A proposed statute would modify Florida’s home solicitation sales statute to establish firm deadlines for permitting, starting, and completing home improvements performed by anyone not licensed under Chapter 489, Florida Statutes. The proposed statute also establishes criminal penalties for failure to comply. Florida defines “home solicitation sales” very broadly, so any person involved in selling home improvements where the contract is signed outside of a normal office setting should pay attention to this statute.
The proposed statute is House Bill 419, but before we get into that, it’s important to note that 501.021, Florida Statutes, defines “home solicitation sale” to mean:
a sale, lease, or rental of consumer goods or services with a purchase price in excess of $25 which includes all interest, service charges, finance charges, postage, freight, insurance, and service or handling charges, whether under single or multiple contracts, made pursuant to an installment contract, a loan agreement, other evidence of indebtedness, or a cash transaction or other consumer credit transaction, in which:
(a) The seller or a person acting for him or her engages in a personal solicitation of the sale, lease, or rental at a place other than at the seller’s fixed location business establishment where goods or services are offered or exhibited for sale, lease, or rental, and
(b) The buyer’s agreement or offer to purchase is given to the seller and the sale, lease, or rental is consummated at a place other than at the seller’s fixed location business establishment,
including a transaction unsolicited by the consumer and consummated by telephone and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services. It does not include a sale, lease, or rental made at any fair or similar commercial exhibit or a sale, lease, or rental that results from a request for specific goods or services by the purchaser or lessee or a sale made by a motor vehicle dealer licensed under s. 320.27 which occurs at a location or facility open to the general public or to a designated group.
In short, a “home solicitation sale” doesn’t mean a sale made at someone’s home or by a door-to-door salesman. It means a sale made at a place other than the seller’s fixed business location and where the contract is given to the buyer and executed by everyone at a place other than at the seller’s fixed business location. In a world where contracts are signed on tailgates, ipads, and through DocuSign, this definition can include many types of transactions.
Turning to the proposed statute, it defines an unlicensed vendor (broadly), and establishes requirements and deadlines for applying for permits, starting work, performing and continuing work without failure, and terminating the contract, as follows:
501.0195 Home repairs by unlicensed vendors.—
(1) For the purposes of this section, the term "unlicensed vendor" means a person who:
(a) Is not certified or registered under chapter 489.
(b) Provides or promises to provide services related to a residential home and the extended parcel of land on which the home is located, including, but not limited to, driveways, lawns, trees, gardens, landscaping areas, walls, fences, or other vegetation or fixtures located thereon.
Unless there is “just cause,” “unlicensed vendors” who receive an initial payment for work to be performed must do all of the following:
(a) If the work requires a permit, apply for such permits within:
1. Fourteen days after receiving an initial payment for the work; or
2. The timeframe agreed upon in a written contract between the vendor and customer.
(b) Start the work within:
1. Fourteen days after receiving an initial payment for the work;
2. Fourteen days after the date all necessary permits for the work are issued; or
3. The timeframe agreed upon in a written contract between the vendor and homeowner.
(c) Perform and continue the work without failure:
1. For any 14-day period after receiving an initial payment for the work;
2. Within 14 days after the date all necessary permits for the work are issued; or
3. Within the timeframe agreed upon in a written contract between the vendor and homeowner.
There is a presumption that an “unlicensed vendor” does not have just cause if the unlicensed vendors does any of the following:
(a) Fails to refund all money paid by the homeowner in excess of the value of any work performed; and
(b) Fails to do any of the following:
1. Apply for any required permits pursuant to paragraph (2)(a);
2. Start the work pursuant to paragraph (2)(b);
3. Perform and continue the work without failure pursuant to paragraph (2)(c); or
4. Terminate the written contract without proper notification. To provide proper notification, the vendor must send a letter by certified mail, return receipt requested, to the homeowner, explaining the reason for termination of the written contract or failure to perform the work pursuant to subsection (2). If there is not a written contract between the vendor and homeowner, the letter may be mailed to the address where the work was to be performed or the address listed on a permit for the work, if applicable.
Criminal penalties for violations are established as follows:
(4) A violation of this section is:
(a) A misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083 if the total money received is less than $500.
(b) A felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 if the total money received is less than $500 and the unlicensed vendor has had more than one violation within a 3-year period.
(c) A felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 if the total money received is greater than or equal to $500 but less than $5,000.
(d) A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 if the total money received is $5,000 or more but less than $50,000.
(e) A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 if the total money received is $50,000 or more.
(5)(a) A violation of this section must be prosecuted in accordance with the thresholds under subsection (4).
(b) The required intent to prove a criminal violation may be shown to exist at the time that the unlicensed vendor appropriated the money for his or her own use and is not required to be proven to exist at the time the unlicensed vendor took the money from the homeowner or at the time the homeowner gave the money to the unlicensed vendor.
(c) It may be inferred that an unlicensed vendor intended to deprive the homeowner of the right to or benefit of the money owed and that the unlicensed vendor appropriated the money for his or her own use or to a person not entitled to the use of the money, if the unlicensed vendor fails to refund any portion of the money paid by the homeowner in excess of the value of anywork performed and fails to comply with subsection (2). The fact that the unlicensed vendor intended to refund the money owed is not a defense.
While this proposed statute refers to “unlicensed vendors” this is not the same as an “unlicensed contractor.” In fact, the statute does not penalize being “unlicensed.” Rather, anyone doing home improvement work without a license under Chapter 489, Florida Statutes, pursuant to a contract obtained through a home sales solicitation, must follow the statute. This would apply to flooring contractors, countertop contractors, and any other type of contractor that does not need, and therefore does not have, a license under Chapter 489, Florida Statutes. If this becomes law, contractors need to carefully update their contracts and business processes to ensure compliance with the statute, or to take themselves out of the need to comply with the statute.