Larry:
In our case, there was a FRO Application along with the QA Application.  So, the issue of the non-officer controlling finances and business decisions of the company was properly addressed with the statutorily permitted carve out of having an FRO.  In many cases where the QA is not an Owner or Officer, I would expect that, as in our case, the QA would insist on the FRO as a condition of qualifying the company.
While you raise a fair point about the reality of control that might be exerted over a business organization’s construction operations by a non-owner and non-employee, the same argument would apply to many  QA’s who ARE employees or even minority owners but answer to Presidents, CEO’s and other “bosses” above them in the corporate world while the QA still nominally holds, by operation of statute, final construction authority.  There is no simple way of ensuring that the QA will actually be in position to exert final construction authority.  Ultimately, as intended, it comes down to the QA desiring to maintain his or her license is motivated not to have improper acts occur on his or her watch.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01CF3C83.5149D810]

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 10, 2014 4:58 PM
To: Gibbons, Michael; 'Chris Cobb'; 'Reese J. Henderson, Jr.'; lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

Michael,

You are certainly correct about the form for the QA.  I also note that if the QA ceases to be ”affiliated” with the qualified business then the CILB must be notified.  So if you have done it, then it must be do-able.

However, note the following from the statute:

An application for registration or certification to qualify a business organization must include an affidavit on a form provided by the board attesting that the applicant has final approval authority for all construction work performed by the business organization and that the applicant has final approval authority on all business matters, including contracts, specifications, checks, drafts, or payments, regardless of the form of payment, made by the business organization, except where a financially responsible officer is approved.

While the CILB may grant the license with a non-officer as a QA being “affiliated” I question whether if challenged that arrangement would not be seen to be a ruse where the QA does not have the authority to do what the statute says.  In theory it can take place by agreement.  I would be concerned whether the QA actually meets what the law requires without being an officer.  As I said, in theory it can be done by agreement.

And what about the business acumen of a “contractor” not getting workers comp coverage on a person who really does what a QA is required to do?

Sincerely,

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-895-9198  Assistant:  954-514-0984
Fax:      954-514-0985              e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator and Arbitrator
IMI Certified Mediator

Fellow, College of Commercial Arbitrators
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Member, National Academy of Distinguished Neutrals
[Description: JAMSadr.com.jpg]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 4:23 PM
To: 'Chris Cobb'; 'Reese J. Henderson, Jr.'; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

The DBPR Form of licensure application simply asks for the name of the person “appointed” by the organization to be the qualifying agent.  It is not that unusual to have a qualifier who is neither employee nor owner.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image010.jpg@01CF3C83.4F0629A0]

From: Chris Cobb [mailto:ccobb@jimersoncobb.com]
Sent: Monday, March 10, 2014 4:18 PM
To: Gibbons, Michael; 'Reese J. Henderson, Jr.'; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

6G4-15.0024 states - Documentation of one or more of the following:

(1)    20% or more ownership of the business to be qualified;

(2)    W2 employee

(3)    Other evidence of the means and methods utilized by the applicant to ensure control over the construction work of the proposed entity.

It is hard to establish number 3 without having number 1 and/or 2.  But I will concede that it may be possible, but is certainly not the norm .

[cid:image004.jpg@01CF3C83.5149D810]

Christopher M. Cobb, Esq.
Board Certified in Construction Law
Jimerson & Cobb, P.A.
Business Litigation | Construction Law | Banking Law | Creditor’s Rights & AR Collection | Community Associations

Telephone: (904) 389-0050 | Facsimile: (904) 212-1269
ccobb@jimersoncobb.commailto:ccobb@jimersoncobb.com | JimersonCobb.comhttp://www.jimersoncobb.com/

Add to Contactshttp://www.jimersoncobb.com/wp-content/uploads/2012/09/Christopher-M-Cobb.vcf | View Biographyhttp://www.jimersoncobb.com/attorneys/christopher-m-cobb/

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, March 10, 2014 4:10 PM
To: 'Reese J. Henderson, Jr.'; Chris Cobb; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

Qualifiers are not required to be employees or owners of the qualified business organization. They are required to have ultimate authority over all construction issues on projects where their license is used for a permit.  I have assisted business organizations with Ch. 489 qualifiers who were neither owners nor employees.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image010.jpg@01CF3C83.4F0629A0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Monday, March 10, 2014 3:51 PM
To: Chris Cobb; lauriesams@comcast.netmailto:lauriesams@comcast.net; Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

I agree with Chris – you have a bigger problem than WC here.  You have potential aiding and abetting issues . . . .

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Chris Cobb
Sent: Monday, March 10, 2014 3:38 PM
To: lauriesams@comcast.netmailto:lauriesams@comcast.net; Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

Also makes you wonder how the sister can qualify the company if she is not a member and not an employee……

[cid:image005.jpg@01CF3C83.5149D810]

Christopher M. Cobb, Esq.
Board Certified in Construction Law
Jimerson & Cobb, P.A.
Business Litigation | Construction Law | Banking Law | Creditor’s Rights & AR Collection | Community Associations

Telephone: (904) 389-0050 | Facsimile: (904) 212-1269
ccobb@jimersoncobb.commailto:ccobb@jimersoncobb.com | JimersonCobb.comhttp://www.jimersoncobb.com/

Add to Contactshttp://www.jimersoncobb.com/wp-content/uploads/2012/09/Christopher-M-Cobb.vcf | View Biographyhttp://www.jimersoncobb.com/attorneys/christopher-m-cobb/

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lauriesams@comcast.netmailto:lauriesams@comcast.net
Sent: Monday, March 10, 2014 3:21 PM
To: Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I believe everyone is way over thinking this. I think the issue is the sister (the one holding the license) does not have a workers comp exemption.  To obtain a workers comp exemption you must own at least 10%. If its a single member LLC, your client would be the one with the exemption.  She does not own any of the LLC, as such she cannot be exempt.  He needs to either have her as a % owner and file for the 2 year exemption or he needs to get it for her.
Laurie B. Sams
Van Winkle & Sams, P.A.
3859 Bee Ridge Road, Suite 202
Sarasota, FL 34233
(941) 923-1685
fax (941) 923-0174
www.vwslaw.comhttp://www.vwslaw.com
Please Note: Our firm only accepts WIRES for closings.
CONFIDENTIALITY NOTE: This transmittal may be a confidential attorney-client communication or may otherwise
be privileged or confidential. If it is not clear that you are the intended recipient, you are hereby notified that you have
received this transmittal in error. In that case, any review, dissemination, distribution or copying of this transmittal is
strictly prohibited. If you suspect that you have received this communication in error, please notify us immediately by
telephone (941) 923-1685, or e-mail at lauriesams@comcast.netmailto:lauriesams@comcast.net  and immediately delete this message and all of its
attachments.
----- Original Message -----
From: Gibbons, Michaelmailto:Michael.Gibbons@lowndes-law.com
To: 'White, Patrick G.'mailto:PWhite@porterwright.com ; 'Brian Solomon'mailto:bsolomon@solomon-law.com ; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Sent: Monday, March 10, 2014 2:50 PM
Subject: Re: [CLC-Discussion] Local Licensing

Thanks for the statutory cites Patrick.  However, I’m not sure that resolves the issue.  Ch. 489 simply requires the licensed contractor to comply with the WC insurance requirements of Ch. 440.  Ch. 440 meanwhile expressly permits certain principal owned companies to be WC exempt and I am unaware of a provision that eliminates GC’s from taking advantage of this statutory exemption (which seems wrong and was basis for my original post).  Based on the fact that I have encountered several licensed GC’s without WC coverage, I am assuming that DBPR does not require WC coverage as a condition of licensure.  Apparently, DBPR only requires the contractor to comply with Ch. 440 which then allows the very small closely owned contractor to exempt itself from coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image014.jpg@01CF3C83.4F0629A0]

From: White, Patrick G. [mailto:PWhite@porterwright.com]
Sent: Monday, March 10, 2014 2:17 PM
To: Gibbons, Michael; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: Local Licensing

Sounds like Pasco County has it almost right in that they wouldn’t be able to issue a BP, see Secs. 489.113 (4)(c)  489.114, so why grant the license! They wouldn’t here in Collier either-

(c) The local government may also deny issuance of, or may suspend, any outstanding building permit where a contractor fails or refuses to provide proof of public liability and property damage insurance coverage as required by s. 489.115<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.115.html>(5) and workers’ compensation insurance coverage as required by s. 489.114<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.114.html>

Patrick G. White | Biohttp://www.porterwright.com/patrick_white/ | Porter Wright Morris & Arthur LLPhttp://www.porterwright.com | 9132 Strada Place, 3rd Floor | Naples, FL 34108

Direct: 239-593-2963 | Mobile: 239-784-5173 | Fax: 239-593-2990 | Toll Free: 800-876-7962 | pwhite@porterwright.commailto:pwhite@porterwright.com

Florida Bar Board Certified in City, County, and Local Government Law

porterwright

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 1:28 PM
To: 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I have not.  And sorry for hijacking your post, Brian, but I have occasionally run into the WC exempt GC and it always seemed wrong to me.  The GC is supposed to be the “statutory employer” under Ch. 440 if, as happens, an injured subcontractor employee is not covered by the workers compensation policy of the subcontractor employer.  When the GC itself is exempt, that safety net is lost.  It’s been a while since I read the CILB FAC governing licensing requirements but it used to mandate a minimum amount of GL insurance coverage and compliance with workers compensation insurance coverage requirements.  I realize that some GC entities are small enough to qualify as WC exempt but I’m surprised that neither Ch. 440 nor FAC apparently expressly prohibits a General Contractor from operating without workers compensation coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image014.jpg@01CF3C83.4F0629A0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Brian Solomon
Sent: Monday, March 10, 2014 12:51 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Local Licensing

My client is a single member LLC with a certificate of workers compensation insurance exemption.  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company.  Pasco County is refusing to give my client a county license because the qualifier doesn’t have proof of workers compensation insurance.

Has anyone run into this situation?

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Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
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Jacksonville, FL 32202
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Time out…  I guess  you really know you have hijacked the thread when people forget who started it…  This is Brian Solomon’s original question that has now gotten away from him (and me).  I have no client in this one.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01CF3C85.D1A852A0]

From: Dave Worthy [mailto:dave@npw-law.com]
Sent: Monday, March 10, 2014 3:46 PM
To: Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

Michael:

To throw some more salt your client’s way; you say:  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company.

If the qualifier-sister “does not work for the company,” then your client seems to be running afoul of:

Section 489.119(1)(b)(1):  “to qualify a business organization must include an affidavit on a form provided by the board attesting that the applicant has final approval authority for all construction work performed by the business organization and that the applicant has final approval authority on all business matters, including contracts, specifications, checks, drafts, or payments, regardless of the form of payment, made by the business organization, except where a financially responsible officer is approved.”

Section 489.1195(1)(a):  “All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.”

Section 489.129(d):  “Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.”

Section 489.129(e):  “Knowingly combining or conspiring with an uncertified or unregistered person by allowing his or her certificate or registration to be used by the uncertified or unregistered person with intent to evade the provisions of this part. When a certificateholder or registrant allows his or her certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.”

And various provisions in Section 489.127.

Of course, then Section 489.128 regarding the unenforceability of any contracts would follow.

I’m just say’n!

David L. Worthy, Esq.
Florida Bar Board Certified - Construction Law
Dave@NPW-Law.commailto:Dave@NPW-Law.com

Niesen|Price|Worthy|Campo
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 2:50 PM
To: 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

Thanks for the statutory cites Patrick.  However, I’m not sure that resolves the issue.  Ch. 489 simply requires the licensed contractor to comply with the WC insurance requirements of Ch. 440.  Ch. 440 meanwhile expressly permits certain principal owned companies to be WC exempt and I am unaware of a provision that eliminates GC’s from taking advantage of this statutory exemption (which seems wrong and was basis for my original post).  Based on the fact that I have encountered several licensed GC’s without WC coverage, I am assuming that DBPR does not require WC coverage as a condition of licensure.  Apparently, DBPR only requires the contractor to comply with Ch. 440 which then allows the very small closely owned contractor to exempt itself from coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image009.jpg@01CF3C85.CE77FA40]

From: White, Patrick G. [mailto:PWhite@porterwright.com]
Sent: Monday, March 10, 2014 2:17 PM
To: Gibbons, Michael; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: Local Licensing

Sounds like Pasco County has it almost right in that they wouldn’t be able to issue a BP, see Secs. 489.113 (4)(c)  489.114, so why grant the license! They wouldn’t here in Collier either-

(c) The local government may also deny issuance of, or may suspend, any outstanding building permit where a contractor fails or refuses to provide proof of public liability and property damage insurance coverage as required by s. 489.115<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.115.html>(5) and workers’ compensation insurance coverage as required by s. 489.114<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.114.html>

Patrick G. White | Biohttp://www.porterwright.com/patrick_white/ | Porter Wright Morris & Arthur LLPhttp://www.porterwright.com | 9132 Strada Place, 3rd Floor | Naples, FL 34108

Direct: 239-593-2963 | Mobile: 239-784-5173 | Fax: 239-593-2990 | Toll Free: 800-876-7962 | pwhite@porterwright.commailto:pwhite@porterwright.com

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 1:28 PM
To: 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I have not.  And sorry for hijacking your post, Brian, but I have occasionally run into the WC exempt GC and it always seemed wrong to me.  The GC is supposed to be the “statutory employer” under Ch. 440 if, as happens, an injured subcontractor employee is not covered by the workers compensation policy of the subcontractor employer.  When the GC itself is exempt, that safety net is lost.  It’s been a while since I read the CILB FAC governing licensing requirements but it used to mandate a minimum amount of GL insurance coverage and compliance with workers compensation insurance coverage requirements.  I realize that some GC entities are small enough to qualify as WC exempt but I’m surprised that neither Ch. 440 nor FAC apparently expressly prohibits a General Contractor from operating without workers compensation coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image009.jpg@01CF3C85.CE77FA40]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Brian Solomon
Sent: Monday, March 10, 2014 12:51 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Local Licensing

My client is a single member LLC with a certificate of workers compensation insurance exemption.  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company.  Pasco County is refusing to give my client a county license because the qualifier doesn’t have proof of workers compensation insurance.

Has anyone run into this situation?

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Having served as Former Chairman and Board Member for 11 years (until August 2013), I can assure you that the Board requires a qualifier to

MICHELLE B. KANE, ESQUIRE
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be a W-2 employee or have a % of ownership.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Monday, March 10, 2014 4:30 PM
To: Gibbons, Michael; 'Chris Cobb'; lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

Michael:  I’m not sure what your statistics are based on, but I happen to have assisted a number of companies get qualified and invariably, for all practical purposes, the qualifier needed to be either a W-2 employee or an owner.  Anything less than that kept getting kicked back by CILB.  We were told we could go before the board without it, but our chances were basically nil.  It would greatly interest me to hear how someone else got around that.

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, March 10, 2014 4:23 PM
To: 'Chris Cobb'; Reese J. Henderson, Jr.; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

The DBPR Form of licensure application simply asks for the name of the person “appointed” by the organization to be the qualifying agent.  It is not that unusual to have a qualifier who is neither employee nor owner.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image003.jpg@01CF3C89.B08B77B0]

From: Chris Cobb [mailto:ccobb@jimersoncobb.com]mailto:[mailto:ccobb@jimersoncobb.com]
Sent: Monday, March 10, 2014 4:18 PM
To: Gibbons, Michael; 'Reese J. Henderson, Jr.'; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

6G4-15.0024 states - Documentation of one or more of the following:

(1)    20% or more ownership of the business to be qualified;

(2)    W2 employee

(3)    Other evidence of the means and methods utilized by the applicant to ensure control over the construction work of the proposed entity.

It is hard to establish number 3 without having number 1 and/or 2.  But I will concede that it may be possible, but is certainly not the norm .

[cid:image009.jpg@01CF3C89.B08B77B0]

Christopher M. Cobb, Esq.
Board Certified in Construction Law
Jimerson & Cobb, P.A.
Business Litigation | Construction Law | Banking Law | Creditor’s Rights & AR Collection | Community Associations

Telephone: (904) 389-0050 | Facsimile: (904) 212-1269
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Add to Contactshttp://www.jimersoncobb.com/wp-content/uploads/2012/09/Christopher-M-Cobb.vcf | View Biographyhttp://www.jimersoncobb.com/attorneys/christopher-m-cobb/

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, March 10, 2014 4:10 PM
To: 'Reese J. Henderson, Jr.'; Chris Cobb; lauriesams@comcast.netmailto:lauriesams@comcast.net; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

Qualifiers are not required to be employees or owners of the qualified business organization. They are required to have ultimate authority over all construction issues on projects where their license is used for a permit.  I have assisted business organizations with Ch. 489 qualifiers who were neither owners nor employees.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image003.jpg@01CF3C89.B08B77B0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Monday, March 10, 2014 3:51 PM
To: Chris Cobb; lauriesams@comcast.netmailto:lauriesams@comcast.net; Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Local Licensing

I agree with Chris – you have a bigger problem than WC here.  You have potential aiding and abetting issues . . . .

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Chris Cobb
Sent: Monday, March 10, 2014 3:38 PM
To: lauriesams@comcast.netmailto:lauriesams@comcast.net; Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

Also makes you wonder how the sister can qualify the company if she is not a member and not an employee……

[cid:image009.jpg@01CF3C89.B08B77B0]

Christopher M. Cobb, Esq.
Board Certified in Construction Law
Jimerson & Cobb, P.A.
Business Litigation | Construction Law | Banking Law | Creditor’s Rights & AR Collection | Community Associations

Telephone: (904) 389-0050 | Facsimile: (904) 212-1269
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Add to Contactshttp://www.jimersoncobb.com/wp-content/uploads/2012/09/Christopher-M-Cobb.vcf | View Biographyhttp://www.jimersoncobb.com/attorneys/christopher-m-cobb/

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lauriesams@comcast.netmailto:lauriesams@comcast.net
Sent: Monday, March 10, 2014 3:21 PM
To: Gibbons, Michael; 'White, Patrick G.'; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I believe everyone is way over thinking this. I think the issue is the sister (the one holding the license) does not have a workers comp exemption.  To obtain a workers comp exemption you must own at least 10%. If its a single member LLC, your client would be the one with the exemption.  She does not own any of the LLC, as such she cannot be exempt.  He needs to either have her as a % owner and file for the 2 year exemption or he needs to get it for her.
Laurie B. Sams
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----- Original Message -----
From: Gibbons, Michaelmailto:Michael.Gibbons@lowndes-law.com
To: 'White, Patrick G.'mailto:PWhite@porterwright.com ; 'Brian Solomon'mailto:bsolomon@solomon-law.com ; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Sent: Monday, March 10, 2014 2:50 PM
Subject: Re: [CLC-Discussion] Local Licensing

Thanks for the statutory cites Patrick.  However, I’m not sure that resolves the issue.  Ch. 489 simply requires the licensed contractor to comply with the WC insurance requirements of Ch. 440.  Ch. 440 meanwhile expressly permits certain principal owned companies to be WC exempt and I am unaware of a provision that eliminates GC’s from taking advantage of this statutory exemption (which seems wrong and was basis for my original post).  Based on the fact that I have encountered several licensed GC’s without WC coverage, I am assuming that DBPR does not require WC coverage as a condition of licensure.  Apparently, DBPR only requires the contractor to comply with Ch. 440 which then allows the very small closely owned contractor to exempt itself from coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image010.jpg@01CF3C89.B08B77B0]

From: White, Patrick G. [mailto:PWhite@porterwright.com]
Sent: Monday, March 10, 2014 2:17 PM
To: Gibbons, Michael; 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: Local Licensing

Sounds like Pasco County has it almost right in that they wouldn’t be able to issue a BP, see Secs. 489.113 (4)(c)  489.114, so why grant the license! They wouldn’t here in Collier either-

(c) The local government may also deny issuance of, or may suspend, any outstanding building permit where a contractor fails or refuses to provide proof of public liability and property damage insurance coverage as required by s. 489.115<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.115.html>(5) and workers’ compensation insurance coverage as required by s. 489.114<index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.114.html>

Patrick G. White | Biohttp://www.porterwright.com/patrick_white/ | Porter Wright Morris & Arthur LLPhttp://www.porterwright.com | 9132 Strada Place, 3rd Floor | Naples, FL 34108

Direct: 239-593-2963 | Mobile: 239-784-5173 | Fax: 239-593-2990 | Toll Free: 800-876-7962 | pwhite@porterwright.commailto:pwhite@porterwright.com

Florida Bar Board Certified in City, County, and Local Government Law

porterwright

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, March 10, 2014 1:28 PM
To: 'Brian Solomon'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Local Licensing

I have not.  And sorry for hijacking your post, Brian, but I have occasionally run into the WC exempt GC and it always seemed wrong to me.  The GC is supposed to be the “statutory employer” under Ch. 440 if, as happens, an injured subcontractor employee is not covered by the workers compensation policy of the subcontractor employer.  When the GC itself is exempt, that safety net is lost.  It’s been a while since I read the CILB FAC governing licensing requirements but it used to mandate a minimum amount of GL insurance coverage and compliance with workers compensation insurance coverage requirements.  I realize that some GC entities are small enough to qualify as WC exempt but I’m surprised that neither Ch. 440 nor FAC apparently expressly prohibits a General Contractor from operating without workers compensation coverage.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image010.jpg@01CF3C89.B08B77B0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Brian Solomon
Sent: Monday, March 10, 2014 12:51 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Local Licensing

My client is a single member LLC with a certificate of workers compensation insurance exemption.  The company is qualified as a general contractor by his sister, who does not work for the company, she only qualifies the company.  Pasco County is refusing to give my client a county license because the qualifier doesn’t have proof of workers compensation insurance.

Has anyone run into this situation?

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Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

Notice from Porter Wright Morris & Arthur LLP
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Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

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Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: reese.henderson@gray-robinson.commailto:reese.henderson@gray-robinson.com
GRAY | ROBINSONhttp://gray-robinson.com/
ATTORNEYS AT LAWhttp://www.gray-robinson.com/

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: reese.henderson@gray-robinson.commailto:reese.henderson@gray-robinson.com
GRAY | ROBINSONhttp://gray-robinson.com/
ATTORNEYS AT LAWhttp://www.gray-robinson.com/

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.