of the complaint that initiated action against the contractor, a certified copy of the underlying judgment, order of restitution, or award in arbitration, together with the judgment; a copy of any contract between the claimant and the contractor, including change orders; proof of payment to the contractor and/or subcontractors; copies of any liens and releases filed against the property, together with the Notice of Claim and Notice to Owner; copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance; certified copies of levy and execution documents, and proof of all efforts and inability to collect the judgment or restitution order, and other documentation as may be required by the Board to determine causation of injury or specific actual damages.

(3) through (4)  No change.  

(5) A claim for recovery must be made within 1 year after the conclusion of any civil, criminal, administrative action, or award in arbitration based on the act. If claimant is prevented from obtaining a judgment, board restitution order, or arbitration award, due to contractor’s death, a claim for recovery must be filed within one year of the contractor’s death. This paragraph applies to any claim not already filed with the board on July 1, 2004.

(6) Claims already filed with the board as of July 1, 2004 are considered timely if made within 1 year after the conclusion of any civil, criminal, administrative action, or award in arbitration based on the act; or is made within 2 years from the time of the act giving rise to the claim or within 2 years from the time the act is discovered or should have been discovered with the exercise of due diligence; however, in no event may a claim for recovery be made more than 4 years after the date of the act giving rise to the claim or more than 1 year after the conclusion of any civil or administrative action based on the act, whichever is later.

(7) through (8)  renumbered (5)  through (6)  No change.

Rulemaking Authority 489.108 FS. Law Implemented 489.141 FS. History–New 7-11-95, Amended 7-1-96, 7-7-05, 4-27-08, 3-18-10, 12-20-16,             .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Construction Industry Licensing Board

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Construction Industry Licensing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 14, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 23, 2020