Pros and Cons - HB 315

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Pros and Cons - HB 315

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James Bushart

Home Inspection Services of Missouri
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User: jbushart
Posted: Sep 19, 2005 6:47 PM       Post Subject:
The following is HB 315 in which the mold section has been removed. Each sentence is numbered as is the original bill so that we can refer to "Sentences 6 through 11" to save time and effort in making a point or quickly finding a reference.

This is the bill that passed both houses of the Florida Assembly. It is likely that the DBPR will present something very similar to this for the next assembly to consider, since it has already "passed the test" of both houses.

I thought I would throw it out for discussion to see how prepared people are, what good or bad things could be derived, and generally what the impact might be should something similar to this bill become law.

To get the discussion started - I wonder if anyone has considered how the definition of "home inspection" under this bill might adversely affect a plumber who is called to give an estimate. Most home inspection bills define a home inspection as being an inspection of "two or more" of the home systems. This bill says "one or more" which could mean that a plumber who is invited to inspect a problem to give an estimate would (1) be conducting a home inspection, (2) would require to have 60 hours of home inspection training and testing, and (3) would not be allowed to perform work on the home he is inspecting.

Any thoughts?

Quote:

HB 315
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

A bill to be entitled 1

An act relating to building assessment and remediation; 2
creating s. 501.935, F.S., relating to home inspection 3
services; providing definitions; providing requirements 4
for practice; providing exemptions; providing prohibited 5
acts and penalties; requiring liability insurance; 6
exempting from duty to provide repair cost estimates; 7
providing limitations; providing for enforcement of 8
violations; authorizing a person who meets certain 9
conditions to work as a home inspector for a limited time, 10
notwithstanding the act's other provisions; creating s. 11
489.1134, F.S.; providing educational requirements and 12
procedural requirements for mold remediation 13
certification; providing for discipline; requiring review 14
of mold remediation training programs; requiring a person 15
certified under this section to be present on certain job 16
sites; assigning responsibility for workforce compliance; 17
requiring compliance; providing definitions; creating s. 18
501.933, F.S.; providing definitions; providing 19
requirements for practice as a mold assessor; providing 20
exemptions; providing prohibited acts and penalties; 21
requiring that mold assessors maintain liability 22
insurance; providing that mold assessors do not have a 23
duty to provide repair cost estimates; providing 24
limitations; providing for enforcement of violations; 25
creating s. 501.934, F.S.; providing definitions; 26
providing requirements for practice as a noncontracting 27
mold remediator; providing exemptions; providing 28

prohibited acts and penalties; requiring that 29
noncontracting mold remediators maintain liability 30
insurance; providing limitations; providing for 31
enforcement of violations; providing legislative findings 32
and intent with respect to the objectives of the act and 33
protection of homeowners; providing effective dates. 34
35
Be It Enacted by the Legislature of the State of Florida: 36
37
Section 1. Section 501.935, Florida Statutes, is created 38
to read: 39
501.935 Home inspection services; requirements; 40
exemptions; prohibited acts and penalties; insurance; 41
limitations and enforcement.-- 42
(1) DEFINITIONS.--As used in this section, the term: 43
(a) "Home" means any residential real property, or 44
manufactured or modular home, that is a single-family dwelling, 45
duplex, triplex, quadruplex, condominium unit, or cooperative 46
unit. The term does not include the common areas of condominiums 47
or cooperatives. 48
(b) "Home inspector" means any person who provides or 49
offers to provide a home inspection for a fee or other 50
compensation. 51
(c) "Home inspection" means a limited visual examination 52
of one or more of the readily accessible installed systems and 53
components of a home, including the structure, electrical 54
system, HVAC system, roof covering, plumbing system, interior 55
components, exterior components, and site conditions that affect 56

the structure, for the purposes of providing a written 57
professional opinion of the condition of the home. 58
(2) REQUIREMENTS FOR PRACTICE.-- 59
(a) A person shall not work as a home inspector unless he 60
or she: 61
1. Has successfully completed a course of study, which 62
requires a passing score on a valid examination in home 63
inspections which is not less than 60 hours and which includes, 64
but is not limited to, each of the following components of a 65
home: structure, electrical system, roof covering, plumbing 66
system, interior components, exterior components, site 67
conditions that affect the structure, and heating, ventilation, 68
and cooling systems. 69
2. Completes 8 hours of continuing education related to 70
home inspections annually. 71
3. Discloses each of the following to the consumer in 72
writing and prior to contracting for or commencing a home 73
inspection: 74
a. The home inspector meets the education and examination 75
requirements of this subsection. 76
b. The home inspector maintains the commercial general 77
liability insurance policy required by this section. 78
c. The scope and any exclusions of the home inspection. 79
d. A statement of experience which shall include either 80
the approximate number of home inspections the home inspector 81
has performed for a fee or the number of years of experience as 82
a home inspector. 83

e. Home inspectors are not regulated by any state agency, 84
but any violation of this section may be an unfair and deceptive 85
trade practice under part II of this chapter. 86
(b) A business entity may not provide or offer to provide 87
home inspection services unless each of the home inspectors 88
employed by the business entity satisfies all the requirements 89
of this section. 90
(c) A business entity may not use, in connection with the 91
name or signature of the business entity, the title "home 92
inspectors" to describe the business entity's services unless 93
each of the home inspectors employed by the business entity 94
satisfies all the requirements of this section. 95
(3) EXEMPTIONS.--The following persons are not required to 96
comply with this section when acting within the scope of 97
practice authorized by such license, except when such persons 98
are conducting, producing, disseminating, or charging a fee for 99
a home inspection or otherwise operating within the scope of 100
this section: 101
(a) A construction contractor licensed under chapter 489. 102
(b) An architect licensed under chapter 481. 103
(c) An engineer licensed under chapter 471. 104
(d) A building code administrator, plans examiner, or 105
building code inspector licensed under part XII of chapter 468. 106
(e) A certified real estate appraiser, licensed real 107
estate appraiser, or registered real estate appraiser licensed 108
under part II of chapter 475. 109

(f) An inspector whose report is being provided to, and is 110
solely for the benefit of, the Federal Housing Administration or 111
the Veterans Administration. 112
(g) An inspector conducting inspections for wood- 113
destroying organisms on behalf of a licensee under chapter 482. 114
(h) A firesafety inspector certified under s. 633.081. 115
(i) An insurance adjuster licensed under part VI of 116
chapter 626. 117
(j) An officer appointed by the court. 118
(k) A master septic tank contractor licensed under part 119
III of chapter 489. 120
(l) A certified energy auditor performing an energy audit 121
of any home or building conducted under chapter 366 or rules 122
adopted by the Public Service Commission. 123
(m) A mobile home manufacturer, dealer, or installer 124
regulated or licensed pursuant to the requirements of chapter 125
320 and any employees or agents of the manufacturer, dealer, or 126
installer. 127
(4) PROHIBITED ACTS; PENALTIES.-- 128
(a) A home inspector, a company that employs a home 129
inspector, or a company that is controlled by a company that 130
also has a financial interest in a company employing a home 131
inspector may not: 132
1. Perform or offer to perform, prior to closing, for any 133
additional fee, any repairs to a home on which the inspector or 134
the inspector's company has prepared a home inspection report. 135
This paragraph does not apply to a home warranty company that is 136

affiliated with or retains a home inspector to perform repairs 137
pursuant to a claim made under a home warranty contract. 138
2. Inspect for a fee any property in which the inspector 139
or the inspector's company has any financial or transfer 140
interest. 141
3. Offer or deliver any compensation, inducement, or 142
reward to the owner of the inspected property, or any broker or 143
agent therefor, for the referral of any business to the 144
inspector or the inspection company. 145
4. Accept an engagement to make an omission or prepare a 146
report in which the inspection itself, or the fee payable for 147
the inspection, is contingent upon either the conclusions in the 148
report, preestablished findings, or the close of escrow. 149
(b) Any person who violates any provision of this 150
subsection commits: 151
1. A misdemeanor of the second degree for a first 152
violation, punishable as provided in s. 775.082 or s. 775.083. 153
2. A misdemeanor of the first degree for a second 154
violation, punishable as provided in s. 775.082 or s. 775.083. 155
3. A felony of the third degree for a third or subsequent 156
violation, punishable as provided in s. 775.082, s. 775.083, or 157
s. 775.084. 158
(5) INSURANCE.--A home inspector must maintain a 159
commercial general liability insurance policy in an amount of 160
not less that $300,000. 161
(6) REPAIR COST ESTIMATES.--Home inspectors are not 162
required to provide estimates related to the cost of repair of 163
an inspected property. 164

(7) STATUTE OF LIMITATIONS.--Chapter 95 governs when an 165
action to enforce an obligation, duty, or right arising under 166
this section must be commenced. 167
(icon_cool.gif ENFORCEMENT OF VIOLATIONS.--Any violation of this 168
section constitutes a deceptive and unfair trade practice, 169
punishable as provided in part II of this chapter. 170
(9) GRANDFATHERING.--Until January 1, 2007, 171
notwithstanding any other provision of this section, a person 172
who meets the following criteria may work as a home inspector: 173
(a) Has successfully completed high school or its 174
equivalent or has been in the business of home inspection 175
services for at least 5 years; 176
(b) Has been engaged in the practice of home inspection 177
for compensation for at least 3 years prior to January 1, 2006; 178
and 179
(c) Has performed not fewer than 250 home inspections for 180
compensation. 181

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jburkeson
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Posted: Sep 19, 2005 7:16 PM       Post Subject:

Please Note: This user is a non-member guest and is in no way affiliated with NACHI.
Granted this is not the best Home Inspector bill to ever be written, but it is most likely the one that Florida Home Inspectors will have to live with for some time. Thing is, there will never be a perfect bill and to further exacerbate the problem, there will never be widespread agreement within the home inspection profession, go figure.

The way I read it, as far as a plumber who is called to give an estimate... Any trades which are currently licensed will be exempt when they are working within the scope of their licensed trade as it should be.

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Joseph Burkeson, RPI (Hooperette)

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James Bushart

Home Inspection Services of Missouri
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Posted: Sep 19, 2005 7:31 PM       Post Subject:
Are you referring to the exclusion in sentence 102, Joe?

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Jay Schwartz

Coast To Coast Home Services, Inc.
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Posted: Sep 19, 2005 7:46 PM       Post Subject:
Thanks Jim for putting this together. icon_biggrin.gif

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Jay Schwartz
Coast To Coast Home Services, Inc
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James Bushart

Home Inspection Services of Missouri
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User: jbushart
Posted: Sep 19, 2005 8:30 PM       Post Subject:
You're welcome, Jay. I just thought it might be a positive step to begin dialogue on what individual inspectors may need to do (and how NACHI HQ and chapters can help) to prepare to comply.

It is unlikely, IMO, to see a signed bill that is more restrictive and I'm sure there are those who will lobby, perhaps successfully, to make this even less restrictive; however, the prudent inspector will stay ahead of the power curve and prepare while studying the requirements and how they may be applied.


What we have not had yet in this discussion is a "what if" forum under HB 315. There's a lot we can do with a thread like this. In any event, I know we want to strive to ensure that the Florida NACHI member is prepared to comply with whatever law is affected. I thought this would help.

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jburkeson
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Posted: Sep 20, 2005 8:13 AM       Post Subject:

Please Note: This user is a non-member guest and is in no way affiliated with NACHI.
jbushart wrote:
It is unlikely, IMO, to see a signed bill that is more restrictive and I'm sure there are those who will lobby, perhaps successfully, to make this even less restrictive; however, the prudent inspector will stay ahead of the power curve and prepare while studying the requirements and how they may be applied.


I find it hysterical that a dyed-in-the-wool bureaucrat like yourself believes that it is unlikely that the Bureaucrats at the DBPR would write a more restrictive bill, since that is exactly what in the normal course of events they do.

Because the Governor dumped this problem on them, don't be surprised to discover that they find a way of broadening their power base and increasing their agency's grant through expanded legislation, it only makes sense that they would feather their own nest.

I agree it would be wise to be prepared, but don't overlook the possibility that government bureaucrats will in the end do whatever is in their best interests first, the challenge for the NACHI think-tank (and I mean that in a good way) is to be ready for whatever happens, since you have no known friends in Tallahassee to keep you informed.

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Joseph Burkeson, RPI (Hooperette)

?Anyone who has proclaimed violence his method inexorably must choose lying as his principle.?
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James Bushart

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Posted: Sep 20, 2005 8:27 AM       Post Subject:
The objective here is not to argue for or against a more restrictive measure, but to discuss what we have on the table that is likely to resemble the final law.

How can and should different parts be interpretted? What can one do, today, to begin to prepare to comply with it?

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Gary Porter

GLPs Home and Mold Inspections LLC
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Posted: Sep 20, 2005 8:53 AM       Post Subject:
I do not like the inspector having to tell them how many they have done or when they went into business unless they ask. Can you imagine a doctor having telling you this is my 117th surgery. That is only in there for veteran inspector so the clients will stay away from the newbie.

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Gary Porter
GLP's Home and Mold Inspections LLC
Orlando, Fl 32828
321-239-0621

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Blaine Wiley
President
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Posted: Sep 20, 2005 9:01 AM       Post Subject:
gporter wrote:
I do not like the inspector having to tell them how many they have done or when they went into business unless they ask. Can you imagine a doctor having telling you this is my 117th surgery. That is only in there for veteran inspector so the clients will stay away from the newbie.


Playing Devil's advocate, you don't think the consumer has a right to know the experience of the person conducting the inspection?

The doctor example is a poor one, as they have not only undergone years of school, but have performed "supervised surgeries" prior to their first solo.

Most inspectors with less than a year or two will not like this provision, then they will feel different as they approach five, eight, ten or more years.
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James Bushart

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Posted: Sep 20, 2005 9:11 AM       Post Subject:
gporter wrote:
I do not like the inspector having to tell them how many they have done or when they went into business unless they ask. Can you imagine a doctor having telling you this is my 117th surgery. That is only in there for veteran inspector so the clients will stay away from the newbie.


What's the best way to approach this with the consumer?

A statement that says "I have been a home inspecotr for two years."

or "Professionally serving the residents of Wiley County since 2003."

Any other ideas?

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Patrick Carter

Town & Country Home Inspection Services, LLC
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Posted: Sep 20, 2005 9:45 AM       Post Subject:
Maybe a better marketing statement that ensures the client you have accountability and personal investment involvement that tells the clients you are a serious business owner and not a fly-by-night contractor. Such as;

Owner/operator of xyz company which is a registered entity with the secretary of xyz state and providing professional inspection services to xyz (local area) since 2003.

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Patrick C.
Town & Country Home Inspection Services, LLC
(Serving S.E. Kansas, Cruising the 169)

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Carla Horne

Grand View Home Inspections
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Posted: Sep 20, 2005 9:54 AM       Post Subject:
Good thoughts Blaine
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Richard Bennett

Richard Bennett Inspections
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Posted: Sep 20, 2005 2:09 PM       Post Subject:
Here is where the experience disclosure part just will not work. Contract and disclosure are presented and signed many time at the inspection site when the client does not have time to get another inspector.

So a reg to protect the consumer from the new kid on the block will not work. The new kid will not even be spotted on the radar.

Sometimes a buyer agent has the power to sign for the client and it will not be spotted by the agent.

In reality the client assumes that most all inspectors will do a good job. We are all checking the same house for the same things. The main difference in the clients eyes is cost and response time - not quality

So why put it in the law if it does not do anything for the client??

Does anyone see it another way??

IMO

rlb
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James Bushart

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Posted: Sep 20, 2005 2:18 PM       Post Subject:
Richard,

Any suggestions as to how to make the existing wording work, or how it should be modified, specifically?

We are trying not so much to debate the bill, but to study it to see how it can be complied with in the form that it is written in the likely event that it passes in its present form.

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Richard Bennett

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Posted: Sep 20, 2005 2:21 PM       Post Subject:
Here is another point

All the exempt people will have to meet all the same standards that the HI does when he is doing an HI and charging for it. The only time he is exempt is when he is acting as a GC, ENG. etc.

So the BI's, GC's. etc will have to get the same education, CE etc. that the rest of us have to.

Wonder what will not be approved for CE?

rlb
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Jay Schwartz

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Posted: Sep 20, 2005 6:44 PM       Post Subject:
rbennett wrote:
Here is another point

All the exempt people will have to meet all the same standards that the HI does when he is doing an HI and charging for it. The only time he is exempt is when he is acting as a GC, ENG. etc.

So the BI's, GC's. etc will have to get the same education, CE etc. that the rest of us have to.

Wonder what will not be approved for CE?

rlb


As long as the plumber is doing plumbing and not home inspecting, they are exempt. No problem with that one.

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Jay Schwartz
Coast To Coast Home Services, Inc
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Jay Schwartz

Coast To Coast Home Services, Inc.
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Posted: Sep 20, 2005 6:45 PM       Post Subject:
rbennett wrote:
Here is where the experience disclosure part just will not work. Contract and disclosure are presented and signed many time at the inspection site when the client does not have time to get another inspector.

So a reg to protect the consumer from the new kid on the block will not work. The new kid will not even be spotted on the radar.

Sometimes a buyer agent has the power to sign for the client and it will not be spotted by the agent.

In reality the client assumes that most all inspectors will do a good job. We are all checking the same house for the same things. The main difference in the clients eyes is cost and response time - not quality

So why put it in the law if it does not do anything for the client??

Does anyone see it another way??

IMO

rlb


There lies the problem.

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Coast To Coast Home Services, Inc
www.Coasttocoasthomeservices.com
Southeast Florida NACHI Chapter - VP www.floridanachi.org
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James Bushart

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Posted: Sep 21, 2005 12:51 AM       Post Subject:
Quote:
Offer or deliver any compensation, inducement, or 142
reward to the owner of the inspected property, or any broker or 143
agent therefor, for the referral of any business to the 144
inspector or the inspection company. 145


As I read the above "thou shalt not" rule, I can see where it would be allowable for me to advertise a $100 "finder's fee" or "referral fee" to a buyer's agent. The restriction is limited strictly to the seller and the seller's broker or agent.

Without regard to COE restrictions, for not all Florida home inspectors will be members of any particular association, has this been covered in any other discussions?

Any thoughts?

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Larry Kage

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Posted: Sep 21, 2005 6:47 AM       Post Subject:
jbushart wrote:
Quote:
Offer or deliver any compensation, inducement, or 142
reward to the owner of the inspected property, or any broker or 143
agent therefor, for the referral of any business to the 144
inspector or the inspection company. 145


As I read the above "thou shalt not" rule, I can see where it would be allowable for me to advertise a $100 "finder's fee" or "referral fee" to a buyer's agent. The restriction is limited strictly to the seller and the seller's broker or agent.

Without regard to COE restrictions, for not all Florida home inspectors will be members of any particular association, has this been covered in any other discussions?



Any thoughts?


Just cruisin' through...but it sounds to me like "any broker or agent therefor" (the inspected property) would include buyer's brokers and agents. I could be wrong, but that's how I read it.

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James Bushart

Home Inspection Services of Missouri
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Posted: Sep 21, 2005 8:36 AM       Post Subject:
lkage wrote:

Just cruisin' through...but it sounds to me like "any broker or agent therefor" (the inspected property) would include buyer's brokers and agents. I could be wrong, but that's how I read it.


Larry,

I read it the same way as you did the first time I went through it. When I looked at it closer and parsed the sentence, it came out a little different.

It begins by telling me I cannot provide a reward to the "owner" of the inspectected property making the "owner" the subject of the sentence. Following that is the addition of the "broker or agent therefor" with the word "therefor" referring back to the subject of the sentence. Although the intent is probably otherwise, it seems to literally (very literally) exclude the agent for the buyer.

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