HB 1277 2003
1	CHAMBER ACTION
2
3
4
5
6	The Committee on Business Regulation recommends the following:
7
8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to contracting; amending ss. 489.128 and
12	489.532, F.S.; clarifying that the prohibition on
13	enforcement of construction contracts extends only to
14	enforcement by the unlicensed contractor; clarifying the
15	specific licensure status required and timing of
16	licensure for purposes of determining the enforceability
17	of a construction contract; clarifying the effect of an
18	unenforceable contract on other contracts and
19	obligations; clarifying that unlicensed contractors have
20	no lien or bond rights; clarifying that sureties of
21	unlicensed contractors have continuing bond obligations;
22	amending s. 713.02, F.S., relating to liens for
23	unlicensed contractors, subcontractors, or sub-
24	subcontractors, to conform; amending s. 713.06, F.S.,
25	relating to liens of persons not in privity, to conform;
26	amending s. 489.117, F.S.; specifying conditions under
27	which a person may perform specialty contracting services
28	without obtaining a local professional license; amending
29	ss. 489.119 and 489.521, F.S.; revising license
30	requirements for certain business organizations engaging
31	in contracting; providing for retroactive application;
32	providing legislative intent; providing severability;
33	providing an effective date.
34
35	Be It Enacted by the Legislature of the State of Florida:
36
37	Section 1. Section 489.128, Florida Statutes, is amended
38	to read:
39	489.128 Contracts entered intoperformedby unlicensed
40	contractors unenforceable.--
41	(1)As a matter of public policy, contracts entered into
42	on or after October 1, 1990, and performed in full or in part by
43	an unlicensedany contractor who fails to obtain or maintain a
44	license in accordance with this partshall be unenforceable in
45	law or in equity.
46	(a) For purposes of this section, an individual is
47	unlicensed if the individual does not have a license required by
48	this part concerning the scope of the work to be performed under
49	the contract. A business organization is unlicensed if the
50	business organization does not have a primary or secondary
51	qualifying agent in accordance with this part concerning the
52	scope of the work to be performed under the contract.
53	(b) For purposes of this section, an individual or
54	business organization shall not be considered unlicensed for
55	failing to have an occupational license certificate issued under
56	the authority of chapter 205. A business organization shall not
57	be considered unlicensed for failing to have a certificate of
58	authority as required by ss. 489.119 and 489.127.
59	(c) For purposes of this section, a contractor shall be
60	considered unlicensed only if the contractor was unlicensed on
61	the effective date of the original contract for the work, if
62	stated therein, or, if not stated, the date the last party to
63	the contract executed it, if stated therein. If the contract
64	does not establish such a date, the contractor shall be
65	considered unlicensed only if the contractor was unlicensed on
66	the first date upon which the contractor provided labor,
67	services, or materials under the contract.
68	(2) Notwithstanding any other provision of law to the
69	contrary, if a contract is rendered unenforceable under this
70	section, no lien or bond claim shall exist in favor of the
71	unlicensed contractor for any labor, services, or materials
72	provided under the contract or any amendment thereto.
73	(3) This section shall not affect the rights of parties
74	other than the unlicensed contractor to enforce contract, lien,
75	or bond remedies. This section shall not affect the obligations
76	of a surety that has provided a bond on behalf of an unlicensed
77	contractor. It shall not be a defense to any claim on a bond or
78	indemnity agreement that the principal or indemnitor is
79	unlicensed for purposes of this section.
80	Section 2. Section 489.532, Florida Statutes, is amended
81	to read:
82	489.532 Contracts entered intoperformedby unlicensed
83	contractors unenforceable.--
84	(1)As a matter of public policy, contracts entered into
85	on or after October 1, 1990, and performed in full or in part by
86	an unlicensedany contractor who fails to obtain or maintain his
87	or her license in accordance with this partshall be
88	unenforceable in law or in equity by the unlicensed contractor,
89	and the court in its discretion may extend this provision to
90	equitable remedies.
91	(a) For purposes of this section, an individual is
92	unlicensed if the individual does not have a license required by
93	this part concerning the scope of the work to be performed under
94	the contract. A business organization is unlicensed if the
95	business organization does not have a primary or secondary
96	qualifying agent in accordance with this part concerning the
97	scope of the work to be performed under the contract.
98	(b) For purposes of this section, an individual or
99	business organization shall not be considered unlicensed for
100	failing to have an occupational license certificate issued under
101	the authority of chapter 205.
102	(c) For purposes of this section, a contractor shall be
103	considered unlicensed only if the contractor was unlicensed on
104	the effective date of the original contract for the work, if
105	stated therein, or, if not stated, the date the last party to
106	the contract executed it, if stated therein. If the contract
107	does not establish such a date, the contractor shall be
108	considered unlicensed only if the contractor was unlicensed on
109	the first date upon which the contractor provided labor,
110	services, or materials under the contract.
111	(2) Notwithstanding any other provision of law to the
112	contrary, if a contract is rendered unenforceable under this
113	section, no lien or bond claim shall exist in favor of the
114	unlicensed contractor for any labor, services, or materials
115	provided under the contract or any amendment thereto.
116	(3) This section shall not affect the rights of parties
117	other than the unlicensed contractor to enforce contract, lien,
118	or bond remedies. This section shall not affect the obligations
119	of a surety that has provided a bond on behalf of an unlicensed
120	contractor. It shall not be a defense to any claim on a bond or
121	indemnity agreement that the principal or indemnitor is
122	unlicensed for purposes of this section.
123	Section 3. Subsection (7) of section 713.02, Florida
124	Statutes, is amended to read:
125	713.02 Types of lienors and exemptions.--
126	(7) Notwithstanding any other provision of this part, no
127	lien shall exist in favor of any contractor, subcontractor, or
128	sub-subcontractor who is unlicensed as provided in s. 489.128
129	unless such contractor, subcontractor, or sub-subcontractor is
130	licensed, if required to be licensed, as a contractor pursuant
131	to the laws of the jurisdiction within which she or he is doing
132	business.
133	Section 4. Subsection (1) of section 713.06, Florida
134	Statutes, is amended to read:
135	713.06 Liens of persons not in privity; proper payments.--
136	(1) A materialman or laborer, either of whom is not in
137	privity with the owner, or a subcontractor or sub-subcontractor
138	who complies with the provisions of this part and is subject to
139	the limitations thereof, has a lien on the real property
140	improved for any money that is owed to him or her for labor,
141	services, or materials furnished in accordance with his or her
142	contract and with the direct contractand for any unpaid finance
143	charges due under the lienor's contract. A materialman or
144	laborer, either of whom is not in privity with the owner, or a
145	subcontractor or sub-subcontractor who complies with the
146	provisions of this part and is subject to the limitations
147	thereof, also has a lien on the owner's real property for labor,
148	services, or materials furnished to improve public property if
149	the improvement of the public property is furnished in
150	accordance with his or her contract and with the direct
151	contract. The total amount of all liens allowed under this part
152	for furnishing labor, services, or material covered by any
153	certain direct contract must not exceed the amount of the
154	contract price fixed by the direct contract except as provided
155	in subsection (3). No person may have a lien under this section
156	except those lienors specified in it, as their designations are
157	defined in s. 713.01.
158	Section 5. Paragraph (e) of subsection (4) of section
159	489.117, Florida Statutes, is amended to read:
160	489.117 Registration; specialty contractors.--
161	(4)
162	(e) Any person who is not required to obtain registration
163	or certification pursuant to s. 489.105(3)(d)-(o) may perform
164	specialty contracting services for the construction, remodeling,
165	repair, or improvement of single-family residences, including a
166	townhouse as defined in the Florida Building Code,without
167	obtaining a local professional license if such person is under
168	the supervision of a certified or registered general, building,
169	or residential contractor. As used in this paragraph,
170	supervision shall not be deemed to require the existence of a
171	direct contract between the certified or registered general,
172	building, or residential contractor and the person performing
173	specialty contracting services.
174	Section 6. Subsection (8) is added to section 489.119,
175	Florida Statutes, to read:
176	489.119 Business organizations; qualifying agents.--
177	(8)(a) A business organization proposing to engage in
178	contracting is not required to apply for a certificate of
179	authority through a qualifying agent if:
180	1. The business organization employs one or more
181	registered or certified contractors licensed in accordance with
182	this part who are responsible for obtaining permits and
183	supervising all of the business organization's contracting
184	activities;
185	2. The business organization engages only in contracting
186	on property owned by the business organization or by its parent,
187	subsidiary, or affiliated entities; and
188	3. The business organization, or its parent entity if the
189	business organization is a wholly owned subsidiary, maintains a
190	minimum net worth of $20 million.
191	(b) Any business organization engaging in contracting
192	under this subsection shall provide the board with the name and
193	license number of each registered or certified contractor
194	employed by the business organization to supervise its
195	contracting activities. The business organization is not
196	required to post a bond or otherwise evidence any financial or
197	credit information except as necessary to demonstrate compliance
198	with paragraph(a).
199	(c) A registered or certified contractor employed by a
200	business organization to supervise its contracting activities
201	under this subsection shall not be required to post a bond or
202	otherwise evidence any personal financial or credit information
203	so long as the individual performs contracting activities
204	exclusively on behalf of a business organization meeting all of
205	the requirements of paragraph (a).
206	Section 7. Subsection (10) is added to section 489.521,
207	Florida Statutes, to read:
208	489.521 Business organizations; qualifying agents.--
209	(10)(a) A business organization proposing to engage in
210	contracting is not required to apply for a certificate of
211	authority through a qualifying agent if:
212	1. The business organization employs one or more
213	registered or certified contractors licensed in accordance with
214	this part who are responsible for obtaining permits and
215	supervising all of the business organization's contracting
216	activities;
217	2. The business organization engages only in contracting
218	on property owned by the business organization or by its parent,
219	subsidiary, or affiliated entities; and
220	3. The business organization, or its parent entity if the
221	business organization is a wholly owned subsidiary, maintains a
222	minimum net worth of $20 million.
223	(b) Any business organization engaging in contracting
224	under this subsection shall provide the board with the name and
225	license number of each registered or certified contractor
226	employed by the business organization to supervise its
227	contracting activities. The business organization is not
228	required to post a bond or otherwise evidence any financial or
229	credit information except as necessary to demonstrate compliance
230	with paragraph(a).
231	(c) A registered or certified contractor employed by a
232	business organization to supervise its contracting activities
233	under this subsection shall not be required to post a bond or
234	otherwise evidence any personal financial or credit information
235	so long as the individual performs contracting activities
236	exclusively on behalf of a business organization meeting all of
237	the requirements of paragraph (a).
238	Section 8. Sections 1, 2, 3, and 4 are intended to be
239	remedial in nature and to clarify existing law. Sections 1, 2,
240	3, and 4 shall apply retroactively to all actions, including any
241	action on a lien or bond claim, initiated on or after, or
242	pending as of, the effective date of this act. If the
243	retroactivity of any provision of section 1, section 2, section
244	3, or section 4, or its retroactive application to any person or
245	circumstance, is held invalid, the invalidity does not affect
246	the retroactivity or retroactive application of other provisions
247	of sections 1, 2, 3, and 4.
248	Section 9. If any provision of this act or its application
249	to any person or circumstance is held invalid, the invalidity
250	does not affect other provisions or applications of the act
251	which can be given effect without the invalid provision or
252	application, and to this and the provisions of this act are
253	severable.
254	Section 10. This act shall take effect upon becoming a
255	law.