FW: RPPTL: Construction Law Committee -:
Thank you to everyone for responses. This seems to be a hot issue. I will try to respond to each of you separately.
If anyone has more ideas/comments/arguments, I continue to welcome them.
[cid:image007.jpg@01CCA2F7.D216E780]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 5:28 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
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/
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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:image028.jpg@01CCA2F7.D216E780]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:image029.gif@01CCA2F7.D216E780] [cid:image030.jpg@01CCA2F7.D216E780] [cid:image031.gif@01CCA2F7.D216E780] [cid:image032.gif@01CCA2F7.D216E780]
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/
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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:image028.jpg@01CCA2F7.D216E780]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:image029.gif@01CCA2F7.D216E780] [cid:image030.jpg@01CCA2F7.D216E780] [cid:image031.gif@01CCA2F7.D216E780] [cid:image032.gif@01CCA2F7.D216E780]
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I don't believe an unlicensed Contractor's mere employment of
properly licensed individuals was intended by the Legislature to be
sufficient to satisfy the licensing requirements applicable to business
organizations under ch. 489. Fla. Stat. s. 489.119 (7) sets forth,
under very limited circumstances, when the Legislature determined that
employment of licensees without formally qualifying a business
organization is sufficient. Under this statute, a business organization
may avoid qualifying paperwork and rely on employed licensees only when
it meets certain organization net worth requirements and only when the
organization is engaged solely in improving land it or one of its
affiliated company's owns.
One of the problems with the "employee licensee" as qualifier
approach is that there is by definition no DBPR vetting of the finances
and insurance of the entity. Yes, the DBPR has previously vetted the
individual licensee's creditworthiness and construction knowledge but
not the business organization (which only occurs when there is a proper
qualifying agent application submitted to the DBPR). The expansive
reading given to qualification by employment alone basically renders
obsolete and mere surplusage the narrow carve out by the Legislature for
such employee licensees at Fla. Stat. s. 489.119(7). Furthermore, the
expansive reading increases the risk to the public since there is no
agency review and approval of creditworthiness and insurance relative to
the business organization. Accordingly, I don't believe it is a
proper interpretation of admittedly ambiguous language elsewhere in 489.
If it is not too late, it might be worth seeking to clarify Ch. 489
in next Legislative session as it relates to licensed individuals
qualifying a business organization by mere employment at time of
contracting.
Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/
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
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This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com
Obviously this is not the preferred method and all contractors should complete the required paperwork. While the contractor may be subject to discipline, it should not lose the ability to enforce its contract. This is a core question of the role and purpose of the CILB. Do we want to bring contractors under the regulation umbrella or do we want to just say you made a mistake on your paperwork so you lose that $500000 contract claim and we don't care that you went out of business? Under the prior cases it was held to be a factual determination of whether the qualifier actually met the definition. In most instances the business organization was properly qualified, but after the date of the contract. Isn't it more appropriate for that contractor to be disciplined by the Board and continue to operate?
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Gibbons, Michael" Michael.Gibbons@lowndes-law.com
Sender: constructionlaw-bounces@lists.flabarrpptl.org
Date: Mon, 14 Nov 2011 18:48:32
To: RPPTL constructionlawconstructionlaw@lists.flabarrpptl.org
Reply-To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat.
&failure to have a certificate of authority
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
Do you think the practice of law should also be regulated as you have described?
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
----- Original Message -----
From: Tina Caraballo [mailto:TCaraballo@const-law.com]
Sent: Tuesday, November 15, 2011 07:46 AM
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Obviously this is not the preferred method and all contractors should complete the required paperwork. While the contractor may be subject to discipline, it should not lose the ability to enforce its contract. This is a core question of the role and purpose of the CILB. Do we want to bring contractors under the regulation umbrella or do we want to just say you made a mistake on your paperwork so you lose that $500000 contract claim and we don't care that you went out of business? Under the prior cases it was held to be a factual determination of whether the qualifier actually met the definition. In most instances the business organization was properly qualified, but after the date of the contract. Isn't it more appropriate for that contractor to be disciplined by the Board and continue to operate?
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Gibbons, Michael" Michael.Gibbons@lowndes-law.com
Sender: constructionlaw-bounces@lists.flabarrpptl.org
Date: Mon, 14 Nov 2011 18:48:32
To: RPPTL constructionlawconstructionlaw@lists.flabarrpptl.org
Reply-To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat.
&failure to have a certificate of authority
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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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 have been involved in a lot of litigation involving 489.128 with varying fact patterns (unlicensed subsidiaries, family members pulling permits, the developer exception, an individual license holder doing business under an unqualified llc, etc.) over the last 9 years and after reading every relevant case, statute (and perhaps most importantly) relevant sections of the administrative code 100 times and deposing multiple people at the CILB, I have come to the following conclusions:
1.) The recent deletion of the certificate of authority language did not change anything. The requirement is the same now as it was before, i.e., a business organization must have a qualifying agent.
2.) The language of 489.128 is very simple, a business organization is unlicensed if it does not have a qualifying agent.
3.) The administrative code and DBPR lay out specific ways in which a license holder may qualify a company.
4.) The DBPR can tell you whether or not an individual qualifies or qualified a particular organization on a particular date.
The problem with buying or selling the "we just didn't file the paperwork" argument (and many lawyers and judges have bought or sold that argument) is that it stands the entire scheme on its head and makes it meaningless. Applying that argument, a contractor can hold a license as an individual and create a single purpose entity for every project, pull the permit, "oversee" the project, and be immune from the 489.128 repercussions despite the fact that each single purpose entity is clearly unlicensed per the administrative code and 489.128 (if a contractor wishes to engage in contracts both as an individual and corporate name or under multiple entities he must apply and appear before CILB for permission to do so.) If you do not have to "do the paperwork" but merely need to act like the qualifying agent described in 489.128, than I suggest every one of us start recommending this strategy to our clients to protect their other business assets from the risk/failure of any particular project.
Also, similar logic to other scenarios:
"Well judge, I don't have a drivers license, but I have ridden in and/or driven cars for 20 years"
"Well judge, I am not actually licensed to practice law in Florida because I stopped paying my dues 5 years ago, but I graduated in the top of my class and worked at several large law firms for 20 years, I just didn't do the paperwork."
"No judge, I am not a licensed physician in Florida, but I performed plastic surgery in Mexico for 25 years and meet all the criteria to be licensed in Florida, I just wasn't sure what form to fill out." Etc. Etc. Etc.
More specifically in our industry, "Judge, ABC Contracting is owned and operated by Jim Smith, Jr., and no it does not have a qualifying agent technically, but Jim's father, Jim Sr. has been licensed for 25 years and he get's paid $100 for every permit he pulls for the company and you better believe he would be out there if there was ever a problem." Many of you may not see a problem with this scenario and believe a contract should be enforceable in this scenario. I suggest however, to do so makes the industry more susceptible to unfair and deceptive trade practices and encourages license holders to rent out their license to pull permits for unqualified entities. It also leads to increased competition for our clients that actually do business the right way and according to the laws and administrative code.
The bottom line is, there are specific procedures for a license holder to qualify a company. It is not the mystery that many lawyers make it out to be. For those that give opinions on it without reading the relevant portion of the administrative code, I highly recommend reading it (61G4-15.0021. Business Organizations.) There are also some good materials on the DBPR website (http://www.myfloridalicense.com/dbpr/pro/cilb/documents/cilb_faq_qb_elimination.pdf)
I have taken some preliminary steps to work on new legislative amendments to remove any lingering confusion about whether an entity is qualified or not for the purposes of 489.128 and will submit same to the rest of the legislative subcommittee hopefully by the end of the year along with an article on the topic.
Sorry for rambling in a quick email, but you are correct: This is a "hot topic" in that there are many very good construction attorneys in the State of Florida with very different opinions on how 489.128 should or should not be applied. I have argued both sides with success and failure. Unless you know your particular judge and if/how he/she has ruled on the same issue in the past, I would recommend advising your client that the issue could easily go either way. There is case law out there that is on the wrong track in my opinion, especially some of the federal cases. In my opinion, it should be as simple as evaluating whether or not someone has a driver's license. You do or you don't. If you don't, and it is not due to an error by a gov't agency, you will face certain consequences.
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
Silverman, Vorhis & Doan
311 NE 1st Street
Gainesville, FL 32601
PH: 352-337-8373
Fax: 352-505-6188
Email: robert@lawgainesville.com
**This communication is intended for the sole use of the individual to whom
it is addressed and may contain information that is privileged, confidential
and exempt from disclosure under applicable law. If the reader of the
communication is not the intended recipient, or the employee or agent for
delivering the communication to the intended recipient, you are hereby
notified that any dissemination, distribution, or copying of this
communication may be strictly prohibited. If you receive this communication
in error, please notify the sender immediately by telephone call. Thank
you.
-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Tuesday, November 15, 2011 8:15 AM
To: TCaraballo@const-law.com; constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Do you think the practice of law should also be regulated as you have described?
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
----- Original Message -----
From: Tina Caraballo [mailto:TCaraballo@const-law.com]
Sent: Tuesday, November 15, 2011 07:46 AM
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Obviously this is not the preferred method and all contractors should complete the required paperwork. While the contractor may be subject to discipline, it should not lose the ability to enforce its contract. This is a core question of the role and purpose of the CILB. Do we want to bring contractors under the regulation umbrella or do we want to just say you made a mistake on your paperwork so you lose that $500000 contract claim and we don't care that you went out of business? Under the prior cases it was held to be a factual determination of whether the qualifier actually met the definition. In most instances the business organization was properly qualified, but after the date of the contract. Isn't it more appropriate for that contractor to be disciplined by the Board and continue to operate?
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Gibbons, Michael" Michael.Gibbons@lowndes-law.com
Sender: constructionlaw-bounces@lists.flabarrpptl.org
Date: Mon, 14 Nov 2011 18:48:32
To: RPPTL constructionlawconstructionlaw@lists.flabarrpptl.org
Reply-To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat.
&failure to have a certificate of authority
constructionlaw mailing list
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http://mailman.fsr.com/mailman/listinfo/constructionlaw
constructionlaw mailing list
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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.
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Robert:
This makes all the sense in the world. Why have the statute if it doesn’t really mean much? As far as the "fairness" argument there is the "in para delicto" doctrine where the owner knows the contractor is unlicensed. In that case I believe the courts tend to leave that parties "as is." If the owner has paid and knew the contractor was not licensed then the owner doesn’t get his money back. If the owner hasn’t paid then the unlicensed contractor doesn't get paid. Whether the contractor is licensed was totally within the control of the contractor so why should he be heard to complain?
Raymond L. Robinson, Esq.
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/
-
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Connect with Robinson & Associates, P.A.
-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Robert E. Doan
Sent: Tuesday, November 15, 2011 9:20 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw]489.128 Fla. Stat. &failure to have a certificate of authority
I have been involved in a lot of litigation involving 489.128 with varying fact patterns (unlicensed subsidiaries, family members pulling permits, the developer exception, an individual license holder doing business under an unqualified llc, etc.) over the last 9 years and after reading every relevant case, statute (and perhaps most importantly) relevant sections of the administrative code 100 times and deposing multiple people at the CILB, I have come to the following conclusions:
1.) The recent deletion of the certificate of authority language did not change anything. The requirement is the same now as it was before, i.e., a business organization must have a qualifying agent.
2.) The language of 489.128 is very simple, a business organization is unlicensed if it does not have a qualifying agent.
3.) The administrative code and DBPR lay out specific ways in which a license holder may qualify a company.
4.) The DBPR can tell you whether or not an individual qualifies or qualified a particular organization on a particular date.
The problem with buying or selling the "we just didn't file the paperwork" argument (and many lawyers and judges have bought or sold that argument) is that it stands the entire scheme on its head and makes it meaningless. Applying that argument, a contractor can hold a license as an individual and create a single purpose entity for every project, pull the permit, "oversee" the project, and be immune from the 489.128 repercussions despite the fact that each single purpose entity is clearly unlicensed per the administrative code and 489.128 (if a contractor wishes to engage in contracts both as an individual and corporate name or under multiple entities he must apply and appear before CILB for permission to do so.) If you do not have to "do the paperwork" but merely need to act like the qualifying agent described in 489.128, than I suggest every one of us start recommending this strategy to our clients to protect their other business assets from the risk/failure of any particular project.
Also, similar logic to other scenarios:
"Well judge, I don't have a drivers license, but I have ridden in and/or driven cars for 20 years"
"Well judge, I am not actually licensed to practice law in Florida because I stopped paying my dues 5 years ago, but I graduated in the top of my class and worked at several large law firms for 20 years, I just didn't do the paperwork."
"No judge, I am not a licensed physician in Florida, but I performed plastic surgery in Mexico for 25 years and meet all the criteria to be licensed in Florida, I just wasn't sure what form to fill out." Etc. Etc. Etc.
More specifically in our industry, "Judge, ABC Contracting is owned and operated by Jim Smith, Jr., and no it does not have a qualifying agent technically, but Jim's father, Jim Sr. has been licensed for 25 years and he get's paid $100 for every permit he pulls for the company and you better believe he would be out there if there was ever a problem." Many of you may not see a problem with this scenario and believe a contract should be enforceable in this scenario. I suggest however, to do so makes the industry more susceptible to unfair and deceptive trade practices and encourages license holders to rent out their license to pull permits for unqualified entities. It also leads to increased competition for our clients that actually do business the right way and according to the laws and administrative code.
The bottom line is, there are specific procedures for a license holder to qualify a company. It is not the mystery that many lawyers make it out to be. For those that give opinions on it without reading the relevant portion of the administrative code, I highly recommend reading it (61G4-15.0021. Business Organizations.) There are also some good materials on the DBPR website (http://www.myfloridalicense.com/dbpr/pro/cilb/documents/cilb_faq_qb_elimination.pdf)
I have taken some preliminary steps to work on new legislative amendments to remove any lingering confusion about whether an entity is qualified or not for the purposes of 489.128 and will submit same to the rest of the legislative subcommittee hopefully by the end of the year along with an article on the topic.
Sorry for rambling in a quick email, but you are correct: This is a "hot topic" in that there are many very good construction attorneys in the State of Florida with very different opinions on how 489.128 should or should not be applied. I have argued both sides with success and failure. Unless you know your particular judge and if/how he/she has ruled on the same issue in the past, I would recommend advising your client that the issue could easily go either way. There is case law out there that is on the wrong track in my opinion, especially some of the federal cases. In my opinion, it should be as simple as evaluating whether or not someone has a driver's license. You do or you don't. If you don't, and it is not due to an error by a gov't agency, you will face certain consequences.
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
Silverman, Vorhis & Doan
311 NE 1st Street
Gainesville, FL 32601
PH: 352-337-8373
Fax: 352-505-6188
Email: robert@lawgainesville.com
**This communication is intended for the sole use of the individual to whom
it is addressed and may contain information that is privileged, confidential
and exempt from disclosure under applicable law. If the reader of the
communication is not the intended recipient, or the employee or agent for
delivering the communication to the intended recipient, you are hereby
notified that any dissemination, distribution, or copying of this
communication may be strictly prohibited. If you receive this communication
in error, please notify the sender immediately by telephone call. Thank
you.
-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Tuesday, November 15, 2011 8:15 AM
To: TCaraballo@const-law.com; constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Do you think the practice of law should also be regulated as you have described?
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
----- Original Message -----
From: Tina Caraballo [mailto:TCaraballo@const-law.com]
Sent: Tuesday, November 15, 2011 07:46 AM
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat. &failure to have a certificate of authority
Obviously this is not the preferred method and all contractors should complete the required paperwork. While the contractor may be subject to discipline, it should not lose the ability to enforce its contract. This is a core question of the role and purpose of the CILB. Do we want to bring contractors under the regulation umbrella or do we want to just say you made a mistake on your paperwork so you lose that $500000 contract claim and we don't care that you went out of business? Under the prior cases it was held to be a factual determination of whether the qualifier actually met the definition. In most instances the business organization was properly qualified, but after the date of the contract. Isn't it more appropriate for that contractor to be disciplined by the Board and continue to operate?
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Gibbons, Michael" Michael.Gibbons@lowndes-law.com
Sender: constructionlaw-bounces@lists.flabarrpptl.org
Date: Mon, 14 Nov 2011 18:48:32
To: RPPTL constructionlawconstructionlaw@lists.flabarrpptl.org
Reply-To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat.
&failure to have a certificate of authority
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
constructionlaw mailing list
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http://mailman.fsr.com/mailman/listinfo/constructionlaw
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.
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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The argument you make is a policy one that properly belongs to the
Legislature. Back in 2000, the Legislature effectively made the policy
choice of rejecting this argument by deleting the former "savings
clause" provision that expressly permitted unlicensed contractors to
revive their dead claim by belatedly getting licensed. The legislative
history to that bill deleting the savings clause makes it clear that it
was the Legislature's intent to eliminate belated attempts to obtain
licensure and to mandate unequivocally that licensure be evaluated
solely at time of contracting.
Florida's strict licensure legislation was borne in part out of
necessity to curb contracting abuses arising out of "stormchasers"
descending upon our shores after destructive hurricanes when there is a
tremendous demand for construction services. Requiring paperwork and
licensure serves to reduce the real threat posed by trunkslammers with
hand tools and business cards (and without insurance, capital and
competency) contracting with an unsuspecting and desperate public. The
employee or consultant qualifier argument sends the wrong message that
you can engage in contracting without proper licensure, insurance,
creditworthiness and net worth and if you are "caught" you can rely on
some licensee willing to rent his license for a fee.
Michael R. Gibbons
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tina
Caraballo
Sent: Tuesday, November 15, 2011 7:47 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla.Stat. &failure to have
a certificate of authority
Obviously this is not the preferred method and all contractors should
complete the required paperwork. While the contractor may be subject to
discipline, it should not lose the ability to enforce its contract.
This is a core question of the role and purpose of the CILB. Do we want
to bring contractors under the regulation umbrella or do we want to just
say you made a mistake on your paperwork so you lose that $500000
contract claim and we don't care that you went out of business? Under
the prior cases it was held to be a factual determination of whether the
qualifier actually met the definition. In most instances the business
organization was properly qualified, but after the date of the contract.
Isn't it more appropriate for that contractor to be disciplined by the
Board and continue to operate?
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Gibbons, Michael" Michael.Gibbons@lowndes-law.com
Sender: constructionlaw-bounces@lists.flabarrpptl.org
Date: Mon, 14 Nov 2011 18:48:32
To: RPPTL constructionlawconstructionlaw@lists.flabarrpptl.org
Reply-To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 489.128 Fla. Stat.
&failure to have a certificate of authority
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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