HB 1277, Engrossed 1 2003
1	A bill to be entitled
2	An act relating to contracting; amending ss. 489.128 and
3	489.532, F.S.; clarifying that the prohibition on
4	enforcement of construction contracts extends only to
5	enforcement by the unlicensed contractor; clarifying the
6	specific licensure status required and timing of
7	licensure for purposes of determining the enforceability
8	of a construction contract; clarifying the effect of an
9	unenforceable contract on other contracts and
10	obligations; clarifying that unlicensed contractors have
11	no lien or bond rights; clarifying that sureties of
12	unlicensed contractors have continuing bond obligations;
13	amending s. 713.02, F.S., relating to liens for
14	unlicensed contractors, subcontractors, or sub-
15	subcontractors, to conform; amending s. 489.113, F.S.;
16	requiring certain swimming pool work to be subcontracted;
17	revising provisions for the scope of work that a licensed
18	general contractor may perform; amending s. 489.117,
19	F.S.; specifying conditions under which a person may
20	perform specialty contracting services without obtaining
21	a local professional license; amending ss. 489.119 and
22	489.521, F.S.; revising license requirements for certain
23	business organizations engaging in contracting; providing
24	for retroactive application; providing legislative
25	intent; providing severability; providing an effective
26	date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1. Section 489.128, Florida Statutes, is amended
31	to read:
32	489.128 Contracts entered intoperformedby unlicensed
33	contractors unenforceable.--
34	(1)As a matter of public policy, contracts entered into
35	on or after October 1, 1990, and performed in full or in part by
36	an unlicensedany contractor who fails to obtain or maintain a
37	license in accordance with this partshall be unenforceable in
38	law or in equity by the unlicensed contractor.
39	(a) For purposes of this section, an individual is
40	unlicensed if the individual does not have a license required by
41	this part concerning the scope of the work to be performed under
42	the contract. A business organization is unlicensed if the
43	business organization does not have a primary or secondary
44	qualifying agent in accordance with this part concerning the
45	scope of the work to be performed under the contract.
46	(b) For purposes of this section, an individual or
47	business organization shall not be considered unlicensed for
48	failing to have an occupational license certificate issued under
49	the authority of chapter 205. A business organization shall not
50	be considered unlicensed for failing to have a certificate of
51	authority as required by ss. 489.119 and 489.127.
52	(c) For purposes of this section, a contractor shall be
53	considered unlicensed only if the contractor was unlicensed on
54	the effective date of the original contract for the work, if
55	stated therein, or, if not stated, the date the last party to
56	the contract executed it, if stated therein. If the contract
57	does not establish such a date, the contractor shall be
58	considered unlicensed only if the contractor was unlicensed on
59	the first date upon which the contractor provided labor,
60	services, or materials under the contract.
61	(2) Notwithstanding any other provision of law to the
62	contrary, if a contract is rendered unenforceable under this
63	section, no lien or bond claim shall exist in favor of the
64	unlicensed contractor for any labor, services, or materials
65	provided under the contract or any amendment thereto.
66	(3) This section shall not affect the rights of parties
67	other than the unlicensed contractor to enforce contract, lien,
68	or bond remedies. This section shall not affect the obligations
69	of a surety that has provided a bond on behalf of an unlicensed
70	contractor. It shall not be a defense to any claim on a bond or
71	indemnity agreement that the principal or indemnitor is
72	unlicensed for purposes of this section.
73	Section 2. Section 489.532, Florida Statutes, is amended
74	to read:
75	489.532 Contracts entered intoperformedby unlicensed
76	contractors unenforceable.--
77	(1)As a matter of public policy, contracts entered into
78	on or after October 1, 1990, and performed in full or in part by
79	an unlicensedany contractor who fails to obtain or maintain his
80	or her license in accordance with this partshall be
81	unenforceable in law or in equity by the unlicensed contractor,
82	and the court in its discretion may extend this provision to
83	equitable remedies.
84	(a) For purposes of this section, an individual is
85	unlicensed if the individual does not have a license required by
86	this part concerning the scope of the work to be performed under
87	the contract. A business organization is unlicensed if the
88	business organization does not have a primary or secondary
89	qualifying agent in accordance with this part concerning the
90	scope of the work to be performed under the contract.
91	(b) For purposes of this section, an individual or
92	business organization shall not be considered unlicensed for
93	failing to have an occupational license certificate issued under
94	the authority of chapter 205.
95	(c) For purposes of this section, a contractor shall be
96	considered unlicensed only if the contractor was unlicensed on
97	the effective date of the original contract for the work, if
98	stated therein, or, if not stated, the date the last party to
99	the contract executed it, if stated therein. If the contract
100	does not establish such a date, the contractor shall be
101	considered unlicensed only if the contractor was unlicensed on
102	the first date upon which the contractor provided labor,
103	services, or materials under the contract.
104	(2) Notwithstanding any other provision of law to the
105	contrary, if a contract is rendered unenforceable under this
106	section, no lien or bond claim shall exist in favor of the
107	unlicensed contractor for any labor, services, or materials
108	provided under the contract or any amendment thereto.
109	(3) This section shall not affect the rights of parties
110	other than the unlicensed contractor to enforce contract, lien,
111	or bond remedies. This section shall not affect the obligations
112	of a surety that has provided a bond on behalf of an unlicensed
113	contractor. It shall not be a defense to any claim on a bond or
114	indemnity agreement that the principal or indemnitor is
115	unlicensed for purposes of this section.
116	Section 3. Subsection (7) of section 713.02, Florida
117	Statutes, is amended to read:
118	713.02 Types of lienors and exemptions.--
119	(7) Notwithstanding any other provision of this part, no
120	lien shall exist in favor of any contractor, subcontractor, or
121	sub-subcontractor who is unlicensed as provided in s. 489.128 or
122	s. 489.532unless such contractor, subcontractor, or sub-
123	subcontractor is licensed, if required to be licensed, as a
124	contractor pursuant to the laws of the jurisdiction within which
125	she or he is doing business.
126	Section 4. Paragraphs (c) and (d) of subsection (3) of
127	section 489.113, Florida Statutes, are amended to read:
128	489.113 Qualifications for practice; restrictions.--
129	(3) A contractor shall subcontract all electrical,
130	mechanical, plumbing, roofing, sheet metal, swimming pool, and
131	air-conditioning work, unless such contractor holds a state
132	certificate or registration in the respective trade category,
133	however:
134	(c) A general contractor shall not be required to
135	subcontract structural swimming pool work. All other swimming
136	pool work shall be subcontracted to an appropriately licensed
137	certified or registered swimming pool contractor.
138	(d) A general contractor, on new site development work,
139	site redevelopment work, mobile home parks, and commercial
140	properties,shall not be required to subcontract the
141	construction of athe main sanitary sewer collection system, the
142	storm collection system, orand thewater distribution system,
143	not including the continuation of utility lines from the mains
144	to the buildings, and may perform any of the services, on public
145	or private property, for which a license as an underground
146	utility and excavation contractor is required under this part.
147	Section 5. Paragraph (e) of subsection (4) of section
148	489.117, Florida Statutes, is amended to read:
149	489.117 Registration; specialty contractors.--
150	(4)
151	(e) Any person who is not required to obtain registration
152	or certification pursuant to s. 489.105(3)(d)-(o) may perform
153	specialty contracting services for the construction, remodeling,
154	repair, or improvement of single-family residences, including a
155	townhouse as defined in the Florida Building Code,without
156	obtaining a local professional license if such person is under
157	the supervision of a certified or registered general, building,
158	or residential contractor. As used in this paragraph,
159	supervision shall not be deemed to require the existence of a
160	direct contract between the certified or registered general,
161	building, or residential contractor and the person performing
162	specialty contracting services.
163	Section 6. Subsection (8) is added to section 489.119,
164	Florida Statutes, to read:
165	489.119 Business organizations; qualifying agents.--
166	(8)(a) A business organization proposing to engage in
167	contracting is not required to apply for or obtain authorization
168	under this part to engage in contracting if:
169	1. The business organization employs one or more
170	registered or certified contractors licensed in accordance with
171	this part who are responsible for obtaining permits and
172	supervising all of the business organization's contracting
173	activities;
174	2. The business organization engages only in contracting
175	on property owned by the business organization or by its parent,
176	subsidiary, or affiliated entities; and
177	3. The business organization, or its parent entity if the
178	business organization is a wholly owned subsidiary, maintains a
179	minimum net worth of $20 million.
180	(b) Any business organization engaging in contracting
181	under this subsection shall provide the board with the name and
182	license number of each registered or certified contractor
183	employed by the business organization to supervise its
184	contracting activities. The business organization is not
185	required to post a bond or otherwise evidence any financial or
186	credit information except as necessary to demonstrate compliance
187	with paragraph(a).
188	(c) A registered or certified contractor employed by a
189	business organization to supervise its contracting activities
190	under this subsection shall not be required to post a bond or
191	otherwise evidence any personal financial or credit information
192	so long as the individual performs contracting activities
193	exclusively on behalf of a business organization meeting all of
194	the requirements of paragraph (a).
195	Section 7. Subsection (10) is added to section 489.521,
196	Florida Statutes, to read:
197	489.521 Business organizations; qualifying agents.--
198	(10)(a) A business organization proposing to engage in
199	contracting is not required to apply for or obtain authorization
200	under this part to engage in contracting if:
201	1. The business organization employs one or more
202	registered or certified contractors licensed in accordance with
203	this part who are responsible for obtaining permits and
204	supervising all of the business organization's contracting
205	activities;
206	2. The business organization engages only in contracting
207	on property owned by the business organization or by its parent,
208	subsidiary, or affiliated entities; and
209	3. The business organization, or its parent entity if the
210	business organization is a wholly owned subsidiary, maintains a
211	minimum net worth of $20 million.
212	(b) Any business organization engaging in contracting
213	under this subsection shall provide the board with the name and
214	license number of each registered or certified contractor
215	employed by the business organization to supervise its
216	contracting activities. The business organization is not
217	required to post a bond or otherwise evidence any financial or
218	credit information except as necessary to demonstrate compliance
219	with paragraph(a).
220	(c) A registered or certified contractor employed by a
221	business organization to supervise its contracting activities
222	under this subsection shall not be required to post a bond or
223	otherwise evidence any personal financial or credit information
224	so long as the individual performs contracting activities
225	exclusively on behalf of a business organization meeting all of
226	the requirements of paragraph (a).
227	Section 8. Sections 1, 2, 3, and 4 are intended to be
228	remedial in nature and to clarify existing law. Sections 1, 2,
229	3, and 4 shall apply retroactively to all actions, including any
230	action on a lien or bond claim, initiated on or after, or
231	pending as of, the effective date of this act. If the
232	retroactivity of any provision of section 1, section 2, section
233	3, or section 4, or its retroactive application to any person or
234	circumstance, is held invalid, the invalidity does not affect
235	the retroactivity or retroactive application of other provisions
236	of sections 1, 2, 3, and 4.
237	Section 9. If any provision of this act or its application
238	to any person or circumstance is held invalid, the invalidity
239	does not affect other provisions or applications of the act
240	which can be given effect without the invalid provision or
241	application, and to this and the provisions of this act are
242	severable.
243	Section 10. This act shall take effect upon becoming a
244	law.