[CLC-Discussion] Unlicensed Contracting Liability

Tue Sep 16 09:28:14 PDT 2014

Wow! Great analysis and insight. I truly appreciate it. I hope to be of some help to you in the future.

Many thanks,

Sean A. Mickley, Esq.
Gould Cooksey Fennell, P.A.
979 Beachland Blvd.
Vero Beach, FL 32963
772-231-1100

On Sep 16, 2014, at 12:21 PM, "Dave Worthy" <dave at npw-law.com<mailto:dave at npw-law.com>> wrote:

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<mailto:Dave at NPW-Law.com>

Niesen|Price|Worthy|Campo
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031   Fax (352) 373-9099
http://NPW-Law.com<http://npw-law.com/>

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto: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<mailto: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> [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<mailto: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!

<image005.jpg>

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<mailto:smickley at gouldcooksey.com>

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