[CLC-Discussion] FSA 489.126 (2) (a) and (b)

[Bruce Partington]

I agree with Fred that and/or should not be used (ever, really, but that’s my opinion). However I would argue that if the contractor doesn’t fulfill any of the requirements of 2(a) or (b) it has violated the statute. This paragraph (2) describes steps the contractor must take to comply with the statute (“contractor . . . must”) and the things it must do are conjunctive (a and b). To avoid violating the statute the contractor must do BOTH things.  If it has failed to do either, then it cannot meet the test of having complied with both. In other words, if it hasn’t done a, it cannot have complied with a requirement to do both a and b.

Think about it this way, the contractor gets one point for complying with a, and another for complying with b. The contractor violates the statute if it doesn’t have 2 points. If it does b but not a, the contractor will only have 1 point. Now, if the statute read “or” then the contractor could pass the test by having only 1 point (a or b).

Bruce D. Partington
Clark Partington
bpartington at cphlaw.com<mailto:bpartington at cphlaw.com>
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Fred Dudley
Sent: Monday, February 23, 2015 8:22 AM
To: steve at gebelofflaw.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] FSA 489.126 (2) (a) and (b)

The use of “and/or” is not followed by legislative drafters because it leads to further ambiguities. However, placing an “or” between (a) and (b) should work, don’t you think?

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com


From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of steve at gebelofflaw.com
Sent: Monday, February 23, 2015 9:11 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] FSA 489.126 (2) (a) and (b)

I have a situation where a contractor took  more than 10%  deposit and did not apply for permits for 5 months.  Judge  ruled in my client's favor  on Breach of contract count, but would not apply   489.126  because  the statute has the word and  ( meaning Court taking plain meaning  held part (b)  also had to be satisfied  " Start work within 90 days).  ( I am trying to   get a  the Court to find theft under part (4)…(4) Any person who violates any provision of this section is guilty of theft and shall be prosecuted and punished under s. 812.014.)


I belive Statute should say and/or .. In the scenario a contractor can take the deposit , never apply for permits  and be scott free.

I have not found any case law on this and  have been unable toresearch legislative history to get intent as too cost prohibitive for my client.

I argued to the Judge the legislative intent  was to protect  public ect..  Judge did not bite. Any advise or input . I believe clearly, this  needs to be changed in the Statute.

Thanks,

489.126 Moneys received by contractors.—

(1) For purposes of this section, the term “contractor” includes all definitions as set forth in s. 489.105<http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.105.html>(3), and any person performing or contracting or promising to perform work described therein, without regard to the licensure of the person.

(2) A contractor who receives, as initial payment, money totaling more than 10 percent of the contract price for repair, restoration, improvement, or construction to residential real property must:
(a) Apply for permits necessary to do work within 30 days after the date payment is made, except where the work does not require a permit under the applicable codes and ordinances, and

(b) Start the work within 90 days after the date all necessary permits for work, if any, are issued,


Stephen B. Gebeloff, Esq.

Stephen B. Gebeloff, P.A.
5255 North Federal Highway
Third Floor
Boca Raton, Florida   33487
(561)953-4600
Fax (561)953-4610
steve at gebelofflaw.com<mailto:steve at gebelofflaw.com>
www.flcollectionattorney.com<http://www.flcollectionattorney.com/>
www.floridacollectionattorney.net<http://www.floridacollectionattorney.net>





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