FW: RPPTL: Construction Law Committee -:
Gang: See below and attached. Thanks, Arnie.
From: Ty G. Thompson [mailto:tthompson@mpdlegal.com]
Sent: Monday, November 14, 2011 11:17 AM
To: Arnold D. Tritt, Jr.
Cc: Brian Rowlson; Lee Weintraub; Michael Haire; Michael Yates; Peter
Brandt
Subject: RPPTL: Construction Law Committee -:
Arnie, here is the Surety & Insurance Subcommittee's case law update for
November.
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
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Arnold D. Tritt, Jr.
Board Certified Construction Attorney
707 Peninsular Place
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Phone (904) 354-5200
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Arnold.Tritt@atritt.com
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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:image002.jpg@01CCA2CD.7A767240]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. * Suite 302 * Palm Harbor, FL 34684 * Fax (727) 787-3231
[cid:image003.gif@01CCA2CD.7A767240] [cid:image004.jpg@01CCA2CD.7A767240] [cid:image005.gif@01CCA2CD.7A767240] [cid:image006.gif@01CCA2CD.7A767240]
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.
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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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:image002.jpg@01CCA2CD.7A767240]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. • Suite 302 • Palm Harbor, FL 34684 • Fax (727) 787-3231
[cid:image003.gif@01CCA2CD.7A767240] [cid:image004.jpg@01CCA2CD.7A767240] [cid:image005.gif@01CCA2CD.7A767240] [cid:image006.gif@01CCA2CD.7A767240]
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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Do you mean a qualifying agent for the company or a certificate of authority for the business? If it is the certificate of authority (also known as a qualifying business number), the saving language was eliminated from the statute because the requirement for a certificate of authority was eliminated at that time and all references to a certificate of authority were deleted.
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Stephen D. Marlowe
Marlowe McNabb P.A.
Attorneys and Counselors at Law
1560 West Cleveland Street
Tampa, FL 33606-1807
Telephone: (813) 251-3013
Facsimile: (813) 251-5945
Steve@MarloweMcNabb.com
www.MarloweMcNabb.com
Board Certified in Construction Law
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. & failure to havea 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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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?
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
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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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:image001.jpg@01CCA2DB.F3FDDD20]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. * Suite 302 * Palm Harbor, FL 34684 * Fax (727) 787-3231
[cid:image002.gif@01CCA2DB.F3FDDD20] [cid:image003.jpg@01CCA2DB.F3FDDD20] [cid:image004.gif@01CCA2DB.F3FDDD20] [cid:image005.gif@01CCA2DB.F3FDDD20]
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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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:image001.jpg@01CCA2DE.857887D0]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. * Suite 302 * Palm Harbor, FL 34684 * Fax (727) 787-3231
[cid:image002.gif@01CCA2DE.857887D0] [cid:image003.jpg@01CCA2DE.857887D0] [cid:image004.gif@01CCA2DE.857887D0] [cid:image005.gif@01CCA2DE.857887D0]
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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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@01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. * Suite 302 * Palm Harbor, FL 34684 * Fax (727) 787-3231
[cid:image008.gif@01CCA2EA.ED1D7740] [cid:image009.jpg@01CCA2EA.ED1D7740] [cid:image010.gif@01CCA2EA.ED1D7740] [cid:image011.gif@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.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 3:03 PM
To: constructionlaw@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@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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@01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://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@01CCA2EA.ED1D7740] [cid:image014.jpg@01CCA2EA.ED1D7740] [cid:image015.gif@01CCA2EA.ED1D7740] [cid:image016.gif@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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 04:31 PM
To: RPPTL constructionlaw constructionlaw@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@01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
35111 U.S. Highway 19 N. • Suite 302 • Palm Harbor, FL 34684 • Fax (727) 787-3231
[cid:image008.gif@01CCA2EA.ED1D7740] [cid:image009.jpg@01CCA2EA.ED1D7740] [cid:image010.gif@01CCA2EA.ED1D7740] [cid:image011.gif@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.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 3:03 PM
To: constructionlaw@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@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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@01CCA2EA.ED1D7740]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://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@01CCA2EA.ED1D7740] [cid:image014.jpg@01CCA2EA.ED1D7740] [cid:image015.gif@01CCA2EA.ED1D7740] [cid:image016.gif@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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Morgan v Trustees was an architect case not a contractor. Compare Morgan to the two OKON cases and keep in mind that there seems to be a difference between contract enforceability and lien enforceability. Don't know which issues you have.
Raymond L. Robinson, Esq.
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/ http://www.rrobinsonlaw.com/
- CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately.
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Monday, November 14, 2011 4:32 PM
To: RPPTL constructionlaw
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.
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
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.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 3:03 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley | View professional biography http://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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?
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
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.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
There should be NO difference when you compare 489.128 with 713.02(7).
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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Raymond L. Robinson [mailto:Ray@rrobinsonlaw.com]
Sent: Monday, November 14, 2011 05:14 PM
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Morgan v Trustees was an architect case not a contractor. Compare Morgan to the two OKON cases and keep in mind that there seems to be a difference between contract enforceability and lien enforceability. Don’t know which issues you have.
Raymond L. Robinson, Esq.
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/
[cid:image002.png@01CB0330.4CD28650][LH Address Line]
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Connect with Robinson & Associates, P.A.
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Monday, November 14, 2011 4:32 PM
To: RPPTL constructionlaw
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:image017.jpg@01CCA2F0.DB48BDD0]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://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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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.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 3:03 PM
To: constructionlaw@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
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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@const-law.com
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, November 14, 2011 1:50 PM
To: constructionlaw@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@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Justin Zinzow [mailto:JZinzow@zinzowlaw.com]
Sent: Monday, November 14, 2011 01:01 PM
To: RPPTL constructionlaw constructionlaw@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:image022.jpg@01CCA2F0.DB48BDD0]Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Websitehttp://www.zinzowlaw.com/ | Biohttp://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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