Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to remove old siding on 8 condominium buildings and replace it with hardi plank siding. The CBC is not a registered or certified roofing contractor and it did not subcontract with a licensed roofing contractor to perform roofing work. As a part of the CBC's scope of work, it was required to remove the soffit, fascia and drip edges on all buildings in order to remove and install siding. As I understand it, drip edges are a waterproofing component of the roofing system and require a licensed roofing contractor to perform removal and install of drip edges and adhering shingles to the drip edge. After the project was complete, the condominium buildings began to have severe leaks at the rakes and eaves where the drip edges were removed and replaced. Through an investigation it was found that the siding contractor failed to adhere the shingles to the drip edges leaving the roofing system susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is defined in 489) that performs work and was unlicensed at the time of performing said work is liable for triple damages and attorney fees and costs. Does this mean that even though a CBC is licensed that the work performed on the drip edges, rakes and eaves constituted unlicensed contracting because it did not have a roof contractor's license?
I don't want to amend my complaint to allege unlicensed contracting liability and serve discovery concerning same without checking with the great legal minds on this listserv.
Any input would be great!
[Description: newlogo]
Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
smickley@gouldcooksey.commailto:smickley@gouldcooksey.com
The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, do not read it. Please immediately reply to the sender that you received this communication in error and then delete it. Thank you.
Circular 230 Disclosure: In compliance with the requirements imposed by the Internal Revenue Service pursuant to IRS Circular 230, we inform you that any tax advice contained in this communication(including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
While I obviously can't speak for CILB, from my experience in such matters I suspect they would treat this as "practicing beyond the scope of license," rather than ULP. Of course, I'm not sure a CBC can't remove soffit and fascia, but I believe the drip cap itself IS part of the roofing (which a CBC can't work on, unless it's shingles on a NEW building or addition that the same contractor constructed) and that the fascia may not be removable with removal of the drip cap as well).
Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Tuesday, September 16, 2014 9:44 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to remove old siding on 8 condominium buildings and replace it with hardi plank siding. The CBC is not a registered or certified roofing contractor and it did not subcontract with a licensed roofing contractor to perform roofing work. As a part of the CBC's scope of work, it was required to remove the soffit, fascia and drip edges on all buildings in order to remove and install siding. As I understand it, drip edges are a waterproofing component of the roofing system and require a licensed roofing contractor to perform removal and install of drip edges and adhering shingles to the drip edge. After the project was complete, the condominium buildings began to have severe leaks at the rakes and eaves where the drip edges were removed and replaced. Through an investigation it was found that the siding contractor failed to adhere the shingles to the drip edges leaving the roofing system susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is defined in 489) that performs work and was unlicensed at the time of performing said work is liable for triple damages and attorney fees and costs. Does this mean that even though a CBC is licensed that the work performed on the drip edges, rakes and eaves constituted unlicensed contracting because it did not have a roof contractor's license?
I don't want to amend my complaint to allege unlicensed contracting liability and serve discovery concerning same without checking with the great legal minds on this listserv.
Any input would be great!
[Description: newlogo]
Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
smickley@gouldcooksey.commailto:smickley@gouldcooksey.com
The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, do not read it. Please immediately reply to the sender that you received this communication in error and then delete it. Thank you.
Circular 230 Disclosure: In compliance with the requirements imposed by the Internal Revenue Service pursuant to IRS Circular 230, we inform you that any tax advice contained in this communication(including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
The Construction Industry Licensing Board treats such things as contracting
beyond the scope of the license (see attached contractor fine schedule under
the FAC) and not unlicensed contracting, so I would think it would be
difficult to argue that performing work beyond the scope of a license was
unlicensed contracting. You should, however, file a complaint with DBPR.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A.
Mickley
Sent: Tuesday, September 16, 2014 9:23 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to
remove old siding on 8 condominium buildings and replace it with hardi plank
siding. The CBC is not a registered or certified roofing contractor and it
did not subcontract with a licensed roofing contractor to perform roofing
work. As a part of the CBC's scope of work, it was required to remove the
soffit, fascia and drip edges on all buildings in order to remove and
install siding. As I understand it, drip edges are a waterproofing component
of the roofing system and require a licensed roofing contractor to perform
removal and install of drip edges and adhering shingles to the drip edge.
After the project was complete, the condominium buildings began to have
severe leaks at the rakes and eaves where the drip edges were removed and
replaced. Through an investigation it was found that the siding contractor
failed to adhere the shingles to the drip edges leaving the roofing system
susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is
defined in 489) that performs work and was unlicensed at the time of
performing said work is liable for triple damages and attorney fees and
costs. Does this mean that even though a CBC is licensed that the work
performed on the drip edges, rakes and eaves constituted unlicensed
contracting because it did not have a roof contractor's license?
I don't want to amend my complaint to allege unlicensed contracting
liability and serve discovery concerning same without checking with the
great legal minds on this listserv.
Any input would be great!
Description: newlogo
Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
The information contained in this transmission is attorney privileged and
confidential. It is intended only for the use of the individual or entity
named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copying of
this communication is strictly prohibited. If you have received this
transmission in error, do not read it. Please immediately reply to the
sender that you received this communication in error and then delete it.
Thank you.
Circular 230 Disclosure: In compliance with the requirements imposed by the
Internal Revenue Service pursuant to IRS Circular 230, we inform you that
any tax advice contained in this communication(including any attachments) is
not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed in this communication.
Whether the roofing work performed by this CBC is "unlicensed" or "beyond
the scope of its license" is a distinction without difference. It either
had a license to perform the work or it did not.
Thus the question is whether or not removing and reinstalling soffit, fascia
and drip edge on a pre-existing building constructed by someone else is
something the CBC license allows. If it is, then there is no violation. If
that work can only be performed by a licensed roofing contractor, and the
CBC did not also possess such license, then it seems the CBC is in violation
of Chapter 489.
The definition of CBC in s.489.105(3)(b) does not help to answer the
question, but the definition of a "roofing contractor" might. "'Roofing
contractor' means a contractor whose services are unlimited in the roofing
trade and who has the experience, knowledge, and skill to install, maintain,
repair, alter, extend, or design, if not prohibited by law, and use
materials and items used in the installation, maintenance, extension, and
alteration of all kinds of roofing, waterproofing, and coating, except when
coating is not represented to protect, repair, waterproof, stop leaks, or
extend the life of the roof. The scope of work of a roofing contractor also
includes skylights and any related work, required roof-deck attachments, and
any repair or replacement of wood roof sheathing or fascia as needed during
roof repair or replacement and any related work.
Note also: s.489.113 identifies the qualifications and restrictions on the
license holders, to wit: s.489.113(3)(b) states, "A general, building, or
residential contractor shall not be required to subcontract the
installation, or repair made under warranty, of wood shingles, wood shakes,
or asphalt or fiberglass shingle roofing materials on a new building of his
or her own construction." The section is silent on the installation of
soffit, fascia and drip edge, but it is limited to new buildings of the
contractor's own construction. Furthermore, s.489.113(3)(g) states, "No
general, building, or residential contractor certified after 1973 shall act
as, hold himself or herself out to be, or advertise himself or herself to be
a roofing contractor unless he or she is certified or registered as a
roofing contractor." It appears that s.489.113(9)(a) contemplates that the
CBC, is in the role of "prime contractor," and should have subcontracted the
work out to a roofing contractor. ("This part does not prevent any
contractor from acting as a prime contractor where the majority of the work
to be performed under the contract is within the scope of his or her license
or from subcontracting to other licensed contractors that remaining work
which is part of the project contracted."
Thus, from a straight reading in the statutes, it appears that the CBC
probably needed a licensed roofer to perform the installation of soffit,
fascia and drip edge on the pre-existing building constructed by someone
else. Because the CBC did not have a licensed roofer perform that work, it
is probably in violation of s.489.127(1)(f), and subject to the penalties
thereunder, including s.489.127(2), and s.489.128. Furthermore, if the
CBC's licensing violation rises to the level of "negligence, malfeasance, or
misfeasance," then the damages under s.768.0425 would apply.
David L. Worthy, Esq.
Florida Bar Board Certified - Construction Law
Niesen|Price|Worthy|Campo
5216 SW 91st Drive Gainesville, FL 32608
Ph (352) 373-9031 Fax (352) 373-9099
http://NPW-Law.com http://npw-law.com/
NPW_Logo_Fluted_Thumb (1) certification logo half size
This communication is intended for the sole use of the individual or entity
to which it is addressed and may contain information that is privileged,
confidential and exempt from disclosure under applicable law. If the reader
of this communication is not the intended recipient, employee or agent
responsible for delivering the message to the intended recipient, you are
hereby notified that any review, dissemination, distribution or copying of
this communication is strictly prohibited. If you have received this
communication in error, please immediately notify me by telephone, delete
this communication, and destroy any copies of it. Thank you.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Tuesday, September 16, 2014 10:29 AM
To: 'Sean A. Mickley'; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Unlicensed Contracting Liability
The Construction Industry Licensing Board treats such things as contracting
beyond the scope of the license (see attached contractor fine schedule under
the FAC) and not unlicensed contracting, so I would think it would be
difficult to argue that performing work beyond the scope of a license was
unlicensed contracting. You should, however, file a complaint with DBPR.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A.
Mickley
Sent: Tuesday, September 16, 2014 9:23 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to
remove old siding on 8 condominium buildings and replace it with hardi plank
siding. The CBC is not a registered or certified roofing contractor and it
did not subcontract with a licensed roofing contractor to perform roofing
work. As a part of the CBC's scope of work, it was required to remove the
soffit, fascia and drip edges on all buildings in order to remove and
install siding. As I understand it, drip edges are a waterproofing component
of the roofing system and require a licensed roofing contractor to perform
removal and install of drip edges and adhering shingles to the drip edge.
After the project was complete, the condominium buildings began to have
severe leaks at the rakes and eaves where the drip edges were removed and
replaced. Through an investigation it was found that the siding contractor
failed to adhere the shingles to the drip edges leaving the roofing system
susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is
defined in 489) that performs work and was unlicensed at the time of
performing said work is liable for triple damages and attorney fees and
costs. Does this mean that even though a CBC is licensed that the work
performed on the drip edges, rakes and eaves constituted unlicensed
contracting because it did not have a roof contractor's license?
I don't want to amend my complaint to allege unlicensed contracting
liability and serve discovery concerning same without checking with the
great legal minds on this listserv.
Any input would be great!
Description: newlogo
Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
The information contained in this transmission is attorney privileged and
confidential. It is intended only for the use of the individual or entity
named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copying of
this communication is strictly prohibited. If you have received this
transmission in error, do not read it. Please immediately reply to the
sender that you received this communication in error and then delete it.
Thank you.
Circular 230 Disclosure: In compliance with the requirements imposed by the
Internal Revenue Service pursuant to IRS Circular 230, we inform you that
any tax advice contained in this communication(including any attachments) is
not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed in this communication.
Wow! Great analysis and insight. I truly appreciate it. I hope to be of some help to you in the future.
Many thanks,
Sean A. Mickley, Esq.
Gould Cooksey Fennell, P.A.
979 Beachland Blvd.
Vero Beach, FL 32963
772-231-1100
On Sep 16, 2014, at 12:21 PM, "Dave Worthy" <dave@npw-law.commailto:dave@npw-law.com> wrote:
Whether the roofing work performed by this CBC is “unlicensed” or “beyond the scope of its license” is a distinction without difference. It either had a license to perform the work or it did not.
Thus the question is whether or not removing and reinstalling soffit, fascia and drip edge on a pre-existing building constructed by someone else is something the CBC license allows. If it is, then there is no violation. If that work can only be performed by a licensed roofing contractor, and the CBC did not also possess such license, then it seems the CBC is in violation of Chapter 489.
The definition of CBC in s.489.105(3)(b) does not help to answer the question, but the definition of a “roofing contractor” might. “’Roofing contractor’ means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, if not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof. The scope of work of a roofing contractor also includes skylights and any related work, required roof-deck attachments, and any repair or replacement of wood roof sheathing or fascia as needed during roof repair or replacement and any related work.
Note also: s.489.113 identifies the qualifications and restrictions on the license holders, to wit: s.489.113(3)(b) states, “A general, building, or residential contractor shall not be required to subcontract the installation, or repair made under warranty, of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his or her own construction.” The section is silent on the installation of soffit, fascia and drip edge, but it is limited to new buildings of the contractor’s own construction. Furthermore, s.489.113(3)(g) states, “No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor.” It appears that s.489.113(9)(a) contemplates that the CBC, is in the role of “prime contractor,” and should have subcontracted the work out to a roofing contractor. (“This part does not prevent any contractor from acting as a prime contractor where the majority of the work to be performed under the contract is within the scope of his or her license or from subcontracting to other licensed contractors that remaining work which is part of the project contracted.”
Thus, from a straight reading in the statutes, it appears that the CBC probably needed a licensed roofer to perform the installation of soffit, fascia and drip edge on the pre-existing building constructed by someone else. Because the CBC did not have a licensed roofer perform that work, it is probably in violation of s.489.127(1)(f), and subject to the penalties thereunder, including s.489.127(2), and s.489.128. Furthermore, if the CBC’s licensing violation rises to the level of “negligence, malfeasance, or misfeasance,” then the damages under s.768.0425 would apply.
David L. Worthy, Esq.
Florida Bar Board Certified - Construction Law
Dave@NPW-Law.commailto:Dave@NPW-Law.com
Niesen|Price|Worthy|Campo
5216 SW 91st Drive Gainesville, FL 32608
Ph (352) 373-9031 Fax (352) 373-9099
http://NPW-Law.comhttp://npw-law.com/
<image002.png> <image004.jpg>
This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it. Thank you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Tuesday, September 16, 2014 10:29 AM
To: 'Sean A. Mickley'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Unlicensed Contracting Liability
The Construction Industry Licensing Board treats such things as contracting beyond the scope of the license (see attached contractor fine schedule under the FAC) and not unlicensed contracting, so I would think it would be difficult to argue that performing work beyond the scope of a license was unlicensed contracting. You should, however, file a complaint with DBPR.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Tuesday, September 16, 2014 9:23 AM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to remove old siding on 8 condominium buildings and replace it with hardi plank siding. The CBC is not a registered or certified roofing contractor and it did not subcontract with a licensed roofing contractor to perform roofing work. As a part of the CBC’s scope of work, it was required to remove the soffit, fascia and drip edges on all buildings in order to remove and install siding. As I understand it, drip edges are a waterproofing component of the roofing system and require a licensed roofing contractor to perform removal and install of drip edges and adhering shingles to the drip edge. After the project was complete, the condominium buildings began to have severe leaks at the rakes and eaves where the drip edges were removed and replaced. Through an investigation it was found that the siding contractor failed to adhere the shingles to the drip edges leaving the roofing system susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is defined in 489) that performs work and was unlicensed at the time of performing said work is liable for triple damages and attorney fees and costs. Does this mean that even though a CBC is licensed that the work performed on the drip edges, rakes and eaves constituted unlicensed contracting because it did not have a roof contractor’s license?
I don’t want to amend my complaint to allege unlicensed contracting liability and serve discovery concerning same without checking with the great legal minds on this listserv.
Any input would be great!
<image005.jpg>
Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
smickley@gouldcooksey.commailto:smickley@gouldcooksey.com
The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, do not read it. Please immediately reply to the sender that you received this communication in error and then delete it. Thank you.
Circular 230 Disclosure: In compliance with the requirements imposed by the Internal Revenue Service pursuant to IRS Circular 230, we inform you that any tax advice contained in this communication(including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
I've handled 100s of CILB disciplinary cases, and have never (in 15 years) seen any licensee charged with ULP by DBPR under these circumstances. Of course, in civil litigation you may find a trial court judge with a difference view, which would have a significant impact due to the provisions of ss. 489.128 and 768.0425(2).
Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Tuesday, September 16, 2014 12:48 PM
To: Dave Worthy
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Unlicensed Contracting Liability
Wow! Great analysis and insight. I truly appreciate it. I hope to be of some help to you in the future.
Many thanks,
Sean A. Mickley, Esq.
Gould Cooksey Fennell, P.A.
979 Beachland Blvd.
Vero Beach, FL 32963
772-231-1100
On Sep 16, 2014, at 12:21 PM, "Dave Worthy" <dave@npw-law.commailto:dave@npw-law.com> wrote:
Whether the roofing work performed by this CBC is "unlicensed" or "beyond the scope of its license" is a distinction without difference. It either had a license to perform the work or it did not.
Thus the question is whether or not removing and reinstalling soffit, fascia and drip edge on a pre-existing building constructed by someone else is something the CBC license allows. If it is, then there is no violation. If that work can only be performed by a licensed roofing contractor, and the CBC did not also possess such license, then it seems the CBC is in violation of Chapter 489.
The definition of CBC in s.489.105(3)(b) does not help to answer the question, but the definition of a "roofing contractor" might. "'Roofing contractor' means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, if not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof. The scope of work of a roofing contractor also includes skylights and any related work, required roof-deck attachments, and any repair or replacement of wood roof sheathing or fascia as needed during roof repair or replacement and any related work.
Note also: s.489.113 identifies the qualifications and restrictions on the license holders, to wit: s.489.113(3)(b) states, "A general, building, or residential contractor shall not be required to subcontract the installation, or repair made under warranty, of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his or her own construction." The section is silent on the installation of soffit, fascia and drip edge, but it is limited to new buildings of the contractor's own construction. Furthermore, s.489.113(3)(g) states, "No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor." It appears that s.489.113(9)(a) contemplates that the CBC, is in the role of "prime contractor," and should have subcontracted the work out to a roofing contractor. ("This part does not prevent any contractor from acting as a prime contractor where the majority of the work to be performed under the contract is within the scope of his or her license or from subcontracting to other licensed contractors that remaining work which is part of the project contracted."
Thus, from a straight reading in the statutes, it appears that the CBC probably needed a licensed roofer to perform the installation of soffit, fascia and drip edge on the pre-existing building constructed by someone else. Because the CBC did not have a licensed roofer perform that work, it is probably in violation of s.489.127(1)(f), and subject to the penalties thereunder, including s.489.127(2), and s.489.128. Furthermore, if the CBC's licensing violation rises to the level of "negligence, malfeasance, or misfeasance," then the damages under s.768.0425 would apply.
David L. Worthy, Esq.
Florida Bar Board Certified - Construction Law
Dave@NPW-Law.commailto:Dave@NPW-Law.com
Niesen|Price|Worthy|Campo
5216 SW 91st Drive Gainesville, FL 32608
Ph (352) 373-9031 Fax (352) 373-9099
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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 Charles B. Hernicz, Esq
Sent: Tuesday, September 16, 2014 10:29 AM
To: 'Sean A. Mickley'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Unlicensed Contracting Liability
The Construction Industry Licensing Board treats such things as contracting beyond the scope of the license (see attached contractor fine schedule under the FAC) and not unlicensed contracting, so I would think it would be difficult to argue that performing work beyond the scope of a license was unlicensed contracting. You should, however, file a complaint with DBPR.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Tuesday, September 16, 2014 9:23 AM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Unlicensed Contracting Liability
All,
I have a case where a Certified Building Contractor (CBC) was hired to remove old siding on 8 condominium buildings and replace it with hardi plank siding. The CBC is not a registered or certified roofing contractor and it did not subcontract with a licensed roofing contractor to perform roofing work. As a part of the CBC's scope of work, it was required to remove the soffit, fascia and drip edges on all buildings in order to remove and install siding. As I understand it, drip edges are a waterproofing component of the roofing system and require a licensed roofing contractor to perform removal and install of drip edges and adhering shingles to the drip edge. After the project was complete, the condominium buildings began to have severe leaks at the rakes and eaves where the drip edges were removed and replaced. Through an investigation it was found that the siding contractor failed to adhere the shingles to the drip edges leaving the roofing system susceptible to wind driven rain and roof leaks.
My question is: under 768.0425, Fla. Stat., any contractor (as that term is defined in 489) that performs work and was unlicensed at the time of performing said work is liable for triple damages and attorney fees and costs. Does this mean that even though a CBC is licensed that the work performed on the drip edges, rakes and eaves constituted unlicensed contracting because it did not have a roof contractor's license?
I don't want to amend my complaint to allege unlicensed contracting liability and serve discovery concerning same without checking with the great legal minds on this listserv.
Any input would be great!
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Sean A. Mickley, Esq.
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, FL 32963
Telephone 772-231-1100 Fax 772-231-2020
smickley@gouldcooksey.commailto:smickley@gouldcooksey.com
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Section 772.11. Civil remedy for theft or exploitation states, in part, as follows:
“(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&DocName=FLSTS812.012&FindType=L-812.037http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&DocName=FLSTS812.037&FindType=L or s. 825.103(1)http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&DocName=FLSTS825.103&FindType=L&ReferencePositionType=T&ReferencePosition=SP_f1c50000821b0 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand . . . ”
My understanding of the statute is that, in order to avoid the cause of action for threefold the actual damages sustained, the person who stole the funds must comply with the written demand within 30 days after receipt of the demand. The written demand must be “for $200 or the treble damage amount of the person liable for damages.”
So, if the person stole $5000 and the written demand for three times that amount was hand-delivered to them on July 14, 2015, wouldn’t the person receiving the demand letter have to pay $15,000 on or before August 13, 2015? Not just mail a check for $5000 on August 14, 2015, correct?
Thanks for your input!
Andrea
Andrea M. Fair
Board Certified Construction Attorney
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Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
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