Section 489.129, Florida Statutes 2008
489.129 Disciplinary proceedings.--
(1) The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:
(a) Obtaining a certificate, registration, or certificate of authority by fraud or misrepresentation.
(b) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting.
(c) Violating any provision of chapter 455.
(d) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.
(e) Knowingly combining or conspiring with an uncertified or unregistered person by allowing his or her certificate, registration, or certificate of authority to be used by the uncertified or unregistered person with intent to evade the provisions of this part. When a certificateholder or registrant allows his or her certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.
(f) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part.
(g) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
1. Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 75 days after the date of such liens;
2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned; or
3. The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.
(h) Being disciplined by any municipality or county for an act or violation of this part.
(i) Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.
(j) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
(k) Signing a statement with respect to a project or contract falsely indicating that the work is bonded; falsely indicating that payment has been made for all subcontracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor; or falsely indicating that workers' compensation and public liability insurance are provided.
(l) Committing fraud or deceit in the practice of contracting.
(m) Committing incompetency or misconduct in the practice of contracting.
(n) Committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property.
(o) Proceeding on any job without obtaining applicable local building department permits and inspections.
(p) Intimidating, threatening, coercing, or otherwise discouraging the service of a notice to owner under part I of chapter 713 or a notice to contractor under chapter 255 or part I of chapter 713.
(q) Failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee's profession.
For the purposes of this subsection, construction is considered to be commenced when the contract is executed and the contractor has accepted funds from the customer or lender. A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120.
(2) If a registrant or certificateholder disciplined under subsection (1) is a qualifying agent or financially responsible officer for a business organization and the violation was performed in connection with a construction project undertaken by that business organization, the board may impose an additional administrative fine not to exceed $5,000 per violation against the business organization or against any partner, officer, director, trustee, or member if such person participated in the violation or knew or should have known of the violation and failed to take reasonable corrective action.
(3) The board may specify by rule the acts or omissions which constitute violations of this section.
(4) In recommending penalties in any proposed recommended final order, the department shall follow the penalty guidelines established by the board by rule. The department shall advise the administrative law judge of the appropriate penalty, including mitigating and aggravating circumstances, and the specific rule citation.
(5) The board may not reinstate the certification, registration, or certificate of authority of, or cause a certificate, registration, or certificate of authority to be issued to, a person who or business organization which the board has determined is unqualified or whose certificate, registration, or certificate of authority the board has suspended until it is satisfied that such person or business organization has complied with all the terms and conditions set forth in the final order and is capable of competently engaging in the business of contracting.
(6)(a) The board may assess interest or penalties on all fines imposed under this chapter against any person or business organization which has not paid the imposed fine by the due date established by rule or final order. The provisions of chapter 120 do not apply to such assessment. Interest rates to be imposed shall be established by rule and shall not be usurious.
(b) Venue for all actions to enforce any fine levied by the board shall be in Duval County. The board is authorized to enter into contracts with private businesses or attorneys to collect such fines with payment for such collections made on a contingent fee basis. All such contracts shall be publicly advertised and competitively awarded based upon responses submitted to a request for proposals developed by the board.
(7) The board shall not issue or renew a certificate, registration, or certificate of authority to any person or business organization that has been assessed a fine, interest, or costs associated with investigation and prosecution, or has been ordered to pay restitution, until such fine, interest, or costs associated with investigation and prosecution or restitution are paid in full or until all terms and conditions of the final order have been satisfied.
(8) If the board finds any certified or registered contractor guilty of a violation, the board may, as part of its disciplinary action, require such contractor to obtain continuing education in the areas of contracting affected by such violation.
(9) Any person certified or registered pursuant to this part who has had his or her license revoked shall not be eligible to be a partner, officer, director, or trustee of a business organization defined by this section or be employed in a managerial or supervisory capacity for a 5-year period. Such person shall also be ineligible to reapply for certification or registration under this part for a period of 5 years after the effective date of the revocation.
(10) If a business organization or any of its partners, officers, directors, trustees, or members is or has previously been fined for violating subsection (2) or s. 489.132, the board may, on that basis alone, revoke, suspend, place on probation, or deny issuance of a certificate or registration to a qualifying agent or financially responsible officer of that business organization.
(11)(a) Notwithstanding the provisions of chapters 120 and 455, upon receipt of a legally sufficient consumer complaint alleging a violation of this part, the department may provide by rule for binding arbitration between the complainant and the certificateholder or registrant, provided the following conditions exist:
1. There is evidence that the complainant has suffered or is likely to suffer monetary damages resulting from the violation of this part;
2. The certificateholder or registrant does not have a history of repeated or similar violations;
3. Reasonable grounds exist to believe that the public interest will be better served by arbitration than by disciplinary action; and
4. The complainant and certificateholder or registrant have not previously entered into private arbitration, and no civil court action based on the same transaction has been filed.
(b) The certificateholder or registrant and the complainant may consent in writing to binding arbitration within 15 days following notification of this process by the department. The department may suspend all action in the matter for 45 days when notice of consent to binding arbitration is received by the department. If the arbitration process is successfully concluded within the 60-day period, the department may close the case file with a notation of the disposition and the licensee's record shall reflect only that a complaint was filed and resolved through arbitration.
(c) Where a complaint meets the criteria for arbitration set forth in paragraph (a) and the damages at issue are less than $2,500, the department shall refer the complaint for mandatory arbitration.
(d) The arbitrator's order shall become a final order of the board if not challenged by the complainant or the certificateholder or registrant within 30 days after filing. The board's review of the arbitrator's order shall operate in the manner of the review of recommended orders pursuant to s. 120.57(1) and shall not be a de novo review.
(12) When an investigation of a contractor is undertaken, the department shall promptly furnish to the contractor or the contractor's attorney a copy of the complaint or document that resulted in the initiation of the investigation. The department shall make the complaint and supporting documents available to the contractor. The complaint or supporting documents shall contain information regarding the specific facts that serve as the basis for the complaint. The contractor may submit a written response to the information contained in such complaint or document within 20 days after service to the contractor of the complaint or document. The contractor's written response shall be considered by the probable cause panel. The right to respond does not prohibit the issuance of a summary emergency order if necessary to protect the public. However, if the secretary, or the secretary's designee, and the chair of the board or the chair of the probable cause panel agree in writing that such notification would be detrimental to the investigation, the department may withhold notification. The department may conduct an investigation without notification to a contractor if the act under investigation is a criminal offense.
History.--ss. 12, 17, ch. 79-200; s. 371, ch. 81-259; ss. 2, 3, ch. 81-318; s. 7, ch. 83-160; ss. 87, 119, ch. 83-329; s. 9, ch. 87-74; ss. 14, 20, 21, ch. 88-156; s. 13, ch. 89-162; s. 34, ch. 89-374; s. 24, ch. 90-109; s. 40, ch. 90-228; s. 39, ch. 91-137; s. 4, ch. 91-429; s. 63, ch. 92-149; s. 18, ch. 93-166; s. 9, ch. 96-298; s. 73, ch. 96-388; s. 226, ch. 96-410; s. 1129, ch. 97-103; s. 12, ch. 97-228; s. 146, ch. 98-166; s. 67, ch. 98-287; s. 9, ch. 98-419; s. 27, ch. 99-254; s. 205, ch. 2000-160; s. 3, ch. 2005-227.