[CLC-Discussion] License Question

Thu Mar 2 12:41:02 PST 2023

Many petitioners don’t understand the reason for the petition which is why the CILB denies them routinely.  Reasons for the denials are these:

  1.  Procedural defects with Petition
  2.  Petition is vague
  3.  Petition is answered in the statute
  4.  Petition requires action on the conduct of a third party
  5.  Petitioner lacks standing
  6.  Petition deals with pending litigation.
  7.  Petition deals with past conduct and not future conduct

The concern with the North Carolina Dental case and antitrust issues come from the fact that these boards are made up of people who are working in the industry and regulating it at the same time.   Rule Change and Declaratory Statements were the two instances that could affect the industry in that regard.  I remember the serious shock wave that went over all Florida professional boards during that time.  Dylan Rivers, a member of the Architects board, wrote a Bar Journal article on the case if you are interested in that.  It was rather tumultuous time for professional boards.

The federal government was investigating all state boards for possible issues.  That is partly why you have seen a trend of loosening the collar on the construction regulation in Florida.  i.e. acceptance of the NASCLA test, state reciprocity, and the Occupational Freedom and Opportunity Act of 2020.

Christopher M. Cobb
Managing Partner
Board Certified in Construction Law
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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
Sent: Thursday, March 2, 2023 1:48 PM
To: clc-discussion at lists.flabarrpptl.org
Cc: 14f1fe0e681e47009f01447edae921ab at lawmail.cosmolex.com
Subject: Re: [CLC-Discussion] License Question

I haven’t read that the CILB won’t issue statements. It’s a statutory function, so I think if the petition is proper, the statement has to be issued. The CILB website doesn’t mention anything about not issuing statements.

Diane S. Perera, Esq.
Board Certified in Construction Law
Law Office of Diane S. Perera, P.A.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, March 2, 2023 1:28 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] License Question

I may be mistaken but I thought I read recently that going forward the CILB had decided it was no longer going to issue the Declaratory Statements.

Michael Gibbons
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, March 2, 2023 1:18 PM
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Subject: Re: [CLC-Discussion] License Question

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Are you all finding that the CILB is willing to issue such declaratory statements or do they usually decline? I thought it was difficult to get them issue such decisions.

Kind regards,
Hardy

Hardy L. Roberts
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> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, March 2, 2023 10:58 AM
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Cc: 14f1fe0e681e47009f01447edae921ab at lawmail.cosmolex.com<mailto:14f1fe0e681e47009f01447edae921ab at lawmail.cosmolex.com>
Subject: Re: [CLC-Discussion] License Question

I agree with Michael, but if the GC wants to be cautious and time permits, he/she can petition the CILB for a Declaratory Statement and obtain a response that is binding within the scope of his inquiry.

Diane S. Perera, Esq.
Board Certified in Construction Law
Law Office of Diane S. Perera, P.A.
12150 SW 128 Ct., Suite 114
Miami, FL 33186
Office:  305-252-1388
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, March 2, 2023 8:54 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] License Question

    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
Shareholder
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, March 1, 2023 10:58 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] License Question

CAUTION: THIS IS AN EXTERNAL EMAIL

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
TheLienZone Construction Law Blog<https://urldefense.proofpoint.com/v2/url?u=https-3A__protect-2Dus.mimecast.com_s_JhCZCpYXZqHzk7k5s2LAKq_&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=TVLt0s_dvJ5jHgINL0whCuPJOhypoG92PIxTWeheaRU&m=IRfcWT64lWK00-jD8wxasl2sAkA8BChYA6GvbM2fwLo&s=NAXSUPLPjBddwYVE-He6c28IeRpN5eYxGd8Wa4dGhUk&e=>
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