Licensure Question - Commercial Water Treatment/Filtration Systems and Facilities
Good evening. Hope you all have had a great weekend! I have a general licensure question that I am hoping someone has some experience with ……
- Presume we have a company which specializes in the design and manufacture of complex commercial water filtration systems for large facilities.
- The company has been asked to not only design and fabricate the water system (some of which happens off site and out of state), but to remove/demolish the owner's existing system and install the new system on site.
- The on site work includes the installation of storage tanks, pumps, compressors, ducting, control valves, and other equipment, plus the electrical wiring, the foundations and structural systems necessary to support same.
- The work would involve the hiring of subcontractors to perform the on site work and to fabricate some of the components, as well as the hiring of local engineering sub-consultants with respect to the on site installation (all of which would be supervised, scheduled and controlled by the company).
Presume this company is not licensed as a general contractor or an engineer with the Fla. Department of Business and Professional Regulation. What type of licensure would this company actually need in order to offer these services? Is this company required to be a licensed engineering firm under Chap. 471, Fla. Statutes or a licensed GC under Section 489, Fla. Statutes, or both? I am wondering if there are any exceptions or factual distinctions for this type of manufacturing or systems I may be overlooking.
Leslie Tomczak, LEED AP
Board Certified by The Florida Bar in Construction Law
Akerman LLP | Las Olas Centre II, Suite 1600 | 350 East Las Olas Boulevard | Fort Lauderdale, FL 33301-2999
Dir: 954.759.8926 | Main: 954.463.2700 | Fax: 954.463.2224
leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com
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Leslie,
Here are some thoughts...
You've probably considered the exemptions at Sec. 489.103 including those at (6) and (15).
I think the design-build exemptions in Chapter 471, 481, and 489 should make either an engineering, architectural, or general contracting license suffice, if necessary, as long as the proper scope(s) are subcontracted out to the appropriately licensed company(ies).
Whether a GC or electrical license is required depends on a close examination of the work. I think considering whether structural activities are occurring, what's being demolished (see Sec. 489.105(3)), and what kind of electrical work is happening would be good places to start.
If engineering sub-consultants are hired by the company to fulfill part of the scope of the prime contract, I think this suggests that the company needs either an engineering license or else a GC license (so it can take advantage of the design-build exemption at Section 471.003(2)(i)).
Hardy
Hardy L. Roberts
Carey O'Malley Whitaker Mueller Roberts & Smith P.A.
Direct: 813-345-5212
On Feb 12, 2017, at 5:31 PM, "leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com" <leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com> wrote:
Good evening. Hope you all have had a great weekend! I have a general licensure question that I am hoping someone has some experience with ......
- Presume we have a company which specializes in the design and manufacture of complex commercial water filtration systems for large facilities.
- The company has been asked to not only design and fabricate the water system (some of which happens off site and out of state), but to remove/demolish the owner's existing system and install the new system on site.
- The on site work includes the installation of storage tanks, pumps, compressors, ducting, control valves, and other equipment, plus the electrical wiring, the foundations and structural systems necessary to support same.
- The work would involve the hiring of subcontractors to perform the on site work and to fabricate some of the components, as well as the hiring of local engineering sub-consultants with respect to the on site installation (all of which would be supervised, scheduled and controlled by the company).
Presume this company is not licensed as a general contractor or an engineer with the Fla. Department of Business and Professional Regulation. What type of licensure would this company actually need in order to offer these services? Is this company required to be a licensed engineering firm under Chap. 471, Fla. Statutes or a licensed GC under Section 489, Fla. Statutes, or both? I am wondering if there are any exceptions or factual distinctions for this type of manufacturing or systems I may be overlooking.
Leslie Tomczak, LEED AP
Board Certified by The Florida Bar in Construction Law
Akerman LLP | Las Olas Centre II, Suite 1600 | 350 East Las Olas Boulevard | Fort Lauderdale, FL 33301-2999
Dir: 954.759.8926 | Main: 954.463.2700 | Fax: 954.463.2224
leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com
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Leslie, a few thoughts/points of law:
Fla. Stat. §489.503(5) specifically exempts the following activities from the definition of electrical contracting: “The sale or installation of any finished products, materials, or articles of merchandise which are not actually fabricated into, and do not become a permanent fixed part of, the structure.” (Emphasis added.).
The definition of “Contractor” also includes a finished product exemption for “[t]he sale or installation of any finished products, materials, or articles of merchandise that are not fabricated into and do not become a permanent fixed part of the structure, such as awnings.” Fla. Stat. § 489.103(6) (emphasis added).
“Improve” is defined in Fla. Stat. § 713.01(14) as follows: “[to] build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property.” An “improvement” is further defined as “any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.”
In Palm Beach Mall, Inc. v. Southeast Millwork, Inc., 593 So. 2d 1121 (Fla. 4th DCA 1992), a mall kiosk was required to be constructed pursuant to contract. The work for the kiosk involved hardwiring the kiosk into the power system which was considered a permanent installation. The hardwiring would have required a licensed electrician. The court found that the construction of the kiosk was not an “improvement” under Fla. Stat. § 713.01(6), and overturned enforcement of the construction lien.
As noted above, there is a finished product exception. There is not a lot of caselaw on the issue, so it will largely depend on your judge whether your product could be deemed a “finished product” and therefore falling within the exception. If your improvements are not permanent (i.e. could be easily removed if the tenant leaves the building, better yet, were originally intended to be removed at a date certain in the future) and not structural, you can argue the equipment does not does not meet the definition of improvement and therefore is not construction (therefore not requiring a license). There may be a 100 different thoughts out there on this, but we did successfully defend a client who did not have a license, whose work required significant on site assembly of what we successfully argued was sale of a finished product and non-permanent, non-structural improvement. This all said, if you are not in litigation, you probably would best serve your client by going to the CILB directly with your inquiry.
Jared E. Smith
Board Certified in Construction Law
[Rumberger Kirk & Caldwell]http://www.rumberger.com
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Email: jsmith@rumberger.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of leslie.tomczak@akerman.com
Sent: Sunday, February 12, 2017 5:29 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Licensure Question - Commercial Water Treatment/Filtration Systems and Facilities
Good evening. Hope you all have had a great weekend! I have a general licensure question that I am hoping someone has some experience with ……
- Presume we have a company which specializes in the design and manufacture of complex commercial water filtration systems for large facilities.
- The company has been asked to not only design and fabricate the water system (some of which happens off site and out of state), but to remove/demolish the owner's existing system and install the new system on site.
- The on site work includes the installation of storage tanks, pumps, compressors, ducting, control valves, and other equipment, plus the electrical wiring, the foundations and structural systems necessary to support same.
- The work would involve the hiring of subcontractors to perform the on site work and to fabricate some of the components, as well as the hiring of local engineering sub-consultants with respect to the on site installation (all of which would be supervised, scheduled and controlled by the company).
Presume this company is not licensed as a general contractor or an engineer with the Fla. Department of Business and Professional Regulation. What type of licensure would this company actually need in order to offer these services? Is this company required to be a licensed engineering firm under Chap. 471, Fla. Statutes or a licensed GC under Section 489, Fla. Statutes, or both? I am wondering if there are any exceptions or factual distinctions for this type of manufacturing or systems I may be overlooking.
Leslie Tomczak, LEED AP
Board Certified by The Florida Bar in Construction Law
Akerman LLP | Las Olas Centre II, Suite 1600 | 350 East Las Olas Boulevard | Fort Lauderdale, FL 33301-2999
Dir: 954.759.8926 | Main: 954.463.2700 | Fax: 954.463.2224
leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com
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vCardhttp://www.akerman.com/bios/vcard.asp?id=673 | Biohttp://www.akerman.com/bios/bio.asp?id=673
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Leslie, please see below from Hardy Roberts. He was unable to send directly due to a glitch in the listserv.
Leslie,
Here are some thoughts...
You've probably considered the exemptions at Sec. 489.103 including those at (6) and (15).
I think the design-build exemptions in Chapter 471, 481, and 489 should make either an engineering, architectural, or general contracting license suffice, if necessary, as long as the proper scope(s) are subcontracted out to the appropriately licensed company(ies).
Whether a GC or electrical license is required depends on a close examination of the work. I think considering whether structural activities are occurring, what's being demolished (see Sec. 489.105(3)), and what kind of electrical work is happening would be good places to start.
If engineering sub-consultants are hired by the company to fulfill part of the scope of the prime contract, I think this suggests that the company needs either an engineering license or else a GC license (so it can take advantage of the design-build exemption at Section 471.003(2)(i)).
Hardy
Hardy L. Roberts
Carey O'Malley Whitaker Mueller Roberts & Smith P.A.
Direct: 813-345-5212tel:813-345-5212
Sent from my iPhone
On Feb 12, 2017, at 5:31 PM, "leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com" <leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com> wrote:
Good evening. Hope you all have had a great weekend! I have a general licensure question that I am hoping someone has some experience with ……
- Presume we have a company which specializes in the design and manufacture of complex commercial water filtration systems for large facilities.
- The company has been asked to not only design and fabricate the water system (some of which happens off site and out of state), but to remove/demolish the owner's existing system and install the new system on site.
- The on site work includes the installation of storage tanks, pumps, compressors, ducting, control valves, and other equipment, plus the electrical wiring, the foundations and structural systems necessary to support same.
- The work would involve the hiring of subcontractors to perform the on site work and to fabricate some of the components, as well as the hiring of local engineering sub-consultants with respect to the on site installation (all of which would be supervised, scheduled and controlled by the company).
Presume this company is not licensed as a general contractor or an engineer with the Fla. Department of Business and Professional Regulation. What type of licensure would this company actually need in order to offer these services? Is this company required to be a licensed engineering firm under Chap. 471, Fla. Statutes or a licensed GC under Section 489, Fla. Statutes, or both? I am wondering if there are any exceptions or factual distinctions for this type of manufacturing or systems I may be overlooking.
Leslie Tomczak, LEED AP
Board Certified by The Florida Bar in Construction Law
Akerman LLP | Las Olas Centre II, Suite 1600 | 350 East Las Olas Boulevard | Fort Lauderdale, FL 33301-2999
Dir: 954.759.8926 | Main: 954.463.2700 | Fax: 954.463.2224
leslie.tomczak@akerman.commailto:leslie.tomczak@akerman.com
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CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.
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