You may have heard that over the weekend, a federal judge in Tampa issued an injunction halting the enforcement of the recently enacted SB 76, which penalizes certain conduct on construction projects, especially roofing projects, where insurance proceeds will be paid. While this is true, the ruling is relatively narrow, and so I wanted to share the specifics, because certain portions of the statute are still in effect.
You can view a copy of the injunction by clicking here.
The lawsuit that resulted in the injunction challenged the advertising restrictions contained in the statute as violating the First Amendment right to free speech. The resulting injunction halted enforcement of the following provisions contained in the statute:
(2) A contractor may not directly or indirectly engage in any of the following practices: (a) Soliciting a residential property owner by means of a prohibited advertisement.
“Prohibited advertisement” means any written or electronic communication by a contractor that encourages, instructs, or induces a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage. The term includes, but is not limited to, door hangers, business cards, magnets, flyers, pamphlets, and emails.
“Soliciting” means contacting: 1. In person; 2. By electronic means, including, but not limited to, email, telephone, and any other real-time communication directed to a specific person; or 3. By delivery to a specific person.
(3) A contractor who violates this section is subject to disciplinary proceedings as set forth in s. 489.129. A contractor may receive up to a $10,000 fine for each violation of this section.
(4) For the purposes of this section: (b) An unlicensed person who engages in an act prohibited by this section is guilty of unlicensed contracting and is subject to the penalties set forth in s. 489.13. Notwithstanding s. 489.13(3), an unlicensed person who violates this section may be fined up to $10,000 for each violation.
Critically, though, the injunction did not bar enforcement of the entire statute. Meaning even with the injunction in place, contractors still cannot engage in the following:
- Offering to a residential property owner a rebate, gift, gift card, cash, coupon, waiver of any insurance 18 deductible, or any other thing of value in exchange for: 1. Allowing the contractor to conduct an inspection of the residential property owner’s roof; or 2. Making an insurance claim for damage to the residential property owner’s roof.
-Offering, delivering, receiving, or accepting any compensation, inducement, or reward, for the referral of any services for which property insurance proceeds are payable.
- Interpreting policy provisions or advising an insured regarding coverages or duties under the insured’s property insurance policy or adjusting a property insurance claim on behalf of the insured, unless the contractor holds a license as a public adjuster pursuant to part VI of chapter 626.
- Providing an insured with an agreement authorizing repairs without providing a good faith estimate of the itemized and detailed cost of services and materials for repairs undertaken pursuant to a property insurance claim. A contractor does not violate this paragraph if, as a result of the process of the insurer adjusting a claim, the actual cost of repairs differs from the initial estimate.
- Roofing contracts must include certain disclosures.
Also, it is important to note that this is a temporary injunction. The court ultimately could decide not to issue a permanent injunction following full legal proceedings. Further, this ruling could be appealed, and the temporary injunction could be overturned. While the most conservative way to proceed is to act as if the statute still is fully enforceable, for the time being, the DBPR is barred from enforcing it. But if you choose to take advantage of this time while enforcement is barred, you need to make sure to pay close attention to whether and how the injunction is modified in the future.