Florida Construction Law

If the scope of work an unlicensed contractor provides an owner does not require a license and that the contract does not specifically require that a licensed contractor perform the work, the owner cannot use Section 489.128 to nullify a contract because the contractor is unlicensed.  A-1 Quality Corp. v. Oak Park Terrace, Inc ., 32 So.3d 166 (Fla. 4th DCA 2010).   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

An unlicensed subcontractor cannot use Section 489.128, Fla. Stat. as an affirmative defense even if the general contractor knew the subcontractor was unlicensed.  Earth Trades, Inc. v. T&G Corp ., 42 So.3d 929 (Fla. 5th DCA 2010). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com

Earth Trades v. T & G , 35 Fla. L. Weekly D1937b (August 27, 2010): General contractor’s alleged knowledge that subcontractor was unlicensed would not be an affirmative defense for owner under section 489.128, F. S., as amended in 2003 to add subsection (3), which provides, in part: “The section shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien or bond remedies.” Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

MM II v. Silvester , Florida 4th DCA (August 18, 2010): In a breach of contract dispute between homeowner and installer of audio equipment, it was determined that NO contractor or electrical contractor license was required even though the audio wiring involves low voltage electricity. Accordingly, the contractor was NOT “unlicensed” and could enforce the contract. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

MGM Construction Services Corp., vs. Travelers Casualty & Surety Co. of America, et al., Case No. 3D10-203, filed March 2, 2011: Summary judgment against an unlicensed subcontractor was reversed and remanded in order to allow the trial court to consider specified public policy factors, where only licensure requirement was pursuant to local county ordinance (Miami-Dade), which, unlike s. 489.128, F. S., did not contain any provision regarding contract non-enforceability. In rejecting the contractor’s argument that a contract entered into in violation of law (the ordinance) was void, the court noted that “in the absence of legislative direction, a hard and fast rule declaring contracts unenforceable is bound to result in inequitable or absurd outcomes in certain situation, and that some flexibility in the decision-making process is required.” Instead, the court noted that s. 489.128(1)(a) had been amended effective October 1, 2009, after the case had begun, to provide that a contrac...