CLB Backup 07/17/2013 CONTRACTORS
LICENSING BOARD
Backup Does
July 17 , 2013
-711112013
SCHOENECK 6,03 BOND & KING
4001 Tamiami Trail North,Suite 250 I Naples,FL 34103-3555 I bsk.com
JAMES F.MOREY,ESQ.
July 16, 2013
Contractors' Licensing Board
2800 North Horseshoe Drive
Naples, Florida 34104
Re: Senate Bill 50 effective October 1, 2013
Honorable Board Members:
Senate Bill 50 creates a new F.S. Section 286.0114 providing that members of the public must
be given a reasonable opportunity to be heard on a proposition before a board or commission of
any agency or authority. I believe the Contractors' Licensing Board adheres to the principal that
the public has a right to speak at its meetings, it may be prudent to point out the provisions of
this bill.
The Florida Constitution requires all public meetings of any public body at which public business
is to be transacted, to be open and noticed to the public.
Florida Statutes are silent concerning whether citizens have a right to speak at public meetings.
Florida courts have heard two cases addressing whether a member of the public has a right to
be heard at a meeting when he or she is not a party to the proceedings. In the most recent
case, Kennedy v. St. John's Water Management District, 2011 WL 5124949 (Fla. 50CA 2011),
the court held that:
"Because as clearly articulated in Keesler, the Sunshine Law does not require
• the public to be allowed to speak, Plaintiffs' claim...fails as a matter of law."
The Fifth District Court of Appeal affirmed the trial court's ruling.
Senate Bill 50 creates Section 286.0114 of the Florida Statutes requiring that the public be
given an opportunity to be heard on a proposition before a board or commission.
The opportunity to be heard does not apply to:
• an official act that is taken to deal with an emergency situation;
• an official act involving only a ministerial act;
• a meeting exempt from open meetings requirements; or
• meetings at which the board is acting in a quasi-judicial capacity.
Further the Bill authorizes a commission to adopt reasonable rules governing the opportunity to
be heard. Rules must be limited to those that:
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• limit the time an individual has to speak;
• create procedures for allowing representatives of groups to address the board rather
than each member individually;
• prescribe forms to use in order to notify the board of his or her desire to support or
oppose a proposition; or
• designate a specific agenda for public comments.
The Bill provides that a board is deemed to be acting in compliance with the new law if the
board adopts policies in compliance with the section and follows such policies when providing
an opportunity to be heard.
We should place this issue on the Agenda for the August Meeting to ensure we are prepared to
be in conformance with Senate Bill 50.
A copy of the entire Bill, as enrolled in the 2013 Legislature, is attached for your review. Should
you have any questions, please do not hesitate to contact me.
Thank you, I am
Sincerely yours,
BOND, SCHOENE & KING, PLLC
Epr
J..me. F. Morey ,
•irect• 239.659.3813
jm. -y @bsk.com
Enclosure
cc: Michael Ossorio, Contractors' Licensing Supervisor
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1
2 An act relating to public meetings; creating s .
3 286. 0114, F.S . ; defining "board or commission";
4 requiring that a member of the public be given a
5 reasonable opportunity to be heard by a board or
6 commission before it takes official action on a
7 proposition; providing exceptions; establishing
8 requirements for rules or policies adopted by the
9 board or commission; providing that compliance with
10 the requirements of this section is deemed to have
11 occurred under certain circumstances; providing that a
12 circuit court has jurisdiction to issue an injunction
13 under certain circumstances; authorizing a court to
14 assess reasonable attorney fees in actions filed
15 against a board or commission; providing that an
16 action taken by a board or commission which is found
17 in violation of this section is not void; providing
18 that the act fulfills an important state interest;
19 providing an effective date .
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1 . Section 286. 0114, Florida Statutes, is created
24 to read:
25 286 . 0114 Public meetings; reasonable opportunity to be
26 heard; attorney fees .-
27 (1) For purposes of this section, "board or commission"
28 means a board or commission of any state agency or authority or
29 of any agency or authority of a county, municipal corporation,
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30 or political subdivision.
31 (2 ) Members of the public shall be given a reasonable
32 opportunity to be heard on a proposition before a board or
33 commission. The opportunity to be heard need not occur at the
34 same meeting at which the board or commission takes official
35 action on the proposition if the opportunity occurs at a meeting
36 that is during the decisionmaking process and is within
37 reasonable proximity in time before the meeting at which the
38 board or commission takes the official action. This section does
39 not prohibit a board or commission from maintaining orderly
40 conduct or proper decorum in a public meeting. The opportunity
41 to be heard is subject to rules or policies adopted by the board
42 or commission, as provided in subsection (4) .
43 (3) The requirements in subsection (2) do not apply to:
44 (a) An official act that must be taken to deal with an
45 emergency situation affecting the public health, welfare, or
46 safety, if compliance with the requirements would cause an
47 unreasonable delay in the ability of the board or commission to
48 act;
49 (b) An official act involving no more than a ministerial
50 act, including, but not limited to, approval of minutes and
51 ceremonial proclamations;
52 (c) A meeting that is exempt from s . 286 . 011; or
53 (d) A meeting during which the board or commission is
54 acting in a quasi-judicial capacity. This paragraph does not
55 affect the right of a person to be heard as otherwise provided
56 by law.
57 (4) Rules or policies of a board or commission which govern
58 the opportunity to be heard are limited to those that:
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59 (a) Provide guidelines regarding the amount of time an
60 individual has to address the board or commission;
61 (b) Prescribe procedures for allowing representatives of
62 groups or factions on a proposition to address the board or
63 commission, rather than all members of such groups or factions,
64 at meetings in which a large number of individuals wish to be
65 heard;
66 (c) Prescribe procedures or forms for an individual to use
67 in order to inform the board or commission of a desire to be
68 heard; to indicate his or her support, opposition, or neutrality
69 on a proposition; and to indicate his or her designation of a
70 representative to speak for him or her or his or her group on a
71 proposition if he or she so chooses; or
72 (d) Designate a specified period of time for public
73 comment.
74 (5) If a board or commission adopts rules or policies in
75 compliance with this section and follows such rules or policies
76 when providing an opportunity for members of the public to be
77 heard, the board or commission is deemed to be acting in
78 compliance with this section.
79 ( 6) A circuit court has jurisdiction to issue an injunction
80 for the purpose of enforcing this section upon the filing of an
81 application for such injunction by a citizen of this state.
82 (7) (a) Whenever an action is filed against a board or
83 commission to enforce this section, the court shall assess
84 reasonable attorney fees against such board or commission if the
85 court determines that the defendant to such action acted in
86 violation of this section. The court may assess reasonable
87 attorney fees against the individual filing such an action if
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88 the court finds that the action was filed in bad faith or was
89 frivolous . This paragraph does not apply to a state attorney or
90 his or her duly authorized assistants or an officer charged with
91 enforcing this section.
92 (b) Whenever a board or commission appeals a court order
93 that has found the board or commission to have violated this
94 section, and such order is affirmed, the court shall assess
95 reasonable attorney fees for the appeal against such board or
96 commission.
97 (8) An action taken by a board or commission which is found
98 to be in violation of this section is not void as a result of
99 that violation.
100 Section 2 . The Legislature finds that a proper and
101 legitimate state purpose is served when members of the public
102 have been given a reasonable opportunity to be heard on a
103 proposition before a board or commission of a state agency or
104 authority, or of an agency or authority of a county, municipal
105 corporation, or political subdivision. Therefore, the
106 Legislature determines and declares that this act fulfills an
107 important state interest.
108 Section 3 . This act shall take effect October 1, 2013 .
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The following actions by State Certified Contractors shall constitute misconduct and grounds for
discipline pursuant to Section 4.3 of this Ordinance.
4.2.1. Failing or refusing to provide proof of public liability and property damage
insurance coverage and workers compensation insurance coverage as required by Florida
Statutes.
4.2.2. Willfully violating the applicable building codes or laws of the state, City or
Collier County.
4.2.3. If the CLB finds through its public hearing process that the contractor was found
by another county or municipality within the past twelve (12) months, to have committed fraud
or a willful building code violation and the CLB finds that such fraud or other willful violation
would have been fraud or a willful violation if committed in Collier County or within the
respective City.
4.2.4. Fraud.
4.3. Disciplinary Proceedings, •• • . . • 4 • . •. . . .
4.3.1. There are three (3) categories of violations: (i) Violations of subsection
489.127(1), Florida Statutes and/or Section 1.1. this Ordinance, as amended; (ii) Violations of
subsection 489.132(1), Florida Statutes; and (iii) other violations within the jurisdiction of the
Contractor's Licensing Board.
a. Subsection 489.127(1), Florida Statutes, is incorporated herein. (Lack of
required license, certificate, or registration). The following are designated to enforce subsection
487.127(1), Florida Statutes: Collier County Building Official, all License Compliance Officers,
the Chief Building Inspector, Chief Electrical Inspector, Chief Plumbing/Mechanical
Mechanical, and/or other inspectors authorized from time-to-time by the Building Official.
Procedures specified in this Ordinance shall apply except to the extent, if any, that Section
489.127 or Section 489.132, may require different procedure(s). The penalties for each
uncontested violation of subsection 489.127(1) and/or 489.132(1), Florida Statutes, are
� ollars ($3420440100.00) for the first uncontested violation and five hundredtwo
thousand dollars (W0-402,000.00) for '. . . . the second uncontested violation by the
same individual or entity. In the event of a third uncontested violation the Contracting Licensing
Supervisor shall refer the matter to State Attorney's Office for fling of charges.
Nothwithstanding the above referenced penalties. in the event a first uncontested violation is the
result of the violator engaging in the business or acting in the capacity of a contractor or
advertising himself or herself or a business organization as available to engage in the business or
act in the capacity of a contractor without being duly registered or certified. the penalt shall be
abated from $1,000.00 to $300.00 if the violator submits a completed application in accordance
with Section 2.1 and 2.2 of this Ordinance within forty-five (45) days of the date of issuance of
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the Citation for the violation. Penalties for contested violations of subsection 489.127(1),Florida
Statutes, are as now or hereafter specified in Section 489.127, Florida Statues. Penalties for
contested violations of subsection 489.132(1), Florida Statutes, are as now or hereafter specified
in Section 489.132, Florida Statutes. The Citation form attached hereto as exhibit "A" is
approved, which form may be amended from time-to-time by Resolution of the Board of County
Commissioners.
b. . .
issue a "Notice of Noncompliance" as the County's first response to a minor violation of any
provision_of any regulatory law, including this Ordinance, when (i) it is reasonable for Staff to
provision; and (ii) that violation has not then resulted in economic harm or physical harm to any
person; and (iii) the violation has neither adversely affected the public health, safety, or welfare,
-. • .•• - • - - - . • - - -ryfineor
any other disciplinary penalty, but may specify that failure of the violator to correct the violation
Each violation that is not a "minor" violation is a"major" violation.
eb. Major Violations. The Contractor Licensing Supervisor, or his designee,
may initiate disciplinary proceedings against a licensed contractor for major violations of this
Ordinance by filing a sworn complaint with the Clerk to the Collier County Board of County
Commissioners or may issue a Notice of Non Compliance when (i) it is reasonable for Staff to
assume that the violator, at the time of violation, was not aware of the provision that was violated
or it can be assumed that it was not clear to the violator how to comply with the violated
provision; and (ii) that violation has not then resulted in economic harm or physical harm to any
person.
dc. Failure of Non-State Certified Individual to Promptly Pay Penalty to
County. The Collier County Building Department should not issue any permit or any other
required authorization to any Collier County Certified individual who then has an obligation to
pay a penalty to the County imposed with finality under this Ordinance for any violation of this
Ordinance (including a citation that is not contested) and that individual has not paid that penalty
in full by the applicable deadline date, plus reimbursement of the County's costs, such as
recording fees and court costs. An appeal of uncontested citations stays all such withholdings.
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