(1) "All reasonable searches and inquiries, "
as provided in Section
489.141(1),
F.S., shall mean that reasonable 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:
(a) To locate
the contractor;
(b) To discover if
the contractor has assets from which to collect the judgment such as accounts
and real or personal property and equipment;
(c) To collect against any applicable bond
issued with the contractor as the principal and that is payable to the
claimant; and,
(d) To file a
garnishment against the contractor when the action is financially feasible
under the circumstances.
Such documentation means 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, 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.
(2) "Diligent Attempt, " as provided in
Section 489.141, F.S., shall have the
same meaning as "all reasonable searches and inquiries" in subsection (1),
above.
(3) "Same Transaction" as
used in Section 489.143(3),
F.S., and for purposes of this rule, means a contract, or any series of
contracts, between the claimant and a contractor or qualified business, where
such contract or contracts involve the same property, or contiguous properties
and are either entered into at one time or serially.
(4) "Recovery Fund" as used in these rules
shall mean the Florida Homeowners' Construction Recovery Fund.
(5) "Actual Damages" as used in Section
489.143(2),
F.S., shall mean the general measure of damages suffered as a direct result of
a licensee's violation of Section
489.129(1)(g), (j),
(k), or
713.35, F.S., for failing to
perform a construction contract. Actual Damages are calculated as the
difference between the contract price, together with the change orders, and the
cost of construction completion by another builder, where the cost of
completion is for the same scope of work and materials set out in the original
contract. However, if the claimant has paid a deposit or down payment and no
actual work is performed or materials are delivered, actual damages shall not
exceed the exact dollar amount of the deposit or down
payment.
Notes
Fla. Admin.
Code Ann. R. 61G4-21.002
Rulemaking Authority
489.108,
489.141(3) FS.
Law Implemented 489.141,
489.143,
489.1402
FS.
New 7-11-95, Amended
11-13-97, 3-10-03, 7-7-05, 4-27-08, Amended by
Florida
Register Volume 42, Number 235, December 6, 2016 effective
12/20/2016,
Amended by
Florida
Register Volume 47, Number 081, April 27, 2021 effective
5/11/2021.
New 7-11-95, Amended 11-13-97, 3-10-03, 7-7-05, 4-27-08,
12-20-16, 5-11-21.
