Senate Bill sb1382c2

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    Florida Senate - 2003                    CS for CS for SB 1382

    By the Committees on Commerce, Economic Opportunities, and
    Consumer Services; Regulated Industries; and Senator Clary




    310-2483-03

  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; amending s. 713.02, F.S., relating

16         to liens for unlicensed contractors or

17         subcontractors to conform; amending s. 489.113,

18         F.S.; revising and clarifying the scope of work

19         that may be performed by a licensed contractor;

20         amending s. 489.117, F.S.; specifying

21         conditions under which a person may perform

22         specialty contracting services without

23         obtaining a local professional license;

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

25         license requirements for certain business

26         organizations engaging in contracting;

27         providing for retroactive application;

28         providing legislative intent; amending s.

29         489.103, F.S.; exempting certain persons

30         licensed under the fire prevention and control

31         law from regulation under the contracting law;

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    Florida Senate - 2003                    CS for CS for SB 1382
    310-2483-03




 1         providing severability; providing an effective

 2         date.

 3  

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

 5  

 6         Section 1.  Section 489.128, Florida Statutes, is

 7  amended to read:

 8         489.128  Contracts entered into performed by unlicensed

 9  contractors unenforceable.--

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

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

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

13  maintain a license in accordance with this part shall be

14  unenforceable in law or in equity by the unlicensed

15  contractor.

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

17  unlicensed if the individual does not have a license required

18  by this part concerning the scope of the work to be performed

19  under the contract. A business organization is unlicensed if

20  the business organization does not have a primary or secondary

21  qualifying agent in accordance with this part concerning the

22  scope of the work to be performed under the contract.

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

24  business organization shall not be considered unlicensed for

25  failing to have an occupational license certificate issued

26  under the authority of chapter 205. A business organization

27  shall not be considered unlicensed for failing to have a

28  certificate of authority as required by ss. 489.119 and

29  489.127.

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

31  be considered unlicensed only if the contractor was unlicensed

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1  on the effective date of the original contract for the work,

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

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

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

 5  be considered unlicensed only if the contractor was unlicensed

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

 7  services, or materials under the contract.

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

 9  contrary, if a contract is rendered unenforceable under this

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

11  unlicensed contractor for any labor, services, or materials

12  provided under the contract or any amendment thereto.

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

14  parties other than the unlicensed contractor to enforce

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

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

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

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

19  principal or indemnitor is unlicensed for purposes of this

20  section.

21         Section 2.  Section 489.532, Florida Statutes, is

22  amended to read:

23         489.532  Contracts entered into performed by unlicensed

24  contractors unenforceable.--

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

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

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

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

29  be unenforceable in law or in equity by the unlicensed

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

31  provision to equitable remedies.

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1         (a)  For purposes of this section, an individual is

 2  unlicensed if the individual does not have a license required

 3  by this part concerning the scope of the work to be performed

 4  under the contract. A business organization is unlicensed if

 5  the business organization does not have a primary or secondary

 6  qualifying agent in accordance with this part concerning the

 7  scope of the work to be performed under the contract.

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

 9  business organization shall not be considered unlicensed for

10  failing to have an occupational license certificate issued

11  under the authority of chapter 205.

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

13  be considered unlicensed only if the contractor was unlicensed

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

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

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

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

18  be considered unlicensed only if the contractor was unlicensed

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

20  services, or materials under the contract.

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

22  contrary, if a contract is rendered unenforceable under this

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

24  unlicensed contractor for any labor, services, or materials

25  provided under the contract or any amendment thereto.

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

27  parties other than the unlicensed contractor to enforce

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

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

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

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

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1  principal or indemnitor is unlicensed for purposes of this

 2  section.

 3         Section 3.  Subsection (7) of section 713.02, Florida

 4  Statutes, is amended to read:

 5         713.02  Types of lienors and exemptions.--

 6         (7)  Notwithstanding any other provision of this part,

 7  no lien shall exist in favor of any contractor, subcontractor,

 8  or sub-subcontractor who is unlicensed as provided in s.

 9  489.128 or s. 489.532 unless such contractor, subcontractor,

10  or sub-subcontractor is licensed, if required to be licensed,

11  as a contractor pursuant to the laws of the jurisdiction

12  within which she or he is doing business.

13         Section 4.  Paragraphs (c) and (d) of subsection (3) of

14  section 489.113, Florida Statutes, are amended to read:

15         489.113  Qualifications for practice; restrictions.--

16         (3)  A contractor shall subcontract all electrical,

17  mechanical, plumbing, roofing, sheet metal, swimming pool, and

18  air-conditioning work, unless such contractor holds a state

19  certificate or registration in the respective trade category,

20  however:

21         (c)  A general contractor shall not be required to

22  subcontract structural swimming pool work. All other swimming

23  pool work shall be subcontracted to an appropriately licensed,

24  certified, or registered swimming pool contractor.

25         (d)  A general contractor, on new site development

26  work, site redevelopment work, mobile home parks, and

27  commercial properties, shall not be required to subcontract

28  the construction of a the main sanitary sewer collection

29  system, the storm collection system, or and the water

30  distribution system, not including the continuation of utility

31  lines from the mains to the buildings, and may perform any of

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1  the services, on public or private property, for which a

 2  license as an underground utility and excavation contractor is

 3  required under this part.

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

 5  489.117, Florida Statutes, is amended to read:

 6         489.117  Registration; specialty contractors.--

 7         (4)

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

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

10  may perform specialty contracting services for the

11  construction, remodeling, repair, or improvement of

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

13  the Florida Building Code, without obtaining a local

14  professional license if such person is under the supervision

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

16  contractor. As used in this paragraph, supervision does not

17  require the existence of a direct contract between the

18  certified or registered general, building, or residential

19  contractor and the person performing specialty contracting

20  services.

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

22  Florida Statutes, to read:

23         489.119  Business organizations; qualifying agents.--

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

25  contracting is not required to apply for or obtain

26  authorization under this part to engage in contracting if:

27         1.  The business organization employs one or more

28  registered or certified contractors licensed in accordance

29  with this part who are responsible for obtaining permits and

30  supervising all of the business organization's contracting

31  activities;

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1         2.  The business organization engages only in

 2  contracting on property owned by the business organization or

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

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

 5  the business organization is a wholly owned subsidiary,

 6  maintains a minimum net worth of $20 million.

 7         (b)  Any business organization engaging in contracting

 8  under this subsection shall provide the board with the name

 9  and license number of each registered or certified contractor

10  employed by the business organization to supervise its

11  contracting activities. The business organization is not

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

13  credit information except as necessary to demonstrate

14  compliance with paragraph (a).

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

16  business organization to supervise its contracting activities

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

18  otherwise evidence any personal financial or credit

19  information so long as the individual performs contracting

20  activities exclusively on behalf of a business organization

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

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

23  489.521, Florida Statutes, to read:

24         489.521  Business organizations; qualifying agents.--

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

26  contracting is not required to apply for or obtain

27  authorization under this part to engage in contracting, if:

28         1.  The business organization employs one or more

29  registered or certified contractors licensed in accordance

30  with this part who are responsible for obtaining permits and

31  

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1  supervising all of the business organization's contracting

 2  activities;

 3         2.  The business organization engages only in

 4  contracting on property owned by the business organization or

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

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

 7  the business organization is a wholly owned subsidiary,

 8  maintains a minimum net worth of $20 million.

 9         (b)  Any business organization engaging in contracting

10  under this subsection shall provide the board with the name

11  and license number of each registered or certified contractor

12  employed by the business organization to supervise its

13  contracting activities. The business organization is not

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

15  credit information except as necessary to demonstrate

16  compliance with paragraph (a).

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

18  business organization to supervise its contracting activities

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

20  otherwise evidence any personal financial or credit

21  information so long as the individual performs contracting

22  activities exclusively on behalf of a business organization

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

24         Section 8.  The sections of this act amending sections

25  489.128, 489.532, and 713.02, Florida Statutes, are intended

26  to be remedial in nature and to clarify existing law. The

27  amendments made by these sections of the act shall apply

28  retroactively to all actions, including any action on a lien

29  or bond claim, initiated on or after, or pending as of, the

30  effective date of this act. If the retroactivity of any

31  particular provision of these sections, or its retroactive

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1  application to any person or circumstance, is held invalid,

 2  this invalidity shall not affect the retroactive application

 3  of that particular provision to any other person or

 4  circumstance and shall not affect the retroactive application

 5  of any other provision in these sections of the act.

 6         Section 9.  Notwithstanding the section of this act

 7  providing for retroactive application of amendments to

 8  sections 489.128, 489.532, and 713.02, Florida Statutes, it is

 9  the intention of the Legislature that this act shall not apply

10  to Case No. CA 02-5113 AB, currently pending in the Circuit

11  Court in and for Palm Beach County, Florida, or any related

12  cause of action arising out of this case, or the underlying

13  facts of this case, now or in the future.

14         Section 10.  Subsection (20) is added to section

15  489.103, Florida Statutes, to read:

16         489.103  Exemptions.--This part does not apply to:

17         (20)  A person licensed under s. 633.061(1)(d) when

18  performing work authorized by such license.

19         Section 11.  If any provision of this act or its

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

21  invalidity does not affect other provisions or applications of

22  the act which can be given effect without the invalid

23  provision or application, and to this end the provisions of

24  this act are severable.

25         Section 12.  This act shall take effect upon becoming a

26  law.

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    Florida Senate - 2003                    CS for CS for SB 1382
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 1382

 3                                 

 4  The committee substitute for committee substitute:

 5  1)   adds a cross-reference alerting real property owners that
         they may have a defense to a lien on their property if
 6       the contractor is unlicensed;

 7  2)   clarifies that a general contractor may do structural
         pool work, but must subcontract all other types of pool
 8       work;

 9  3)   adds language which makes clear that a general contractor
         may perform all of the same services as an underground
10       utility contractor on public property;

11  4)   removes a section amending the lien law that may have
         inadvertently made a homeowner's property subject to a
12       subcontractor's lien for work the owner never authorized
         in its direct contract with the general contractor;
13  
    5)   clarifies that supervision by a general contractor of a
14       specialty contractor does not require a direct contract;

15  6)   exempts certain persons licensed under the fire
         prevention and control law from regulation under the
16       general contracting law; and

17  7)   provides an exemption from the provisions of the bill to
         a specific case in the Circuit Court of Palm Beach
18       County, Florida.

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