[CLC-Discussion] Site Contractor Licensing Question
Fred Dudley
dudley at mylicenselaw.com
Tue Dec 22 12:52:54 PST 2015
I know, right???
Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com
From: Bruce Partington [mailto:bparting at cphlaw.com]
Sent: Tuesday, December 22, 2015 3:45 PM
To: Fred Dudley <dudley at mylicenselaw.com>; Reese J. Henderson, Jr. <Reese.Henderson at gray-robinson.com>; Gibbons, Michael <Michael.Gibbons at lowndes-law.com>; 'Roberts, Hardy L.' <HRoberts at cfjblaw.com>; 'Barry Kalmanson' <bkpa1 at aol.com>; JVento at trenam.com; rsutton at raileyharding.com; clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Site Contractor Licensing Question
I don’t know whether its conservative or not but I’m just happy that the legislature’s actions (or omissions, or failures to act at all) result in plenty of work for folks like us.
Of course, it was all fine until Fred left the legislature and Hardy left DBPR, then it all fell apart.
Bruce D. Partington
Clark, Partington, Hart, Larry
Bond & Stackhouse
bpartington at cphlaw.com<mailto:bpartington at cphlaw.com>
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
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 Fred Dudley
Sent: Tuesday, December 22, 2015 2:05 PM
To: Reese J. Henderson, Jr. <Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>>; Gibbons, Michael <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>>; 'Roberts, Hardy L.' <HRoberts at cfjblaw.com<mailto:HRoberts at cfjblaw.com>>; 'Barry Kalmanson' <bkpa1 at aol.com<mailto:bkpa1 at aol.com>>; JVento at trenam.com<mailto:JVento at trenam.com>; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
Reese: I don’t disagree, but most of us are conservative enough to give thanks throughout the year for not getting all that “gov-mint” we pay for!
Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.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 Reese J. Henderson, Jr.
Sent: Tuesday, December 22, 2015 2:47 PM
To: Gibbons, Michael <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>>; 'Roberts, Hardy L.' <HRoberts at cfjblaw.com<mailto:HRoberts at cfjblaw.com>>; 'Barry Kalmanson' <bkpa1 at aol.com<mailto:bkpa1 at aol.com>>; JVento at trenam.com<mailto:JVento at trenam.com>; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
Mike, I think you have to break it down into its several parts – clearing, grubbing and grading. For clearing, isn’t that basically just cutting down trees? Is DBPR going to take the position (or would a court of law) that logging requires a contractor’s license? I don’t think so. I think you could make the same case for grubbing, as something incidental to logging activities, but that’s probably a closer call. Grading is where I think you would most likely have a problem, because how a site is graded can affect adjoining properties (storm water runoff, for example), which probably is something the state intended to regulate. Anything beyond that (like installing underground utilities) very obviously requires a contractor’s license, in my opinion, with the only question being which license is required, given the project (CGC vs. CBC vs. CRC, etc.)
I have always felt Chapter 489 is poorly worded at best, with licensing categories being worded from the standpoint of what contractor X can do, and not from the standpoint of providing a list of activities which require a contractor’s license, and THEN defining which contractor can do what activity. My guess is that’s because the legislature could not reach agreement on such a list. But the net result is that Chapter 489 is chock full of ambiguities on seemingly dozens of activities which arguably could be subject to licensure. This leaves the CILB in the position of having to guess the legislature’s intent whenever they get a request for declaratory statement to “clarify” where the line is drawn. If Chapter 489 regulated free speech, the Supreme Court would surely strike it down as void for vagueness.
(And before you ask – no, I’m not interested in attempting a legislative fix of this. ☺)
Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
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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 Gibbons, Michael
Sent: Tuesday, December 22, 2015 2:13 PM
To: 'Roberts, Hardy L.'; 'Barry Kalmanson'; JVento at trenam.com<mailto:JVento at trenam.com>; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
Thanks Hardy. You provide a creative and nuanced argument for non-licensure but I am not convinced the argument can be squared with the plain terms of the statute cited earlier. I assign little to no weight to the opinion of the DBPR Call Center rep who fielded the call. Years ago, when the CILB in Jax was responding directly to such calls, there was a voice or two in that office who was fairly authoritative and knowledgeable and whose opinion on licensure carried weight. That is not the case with the Call Center operators in Tallahassee.
I continue to believe that if it was important enough for the Legislature to say that CGC’s and underground contractors may perform site work on any site in the State while CBCs and CRCs are limited to lots where a building is located, then that cannot mean that anyone (without regard to state licensure) including a CBC and CRC can contract for site improvements on all sites in the State including on lots where there is no building.
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>
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From: Roberts, Hardy L. [mailto:HRoberts at cfjblaw.com]
Sent: Tuesday, December 22, 2015 1:53 PM
To: Gibbons, Michael; 'Barry Kalmanson'; JVento at trenam.com<mailto:JVento at trenam.com>; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: RE: [CLC-Discussion] Site Contractor Licensing Question
I think the definition of “contracting,” which turns on the definition of “contractor,” supports the informal no license required response Bo received.
If the work is not related to a building or structure, then I think it’s hard to say that state licensure (i.e. a license under Chapter 489) is required. Chapter 489 requires construction licenses for work that includes related improvements to real estate:
489.105(3) “Contractor” means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection. . . . .
489.105(6) (6) “Contracting” means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. . . .
If the real estate improvements relate to contractor work that would otherwise require a license, then I think the appropriate CGC, CBC, CRC or certified underground utility and excavation license would be required.
Perhaps a way to reconcile the Section 489.113(3)(a) language is to look at that language in light of potential local licensure requirements. Hence, if you had the state license, the Section 489.113(3)(a) language suggests state law preempts additional local licensing requirements. For example, CGCs or certified underground utility and excavation contractors could do site work regardless of whether it is related to a building and regardless of local requirements because the statute says “any construction project.” On the other hand, CBCs and CRC’s could only be exempt from local requirements with respect to the lot where the building is located. Under that reading, no state license is required for CBCs or CRCs to do unrelated site work, but they would still need to meet local license requirements.
Hardy
[Carlton Fields Jorden Burt, P.A.]
Hardy L. Roberts
Shareholder
Direct: 813.229.4105 | Cell: 813.966.9511
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 Gibbons, Michael
Sent: Tuesday, December 22, 2015 12:51 PM
To: 'Barry Kalmanson'; JVento at trenam.com<mailto:JVento at trenam.com>; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
Thanks Barry. Regrettably, the 2015 language does not resolve the question when the Div. 1 contractor is only licensed as a CBC or CRC. The statute says “provided the work is within the scope of the supervising contractor’s license”, then the unlicensed contractor may perform the construction work (in this case site work). But that language doesn’t address the basic question, which is may a CBC or CRC license holder perform clearing, grubbing and earthwork on a lot on which a building Is NOT located?
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>
[cid:image001.jpg at 01D13CD0.CEB99CF0]
From: Barry Kalmanson [mailto:bkpa1 at aol.com]
Sent: Tuesday, December 22, 2015 12:44 PM
To: JVento at trenam.com<mailto:JVento at trenam.com>; Gibbons, Michael; rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
You may want to look at the recent change to Section 489.113(2) Florida Statutes. If the scope of work is being performed by a subcontractor for a licensed Division 1 contractor a license is NOT required.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
-----Original Message-----
From: John S. Vento <JVento at trenam.com<mailto:JVento at trenam.com>>
To: 'Gibbons, Michael' <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>>; 'Rouselle \Bo\. Sutton III' <rsutton at raileyharding.com<mailto:rsutton at raileyharding.com>>; 'clc-discussion at lists.flabarrpptl.org' <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Sent: Tue, Dec 22, 2015 12:22 pm
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
I agree with Mike. The language in the statute would be otherwise superfluous.
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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<mailto:clc-discussion-bounces at lists.flabarrpptl.org?>] On Behalf Of Gibbons, Michael
Sent: Tuesday, December 22, 2015 11:52 AM
To: 'Rouselle "Bo". Sutton III'; 'clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>'
Subject: Re: [CLC-Discussion] Site Contractor Licensing Question
This is an interesting area of the state’s licensure law that has always raised questions for me as well. The fact that Fla. Stat. s. 489.113 (3)(a) expressly limits a CBC and CRC license holder to performing site work “limited to the lot on which any specific building is located” has always suggested to me that a state license is required to perform clearing, grubbing, grading and other site work else why the express limitation on the rights of the building and residential contractor? If no licensure at all from the state was required for these site work activities, then there would be no need for the Legislature to add an express limitation on the rights of certified contractors.
I have not litigated this issue to conclusion and don’t have any caselaw authority. It would be a good issue to pose in the form of a question to DBPR for formal resolution but I have not done so.
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-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 Rouselle "Bo". Sutton III
Sent: Tuesday, December 22, 2015 11:10 AM
To: 'clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>'
Subject: [CLC-Discussion] Site Contractor Licensing Question
I have a question about site work and licensure. Does clearing, grubbing and grading require a specific license? I see that a general contractor and underground utility contractor may perform this work (see statute below), but 489 is not clear whether such a license is required. I have spoken with DBPR, and they gave the unofficial opinion no license is required for clearing, grubbing, grading, importing fill, spreading fill, etc. Does anyone have official experience with this?
489.113 (3)(a) states: “A general, building, or residential contractor, except as otherwise provided in this part, shall be responsible for any construction or alteration of a structural component of a building or structure, and any certified general contractor or certified underground utility and excavation contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in the state. Any certified building contractor or certified residential contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in this state, limited to the lot on which any specific building is located.”
Rouselle "Bo" Sutton, III
Board Certified, Construction Law
Railey Harding + Allen | PA
ATTORNEYS AT LAW
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