[CLC-Discussion] FSA 489.126 (2) (a) and (b)
Thomas M Dillon
lawtmd at gmail.com
Mon Feb 23 07:06:25 PST 2015
The statute says what the contractor must do: apply for permits within 30 days AND begin work within 90 days. Those obligations should be, and are, stated in the conjunctive. If the contractor does not comply with either of the requirements, the contractor should be liable. I think the court simply misconstrued the statute, reading it as if it stated preconditions to suit, and then read them in the conjunctive.
Thomas M Dillon
Email: lawtmd at gmail.com
Florida Bar No. 673064
Thomas M Dillon, PA
1477 Park Beach Cir. Apt. 32
Punta Gorda, FL 33950-5252
Phone: 941-626-6832
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 9:22 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
www.flcollectionattorney.com <http://www.flcollectionattorney.com/>
www.floridacollectionattorney.net
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