Problems In State Contractor's Licensing Laws Part Nine
Florida Contractor's Licensing LawFlorida's licensing laws are found in Fla. Stat Title 32: Regulation of Professions and Occupations, Chapter 489: Contracting. Florida requires a contractor to be registered or certified. A registered license is issued at the local level unless a certified license is required by the county in which the contractor will work. A certified license permits the contractor to work in all counties in Florida. Electrical contractors must be certified. Air Conditioning contractors can obtain a Class A or Class B license.
1) Minor Work Exemption: In Florida, a license is required for jobs costing over $1,000.00. 32 F.S.A. 489.103((9)
2) Other Licensing Exemptions/Exceptions:
32 F.S.A. ? 489.103. Exemptions: This part does not apply to:
Any work or operation of a casual, minor, or inconsequential nature in which the aggregate contract price for labor, materials, and all other items is less than $ 1,000, but this exemption does not apply:
Florida Contractor's Licensing Law(a) If the construction, repair, remodeling, or improvement is a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than $ 1,000 for the purpose of evading this part or otherwise. (b) To a person who advertises that he or she is a contractor or otherwise represents that he or she is qualified to engage in contracting. 32 F.S.A. ? 489.103(9) (a) (b) and 489.103 (17) (a) (b).
Occupational licensing requirements are found at 32 F.S.A. ? 489.117. Registration; specialty contractors provides in part:
(1) (a) Any person engaged in the business of a contractor in the state shall be registered in the proper classification, unless he or she is certified.
32 F.S.A. ? 489.119. Business organizations; qualifying agents. This section provides in pertinent part:
Florida Contractor's Licensing Law(1) If an individual proposes to engage in contracting in the individual's own name, or a fictitious name where the individual is doing business as a sole proprietorship, registration or certification may be issued only to that individual.
(2) If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant's legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.
4) Penalties: See 32 F.S.A. 489.127 for contractors and 489.531 for electricians.
(a) As a prerequisite to the initial issuance or the renewal of a certificate or registration, the applicant shall submit an affidavit on a form provided by the board attesting to the
Florida Contractor's Licensing Law cont'dfact that the applicant has obtained workers' compensation insurance as required by chapter 440, public liability insurance, and property damage insurance for the safety and welfare of the public, in amounts determined by rule of the board. The board shall by rule establish a procedure to verify the accuracy of such affidavits based upon a random sample method.
(b) In addition to the affidavit of insurance, as a prerequisite to the initial issuance of a certificate, the applicant shall furnish a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant and evidence of financial responsibility, credit, and business reputation of either himself or herself or the business organization he or she desires to qualify. 32 F.S.A. ? 489.115.
Reciprocity with licensees of other states is permitted and insurance requirements are set forth as follows:
Florida Contractor's Licensing Law cont'd(3) The board shall certify as qualified for certification by endorsement any applicant who:
(a) Meets the requirements for certification as set forth in this section; has passed a national, regional, state, or United States territorial licensing examination that is substantially equivalent to the examination required by this part; and has satisfied the requirements set forth in 32 F.S.A. ? 489.111;
(b) Holds a valid license to practice contracting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to Florida's current certification criteria; or
(c) Holds a valid, current license to practice contracting issued by another state or territory of the United States, if the state or territory has entered into a reciprocal agreement with the board for the recognition of contractor licenses issued in that state, based on criteria for the issuance of such licenses that are substantially equivalent to
Florida Contractor's Licensing Law cont'dthe criteria for certification in this state. 32 F.S.A. ? 489.115
7) Special Rules:
An indemnification limitation applies in the construction context as follows:
41 F.S.A. ? 725.06. Construction contracts; limitation on indemnification
(1) Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman or any combination thereof wherein any party referred to herein promises to indemnify or hold harmless the other party to the agreement, contract, or guarantee for liability for damages to persons or property caused in whole or in part by any act, omission, or default of the indemnitee arising from the contract or its performance, shall be void and
Florida Contractor's Licensing Law cont'dunenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any. 41 F.S.A. ? 725.06.
Generally, 32 F.S.A. ? ? 489.103(b) and 489.503(b) address how the determination of employee versus independent contractor is made. These two provisions provide that in Florida, an employee is one who receives compensation from and is under the supervision and "control" of an employer who "regularly deducts the FICA and withholding tax and provides worker's compensation as prescribed by law." Florida's jurisprudence provides the following:
2A Fla Jur AGENCY AND EMPLOYMENT ? 138 Generally
Generally, an employer of an independent contractor is not liable for the negligence of the independent contractor. This rule is based on the premise that the employer has no control over the manner in which the work is done.
Florida Contractor's Licensing Law cont'dMoreover, the familiar principle that the negligence of another will not be imputed to a party if he neither authorized such conduct nor participated therein nor had the power to control it, is particularly applicable to employers in regard to the acts of independent contractors whom they have engaged, so long as the work engaged in by the independent contractor is not inherently dangerous.
Observation: The doctrine of nonliability of one who hires an independent contractor applies to a governmental agency the same as to a private entity.
Although an employer normally is not liable for the torts of an independent contractor, this principal has no application in a contract action.
Independent contractors are not liable for foreseeable harm caused by their own negligence. Baader v. Looby, (1961) 126 So.2d 745. 2A Fla Jur Agency and Employment ? 156. Further, independent contractors may be held liable for injuries
Florida Contractor's Licensing Law cont'doccurring after completion of work if the dangerous condition would not be discoverable by a reasonable inspection. Slavin v. Kay (1958) 108 So.2d 462., Seitz v. Zac Smith & Co., Inc. (1987) 500 So.2d 706. This "patent danger" defense is only applicable as a defense to liability for injuries to a third party, not as a bar to recovery. Easterday v. Masiello (1988) 518 So. 2d 260. Independent contractors may be liable for injuries to third parties where dealing with inherently dangerous conditions -- where the contractor, before relinquishing control of the project, has created an "inherently dangerous condition." Seitz, supra.
In Florida, there are three exceptions to the general rule of non-liability of employer's of independent contractor's for injuries to the independent contractor's employees. The exceptions are:
1) negligence in selecting, instructing or supervising the contractor;
2) non-delegable duties arising out of some relation toward the public or particular
Florida Contractor's Licensing Law cont'dplaintiff;
3) work which is specially, peculiarly, or inherently dangerous.
Some courts have noted other exceptions. 2A Fla Jur Agency and Employment ? 150. Also, as a general rule and as discussed above, contractors are not liable for injuries to third parties occurring after the contractor has completed the work if the defect was patent and could have otherwise been discovered. But if the work isn't accepted, the rule of nonliability does not apply. 2A Fla Jur Agency and Employment ? 155. An independent contractor is not liable if he merely followed the plans, specifications, and directions of his employer where the plans are not obviously dangerous to the point no one would have followed them. Id.