Notice of Proposed Rule

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Construction Industry Licensing Board
RULE NO: RULE TITLE
61G4-17.001: Normal Penalty Ranges
PURPOSE AND EFFECT: The Board proposes the rule amendment due to a change to maximum fine allowed under Section 489.129, F.S.
SUMMARY: The proposed rule amendment sets a meaningful range of penalty guidelines in a reader friendly format.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 455.227, 489.108, 489.129 FS.
LAW IMPLEMENTED: 455.227, 455.2273, 489.129 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Tim Vaccaro, Executive Director, Construction Industry Licensing Board, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750

THE FULL TEXT OF THE PROPOSED RULE IS:

(Substantial rewording of Rule 61G4-17.001 follows. See Florida Administrative Code for present text.)

61G4-17.001 Normal Penalty Ranges.

(1) The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this chapter.

 

 

 

PENALTY RANGE

VIOLATION

MINIMUM

MAXIMUM

(a) Section 489.129(1)(a), F.S. Obtaining license through fraud or misrepresentation.

 

If misrepresentation

 

 

If fraud

 

 

 

 

$5,000 fine and/or probation, suspension, and/or revocation.

$5,000 fine and revocation

 

 

 

 

$10,000 fine and revocation.

 

$10,000 fine and revocation.

(b) Sections 489.129(1)(b), 455.227(1)(c), F.S. Convicted or found guilty of a crime relating to contracting.

$2,500 fine and/or probation, or suspension.

 

$10,000 fine and revocation.

 

 

(c) Section 489.129(1)(c), F.S.: Violating any part of Chapter 455, F.S.

Penalty within ranges prescribed by Section 455.227 F.S., unless otherwise prescribed herein.

Penalty within ranges prescribed by Section 455.227 F.S., unless otherwise prescribed herein.

1. Section 455.227(1)(a), F.S.: Fraud, deceit, misleading, or untrue representations.

$5,000 fine and/or probation or suspension.

 

 

$10,000 fine and revocation.

 

2. Section 455.227(1)(r), F.S.: Improperly interfering with an investigation or disciplinary action.

$5,000 fine and/or probation or suspension.

$10,000 fine and revocation.

(d) Section 489.129(1)(d), F.S.: Assisting unlicensed person to evade provision of Chapter 489, F.S.;

$2,500 fine and/or probation or suspension.

 

$10,000 fine and revocation.

(e) Section 489.129(1)(e), F.S.: Combining and conspiring with unlicensed person or entity to evade provision of Chapter 489, F.S.

$4, 000 fine and/or probation or suspension.

 

 

 

$9,000 fine and revocation.

 

 

 

 

(f) Sections 489.129(1)(f), 489.119(2), F.S.: Acting under a name not on license;

$1,500 fine.

 

 

$3,000 fine and or probation or suspension.

 

 

 

(g) Section 489.129(1)(g), F.S.: Mismanagement or misconduct causing financial harm to the customer.

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

 

 

$1,500 fine and/or probation or suspension.

 

$2,500 fine and/or probation or suspension.

 

 

 

 

 

$5,000 fine and/or probation or suspension.

 

$10,000 fine and revocation.

(h) Section 489.129(1)(h), F.S.: Local disciplinary action.

 

 

Use penalty herein listed for the violation most closely resembling the act underlying the local discipline;

Use penalty herein listed for the violation most closely resembling

the act underlying the local discipline;

(i) Section 489.129(1)(i), F.S.: Failing in any material respect to comply with the provisions of Part I of Chapter 489, F.S.

Use penalty herein listed for the violation most closely resembling the act underlying the local discipline;

Use penalty herein listed for the violation most closely resembling

the act underlying the local discipline;

1. Section 489.1195(2)(e), F.S.: Failure to supervise construction activities.

 

FIRST OFFENSE

 

 

 

REPEAT OFFENSE

 

 

 

$1,000 and/or probation or suspension.

 

 

$2,500 fine and/or probation or suspension.

 

 

 

$3,000 fine and/or probation or suspension.

 

 

$10,000 fine and revocation.

2. Sections 489.113, 489.117, F.S.: Contracting beyond scope of practice allowed by license, no safety hazard.

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

$1,000 fine and/or probation or suspension.

 

$3,000 fine and/or probation or suspension.

 

 

 

 

$3,000 fine and/or probation or suspension.

 

$10,000 fine and revocation.

3. Sections 489.113, 489.117, F.S.: Contracting beyond scope of license, safety hazard is created.

 

FIRST OFFENSE

 

REPEAT OFFENSE

 

 

 

 

$4,000 fine and/or probation or suspension.

$5,000 fine and/or probation or suspension.

 

 

 

 

$8,000 fine and/or probation or suspension.

$10,000 fine and revocation.

4. Section 489.1425, F.S.: Failure to notify residential property owner of recovery fund.

 

FIRST OFFENSE

REPEAT OFFENSE

 

 

 

 

$250 fine.

$1000 fine.

 

 

 

 

$500 fine.

$1000 fine.

5. Section 489.115, F.S.: Contracting with a delinquent license.

FIRST OFFENSE

 

 

 

 

 

 

REPEAT OFFENSE

 

 

$500 fine, respondent must pay all fees and costs required to place license in current and active status, and/or probation or suspension.

 

 

$2,500 fine, respondent must pay all fees and costs required to place license in current and active status, and/or probation or suspension.

 

 

$2,500 fine, respondent must pay all fees and costs required to place license in current and active status, and/or probation or suspension.

 

 

$5,000 fine and suspension or revocation, respondent must pay all fees and costs required to place license in current and active status, and/or probation or suspension.

6. Section 489.116, F.S.: Contracting with an inactive license.

$5000 fine and/or probation or suspension.

$10,000 fine and revocation.

7. Section 489.117, F.S.: Contracting in a city or county where the contractor is not licensed.

 

a. First violation, where the jurisdiction is not adjacent to one where contractor is properly licensed, or practice outside the geographical scope of the license was willful.

 

 

 

 

$1,000 fine and/or probation or suspension.

 

 

 

 

 

 

 

 

 

 

$2,500 fine and/or probation or suspension.

 

 

 

 

 

 

8. Section 489.119, F.S.: Failure to register qualified business organization.

FIRST OFFENSE

 

REPEAT OFFENSE

 

 

 

$250 fine.

 

$500 fine.

 

 

 

 $1,000 fine and/or probation or suspension.

 

$2,000 fine and/or probation or suspension.

9. Section 489.119(6)(b), F.S.: License number not appearing in advertisement.

 

FIRST OFFENSE

REPEAT OFFENSE

 

 

 

 

$250 fine.

$500 fine.

 

 

 

 

$1,000 fine.

$2,500 fine and probation.

10. Section 489.124, F.S.: Failure to keep business and financial records as required.

$1,000 fine

 

 

 

$5,000 fine and revocation.

 

 

(j) Section 489.129(1)(j), F.S.: Abandonment.

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

$2,500 fine and/or probation or suspension.

 

$5,000 fine and/or probation or suspension.

 

 

$7,500 fine and/or probation or suspension.

 

$10,000 fine and revocation.

(k) Section 489.129(1)(k), F.S.: False payment statements, false statement of insurance coverage.

 

 

1. False payment statement

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

$1,000 fine

 

 

$3,000 fine and/or probation or suspension.

 

 

$3,000 fine and/or probation or suspension.

 

$10,000 fine and revocation.

2. False statement of insurance coverage.

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

$1,000 fine and/or probation or suspension.

 

$2,500 fine and/or probation or suspension.

 

 

 

$2,000 fine and/or probation or suspension.

 

 $10,000 fine and probation, suspension or revocation.

(l) Section 489.129(1)(l), F.S.: Committing fraud or deceit in the practice of contracting.

 

 

1. Causing no monetary or other harm to licensee’s customer, and no physical harm to any person.

 

 

 

 

 

$2,500 fine and/or probation or suspension.

 

 

$2,500 fine

$10,000 fine and revocation.

 

 

 

$10,000 fine and suspension or revocation.

 

2. Causing monetary or other harm to licensee’s customer or physical harm to any person.

 

$2,500 fine and/or probation or suspension.

 

$10,000 fine and revocation

(m) Misconduct or incompetency in the practice of contracting, shall include, but is not limited to:

 

1. Failure to honor a warranty.

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

 

 

$1,000 fine and/or probation or suspension.

 

$2,500 fine and/or probation or suspension.

 

 

 

 

 

 

$5,000 fine and/or probation or suspension.

 

$10,000 fine and revocation

2. Violation of any provision of Chapter 61G4, F.A.C., or Chapter 489, Part I., F.S.

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

$1,000 fine and/or probation or suspension.

 

$2,500 fine and/or probation or suspension.

 

 

 

 

$2,500 fine and/or probation or suspension.

 

$10,000 fine and suspension or revocation

 

3. Failure to abide by the terms of a mediation agreement or an other offense under this part.

 

FIRST OFFENSE

 

REPEAT OFFENSE

 

 

 

 

 

 

$500 fine

 

$3,000 fine

 

 

 

 

 

 

$2,500 fine and probation

 

$10,000 fine and suspension or revocation.

4. The following guidelines shall apply to cases involving misconduct or incompetency in the practice of contracting, absent aggravating or mitigating circumstances:

 

 

(n) Section 489.129(1)(n), F.S.: Being found guilty of gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property.

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

 

$1,000 fine.

 

 

$3,000 fine.

 

 

 

 

 

$3,000 fine and probation, suspension or revocation.

 

$10,000 fine and revocation.

(o) Section 489.129(1)(o), F.S.: Proceeding on any job without obtaining applicable local building department permits and/or

inspections.

 

 

1. Late permits. Contractor pulls permit after starting job but prior to completion of same and does not miss any inspections.

 

$250 fine.

$3,000 fine and/or probation.

2. Failure to obtain inspections.

 

FIRST OFFENSE

 

REPEAT OFFENSE

 

 

$250 fine.

 

$1,000 fine.

 

 

$1,000 fine and/or probation or suspension;

$5,000 fine and suspension or revocation.

3. Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections.

FIRST OFFENSE

 

REPEAT OFFENSE

 

 

 

 

 

$1,000 fine.

 

$2,500 fine.

 

 

 

 

 

 $5,000 fine and/or probation;

 

$10,000 fine and suspension or revocation.

(p) Section 489.129(1)(p), F.S.: Intimidating, threatening, coercing, or otherwise discouraging the service of a notice to owner or notice to contractor pursuant to Chapter 713, F.S.

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

 

$1,000 fine and/or probation or suspension.

 

$5,000 fine and/or probation or

suspension.

 

 

 

 

 

$5,000 fine and suspension or revocation;

 

$10,000 fine and suspension or revocation.

 

(q) Section 489.129(1)(q), F.S.: Failure to satisfy a civil judgment obtained against the licensee or the business organization qualified by the licensee within a reasonable time.

 

For purposes of this section “reasonable time” means sixty (60) days following the entry of a civil judgment that is not appealed. The Board will consider a mutually agreed upon payment plan as satisfaction of such judgment, so long as the payments are current.

 

FIRST OFFENSE

 

 

REPEAT OFFENSE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$500 fine and/or proof of satisfaction of civil judgment;

$3,000 fine and/or proof of satisfaction of civil judgment,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$5,000 fine and/or proof of satisfaction of civil judgment; to $10,000 fine and/or proof of satisfaction of civil judgment, and suspension or revocation.

 

 

 

 

 

(2) In instances where the nature of the charges or the facts of the case indicate that the respondent lacks understanding of the laws and rules regulating the construction industry the Board shall require continuing education hours as an additional penalty to the guidelines listed above. All continuing education hours assessed as part of a penalty shall be in excess of the credit hours required for biennial renewal as stated in this act and rules.

(3) For purposes of these guidelines, violations for which the Respondent has previously been issued a citation pursuant to Section 455.224, F.S., and Rule 61G4-19.001, F.A.C., shall be considered repeat violations.

(4) In addition, the board shall assess the costs of investigation and prosecution, excluding costs related to attorney time.

(5) In addition, the board shall order the contractor to make restitution in the amount of financial loss suffered by the consumer to the extent that such order does not contravene federal bankruptcy law.

(6) The absence of any violation from this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed. The Guideline penalty for the offense most closely resembling the omitted violation shall apply.

Specific Authority 455.227, 489.108, 489.129 FS. Law Implemented 455.227, 455.2273, 489.129 FS. History–New 10-26-86, Amended 12-21-92, Formerly 21E-17.001, Amended 11-2-93, 10-12-94, 7-2-95, 9-3-96, 10-31-96, 2-4-98, 8-2-98, 2-2-04, 1-24-05,________.


NAME OF PERSON ORIGINATING PROPOSED RULE: Construction Industry Licensing Board
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Construction Industry Licensing Board
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 5/12/2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 5, 2005