ENROLLED HB 1277, Engrossed 1 |
2003 Legislature |
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A bill to be entitled |
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An act relating to contracting; amending ss. 489.128 and |
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489.532, F.S.; clarifying that the prohibition on |
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enforcement of construction contracts extends only to |
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enforcement by the unlicensed contractor; clarifying the |
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specific licensure status required and timing of |
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licensure for purposes of determining the enforceability |
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of a construction contract; clarifying the effect of an |
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unenforceable contract on other contracts and |
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obligations; clarifying that unlicensed contractors have |
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no lien or bond rights; clarifying that sureties of |
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unlicensed contractors have continuing bond obligations; |
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amending s. 713.02, F.S., relating to liens for |
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unlicensed contractors, subcontractors, or sub- |
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subcontractors, to conform; amending s. 489.113, F.S.; |
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requiring certain swimming pool work to be subcontracted; |
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revising provisions for the scope of work that a licensed |
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general contractor may perform; amending s. 489.117, |
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F.S.; specifying conditions under which a person may |
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perform specialty contracting services without obtaining |
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a local professional license; amending ss. 489.119 and |
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489.521, F.S.; revising license requirements for certain |
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business organizations engaging in contracting; providing |
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for retroactive application; providing legislative |
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intent; providing severability; providing an effective |
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date. |
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Be It Enacted by the Legislature of the State of Florida: |
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Section 1. Section 489.128, Florida Statutes, is amended |
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to read: |
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489.128 Contracts entered intoperformedby unlicensed |
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contractors unenforceable.-- |
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(1)As a matter of public policy, contracts entered into |
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on or after October 1, 1990, and performed in full or in part by |
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an unlicensedany contractor who fails to obtain or maintain a |
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license in accordance with this partshall be unenforceable in |
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law or in equity by the unlicensed contractor. |
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(a) For purposes of this section, an individual is |
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unlicensed if the individual does not have a license required by |
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this part concerning the scope of the work to be performed under |
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the contract. A business organization is unlicensed if the |
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business organization does not have a primary or secondary |
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qualifying agent in accordance with this part concerning the |
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scope of the work to be performed under the contract. |
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(b) For purposes of this section, an individual or |
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business organization shall not be considered unlicensed for |
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failing to have an occupational license certificate issued under |
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the authority of chapter 205. A business organization shall not |
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be considered unlicensed for failing to have a certificate of |
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authority as required by ss. 489.119 and 489.127. |
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(c) For purposes of this section, a contractor shall be |
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considered unlicensed only if the contractor was unlicensed on |
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the effective date of the original contract for the work, if |
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stated therein, or, if not stated, the date the last party to |
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the contract executed it, if stated therein. If the contract |
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does not establish such a date, the contractor shall be |
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considered unlicensed only if the contractor was unlicensed on |
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the first date upon which the contractor provided labor, |
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services, or materials under the contract. |
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(2) Notwithstanding any other provision of law to the |
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contrary, if a contract is rendered unenforceable under this |
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section, no lien or bond claim shall exist in favor of the |
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unlicensed contractor for any labor, services, or materials |
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provided under the contract or any amendment thereto. |
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(3) This section shall not affect the rights of parties |
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other than the unlicensed contractor to enforce contract, lien, |
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or bond remedies. This section shall not affect the obligations |
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of a surety that has provided a bond on behalf of an unlicensed |
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contractor. It shall not be a defense to any claim on a bond or |
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indemnity agreement that the principal or indemnitor is |
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unlicensed for purposes of this section. |
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Section 2. Section 489.532, Florida Statutes, is amended |
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to read: |
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489.532 Contracts entered intoperformedby unlicensed |
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contractors unenforceable.-- |
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(1)As a matter of public policy, contracts entered into |
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on or after October 1, 1990, and performed in full or in part by |
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an unlicensedany contractor who fails to obtain or maintain his |
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or her license in accordance with this partshall be |
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unenforceable in law or in equity by the unlicensed contractor, |
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and the court in its discretion may extend this provision to |
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equitable remedies. |
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(a) For purposes of this section, an individual is |
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unlicensed if the individual does not have a license required by |
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this part concerning the scope of the work to be performed under |
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the contract. A business organization is unlicensed if the |
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business organization does not have a primary or secondary |
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qualifying agent in accordance with this part concerning the |
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scope of the work to be performed under the contract. |
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(b) For purposes of this section, an individual or |
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business organization shall not be considered unlicensed for |
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failing to have an occupational license certificate issued under |
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the authority of chapter 205. |
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(c) For purposes of this section, a contractor shall be |
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considered unlicensed only if the contractor was unlicensed on |
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the effective date of the original contract for the work, if |
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stated therein, or, if not stated, the date the last party to |
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the contract executed it, if stated therein. If the contract |
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does not establish such a date, the contractor shall be |
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considered unlicensed only if the contractor was unlicensed on |
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the first date upon which the contractor provided labor, |
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services, or materials under the contract. |
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(2) Notwithstanding any other provision of law to the |
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contrary, if a contract is rendered unenforceable under this |
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section, no lien or bond claim shall exist in favor of the |
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unlicensed contractor for any labor, services, or materials |
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provided under the contract or any amendment thereto. |
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(3) This section shall not affect the rights of parties |
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other than the unlicensed contractor to enforce contract, lien, |
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or bond remedies. This section shall not affect the obligations |
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of a surety that has provided a bond on behalf of an unlicensed |
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contractor. It shall not be a defense to any claim on a bond or |
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indemnity agreement that the principal or indemnitor is |
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unlicensed for purposes of this section. |
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Section 3. Subsection (7) of section 713.02, Florida |
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Statutes, is amended to read: |
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713.02 Types of lienors and exemptions.-- |
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(7) Notwithstanding any other provision of this part, no |
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lien shall exist in favor of any contractor, subcontractor, or |
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sub-subcontractor who is unlicensed as provided in s. 489.128 or |
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s. 489.532unless such contractor, subcontractor, or sub- |
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subcontractor is licensed, if required to be licensed, as a |
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contractor pursuant to the laws of the jurisdiction within which |
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she or he is doing business. |
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Section 4. Paragraphs (c) and (d) of subsection (3) of |
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section 489.113, Florida Statutes, are amended to read: |
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489.113 Qualifications for practice; restrictions.-- |
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(3) A contractor shall subcontract all electrical, |
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mechanical, plumbing, roofing, sheet metal, swimming pool, and |
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air-conditioning work, unless such contractor holds a state |
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certificate or registration in the respective trade category, |
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however: |
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(c) A general contractor shall not be required to |
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subcontract structural swimming pool work. All other swimming |
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pool work shall be subcontracted to an appropriately licensed |
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certified or registered swimming pool contractor. |
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(d) A general contractor, on new site development work, |
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site redevelopment work, mobile home parks, and commercial |
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properties,shall not be required to subcontract the |
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construction of athe main sanitary sewer collection system, the |
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storm collection system, orand thewater distribution system, |
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not including the continuation of utility lines from the mains |
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to the buildings, and may perform any of the services, on public |
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or private property, for which a license as an underground |
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utility and excavation contractor is required under this part. |
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Section 5. Paragraph (e) of subsection (4) of section |
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489.117, Florida Statutes, is amended to read: |
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489.117 Registration; specialty contractors.-- |
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(4) |
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(e) Any person who is not required to obtain registration |
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or certification pursuant to s. 489.105(3)(d)-(o) may perform |
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specialty contracting services for the construction, remodeling, |
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repair, or improvement of single-family residences, including a |
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townhouse as defined in the Florida Building Code,without |
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obtaining a local professional license if such person is under |
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the supervision of a certified or registered general, building, |
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or residential contractor. As used in this paragraph, |
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supervision shall not be deemed to require the existence of a |
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direct contract between the certified or registered general, |
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building, or residential contractor and the person performing |
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specialty contracting services. |
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Section 6. Subsection (8) is added to section 489.119, |
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Florida Statutes, to read: |
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489.119 Business organizations; qualifying agents.-- |
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(8)(a) A business organization proposing to engage in |
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contracting is not required to apply for or obtain authorization |
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under this part to engage in contracting if:
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1. The business organization employs one or more |
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registered or certified contractors licensed in accordance with |
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this part who are responsible for obtaining permits and |
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supervising all of the business organization's contracting |
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activities; |
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2. The business organization engages only in contracting |
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on property owned by the business organization or by its parent, |
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subsidiary, or affiliated entities; and |
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3. The business organization, or its parent entity if the |
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business organization is a wholly owned subsidiary, maintains a |
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minimum net worth of $20 million. |
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(b) Any business organization engaging in contracting |
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under this subsection shall provide the board with the name and |
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license number of each registered or certified contractor |
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employed by the business organization to supervise its |
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contracting activities. The business organization is not |
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required to post a bond or otherwise evidence any financial or |
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credit information except as necessary to demonstrate compliance |
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with paragraph(a). |
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(c) A registered or certified contractor employed by a |
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business organization to supervise its contracting activities |
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under this subsection shall not be required to post a bond or |
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otherwise evidence any personal financial or credit information |
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so long as the individual performs contracting activities |
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exclusively on behalf of a business organization meeting all of |
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the requirements of paragraph (a).
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Section 7. Subsection (10) is added to section 489.521, |
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Florida Statutes, to read: |
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489.521 Business organizations; qualifying agents.-- |
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(10)(a) A business organization proposing to engage in |
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contracting is not required to apply for or obtain authorization |
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under this part to engage in contracting if:
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1. The business organization employs one or more |
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registered or certified contractors licensed in accordance with |
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this part who are responsible for obtaining permits and |
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supervising all of the business organization's contracting |
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activities; |
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2. The business organization engages only in contracting |
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on property owned by the business organization or by its parent, |
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subsidiary, or affiliated entities; and |
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3. The business organization, or its parent entity if the |
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business organization is a wholly owned subsidiary, maintains a |
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minimum net worth of $20 million. |
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(b) Any business organization engaging in contracting |
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under this subsection shall provide the board with the name and |
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license number of each registered or certified contractor |
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employed by the business organization to supervise its |
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contracting activities. The business organization is not |
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required to post a bond or otherwise evidence any financial or |
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credit information except as necessary to demonstrate compliance |
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with paragraph(a). |
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(c) A registered or certified contractor employed by a |
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business organization to supervise its contracting activities |
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under this subsection shall not be required to post a bond or |
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otherwise evidence any personal financial or credit information |
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so long as the individual performs contracting activities |
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exclusively on behalf of a business organization meeting all of |
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the requirements of paragraph (a). |
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Section 8. Sections 1, 2, 3, and 4 are intended to be |
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remedial in nature and to clarify existing law. Sections 1, 2, |
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3, and 4 shall apply retroactively to all actions, including any |
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action on a lien or bond claim, initiated on or after, or |
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pending as of, the effective date of this act. If the |
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retroactivity of any provision of section 1, section 2, section |
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3, or section 4, or its retroactive application to any person or |
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circumstance, is held invalid, the invalidity does not affect |
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the retroactivity or retroactive application of other provisions |
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of sections 1, 2, 3, and 4. |
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Section 9. If any provision of this act or its application |
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to any person or circumstance is held invalid, the invalidity |
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does not affect other provisions or applications of the act |
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which can be given effect without the invalid provision or |
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application, and to this and the provisions of this act are |
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severable. |
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Section 10. This act shall take effect upon becoming a |
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law. |