[CLC-Discussion] License Question

Thu Mar 2 05:54:01 PST 2023

    Here are some initial thoughts to kick off discussion on the always fun ch. 489 licensure questions:

  1.  It is not clear where the asphalt, curb and drain work is taking place. Assuming this scope is being performed as part of street or road construction, there would be no ch. 489 licensure issue due to the exemption from Part 1 of ch. 489 found at Fla. Stat. s. 489.103(1).

  1.  Assuming the work is taking place in a parking lot or location other than a road or street, it gets interesting:

  1.  Starting with the definitions found at  Fla. Stat. s. 489.105, work on asphalt and curbs does not appear to expressly fall within any of the listed licensure descriptions applicable to Division II contractors under s. 489.105(3)(d)-(o).  Assuming the reference to "drains" refers to stormwater drains, the work on drains appears to fall within the "storm sewer collection system" scope of work applicable to an underground utility and excavation contractor at Fla. Stat. s. 489.105(3)(n).

  1.  After working through the statutory definitions, the next relevant portion of ch. 489 appears to be Fla. Stat. s. 489.113.  Under Fla. Stat. s. 489.113(2), an unlicensed subcontractor may work under the supervision of a licensed contractor under the following conditions: (i) the work is within the scope of the supervising contractor's license, (ii) the supervising contractor is responsible for the work, and (iii) the unlicensed subcontractor being supervised is not performing work for which a contractor must be licensed as a Division II contractor under s. 489.105(3)(d)-(o).

  1.  Under Fla. Stat. s. 489.113(3)(d), a CGC may perform any of the services for which a license as an underground utility and excavation contractor is required.  Accordingly, romanette (i) above is satisfied.  Satisfying romanette (ii) above should not be a heavy lift assuming the CGC is on the site permit and is contracted to the Owner.  The analysis of romanette (iii) above is tricky.  On the one hand, stormwater collection system work such as storm drains appears to fall within the licensure scope of an underground utility contractor pursuant to 489.105(3)(n).  On the other hand, stormwater collection system work may expressly be performed by a CGC and is not restricted to the Division II underground utility license.  It comes down to whether work on drains and stormwater collection systems is work "that would require a license as a contractor under any of the categories listed in s. 489.105(3)(d)-(o)".   Since a CGC may lawfully perform such work, I would argue that drain work does not require a license under s. 489.105(3)(n) and accordingly romanette (iii) above is satisfied.  This interpretation is bolstered by the text of s. 489.113(3) which lists various Division II scopes of work that a CGC must subcontract to a properly licensed Division II subcontractor.  Missing from the list is the s. 489.105(3)(n) underground utility and excavation contractor scope.

  1.  In sum, I believe there is a credible argument that an unlicensed sub working under a CGC may perform the asphalt, curb and drain scopes under the supervision of the CGC without violating ch. 489.

Michael Gibbons
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
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Subject: [CLC-Discussion] License Question

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Evening all.  I have a license question.  If a sub, let's say an unlicensed underground contractor doing curbs, drains, and asphalt, signs a subcontract with a licensed GC.  Is that sub automatically "covered" by the GC's license such that it does not need its own license to perform that work?  If so, or if not, can someone point me to the statute, rule or regulation that requires that sub to have its own license?  Thank you.

Regards,

Alex Barthet
Board Certified in Construction Law
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