[CLC-Discussion] Local Licensing

Mon Mar 10 12:46:28 PDT 2014

Michael:

To throw some more salt your client’s way; you say:  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company. 

If the qualifier-sister “does not work for the company,” then your client seems to be running afoul of:

Section 489.119(1)(b)(1):  “to qualify a business organization must include an affidavit on a form provided by the board attesting that the applicant has final approval authority for all construction work performed by the business organization and that the applicant has final approval authority on all business matters, including contracts, specifications, checks, drafts, or payments, regardless of the form of payment, made by the business organization, except where a financially responsible officer is approved.”

Section 489.1195(1)(a):  “All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.”

Section 489.129(d):  “Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.”

Section 489.129(e):  “Knowingly combining or conspiring with an uncertified or unregistered person by allowing his or her certificate or registration to be used by the uncertified or unregistered person with intent to evade the provisions of this part. When a certificateholder or registrant allows his or her certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.”

And various provisions in Section 489.127. 

Of course, then Section 489.128 regarding the unenforceability of any contracts would follow.

I’m just say’n!

David L. Worthy, Esq.
Florida Bar Board Certified - Construction Law

Dave at NPW-Law.com     

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5216 SW 91st Drive  Gainesville, FL 32608
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 2:50 PM
To: 'White, Patrick G.'; 'Brian Solomon'; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

Thanks for the statutory cites Patrick.  However, I’m not sure that resolves the issue.  Ch. 489 simply requires the licensed contractor to comply with the WC insurance requirements of Ch. 440.  Ch. 440 meanwhile expressly permits certain principal owned companies to be WC exempt and I am unaware of a provision that eliminates GC’s from taking advantage of this statutory exemption (which seems wrong and was basis for my original post).  Based on the fact that I have encountered several licensed GC’s without WC coverage, I am assuming that DBPR does not require WC coverage as a condition of licensure.  Apparently, DBPR only requires the contractor to comply with Ch. 440 which then allows the very small closely owned contractor to exempt itself from coverage.

Michael R. Gibbons  ( <http://lowndes-law.com/our-people/michael-r-gibbons> Bio)

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 N. Eola Drive

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email:  <mailto:michael.gibbons at lowndes-law.com> michael.gibbons at lowndes-law.com

website:  <http://www.lowndes-law.com/> http://www.lowndes-law.com

From: White, Patrick G. [mailto:PWhite at porterwright.com] 
Sent: Monday, March 10, 2014 2:17 PM
To: Gibbons, Michael; 'Brian Solomon'; clc-discussion at lists.flabarrpptl.org
Subject: RE: Local Licensing

Sounds like Pasco County has it almost right in that they wouldn’t be able to issue a BP, see Secs. 489.113 (4)(c)  489.114, so why grant the license! They wouldn’t here in Collier either-

(c) The local government may also deny issuance of, or may suspend, any outstanding building permit where a contractor fails or refuses to provide proof of public liability and property damage insurance coverage as required by s. 489.115(5) and workers’ compensation insurance coverage as required by s. 489.114

Patrick G. White |  <http://www.porterwright.com/patrick_white/> Bio |  <http://www.porterwright.com> Porter Wright Morris & Arthur LLP | 9132 Strada Place, 3rd Floor | Naples, FL 34108 

Direct: 239-593-2963 | Mobile: 239-784-5173 | Fax: 239-593-2990 | Toll Free: 800-876-7962 | pwhite at porterwright.com

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 1:28 PM
To: 'Brian Solomon'; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I have not.  And sorry for hijacking your post, Brian, but I have occasionally run into the WC exempt GC and it always seemed wrong to me.  The GC is supposed to be the “statutory employer” under Ch. 440 if, as happens, an injured subcontractor employee is not covered by the workers compensation policy of the subcontractor employer.  When the GC itself is exempt, that safety net is lost.  It’s been a while since I read the CILB FAC governing licensing requirements but it used to mandate a minimum amount of GL insurance coverage and compliance with workers compensation insurance coverage requirements.  I realize that some GC entities are small enough to qualify as WC exempt but I’m surprised that neither Ch. 440 nor FAC apparently expressly prohibits a General Contractor from operating without workers compensation coverage.

Michael R. Gibbons  ( <http://lowndes-law.com/our-people/michael-r-gibbons> Bio)

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 N. Eola Drive

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email:  <mailto:michael.gibbons at lowndes-law.com> michael.gibbons at lowndes-law.com

website:  <http://www.lowndes-law.com/> http://www.lowndes-law.com

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Brian Solomon
Sent: Monday, March 10, 2014 12:51 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Local Licensing

My client is a single member LLC with a certificate of workers compensation insurance exemption.  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company.  Pasco County is refusing to give my client a county license because the qualifier doesn’t have proof of workers compensation insurance.

Has anyone run into this situation?

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