New inspection law / Mold toward bottom / highlights in red

CHAPTER 2007-235

Committee Substitute for Committee Substitute for

Committee Substitute for Senate Bill No. 2234

An act relating to regulation of building inspection professionals;

amending s. 634.301, F.S.; redefining the terms “home warranty” or

“warranty” for purposes of part II of ch. 634, F.S., relating to home

warranty associations; creating pt. XV of ch. 468, F.S., relating to

regulation of home inspectors; providing a purpose; providing exemptions;

providing definitions; authorizing the Department of

Business and Professional Regulation to establish fees; limiting fee

amounts; providing for a home inspector licensure examination; providing

qualifications to take the licensure examination; providing

requirements for the department to certify and license home inspectors;

providing for licensure by endorsement; requiring continuing

education for license renewal; providing criteria for continuing education;

providing for inactivation of licenses; requiring the department

to establish fees for the reactivation and renewal of inactive

licenses; providing for certification of partnerships and corporations

offering home inspection services; requiring a certificate of authorization

for certain persons and entities practicing home inspection

services; providing for prohibitions and penalties; providing grounds

for disciplinary proceedings; authorizing the department to impose

specified penalties; requiring home inspectors to provide a specified

disclosure to consumers; requiring home inspectors to maintain a

specified insurance policy; requiring home inspectors to provide a

written report to homeowners upon completion of each home inspection;

providing content requirements for home inspection reports;

authorizing certain persons to qualify for home inspection licensure

notwithstanding the requirements of this part; creating pt. XVI of

ch. 468, F.S., relating to regulation of mold remediators and mold

assessors; providing a purpose; providing exemptions; providing definitions;

authorizing the department to establish fees; limiting fee

amounts; providing for a mold assessor and mold remediator licensure

examination; providing qualifications to take the licensure examinations;

providing requirements for the department to certify

and license home inspectors; providing for licensure by endorsement;

requiring continuing education for license renewal; providing

criteria for continuing education; providing for inactivation of licenses;

requiring the department to establish fees for the reactivation

and renewal of inactive licenses; providing for certification of

partnerships and corporations offering mold assessment or mold

remediation services; requiring a certificate of authorization for certain

persons and entities practicing home inspection services; providing

for prohibitions and penalties; providing grounds for disciplinary

proceedings; authorizing the department to impose specified

penalties; requiring mold assessors and mold remediators to maintain

specified insurance policies; providing requirements for contracts

to perform mold assessment or mold remediation; authorizing

certain persons to qualify for mold assessment and mold remedia-

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tion licensure notwithstanding the requirements of this part; providing

an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (3) of section 634.301, Florida Statutes, is amended

to read:

634.301 Definitions.—As used in this part, the term:

(3) “Home warranty” or “warranty” means any contract or agreement:

(a) Offered in connection with the sale of residential property;

(b) Offered in connection with a loan of $5,000 or more which is secured

by residential property that is the subject of the warranty, but not in connection

with the sale of such property; or

(c) Offered in connection with a home improvement of $7,500 or more for

residential property that is the subject of the warranty, but not in connection

with the sale of such property; or

(d) Offered in connection with a home inspection service as defined under

s. 468.8311(4) or a mold assessment as defined under s. 468.8411(3);

whereby a person undertakes to indemnify the warranty holder against the

cost of repair or replacement, or actually furnishes repair or replacement,

of any structural component or appliance of a home, necessitated by wear

and tear or an inherent defect of any such structural component or appliance

or necessitated by the failure of an inspection to detect the likelihood of any

such loss. However, this part does not prohibit the giving of usual performance

guarantees by either the builder of a home or the manufacturer or

seller of an appliance, as long as no identifiable charge is made for such

guarantee. This part does not permit the provision of indemnification

against consequential damages arising from the failure of any structural

component or appliance of a home, which practice constitutes the transaction

of insurance subject to all requirements of the insurance code. This part

does not apply to service contracts entered into between consumers and

nonprofit organizations or cooperatives the members of which consist of

condominium associations and condominium owners and which perform

repairs and maintenance for appliances or maintenance of the residential

property. This part does not apply to a contract or agreement offered in

connection with a sale of residential property by a warranty association in

compliance with part III, provided such contract or agreement only relates

to the systems and appliances of the covered residential property and does

not cover any structural component of the residential property.

Section 2. Part XV of chapter 468, Florida Statutes, consisting of sections

468.83, 468.831, 468.8311, 468.8312, 468.8313, 468.8314, 468.8315,

468.8316, 468.8317, 468.8318, 468.8319, 468.832, 468.8321, 468.8322,

468.8323, and 468.8324, is created to read:

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468.83 Purpose.—The Legislature recognizes that there is a need to require

the licensing of home inspectors and to ensure that consumers of home

inspection services can rely on the competence of home inspectors, as determined

by educational and experience requirements and testing. Therefore,

the Legislature deems it necessary in the interest of the public welfare to

regulate home inspectors in this state.

468.831 Exemptions.—The following persons are not required to comply

with any provision of this part:

(1) An authorized government employee of the United states, this state,

or any municipality, county, or other political subdivision who is conducting

home inspection services within the scope of that employment, as long as the

employee does not hold out for hire to the general public or otherwise engage

in home inspection services.

(2) A person acting within his or her authorized scope of practice as

licensed under federal, state, or local codes or statutes, except when such

person holds himself or herself out for hire to the public as a “certified home

inspector,” “registered home inspector,” “licensed home inspector,” “home

inspector,” “professional home inspector,” or any combination thereof stating

or implying licensure under this part.

(3) An officer appointed by the court.

(4) A person performing safety inspections of utility equipment in or on

a home or building or other duties conducted by or for a utility under chapter

366 or rules adopted by the Public Service Commission.

(5) A certified energy auditor performing an energy audit of any home or

building or other duties conducted by or for a utility under chapter 366 or

rules adopted by the Public Service Commission.

468.8311 Definitions.—As used in this part, the term:

(1) “Department” means the Department of Business and Professional

Regulation.

(2) “Home” means any residential real property, or manufactured or

modular home, which is a single-family dwelling, duplex, triplex, quadruplex,

condominium unit, or cooperative unit. The term does not include the

common areas of condominiums or cooperatives.

(3) “Home inspector” means any person who provides or offers to provide

home inspection services for a fee or other compensation.

(4) “Home inspection services” means a limited visual examination of one

or more of the following readily accessible installed systems and components

of a home: the structure, electrical system, HVAC system, roof covering,

plumbing system, interior components, exterior components, and site conditions

that affect the structure, for the purposes of providing a written professional

opinion of the condition of the home.

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468.8312 Fees.—

(1) The department, by rule, may establish fees to be paid for applications,

examination, reexamination, licensing and renewal, inactive status

application and reactivation of inactive licenses, recordkeeping, and applications

for providers of continuing education. The department may also establish

by rule a delinquency fee. Fees shall be based on department estimates

of the revenue required to implement the provisions of this part. All fees

shall be remitted with the appropriate application, examination, or license.

(2) The initial application and examination fee shall not exceed $125 plus

the actual per applicant cost to the department to purchase an examination,

if the department chooses to purchase the examination. The examination fee

shall be in an amount that covers the cost of obtaining and administering

the examination and shall be refunded if the applicant is found ineligible to

sit for the examination. The application fee shall be nonrefundable.

(3) The initial license fee shall not exceed $200.

(4) The fee for a certificate of authorization shall not exceed $125.

(5) The biennial renewal fee shall not exceed $200.

(6) The fee for licensure by endorsement shall not exceed $200.

(7) The fee for application for inactive status or for reactivation of an

inactive license shall not exceed $200.

(8) The fee for applications from providers of continuing education may

not exceed $500.

468.8313 Examinations.—

(1) A person desiring to be licensed as a home inspector shall apply to the

department to take a licensure examination.

(2) An applicant shall be entitled to take the licensure examination for

the purpose of determining whether he or she is qualified to practice in this

state as a home inspector if the applicant is of good moral character and has

completed a course of study of no less than 120 hours that covers all of the

following components of a home: structure, electrical system, HVAC system,

roof covering, plumbing system, interior components, exterior components,

and site conditions that affect the structure.

(3) The department shall review and approve courses of study in home

inspection.

(4) The department may review and approve examinations by a nationally

recognized entity that offers programs or sets standards that ensure

competence as a home inspector.

(5)(a) “Good moral character” means a personal history of honesty, fairness,

and respect for the rights of others and for the laws of this state and

nation.

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(b) The department may refuse to certify an applicant for failure to satisfy

this requirement only if:

1. There is a substantial connection between the lack of good moral

character of the applicant and the professional responsibilities of a licensed

home inspector; and

2. The finding by the department of lack of good moral character is

supported by clear and convincing evidence.

(c) When an applicant is found to be unqualified for a license because of

lack of good moral character, the department shall furnish the applicant a

statement containing the findings of the department, a complete record of

the evidence upon which the determination was based, and a notice of the

rights of the applicant to a rehearing and appeal.

(6) The department may adopt rules pursuant to ss. 120.536(1) and

120.54 to implement the provisions of this section.

468.8314 Licensure.—

(1) The department shall license any applicant who the department certifies

is qualified to practice home inspection services.

(2) The department shall certify for licensure any applicant who satisfies

the requirements of s. 468.8313 and who has passed the licensing examination.

The department may refuse to certify any applicant who has violated

any of the provisions of s. 468.832.

(3) The department shall certify as qualified for a license by endorsement

an applicant who is of good moral character as determined in s. 468.8313;

holds a valid license to practice home inspection services in another state or

territory of the United States, whose educational requirements are substantially

equivalent to those required by this part; and has passed a national,

regional, state, or territorial licensing examination that is substantially

equivalent to the examination required by this part.

(4) The department shall not issue a license by endorsement to any applicant

who is under investigation in another state for any act that would

constitute a violation of this part or chapter 455 until such time as the

investigation is complete and disciplinary proceedings have been terminated.

468.8315 Renewal of license.—

(1) The department shall renew a license upon receipt of the renewal

application and upon certification by the department that the licensee has

satisfactorily completed the continuing education requirements of s.

468.8316.

(2) The department shall adopt rules establishing a procedure for the

biennial renewal of licenses.

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468.8316 Continuing education.—

(1) The department may not renew a license until the licensee submits

proof satisfactory to the department that during the 2 years prior to his or

her application for renewal the licensee has completed at least 14 hours of

continuing education. Criteria and course content shall be approved by the

department by rule.

(2) The department may prescribe by rule additional continuing professional

education hours, not to exceed 25 percent of the total hours required,

for failure to complete the hours required for renewal by the end of the

reestablishment period.

468.8317 Inactive license.—

(1) A licensee may request that his or her license be placed in an inactive

status by making application to the department.

(2) A license that has become inactive may be reactivated upon application

to the department. The department may prescribe by rule continuing

education requirements as a condition of reactivating a license. The continuing

education requirements for reactivating a license may not exceed 14

hours for each year the license was inactive.

(3) The department shall adopt rules relating to licenses which have

become inactive and for the renewal of inactive licenses. The department

shall prescribe by rule a fee not to exceed $200 for the reactivation of an

inactive license and a fee not to exceed $200 for the renewal of an inactive

license.

468.8318 Certification of corporations and partnerships.—

(1) The department shall issue a certificate of authorization to a corporation

or partnership offering home inspection services to the public if the

corporation or partnership satisfies all of the requirements of this part.

(2) The practice of or the offer to practice home inspection services by

licensees through a corporation or partnership offering home inspection

services to the public, or by a corporation or partnership offering such services

to the public through licensees under this part as agents, employees,

officers, or partners, is permitted subject to the provisions of this part,

provided that all personnel of the corporation or partnership who act in its

behalf as home inspectors in this state are licensed as provided by this part;

and further provided that the corporation or partnership has been issued a

certificate of authorization by the department as provided in this section.

Nothing in this section shall be construed to allow a corporation to hold a

license to practice home inspection services. No corporation or partnership

shall be relieved of responsibility for the conduct or acts of its agents, employees,

or officers by reason of its compliance with this section, nor shall

any individual practicing home inspection services be relieved of responsibility

for professional services performed by reason of his or her employment

or relationship with a corporation or partnership.

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(3) For the purposes of this section, a certificate of authorization shall be

required for a corporation, partnership, association, or person practicing

under a fictitious name and offering home inspection services to the public;

however, when an individual is practicing home inspection services in his

or her own given name, he or she shall not be required to register under this

section.

(4) Each certificate of authorization shall be renewed every 2 years. Each

partnership and corporation certified under this section shall notify the

department within 1 month of any change in the information contained in

the application upon which the certification is based.

(5) Disciplinary action against a corporation or partnership shall be administered

in the same manner and on the same grounds as disciplinary

action against a licensed home inspector.

468.8319 Prohibitions; penalties.—

(1) A home inspector, a company that employs a home inspector, or a

company that is controlled by a company that also has a financial interest

in a company employing a home inspector may not:

(a) Practice or offer to practice home inspection services unless the person

has complied with the provisions of this part;

(b) Use the name or title “certified home inspector,” “registered home

inspector,” “licensed home inspector,” “home inspector,” “professional home

inspector,” or any combination thereof unless the person has complied with

the provisions of this part;

(c) Present as his or her own the license of another;

(d) Knowingly give false or forged evidence to the department or an

employee thereof;

(e) Use or attempt to use a license that has been suspended or revoked;

(f) Perform or offer to perform, prior to closing, for any additional fee, any

repairs to a home on which the inspector or the inspector’s company has

prepared a home inspection report. This paragraph does not apply to a home

warranty company that is affiliated with or retains a home inspector to

perform repairs pursuant to a claim made under a home warranty contract;

(g) Inspect for a fee any property in which the inspector or the inspector’s

company has any financial or transfer interest;

(h) Offer or deliver any compensation, inducement, or reward to any

broker or agent therefor for the referral of the owner of the inspected property

to the inspector or the inspection company; or

(i) Accept an engagement to make an omission or prepare a report in

which the inspection itself, or the fee payable for the inspection, is contingent

upon either the conclusions in the report, preestablished findings, or

the close of escrow.

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(2) Any person who is found to be in violation of any provision of this

section commits a misdemeanor of the first degree, punishable as provided

in s. 775.082 or s. 775.083.

468.832 Disciplinary proceedings.—

(1) The following acts constitute grounds for which the disciplinary actions

in subsection (2) may be taken:

(a) Violation of any provision of this part or s. 455.227(1);

(b) Attempting to procure a license to practice home inspection services

by bribery or fraudulent misrepresentation;

(c) Having a license to practice home inspection services 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 that directly

relates to the practice of home inspection services or the ability to

practice home inspection services;

(e) Making or filing a report or record that the licensee 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 that are signed in the capacity of a licensed home inspector;

(f) Advertising goods or services in a manner that is fraudulent, false,

deceptive, or misleading in form or content;

(g) Engaging in fraud or deceit, or of negligence, incompetency, or misconduct,

in the practice of home inspection services;

(h) Failing to perform any statutory or legal obligation placed upon a

licensed home inspector; violating any provision of this chapter, a rule of the

department, or a lawful order of the department previously entered in a

disciplinary hearing; or failing to comply with a lawfully issued subpoena

of the department; or

(i) Practicing on a revoked, suspended, inactive, or delinquent license.

(2) When the department finds any home inspector 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 licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not to exceed $5,000 for each

count or separate offense.

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(d) Issuance of a reprimand.

(e) Placement of the home inspector on probation for a period of time and

subject to such conditions as the department may specify.

(f) Restriction of the authorized scope of practice by the home inspector.

(3) In addition to any other sanction imposed under this part, in any final

order that imposes sanctions, the department may assess costs related to the

investigation and prosecution of the case.

468.8321 Disclosures.—Prior to contracting for or commencing a home

inspection, a home inspector shall provide to the consumer a copy of his or

her license to practice home inspection services in this state and a written

disclosure that contains the scope and any exclusions of the home inspection.

468.8322 Insurance.—A home inspector shall maintain a commercial

general liability insurance policy in an amount of not less than $300,000.

468.8323 Home inspection report.—Upon completion of each home inspection

for compensation, the home inspector shall provide a written report

prepared for the client.

(1) The home inspector shall report:

(a) On those systems and components inspected that, in the professional

opinion of the inspector, are significantly deficient or are near the end of

their service lives.

(b) If self-evident, a reason why the system or component reported under

paragraph (a) is significantly deficient or near the end of its service life.

(c) Any systems and components that were present at the time of the

inspection but were not inspected, and a reason they were not inspected.

(2) A home inspector is not required to provide estimates related to the

cost of repair of an inspected property.

468.8324 Grandfather clause.—A person who performs home inspection

services as defined in this part may qualify to be licensed by the department

as a home inspector if the person meets the licensure requirements of this

part by July 1, 2010.

Section 3. Part XVI of chapter 468, Florida Statutes, consisting of sections

468.84, 468.841, 468.8411, 468.8412, 468.8413, 468.8414, 468.8415,

468.8416, 468.8417, 468.8418, 468.8419, 468.842, 468.8421, 468.8422, and

468.8423, is created to read:

468.84 Legislative purpose.—The Legislature finds it necessary in the

interest of the public safety and welfare, to prevent damage to the real and

personal property, to avert economic injury to the residents of this state, and

to regulate persons and companies that hold themselves out to the public as

qualified to perform mold-related services.

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468.841 Exemptions.—

(1) The following persons are not required to comply with any provisions

of this part relating to mold assessment:

(a) A residential property owner who performs mold assessment on his

or her own property.

(b) A person who performs mold assessment on property owned or leased

by the person, the person’s employer, or an entity affiliated with the person’s

employer through common ownership, or on property operated or managed

by the person’s employer or an entity affiliated with the person’s employer

through common ownership. This exemption does not apply if the person,

employer, or affiliated entity engages in the business of performing mold

assessment for the public.

(c) An employee of a mold assessor while directly supervised by the mold

assessor.

(d) Persons or business organizations acting within the scope of the respective

licenses required under chapter 471, part I of chapter 481, chapter

482, or chapter 489, are acting on behalf of an insurer under part VI of