[RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

Mon Nov 14 13:44:04 PST 2011

So, if your case is in federal court. Lake Eola should protect your client. But, if its in state court...good luck!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301

Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471

fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com> | www.hklaw.com <http://www.hklaw.com/>
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From: Justin Zinzow [mailto:JZinzow at zinzowlaw.com]
Sent: Monday, November 14, 2011 04:31 PM
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org>
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

Thank you for all the responses.

For clarification, the organization did not have a certificate of authority and did not have any paperwork filed showing it had a qualifying agent.  However, like the contractor in Lake Eola Builders, the contractor did employ an individual who held the requisite license.

[cid:image007.jpg at 01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist

(727) 787-3121
Website<http://www.zinzowlaw.com/> | Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/>

35111 U.S. Highway 19 N. •  Suite 302 • Palm Harbor, FL 34684 • Fax (727) 787-3231
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Monday, November 14, 2011 3:03 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

All the recent amendment did was remove the language requiring a “Certificate of Authority,” which was never a document issued by DBPR anyway. However, the requirement for a qualifying agent is still there (and is so interpreted under all the state cases).

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley at hklaw.com<mailto:fred.dudley at hklaw.com> | www.hklaw.com<http://www.hklaw.com/>
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Tina Caraballo
Sent: Monday, November 14, 2011 2:46 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

I disagree with Fred.  Since the amendment that took effect in 2003, section 489.128(1)(a) provides that a business organization is unlicensed if it does not have a primary or secondary qualifying agent.  The Lake Eola case recognized that the legislature had directed the courts to look at whether an organization has a qualifying agent rather than whether it has the necessary paperwork to demonstrate this fact.  This is consistent with the Baker County Medical Services case as well as state court cases.  The Board of Trustees v. Morgan case focused its attention of whether the building professionals involved were licensed as did Promontory and Martin Daytona Corp.  In those cases the organization actually had the properly licensed individuals, just not the paperwork.  This is consistent with the overall statutory scheme as the failure to apply for registration or certification as a qualifying agent of a business organization under section 489.119, Florida Statutes, does not make the contract unenforceable.  Section 489.105 defines a qualifying agent and that is where the focus properly lies – in other words does the organization have the person with the required license and qualifications.

While there are no reported decisions following the 2009 amendment that reflects the abolition of the certificate of authority, the old cases are still valid and binding as they also interpreted subsection (a), which remains in the current version of the statute.  The reasoning and holdings cannot be rejected simply because the certificate of authority is no longer required.  I submit to you the decision in each of those cases would have been different if the organization did not actually have the required licensed contractor.

Tina L. Caraballo
Attorney-at-Law
Florida Bar Board Certified in Construction Law
Hayes & Caraballo, P.L.
830 Lucerne Terrace
Orlando, Florida 32801
T: 407-649-9974 x215
C: 407-716-4835
F: 407-649-9379
tcaraballo at const-law.com

________________________________
From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

The federal cases (like Lake Eola, Baker County, etc) are at odds with the state cases (in which the contracting entity MUST have an approved QA).

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301

Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471

fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com> | www.hklaw.com <http://www.hklaw.com/>
--------------------------
Sent from my BlackBerry Wireless Handheld

From: Justin Zinzow [mailto:JZinzow at zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org>
Subject: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to have a certificate of authority

Committee members:  Please pardon the interruption.  I have the following question:  If a contractor business organization did not have a certificate of authority at the time of contract, does the 489.128 penalty apply?

I am aware of the 2006 Lake Eola Builders decision saying the penalty does not apply, but one of the primary bases of that holding was eliminated from the statute in 2009 (deletion of the savings clause indicating that failure to hold a certificate of authority did not deem the contractor unlicensed if a licensed individual applied for such a certificate).

Does anyone have any knowledge as to why the legislature made this amendment in 2009?

[cid:image012.jpg at 01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist

(727) 787-3121
Website<http://www.zinzowlaw.com/> | Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/>

35111 U.S. Highway 19 N. •  Suite 302 • Palm Harbor, FL 34684 • Fax (727) 787-3231
[cid:image013.gif at 01CCA2EA.ED1D7740]            [cid:image014.jpg at 01CCA2EA.ED1D7740]          [cid:image015.gif at 01CCA2EA.ED1D7740]      [cid:image016.gif at 01CCA2EA.ED1D7740]
NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender.  Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.

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