Section 489.533, Florida Statutes 2001
489.533 Disciplinary proceedings.--
(1) The following acts shall constitute grounds for disciplinary actions as provided in subsection (2):
(a) Failure to comply with any provision of chapter 455.
(b) Attempting to procure a certificate or registration to practice electrical or alarm system contracting by bribery or fraudulent or willful misrepresentations.
(c) Having a certificate or registration to practice contracting revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(d) 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 electrical or alarm system contracting or the ability to practice electrical or alarm system contracting.
(e) Making or filing a report or record which the certificateholder or registrant knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a certified electrical or alarm system contractor.
(f) Committing fraud or deceit, or negligence, incompetency, or misconduct in the practice of electrical or alarm system contracting.
(g) Violating chapter 633 or the rules of the State Fire Marshal.
(h) Practicing on a revoked, suspended, inactive, or delinquent certificate or registration.
(i) Violating the applicable building codes or laws of the state or any municipality or county thereof.
(j) 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.
(k) Knowingly combining or conspiring with any person by allowing one's certificate to be used by any uncertified person with intent to evade the provisions of this part. When a certificateholder allows his or her certificate to be used by one or more companies without having any active participation in the operations or management of said companies, such act constitutes prima facie evidence of an intent to evade the provisions of this part.
(l) 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.
(m) Committing financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs if:
1. A valid lien has 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 lien removed from the property, by payment or by bond, within 75 days after the date of the lien;
2. A contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price that had been paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain the excess funds under the terms of the contract or refunds the excess funds within 30 days after the date of abandonment;
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; or
4. The contractor fails, within 18 months, to pay or comply with a repayment schedule of a judgment obtained against the contractor or a business qualified by the contractor and relating to the practice of contracting.
(n) Being disciplined by any municipality or county for an act that is a violation of this section.
(o) Failing in any material respect to comply with the provisions of this part and the rules adopted pursuant thereto.
(p) Abandoning a project which the contractor is engaged in or is under contractual obligation to perform. A project is to be considered abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the prospective owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
(q) Failing to affix a registration or certification number as required by s. 489.521(7).
(r) Proceeding on any job without obtaining applicable local building department permits and inspections.
(s) Practicing beyond the scope of a certification or registration.
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.
(2) When the board finds any applicant, contractor, or business organization for which the contractor is a primary qualifying agent or secondary qualifying agent responsible under s. 489.522 guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for certification or registration.
(b) Revocation or suspension of a certificate or registration.
(c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the contractor on probation for a period of time and subject to such conditions as the board may specify, including requiring the contractor to attend continuing education courses or to work under the supervision of another contractor.
(f) Restriction of the authorized scope of practice by the contractor.
(g) Require financial restitution to a consumer.
(3) 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.
(4) The board may not reinstate the certificate or registration of, or cause a certificate or registration to be issued to, a person who the board has determined unqualified until it is satisfied that such person 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.
(5) When the board imposes administrative fines pursuant to subsection (2) resulting from violation of chapter 633 or violation of the rules of the State Fire Marshal, 50 percent of the fine shall be paid into the Insurance Commissioner's Regulatory Trust Fund to help defray the costs of investigating the violations and obtaining the corrective action. The State Fire Marshal may participate at its discretion, but not as a party, in any proceedings before the board relating to violation of chapter 633 or the rules of the State Fire Marshal, in order to make recommendations as to the appropriate penalty in such case. However, the State Fire Marshal shall not have standing to bring disciplinary proceedings regarding certification.
(6) The board may restrain any violation of this part by action in a court of competent jurisdiction.
(7)(a) The department may, by rule, provide for a mediation process for the complainant and the licensee. Notwithstanding the provisions of chapters 120 and 455, upon receipt of a legally sufficient consumer complaint alleging a violation of this part, both the licensee and the complainant may consent in writing to mediation 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 mediation is received by the department. If the mediation 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 mediation. If mediation is rejected by either the complainant or licensee, or should said parties fail to reach a mediated solution within the 60-day period, the department shall process the complaint in the manner required by chapters 120 and 455. The mediator shall provide a written report to the department of the mediation results within 10 days of the conclusion of the mediation process as provided by rule.
(b) No licensee may avail himself or herself of the mediation process more than three times without the approval of the board. The board may consider the subject and the dates of the earlier complaints in rendering its decision. The board's decision shall not be considered a final agency action and is not appealable.
(c) The licensee shall bear all costs of mediation.
(d) Mediation shall be conducted according to rules of practice and procedure for circuit court as adopted by the Supreme Court. The mediator shall be a certified circuit court mediator.
(e) The department, in conjunction with the board, shall determine by rule the types of cases which may be included in the mediation process. The department may initiate or continue disciplinary action, pursuant to chapter 455 and this chapter against the licensee as determined by rule.
History.--ss. 14, 17, ch. 79-272; ss. 2, 3, ch. 81-318; s. 90, ch. 83-329; ss. 9, 14, ch. 87-254; ss. 17, 21, 23, ch. 88-149; s. 42, ch. 90-228; s. 47, ch. 91-137; s. 4, ch. 91-429; s. 283, ch. 94-119; s. 227, ch. 96-410; s. 1134, ch. 97-103; s. 147, ch. 98-166; s. 29, ch. 98-287; s. 45, ch. 98-419; s. 126, ch. 2000-141; s. 206, ch. 2000-160; s. 35, ch. 2001-186.