[CLC-Discussion] Unlicensed Contracting Liability

Tue Sep 16 09:25:29 PDT 2014

Whether the roofing work performed by this CBC is "unlicensed" or "beyond
the scope of its license" is a distinction without difference.  It either
had a license to perform the work or it did not.  

Thus the question is whether or not removing and reinstalling soffit, fascia
and drip edge on a pre-existing building constructed by someone else is
something the CBC license allows.  If it is, then there is no violation.  If
that work can only be performed by a licensed roofing contractor, and the
CBC did not also possess such license, then it seems the CBC is in violation
of Chapter 489.  

The definition of CBC in s.489.105(3)(b) does not help to answer the
question, but the definition of a "roofing contractor" might.  "'Roofing
contractor' means a contractor whose services are unlimited in the roofing
trade and who has the experience, knowledge, and skill to install, maintain,
repair, alter, extend, or design, if not prohibited by law, and use
materials and items used in the installation, maintenance, extension, and
alteration of all kinds of roofing, waterproofing, and coating, except when
coating is not represented to protect, repair, waterproof, stop leaks, or
extend the life of the roof. The scope of work of a roofing contractor also
includes skylights and any related work, required roof-deck attachments, and
any repair or replacement of wood roof sheathing or fascia as needed during
roof repair or replacement and any related work.

Note also:  s.489.113 identifies the qualifications and restrictions on the
license holders, to wit:  s.489.113(3)(b) states, "A general, building, or
residential contractor shall not be required to subcontract the
installation, or repair made under warranty, of wood shingles, wood shakes,
or asphalt or fiberglass shingle roofing materials on a new building of his
or her own construction."  The section is silent on the installation of
soffit, fascia and drip edge, but it is limited to new buildings of the
contractor's own construction.  Furthermore, s.489.113(3)(g) states, "No
general, building, or residential contractor certified after 1973 shall act
as, hold himself or herself out to be, or advertise himself or herself to be
a roofing contractor unless he or she is certified or registered as a
roofing contractor."  It appears that s.489.113(9)(a) contemplates that the
CBC, is in the role of "prime contractor," and should have subcontracted the
work out to a roofing contractor. ("This part does not prevent any
contractor from acting as a prime contractor where the majority of the work
to be performed under the contract is within the scope of his or her license
or from subcontracting to other licensed contractors that remaining work
which is part of the project contracted."

Thus, from a straight reading in the statutes, it appears that the CBC
probably needed a licensed roofer to perform the installation of soffit,
fascia and drip edge on the pre-existing building constructed by someone
else.  Because the CBC did not have a licensed roofer perform that work, it
is probably in violation of s.489.127(1)(f), and subject to the penalties
thereunder, including s.489.127(2), and s.489.128.  Furthermore, if the
CBC's licensing violation rises to the level of "negligence, malfeasance, or
misfeasance," then the damages under s.768.0425 would apply.

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

Dave at NPW-Law.com     

Niesen|Price|Worthy|Campo
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031   Fax (352) 373-9099

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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Tuesday, September 16, 2014 10:29 AM
To: 'Sean A. Mickley'; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Unlicensed Contracting Liability

The Construction Industry Licensing Board treats such things as contracting
beyond the scope of the license (see attached contractor fine schedule under
the FAC) and not unlicensed contracting, so I would think it would be
difficult to argue that performing work beyond the scope of a license was
unlicensed contracting.  You should, however, file a complaint with DBPR.

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar           
Hernicz Legal Services, P.L.
15854 Bent Creek Road 
Wellington, FL 33414 
Telephone: (561) 753-7511 
Facsimile: (561) 753-7082 
Chernicz at HerniczLegal.com

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Sean A.
Mickley
Sent: Tuesday, September 16, 2014 9:23 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability

All,

I have a case where a Certified Building Contractor (CBC) was hired to
remove old siding on 8 condominium buildings and replace it with hardi plank
siding. The CBC is not a registered or certified roofing contractor and it
did not subcontract with a licensed roofing contractor to perform roofing
work. As a part of the CBC's scope of work, it was required to remove the
soffit, fascia and drip edges on all buildings in order to remove and
install siding. As I understand it, drip edges are a waterproofing component
of the roofing system and require a licensed roofing contractor to perform
removal and install of drip edges and adhering shingles to the drip edge.
After the project was complete, the condominium buildings began to have
severe leaks at the rakes and eaves where the drip edges were removed and
replaced. Through an investigation it was found that the siding contractor
failed to adhere the shingles to the drip edges leaving the roofing system
susceptible to wind driven rain and roof leaks. 

My question is: under 768.0425, Fla. Stat., any contractor (as that term is
defined in 489) that performs work and was unlicensed at the time of
performing said work is liable for triple damages and attorney fees and
costs. Does this mean that even though a CBC is licensed that the work
performed on the drip edges, rakes and eaves constituted unlicensed
contracting because it did not have a roof contractor's license?

I don't want to amend my complaint to allege unlicensed contracting
liability and serve discovery concerning same without checking with the
great legal minds on this listserv.

Any input would be great!

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Sean A. Mickley, Esq.

Gould Cooksey Fennell

979 Beachland Boulevard

Vero Beach, FL 32963

Telephone  772-231-1100      Fax 772-231-2020

smickley at gouldcooksey.com

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