Senate Bill sb1382c1

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    Florida Senate - 2003                           CS for SB 1382

    By the Committee on Regulated Industries; and Senator Clary





    315-1986-03

  1                      A bill to be entitled

  2         An act relating to contracting; amending ss.

  3         489.128, 489.532, F.S.; clarifying that the

  4         prohibition on enforcement of construction

  5         contracts extends only to enforcement by the

  6         unlicensed contractor; clarifying the specific

  7         licensure status required and timing of

  8         licensure for purposes of determining the

  9         enforceability of a construction contract;

10         clarifying the effect of an unenforceable

11         contract on other contracts and obligations;

12         clarifying that unlicensed contractors have no

13         lien or bond rights; clarifying that sureties

14         of unlicensed contractors have continuing bond

15         obligations; repealing s. 713.02(7), F.S.,

16         relating to liens for unlicensed contractors,

17         subcontractors, or sub-subcontractors; amending

18         s. 713.06, F.S.; revising licensure

19         requirements for certain business organizations

20         engaging in contracting; amending s. 489.117,

21         F.S.; specifying conditions under which a

22         person may perform specialty contracting

23         services without obtaining a local professional

24         license; amending ss. 489.119, 489.521, F.S.;

25         revising license requirements for certain

26         business organizations engaging in contracting;

27         providing for retroactive application;

28         providing legislative intent; providing

29         severability; providing an effective date.

30  

31  Be It Enacted by the Legislature of the State of Florida:

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    Florida Senate - 2003                           CS for SB 1382
    315-1986-03




 1         Section 1.  Section 489.128, Florida Statutes, is

 2  amended to read:

 3         489.128  Contracts entered into performed by unlicensed

 4  contractors unenforceable.--

 5         (1)  As a matter of public policy, contracts entered

 6  into on or after October 1, 1990, and performed in full or in

 7  part by an unlicensed any contractor who fails to obtain or

 8  maintain a license in accordance with this part shall be

 9  unenforceable in law or in equity by the unlicensed

10  contractor.

11         (a)  For purposes of this section, an individual is

12  unlicensed if the individual fails to obtain or maintain a

13  license required by this part concerning the scope of the work

14  to be performed under the contract. A business organization is

15  unlicensed if the business organization fails to obtain or

16  maintain a primary or secondary qualifying agent in accordance

17  with this part concerning the scope of the work to be

18  performed under the contract.

19         (b)  For purposes of this section, an individual or

20  business organization shall not be considered unlicensed for

21  failing to have an occupational license certificate issued

22  under the authority of chapter 205. A business organization

23  shall not be considered unlicensed for failing to have a

24  certificate of authority as required by ss. 489.119 and

25  489.127.

26         (c)  For purposes of this section, a contractor shall

27  be considered unlicensed only if the contractor was unlicensed

28  on the effective date of the original contract for the work,

29  if stated therein, or, if not stated, the date the last party

30  to the contract executed it, if stated therein. If the

31  contract does not establish such a date, the contractor shall

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    Florida Senate - 2003                           CS for SB 1382
    315-1986-03




 1  be considered unlicensed only if the contractor was unlicensed

 2  on the first date upon which the contractor provided labor,

 3  services, or materials under the contract.

 4         (2)  Notwithstanding any other provision of law to the

 5  contrary, if a contract is rendered unenforceable under this

 6  section, no lien or bond claim shall exist in favor of the

 7  unlicensed contractor for any labor, services, or materials

 8  provided under the contract or any amendment thereto.

 9         (3)  This section shall not affect the rights of

10  parties other than the unlicensed contractor to enforce

11  contract, lien, or bond remedies. This section shall not

12  affect the obligations of a surety that has provided a bond on

13  behalf of an unlicensed contractor. It shall not be a defense

14  to any claim on a bond or indemnity agreement that the

15  principal or indemnitor is unlicensed for purposes of this

16  section.

17         Section 2.  Section 489.532, Florida Statutes, is

18  amended to read:

19         489.532  Contracts entered into performed by unlicensed

20  contractors unenforceable.--

21         (1)  As a matter of public policy, contracts entered

22  into on or after October 1, 1990, and performed in full or in

23  part by an unlicensed any contractor who fails to obtain or

24  maintain his or her license in accordance with this part shall

25  be unenforceable in law or in equity by the unlicensed

26  contractor, and the court in its discretion may extend this

27  provision to equitable remedies.

28         (a)  For purposes of this section, an individual is

29  unlicensed if the individual fails to obtain or maintain a

30  license required by this part concerning the scope of the work

31  to be performed under the contract. A business organization is

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    Florida Senate - 2003                           CS for SB 1382
    315-1986-03




 1  unlicensed if the business organization fails to obtain or

 2  maintain a primary or secondary qualifying agent in accordance

 3  with this part concerning the scope of the work to be

 4  performed under the contract.

 5         (b)  For purposes os this section, an individual or

 6  business organization shall not be considered unlicensed for

 7  failing to have an occupational license certificate issued

 8  under the authority of chapter 205.

 9         (c)  For purposes of this section, a contractor shall

10  be considered unlicensed only if the contractor was unlicensed

11  on the effective date of the original contract for the work,

12  if stated therein, or, if not stated, the date the last party

13  to the contract executed it, if stated therein. If the

14  contract does not establish such a date, the contractor shall

15  be considered unlicensed only if the contractor was unlicensed

16  on the first date upon which the contractor provided labor,

17  services, or materials under the contract.

18         (2)  Notwithstanding any other provision of law to the

19  contrary, if a contract is rendered unenforceable under this

20  section, no lien or bond claim shall exist in favor of the

21  unlicensed contractor for any labor, services, or materials

22  provided under the contract or any amendment thereto.

23         (3)  This section shall not affect the rights of

24  parties other than the unlicensed contractor to enforce

25  contract, lien, or bond remedies. This section shall not

26  affect the obligations of a surety that has provided a bond on

27  behalf of an unlicensed contractor. It shall not be a defense

28  to any claim on a bond or indemnity agreement that the

29  principal or indemnitor is unlicensed for purposes of this

30  section.

31  

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    Florida Senate - 2003                           CS for SB 1382
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 1         Section 3.  Subsection (7) of section 713.02, Florida

 2  Statutes, is repealed.

 3         Section 4.  Subsection (1) of section 713.06, Florida

 4  Statutes, is amended to read:

 5         713.06  Liens of persons not in privity; proper

 6  payments.--

 7         (1)  A materialman or laborer, either of whom is not in

 8  privity with the owner, or a subcontractor or

 9  sub-subcontractor who complies with the provisions of this

10  part and is subject to the limitations thereof, has a lien on

11  the real property improved for any money that is owed to him

12  or her for labor, services, or materials furnished in

13  accordance with his or her contract and with the direct

14  contract and for any unpaid finance charges due under the

15  lienor's contract. A materialman or laborer, either of whom is

16  not in privity with the owner, or a subcontractor or

17  sub-subcontractor who complies with the provisions of this

18  part and is subject to the limitations thereof, also has a

19  lien on the owner's real property for labor, services, or

20  materials furnished to improve public property if the

21  improvement of the public property is furnished in accordance

22  with his or her contract and with the direct contract. The

23  total amount of all liens allowed under this part for

24  furnishing labor, services, or material covered by any certain

25  direct contract must not exceed the amount of the contract

26  price fixed by the direct contract except as provided in

27  subsection (3). No person may have a lien under this section

28  except those lienors specified in it, as their designations

29  are defined in s. 713.01.

30         Section 5.  Paragraph (e) of subsection (4) of section

31  489.117, Florida Statutes, is amended to read:

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    Florida Senate - 2003                           CS for SB 1382
    315-1986-03




 1         489.117  Registration; specialty contractors.--

 2         (4)

 3         (e)  Any person who is not required to obtain

 4  registration or certification pursuant to s. 489.105(3)(d)-(o)

 5  may perform specialty contracting services for the

 6  construction, remodeling, repair, or improvement of

 7  single-family residences, including a townhouse as defined in

 8  the Florida Building Code, without obtaining a local

 9  professional license if such person is under the supervision

10  of a certified or registered general, building, or residential

11  contractor, including such persons who are directly or

12  indirectly supervised by a certified or registered general,

13  building, or residential contractor through any tier of

14  subcontract.

15         Section 6.  Subsection (8) is added to section 489.119,

16  Florida Statutes, to read:

17         489.119  Business organizations; qualifying agents.--

18         (8)(a)  A business organization proposing to engage in

19  contracting is not required to apply for a certificate of

20  authority through a qualifying agent if:

21         1.  The business organization employs one or more

22  registered or certified contractors licensed in accordance

23  with this part who are responsible for obtaining permits and

24  supervising all of the business organization's contracting

25  activities;

26         2.  The business organization engages only in

27  contracting on property owned by the business organization or

28  by its parent, subsidiary, or affiliated entities; and

29         3.  The business organization, or its parent entity if

30  the business organization is a wholly owned subsidiary,

31  maintains a minimum net worth of $20 million.

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    Florida Senate - 2003                           CS for SB 1382
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 1         (b)  Any business organization engaging in contracting

 2  under this subsection shall provide the board with the name

 3  and license number of each registered or certified contractor

 4  employed by the business organization to supervise its

 5  contracting activities. The business organization is not

 6  required to post a bond or otherwise evidence any financial or

 7  credit information except as necessary to demonstrate

 8  compliance with paragraph (a).

 9         (c)  A registered or certified contractor employed by a

10  business organization to supervise its contracting activities

11  under this subsection shall not be required to post a bond or

12  otherwise evidence any personal financial or credit

13  information so long as the individual performs contracting

14  activities exclusively on behalf of a business organization

15  meeting all of the requirements of paragraph (a).

16         Section 7.  Subsection (10) is added to section

17  489.521, Florida Statutes, to read:

18         489.521  Business organizations; qualifying agents.--

19         (10)(a)  A business organization proposing to engage in

20  contracting is not required to apply for a certificate of

21  authority through a qualifying agent if:

22         1.  The business organization employs one or more

23  registered or certified contractors licensed in accordance

24  with this part who are responsible for obtaining permits and

25  supervising all of the business organization's contracting

26  activities;

27         2.  The business organization engages only in

28  contracting on property owned by the business organization or

29  by its parent, subsidiary, or affiliated entities; and

30  

31  

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    Florida Senate - 2003                           CS for SB 1382
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 1         3.  The business organization, or its parent entity if

 2  the business organization is a wholly owned subsidiary,

 3  maintains a minimum net worth of $20 million.

 4         (b)  Any business organization engaging in contracting

 5  under this subsection shall provide the board with the name

 6  and license number of each registered or certified contractor

 7  employed by the business organization to supervise its

 8  contracting activities. The business organization is not

 9  required to post a bond or otherwise evidence any financial or

10  credit information except as necessary to demonstrate

11  compliance with paragraph (a).

12         (c)  A registered or certified contractor employed by a

13  business organization to supervise its contracting activities

14  under this subsection shall not be required to post a bond or

15  otherwise evidence any personal financial or credit

16  information so long as the individual performs contracting

17  activities exclusively on behalf of a business organization

18  meeting all of the requirements of paragraph (a).

19         Section 8.  Sections 1, 2, 3, and 4 are intended to be

20  remedial in nature and to clarify existing law. Sections 1, 2,

21  3, and 4 shall apply retroactively to all actions, including

22  any action on a lien or bond claim, initiated on or after, or

23  pending as of, the effective date of this act. If the

24  retroactivity of any provision of section 1, section 2,

25  section 3, or section 4, or its retroactive application of any

26  person or circumstance, is held invalid, the invalidity does

27  not affect the retroactivity or retroactive application of

28  other provisions of sections 1, 2, 3, and 4.

29         Section 9.  If any provision of this act or its

30  application to any person or circumstance is held invalid, the

31  invalidity does not affect other provisions or applications of

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    Florida Senate - 2003                           CS for SB 1382
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 1  the act which can be given effect without the invalid

 2  provision or application, and to this and the provisions of

 3  this act are severable.

 4         Section 10.  This act shall take effect upon becoming a

 5  law.

 6  

 7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 8                             SB 1382

 9                                 

10  The Committee Substitute amends ss. 489.128 and 489.532, F.S.,
    to make unenforceable in law or equity contracts that are
11  entered into on or after October 1, 1990, by a contractor who
    fails to obtain or maintain a license under parts I and II of
12  ch. 489, F.S.  It defines when a person or business
    organization is unlicensed for purposes of this section.  The
13  committee substitute provides for the affect of a contract
    rendered unenforceable under the bill on the lien, or bond
14  remedies of parties.  The committee substitute amends the
    provisions in s. 489.117, F.S., relating to specialty
15  contractor services by persons not required to register or
    certify under s. 489.105(3)(d)-(o), F.S. The committee
16  substitute amends the provisions in ch. 489.119, F.S., to
    provide conditions, including bond and disclosure
17  requirements, for business organizations proposing to engage
    in contracting without applying for a certificate of authority
18  through a qualifying agent. The committee substitute provides
    for the retroactive application of sections 1,2,3, and 4, and
19  further provides for the affect of invalidity.  The committee
    substitute would take affect upon becoming a law.
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