HB 1277 2003
1	CHAMBER ACTION
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6	The Committee on Judiciary recommends the following:
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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. 489.113, F.S.; revising provisions for the
27	scope of work that a licensed general contractor may
28	perform; amending s. 489.117, F.S.; specifying conditions
29	under which a person may perform specialty contracting
30	services without obtaining a local professional license;
31	amending ss. 489.119 and 489.521, F.S.; revising license
32	requirements for certain business organizations engaging
33	in contracting; providing for retroactive application;
34	providing legislative intent; providing severability;
35	providing an effective date.
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37	Be It Enacted by the Legislature of the State of Florida:
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39	Section 1. Section 489.128, Florida Statutes, is amended
40	to read:
41	489.128 Contracts entered intoperformedby unlicensed
42	contractors unenforceable.--
43	(1)As a matter of public policy, contracts entered into
44	on or after October 1, 1990, and performed in full or in part by
45	an unlicensedany contractor who fails to obtain or maintain a
46	license in accordance with this partshall be unenforceable in
47	law or in equity.
48	(a) For purposes of this section, an individual is
49	unlicensed if the individual does not have a license required by
50	this part concerning the scope of the work to be performed under
51	the contract. A business organization is unlicensed if the
52	business organization does not have a primary or secondary
53	qualifying agent in accordance with this part concerning the
54	scope of the work to be performed under the contract.
55	(b) For purposes of this section, an individual or
56	business organization shall not be considered unlicensed for
57	failing to have an occupational license certificate issued under
58	the authority of chapter 205. A business organization shall not
59	be considered unlicensed for failing to have a certificate of
60	authority as required by ss. 489.119 and 489.127.
61	(c) For purposes of this section, a contractor shall be
62	considered unlicensed only if the contractor was unlicensed on
63	the effective date of the original contract for the work, if
64	stated therein, or, if not stated, the date the last party to
65	the contract executed it, if stated therein. If the contract
66	does not establish such a date, the contractor shall be
67	considered unlicensed only if the contractor was unlicensed on
68	the first date upon which the contractor provided labor,
69	services, or materials under the contract.
70	(2) Notwithstanding any other provision of law to the
71	contrary, if a contract is rendered unenforceable under this
72	section, no lien or bond claim shall exist in favor of the
73	unlicensed contractor for any labor, services, or materials
74	provided under the contract or any amendment thereto.
75	(3) This section shall not affect the rights of parties
76	other than the unlicensed contractor to enforce contract, lien,
77	or bond remedies. This section shall not affect the obligations
78	of a surety that has provided a bond on behalf of an unlicensed
79	contractor. It shall not be a defense to any claim on a bond or
80	indemnity agreement that the principal or indemnitor is
81	unlicensed for purposes of this section.
82	Section 2. Section 489.532, Florida Statutes, is amended
83	to read:
84	489.532 Contracts entered intoperformedby unlicensed
85	contractors unenforceable.--
86	(1)As a matter of public policy, contracts entered into
87	on or after October 1, 1990, and performed in full or in part by
88	an unlicensedany contractor who fails to obtain or maintain his
89	or her license in accordance with this partshall be
90	unenforceable in law or in equity by the unlicensed contractor,
91	and the court in its discretion may extend this provision to
92	equitable remedies.
93	(a) For purposes of this section, an individual is
94	unlicensed if the individual does not have a license required by
95	this part concerning the scope of the work to be performed under
96	the contract. A business organization is unlicensed if the
97	business organization does not have a primary or secondary
98	qualifying agent in accordance with this part concerning the
99	scope of the work to be performed under the contract.
100	(b) For purposes of this section, an individual or
101	business organization shall not be considered unlicensed for
102	failing to have an occupational license certificate issued under
103	the authority of chapter 205.
104	(c) For purposes of this section, a contractor shall be
105	considered unlicensed only if the contractor was unlicensed on
106	the effective date of the original contract for the work, if
107	stated therein, or, if not stated, the date the last party to
108	the contract executed it, if stated therein. If the contract
109	does not establish such a date, the contractor shall be
110	considered unlicensed only if the contractor was unlicensed on
111	the first date upon which the contractor provided labor,
112	services, or materials under the contract.
113	(2) Notwithstanding any other provision of law to the
114	contrary, if a contract is rendered unenforceable under this
115	section, no lien or bond claim shall exist in favor of the
116	unlicensed contractor for any labor, services, or materials
117	provided under the contract or any amendment thereto.
118	(3) This section shall not affect the rights of parties
119	other than the unlicensed contractor to enforce contract, lien,
120	or bond remedies. This section shall not affect the obligations
121	of a surety that has provided a bond on behalf of an unlicensed
122	contractor. It shall not be a defense to any claim on a bond or
123	indemnity agreement that the principal or indemnitor is
124	unlicensed for purposes of this section.
125	Section 3. Subsection (7) of section 713.02, Florida
126	Statutes, is amended to read:
127	713.02 Types of lienors and exemptions.--
128	(7) Notwithstanding any other provision of this part, no
129	lien shall exist in favor of any contractor, subcontractor, or
130	sub-subcontractor who is unlicensed as provided in s. 489.128
131	unless such contractor, subcontractor, or sub-subcontractor is
132	licensed, if required to be licensed, as a contractor pursuant
133	to the laws of the jurisdiction within which she or he is doing
134	business.
135	Section 4. Subsection (1) of section 713.06, Florida
136	Statutes, is amended to read:
137	713.06 Liens of persons not in privity; proper payments.--
138	(1) A materialman or laborer, either of whom is not in
139	privity with the owner, or a subcontractor or sub-subcontractor
140	who complies with the provisions of this part and is subject to
141	the limitations thereof, has a lien on the real property
142	improved for any money that is owed to him or her for labor,
143	services, or materials furnished in accordance with his or her
144	contract and with the direct contractand for any unpaid finance
145	charges due under the lienor's contract. A materialman or
146	laborer, either of whom is not in privity with the owner, or a
147	subcontractor or sub-subcontractor who complies with the
148	provisions of this part and is subject to the limitations
149	thereof, also has a lien on the owner's real property for labor,
150	services, or materials furnished to improve public property if
151	the improvement of the public property is furnished in
152	accordance with his or her contract and with the direct
153	contract. The total amount of all liens allowed under this part
154	for furnishing labor, services, or material covered by any
155	certain direct contract must not exceed the amount of the
156	contract price fixed by the direct contract except as provided
157	in subsection (3). No person may have a lien under this section
158	except those lienors specified in it, as their designations are
159	defined in s. 713.01.
160	Section 5. Paragraph (d) of subsection (3) of section
161	489.113, Florida Statutes, is amended to read:
162	489.113 Qualifications for practice; restrictions.--
163	(3) A contractor shall subcontract all electrical,
164	mechanical, plumbing, roofing, sheet metal, swimming pool, and
165	air-conditioning work, unless such contractor holds a state
166	certificate or registration in the respective trade category,
167	however:
168	(d) A general contractor, on new site development work,
169	site redevelopment work, mobile home parks, and commercial
170	properties,shall not be required to subcontract the
171	construction of athe main sanitary sewer collection system, the
172	storm collection system, orand thewater distribution system,
173	not including the continuation of utility lines from the mains
174	to the buildings, and may perform any of the services, on public
175	or private property, for which a license as an underground
176	utility and excavation contractor is required under this part.
177	Section 6. Paragraph (e) of subsection (4) of section
178	489.117, Florida Statutes, is amended to read:
179	489.117 Registration; specialty contractors.--
180	(4)
181	(e) Any person who is not required to obtain registration
182	or certification pursuant to s. 489.105(3)(d)-(o) may perform
183	specialty contracting services for the construction, remodeling,
184	repair, or improvement of single-family residences, including a
185	townhouse as defined in the Florida Building Code,without
186	obtaining a local professional license if such person is under
187	the supervision of a certified or registered general, building,
188	or residential contractor. As used in this paragraph,
189	supervision shall not be deemed to require the existence of a
190	direct contract between the certified or registered general,
191	building, or residential contractor and the person performing
192	specialty contracting services.
193	Section 7. Subsection (8) is added to section 489.119,
194	Florida Statutes, to read:
195	489.119 Business organizations; qualifying agents.--
196	(8)(a) A business organization proposing to engage in
197	contracting is not required to apply for a certificate of
198	authority through a qualifying agent if:
199	1. The business organization employs one or more
200	registered or certified contractors licensed in accordance with
201	this part who are responsible for obtaining permits and
202	supervising all of the business organization's contracting
203	activities;
204	2. The business organization engages only in contracting
205	on property owned by the business organization or by its parent,
206	subsidiary, or affiliated entities; and
207	3. The business organization, or its parent entity if the
208	business organization is a wholly owned subsidiary, maintains a
209	minimum net worth of $20 million.
210	(b) Any business organization engaging in contracting
211	under this subsection shall provide the board with the name and
212	license number of each registered or certified contractor
213	employed by the business organization to supervise its
214	contracting activities. The business organization is not
215	required to post a bond or otherwise evidence any financial or
216	credit information except as necessary to demonstrate compliance
217	with paragraph(a).
218	(c) A registered or certified contractor employed by a
219	business organization to supervise its contracting activities
220	under this subsection shall not be required to post a bond or
221	otherwise evidence any personal financial or credit information
222	so long as the individual performs contracting activities
223	exclusively on behalf of a business organization meeting all of
224	the requirements of paragraph (a).
225	Section 8. Subsection (10) is added to section 489.521,
226	Florida Statutes, to read:
227	489.521 Business organizations; qualifying agents.--
228	(10)(a) A business organization proposing to engage in
229	contracting is not required to apply for a certificate of
230	authority through a qualifying agent if:
231	1. The business organization employs one or more
232	registered or certified contractors licensed in accordance with
233	this part who are responsible for obtaining permits and
234	supervising all of the business organization's contracting
235	activities;
236	2. The business organization engages only in contracting
237	on property owned by the business organization or by its parent,
238	subsidiary, or affiliated entities; and
239	3. The business organization, or its parent entity if the
240	business organization is a wholly owned subsidiary, maintains a
241	minimum net worth of $20 million.
242	(b) Any business organization engaging in contracting
243	under this subsection shall provide the board with the name and
244	license number of each registered or certified contractor
245	employed by the business organization to supervise its
246	contracting activities. The business organization is not
247	required to post a bond or otherwise evidence any financial or
248	credit information except as necessary to demonstrate compliance
249	with paragraph(a).
250	(c) A registered or certified contractor employed by a
251	business organization to supervise its contracting activities
252	under this subsection shall not be required to post a bond or
253	otherwise evidence any personal financial or credit information
254	so long as the individual performs contracting activities
255	exclusively on behalf of a business organization meeting all of
256	the requirements of paragraph (a).
257	Section 9. Sections 1, 2, 3, and 4 are intended to be
258	remedial in nature and to clarify existing law. Sections 1, 2,
259	3, and 4 shall apply retroactively to all actions, including any
260	action on a lien or bond claim, initiated on or after, or
261	pending as of, the effective date of this act. If the
262	retroactivity of any provision of section 1, section 2, section
263	3, or section 4, or its retroactive application to any person or
264	circumstance, is held invalid, the invalidity does not affect
265	the retroactivity or retroactive application of other provisions
266	of sections 1, 2, 3, and 4.
267	Section 10. If any provision of this act or its
268	application to any person or circumstance is held invalid, the
269	invalidity does not affect other provisions or applications of
270	the act which can be given effect without the invalid provision
271	or application, and to this and the provisions of this act are
272	severable.
273	Section 11. This act shall take effect upon becoming a
274	law.