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The Florida Statutes

The 2019 Florida Statutes

Title XXXII
REGULATION OF PROFESSIONS AND OCCUPATIONS
Chapter 489
CONTRACTING
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F.S. 489.126
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(3), and any person performing or contracting or promising to perform work described therein, without regard to the licensure of the person.
(2)(a) 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:
1. 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
2. Start the work within 90 days after the date all necessary permits for work, if any, are issued,

unless the contractor has just cause for failing to apply for the necessary permits, starting the work, or refunding the payment, or unless the person who made the payment agreed, in writing, to a longer period to apply for the necessary permits or start the work or to longer periods for both.

(b)1. If a contractor fails to comply with the requirements of paragraph (a), the contractee must make written demand to the contractor in the form of a letter that includes a demand to apply for the necessary permits, to start the work, or to refund the payment sent via certified mail, return receipt requested, mailed to the address listed in the contracting agreement. If there is no address for the contractor listed in the contracting agreement, or no written agreement exists, the contractee must mail the written demand letter to the address listed for licensing purposes with the department or the local construction industry licensing board, if applicable.
2. It may be inferred that a contractor does not have just cause if the contractor fails to apply for the necessary permits, start the work, or refund payments within 30 days of receiving written demand to apply for the necessary permits, start the work, or refund the payment from the person who made the payment.
(3)(a) A contractor who receives money for repair, restoration, addition, improvement, or construction of residential real property in excess of the value of the work performed may not fail or refuse to perform any work for any 90-day period or for any period that is mutually agreed upon and specified in the contract.
(b) It is prima facie evidence that a contractor received money for the repair, restoration, addition, improvement, or construction of residential real property and that the amount received exceeds the value of the work performed by the contractor when:
1. The contractor failed to perform any of the work for which he or she contracted during any 90-day period or any period that is mutually agreed upon and specified in the contract;
2. The failure to perform any such work during the 90-day period or such period that is mutually agreed upon and specified in the contract was not related to the owner’s termination of the contract or a material breach of the contract by the owner; and
3. The contractor failed to perform for the 90-day period or such period that is mutually agreed upon and specified in the contract without just cause or terminated the contract without proper notification to the owner.
a. Proper notification of termination for purposes of this subparagraph must be made by the contractor in the form of a letter that includes the reason for termination of the contract or the reason for failure to perform sent via certified mail, return receipt requested, mailed to the address of the owner listed in the contracting agreement. If no written agreement exists, the letter must be mailed to the address where the work was to be performed or the address listed on the permit, if applicable.
b. If a contractor fails to comply with paragraph (a), written demand must be made to the contractor in the form of a letter that includes a demand to perform work, or refund the money received in excess of the value of the work performed, sent via certified mail, return receipt requested, mailed to the address listed in the contracting agreement. If there is no address for the contractor listed in the contracting agreement, or no agreement exists, the letter must be mailed to the address listed with the department for licensing purposes or the local construction industry licensing board, if applicable.
c. It may be inferred that a contractor does not have just cause if the contractor fails to perform work, or refund the money received in excess of the value of the work performed, within 30 days after receiving a written demand to perform the work, or refund the money received in excess of the value of the work performed, from the person who made the payment.
(4) Any violation of subsection (2) or subsection (3) must be prosecuted in accordance with the thresholds established in this section and the following:
(a) The required intent to prove a criminal violation may be shown to exist at the time that the contractor appropriated the money to his or her own use and is not required to be proven to exist at the time of the taking of the money from the owner or at the time the owner makes a payment to the contractor.
(b) It may be inferred that a contractor intended to deprive the owner of the right to the money owed, or deprive the owner of the benefit from it, and inferred that the contractor appropriated the money for his or her own use, or to a person not entitled to the use of the money, if the contractor fails to refund any portion of the money owed within 30 days after receiving a written demand for such money from the owner.
(c) In a prosecution for a violation of this section, the fact that the person so charged intended to return the money owed is not a defense.
(5) A person who violates subsection (2) commits:
(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 $1,000.
(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 $1,000 or more, but less than $20,000.
(c) 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 $20,000 or more, but less than $200,000.
(d) 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 $200,000 or more.
(6) A person who violates subsection (3) commits:
(a) A misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, if the total money received exceeding the value of the work performed is less than $1,000.
(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 exceeding the value of the work performed is $1,000 or more, but less than $20,000.
(c) 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 exceeding the value of the work performed is $20,000 or more, but less than $200,000.
(d) 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 exceeding the value of the work performed is $200,000 or more.
History.s. 1, ch. 94-110; s. 840, ch. 95-148; s. 2, ch. 95-240; s. 7, ch. 96-298; s. 73, ch. 96-388; s. 19, ch. 2019-167.
Note.Former s. 252.361.