PROPER CONSTRUCTION LICENSING IS IMPORTANT

Posted on November 7, 2026November 7, 2026 by David Adelstein

Proper construction licensing is important. The recent spate of cases have come out harshly against the unlicensed contractor. Naturally the solution is to ensure you have the proper licenses complying with Florida law to transact your construction business PRIOR to entering into your contract.

In Ramindesign, LLC v. Skarzynski, 2026 WL 3181066 (S.D.Fla. 2026) the federal district court was asked to reconsider a summary judgment that was entered against the plaintiff finding it operated as an unlicensed contractor. (See here for the original ruling.) The plaintiff argued that the court overlooked language in the contract that it was not acting as a general contractor. In the contract, the plaintiff was designing and building a residential spec home, and the contract provided that it was an agreement for the development of a residential home. Notably, the contract did not define the term development and never used the term developer even though the plaintiff contended it was not acting as a contractor but as a “spec developer.” The court was not persuaded by the motion for reconsideration and struck with its ruling that the plaintiff acted as an unlicensed contractor.

The court explained that regardless of any exculpatory language in the contract, Florida Statute s. 489.128 “reflects a clear public policy, both to protect homeowners and the public, and to induce contractors to obtain and maintain licenses … allowing the enforcement of a waiver [or exculpatory] clause purporting to effectively void the statutory penalty imposed on an unlicensed contractor for its failure to obtain a license would violate Florida’s public policy.” Ramindesign, supra at *2.

Here the “spec developer” was serving as a contractor within the meaning of Florida law, specifically Florida Statute s. 489.105(3). Its role was to construct and make improvements to residential real property, irrespective of its self-label as a “spec developer,” and met the definition of a contractor under Florida law. And, therefore, it acted as an unlicensed general contractor which has no rights or remedies under Florida law. Ramindesign, supra at *1-2.

The plaintiff further argued that even if it was not licensed as a contractor because it did not believe it needed to be, it was affiliated with a qualifying agent (licensed contractor) and, therefore was a proper contractor. While the court did not factually buy the argument that the plaintiff was affiliated with the qualifying agent prior to performing construction, it explained that even if the court accepted the plaintiff’s argument, the fact that plaintiff never registered itself with Florida’s Department of Business and Professional Regulation presented an issue as to the plaintiff properly having a qualifying agent.

When drafting a contract, remember, including waiver or exculpatory language that condones an illegality will not be enforceable. The parties cannot legalize an illegality. Had the language been drafted differently, that better caters to the role of the plaintiff and the licensure circumstance, perhaps a contract could have been drafted where plaintiff’s “spec developer” label would have been given more consideration. Unfortunately, here, the contract was not drafted with that forethought to better create that argument down the road that it was not serving as a contractor, but as a developer.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

FLORIDA IS NOT PLAYING GAMES WITH UNLICENSED CONTRACTING

Posted on June 21, 2025June 21, 2025 by David Adelstein

Lately, Florida is NOT playing any games with unlicensed contractors. And the results are harsh. BE WARY.

This is demonstrated in the recent opinion CAM Bradford Homes, LLC v. Arrants, 2025 WL 1715893 (Fla. 5^th DCA 2025).

In this case, an owner hired a contractor to build a house. The contractor’s owner, a licensed contractor, pulled the permit in his own name and supervised the project. However, the owner did not qualify his construction company as a licensed contractor. A dispute arose and the owner terminated the contract. The contractor liened the project and sued the owner. The owner claimed the contract was unenforceable under Florida Statute s. 489.128 because the contractor was unlicensed. This meant the contractor could not enforce its contract (or lien) and was sh*t out of luck. The trial court and appellate court agreed because while the owner of the construction company may have been properly licensed, his construction company was not.

In Florida, all contractors must be certified or registered with the Department. When any business organization other than a sole proprietorship intends to engage in construction contracting, “the applicant must apply for registration or certification as the qualifying agent of the business organization.” To qualify a business organization contractors for the first time, the agent must apply to the Construction Industry Licensing Board (“Board”) and submit certain documents and a fee. If the Board determines the business is qualified, the Department will issue the business organization a certificate or registration.

Under Florida law, only a licensed contractors can enforce its contracts. To be considered licensed, a business organization contractor must have a qualifying agent that is itself licensed to perform the work contemplated in the contract. Thus, whether a business organization is a licensed contractor within the meaning of section 489.128 “turns on whether the business organization is [legally] associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract.”

CAM Bradford Homes, supra at *2 (internal citations omitted).

The contractor countered the harsh result of it not being able to enforce its contract or lien by arguing its owner was licensed and pulled the permit and supervised. In other words, the owner “acted” as the qualifying agent. The appellate court found this unpersuasive:

If the Legislature had intended the requirements to have been met by an “acting” qualified agent, it would not have explicitly provided that only a sole proprietorship may rely on the license of an individual without applying with the Department. Moreover, accepting the assertion that [the owner] was [the construction company’s] qualifying agent despite his failure to apply would render meaningless the statutory provisions prohibiting business organizations from engaging in contracting without being certified or registered…as well as those prohibiting a certified or registered contractor from allowing an unqualified business organization to use their individual certification or registration number to engage in contracting…. We cannot interpret statutes in such a way.

CAM Bradford Homes, supra at *3 (internal citations omitted).

If you are a contractor in Florida, treat licensure seriously. It’s no joke, as you can tell. If you are an owner, do your due diligence to ensure you are hiring a licensed contractor. If not, you have an argument that the contract is not enforceable in law or in equity against that unlicensed contractor.

WARY TO THE UNLICENSED CONTRACTOR – YOU ARE SH*T OUT OF LUCK

Posted on April 20, 2025April 20, 2025 by David Adelstein

Constructing licensing is governed under Florida Statutes Chapter 489. Under Florida Statute s. 489.128, an unlicensed contractor has NO rights or remedies. Stated differently, an unlicensed contractor is “sh*t out of luck!”. However, what’s been complicated, and it really shouldn’t be, is what contractors need to be licensed through the state of Florida by the Construction Industry Licensing Board (known as the CILB). A recent case out of Florida’s Third District Court of Appeal adds to the complication and serves as a reminder for contractors to be licensed in Florida.

In Southpoint Shore Management LLC v. Homexpo Miami Corp., 2025 WL 119338 (Fla. 3d DCA 2025), a homeowner went to a company with stone show room to purchase new flooring. The homeowner hired the company (with the show room) to install new high-end marble flooring along with floor leveling and soundproofing. There wasn’t any argument that this cosmetic work even required a permit. The company was not a licensed contractor and hired third parties to perform the flooring work. The homeowner claimed the work was defective and a lawsuit ensued. The homeowner claimed defective work and the company had a counterclaim for payment. The trial court granted summary judgment in favor of the homeowner finding that the contractor was an unlicensed contractor and, therefore, could not assert a counterclaim under Section 489.128. During trial, the homeowner argued the contractor should not be entitled to assert affirmative defenses because of the contractor’s lack of construction license. The court rejected this argument and a jury returned a verdict for the company and against the homeowner. The homeowner appealed arguing that the trial court was wrong to allow the company to raise affirmative defenses because it was an unlicensed contractor. The appellate court agreed with the homeowner:

In applying Chapter 489, we have held that unlicensed contractors such as [the company] cannot assert contractual defenses. See John Hancock-Gannon Joint Venture IT v. McNully, 800 So. 2d 294, 297 (Fla. 3d DCA 2001) (holding that the unlicensed contractor could not enforce his contract with the owner, and therefore, could not assert his contractual defenses). We stated: “Not only did McNully defend on the basis of his unenforceable contract with the owner, he used the contract between the owner and the general contractor to interpose defenses which are clearly prohibited by statute.” Id. at 296 (emphasis added).

Applying the clear statutory language of section 489.128 and our prior holding in McNully, we conclude that the trial court erred when it permitted [the company] to present defenses that it could not legally enforce.

Southpoint Shore Management, supra at *3.

Obviously, this is devastating as the unlicensed contractor could not assert an affirmative claim and could not assert affirmative defenses.

Here is why this adds complication. There is no state license to be a flooring contractor. It wasn’t even stated that such cosmetic work required a permit. You should not need to be a license general contractor (or building contractor or residential contractor) to install flooring. That sentiment just opens up Pandora’s box. Yes, this company hired third-parties to do the installation. But that is really of no moment because the definition of “contractor” under Chapter 489 refers to someone that does work for compensation through itself or others. In other words, if the company self-performed with its own employees the court’s ruling should have remained the same.

This case provides quite a sword that could be used in analogous cases or cases where an owner hired someone to do work that doesn’t require a state license or a permit. Wary to unlicensed contractors in Florida – you are sh*t out of luck!!

DOT I’S AND CROSS T’S WHEN IT COMES TO CONSTRUCTION LICENSURE REQUIREMENTS

Posted on February 13, 2022February 13, 2022 by Edward Garber

It should serve as no surprise that making sure you are appropriately licensed is important. This includes complying with any state requirement that requires licensure, as well as complying with any local licensure requirement. Not doing so can result in the dispute centered on the lack of licensure, as opposed to leading facts relating to the substance of the dispute. In other words, you are dealing with a technicality that could have harsh implications. This lack of licensure issue recently played out in a dispute with a contractor and subcontractor in ABA Interior, Inc. v. The Owen Corp., 2022 WL 386103 (Fla. 4^th DCA 2022), dealing with a local licensure requirement.

In this case, a subcontractor was hired by the general contractor for a commercial project in Palm Beach County. The subcontract contained the standard provision that the subcontractor would comply with all federal, state, and local laws and ordinances.

Palm Beach County had a local ordinance that required the subcontractor to obtain a certificate of competency for specialty contracting (that included some of the work the subcontractor was hired to perform). Palm Beach County had a local ordinance that “makes it unlawful for a person who is required but failed to possess a certificate of competency ‘to hold himself/herself out as a contractor, whether as a plaintiff, defendant or witness in any court in this county.’” ABA Interior, supra, quoting Palm Beach County Code section 7-17(b)(2).

When the general contractor learned the subcontractor had not obtained its certificate of competency–which appeared to be learned after the subcontractor completed its performance–it stopped paying the subcontractor. The subcontractor sued the general contractor for payment in Broward County based on the subcontract’s venue provision. The general contractor counterclaimed to recover monies it paid the subcontractor (presumably under a disgorgement theory for unlicensed contracting) and further argued the subcontractor could NOT sue the general contractor relating to its unlicensed work.

The trial court agreed and entered summary judgment in favor of the general contractor. The Fourth District Court of Appeal reversed in part.

The subcontractor argued that because it sued in Broward County, not Palm Beach County, any bar to suing in Palm Beach County due to its lack of licensure did not apply. The appellate court shot this argument down as unreasonable:

[T]he [subcontractor’s] reading of the Palm Beach County Code would make it so that section 7-17(b)(2) could never be enforced outside of Palm Beach County, even when Palm Beach County law applies. If a contract has a venue provision outside of Palm Beach County, as is the case here, a party that falsely holds itself out as possession a required certificate of competency would effectively face no consequence. This would be an unreasonable result.

ABA Interiors, supra.

However, the appellate court maintained that the local ordinance only barred an unlicensed contractor “from litigating claims involving work that requires additional [specialty] licensure. [The subcontractor] was still permitted to prosecute or defend itself on claims that did not require this additional licensure.” Id. The subcontractor’s scope included flooring work which may not have required a specialty license. The appellate court found there was no finding by the trial court that all of the subcontractor’s work required a specialty license and there was also no finding as to whether the subcontractor complied with its contractual requirement “by engaging properly licensed sub-subcontractors to perform the work that required Palm Beach County licensure.” ABA Interiors, supra. For this reason, the appellate court reversed summary judgment.

Moreover, the appellate court maintained that there was no finding by the trial court as to whether the subcontractor’s lack of this specialty license “constituted a breach of the agreement that would negate any obligation for payment, even for the work that did not require such licensure.” Id. For this reason too, the appellate court reversed summary judgment.

As you can see, this case dealt with the technical argument of licensure. It did not deal with the substance of the subcontractor’s work (i.e., was it defective or nonconforming, or was the work performed correctly). This is not the type of fight you want to be in reinforcing the importance of making sure i’s are dotted and t’s are crossed with licensing requirements.

RESIDENTIAL INTERIOR DECORATOR WAS ENTITLED TO LIEN AND WAS NOT ENGAGING IN UNLICENSED CONTRACTING

Posted on July 11, 2021July 11, 2021 by Edward Garber

Residential construction disputes can sometimes take nasty turns. This is not attributed to one specific reason, but a variety of factors. Sometimes, there are not sophisticated contracts (or contracts at all). Sometimes, relationships and roles get blurred. Sometimes, parties try to skirt licensure requirements. Sometimes, a party is just unreasonable as to their expectations. And, sometimes, a party tries to leverage a construction lien to get what they want. In all disputes, a party would certainly be best suited to work with construction counsel that has experience navigating construction disputes.

An example of a construction dispute that took a nasty turn involving an interior decorator is SG 2901, LLC v. Complimenti, Inc., 2021 WL 2672295 (Fla. 3d DCA 2021). In this case, a condominium unit owner wanted to renovate his apartment. He hired an interior decorator to assist. As his renovation plans became more expansive, the interior decorator told him he would need to hire a licensed contractor and architect. The interior decorator arranged a meeting with those professionals and, at that meeting, they were hired by the owner and told to deal directly with the interior decorator, almost in an owner’s representative capacity since the owner traveled a lot. The interior decorator e-mailed the owner about status and requested certain authorizations, as one would expect an owner’s representative to do. At the completion of the renovation job, the owner did not pay the interior decorator because he was unhappy with certain renovations. The interior decorator recorded a construction lien and sued the owner which included a lien foreclosure claim. There was no discussion of the contracts in this case because, presumably, contracts were based on proposals, were bare-boned, or were oral.

The owner argued that the interior decorator should not be entitled to any monies because she was illegally acting as a general contractor, i.e., engaging in unlicensed contracting. (The owner was arguing under Florida Statute s. 489.128 that states contracts entered into by unlicensed contractors are unenforceable as a matter of public policy.) But there were problems with this argument, as found by the Court. First, the evidence showed the owner did hire a general contractor who had met with the owner and was responsible for the work. Second, the evidence showed that any person who performed a service in connection with the project was approved by and hired by the owner or the general contractor. Third, the Court found the evidence showed the interior decorator’s scope was “specifically limited to providing design/decorating services and acting as the point of contact in a representative or agency capacity on [owner’s] behalf.” SG 2901, LLC, supra. In other words, the evidence showed the interior decorator did not do anything wrong but acted like many interior decorators on renovation jobs by providing a service and assisting the owner with licensed professionals an owner would need to engage.

The owner also argued that the interior decorator was not entitled to a construction lien. The trial Court disagreed because under Florida Statute s. 713.03(1), any person performing services as an interior designer are entitled to a lien for their services used in connection with improving the property or in supervising the work of improving the property. The Court importantly noted that because the interior design services were for a residential property, an interior decorating license was NOT required. See Florida Statute s. 481.229(6)(a) (discussing exemption for interior decorating for residential application).

The scenario discussed in this case is not an uncommon scenario on residential construction projects. Had contracts been formalized or included certain sophistication, perhaps this dispute could have been avoided. Possibly not. But importantly, despite the owner’s arguments to the contrary, the residential interior decorator did nothing improper. She wasn’t required to obtain a license for residential interior decorating. She was not acting as the general contractor. And, she was entitled to a construction lien for unpaid services.

INTERIOR DESIGNER LICENSURE

Posted on September 30, 2017September 30, 2017 by Edward Garber

An interior designer that provides residential interior design services does NOT need to be registered or licensed with the state. On this point, Florida Statute s. 481.229(6)(a) specifies:

(6) This part shall not apply to:

(a) A person who performs interior design services or interior decorator services for any residential application, provided that such person does not advertise as, or represent himself or herself as, an interior designer. For purposes of this paragraph, “residential applications” includes all types of residences, including, but not limited to, residence buildings, single-family homes, multifamily homes, townhouses, apartments, condominiums, and domestic outbuildings appurtenant to one-family or two-family residences. However, “residential applications” does not include common areas associated with instances of multiple-unit dwelling applications.

The italicized, bolded language above reflects that because a residential interior designer does not need to be registered or licensed with the state, they are not allowed to advertise as an interior designer. Well, this is a pretty big deal to residential interior designers. A federal court has stated that this is violative of the First Amendment. Based on this ruling, a residential interior designer may advertise himself/herself as an interior designer notwithstanding the language in the statute and this is how Florida’s Board of Architecture and Interior Design will enforce this statute. This is good news for a residential interior designer.

If an interior designer is providing nonresidential interior design services (such as in a commercial context or dealing with common areas in a building), they do need to be registered or licensed with the state. This doesn’t necessarily impact the advertisement aspect, but it does impact as to whether the interior designer is required to be registered or licensed in order to perform interior design services.

INTERESTED IN FLORIDA CONSTRUCTION CONTRACTING LICENSING???

Posted on May 17, 2016May 17, 2016 by Edward Garber

Interested in learning about Florida construction contracting licensing? Contrary to perhaps popular belief, Florida’s construction contracting licensing law is confusing…even for practitioners. Below is a portion of a presentation on the requirements for construction contracting licensure and the penalties for unlicensed contracting.

[gview file=”https://floridaconstru.wpengine.com/wp-content/uploads/2016/05/contractor-licensing-presentation.pdf”]

QUALIFYING AGENTS AND UNLICENSED CONTRACTING – MORE QUESTIONS THAN ANSWERS

Posted on February 7, 2016November 8, 2024 by Edward Garber

Florida’s licensing requirements for contractors is a complicated statutory framework. This complication was exemplified in the First District Court of Appeal’s decision in Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286 (Fla. 1^st DCA 2015), a case I believe leads to more questions than actual answers relating to the status of a contractor’s qualifying agent.

Homeowners entered into a contract with a homebuilder on February 13, 2004 for the construction of a home. The homebuilder submitted a building permit application (for purposes of obtaining a building permit). A qualifying agent of the homebuilder that previously resigned from the company prior to the date of the contract executed the application. This individual testified she had no involvement with the project, did not authorize the homebuilder to pull a permit for this project, did not supervise this project, and doubted the authenticity of her signature on the application. Notwithstanding, the homebuilder had another designated qualifying agent testify he was employed with the homebuilder during various capacities during the relevant contract period. However, he also did not appear to supervise the project.

After closing, the homeowners sued the homebuilder for negligence by an unlicensed contractor (per Florida Statute s. 768.0425) due to construction defects. The issue turned on whether the homebuilder was licensed at the time of contract. The trial court ruled the homebuilder was not licensed based on the fact that the person that pulled the building permit was no longer affiliated with the contractor at the time of contract and did not supervise the construction.

On appeal, the First District focused on the following applicable language in Florida’s contracting licensing law (embodied in Florida Statutes Chapter 489):

Florida Statute s. 489.128

(1) [C]ontracts entered into…by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor

(1)(a) A business organization (e.g, company) is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.

(1)(c) A contractor shall be considered unlicensed only if the contractor was unlicensed on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed it, if stated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract

Florida Statute s. 489.105

(4) “Primary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

(5) “Secondary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained a permit, and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

Based on this language, the homeowners argued that a business organization does not have a primary or secondary qualifying agent unless a licensed contractor (qualifying agent) obtained the building permit for a project and supervised that project. The First District disagreed and reversed the trial court explaining:

The requirement that a business organization have a qualifying agent “concerning the scope of the work to be performed under the contract” refers to the qualifying agent’s type of licensure, not to the agent’s actual performance with respect to a particular job or permit or even to an agent’s assignment to a particular contract. Section 489.128(1)(a)’s requirement that the business organization have a qualifying agent “concerning the scope of the work to be performed under the contract” means the business organization must have at its disposal a person who is recognized as a qualifying agent and licensed as an individual to perform the type of work addressed in the contract.

***

In consideration of the date requirement, the statutory definitions of “qualifying agent,” and the modifier “concerning the scope of the work to be performed under the contract,” we conclude that the licensure question under section 489.128(1) turns on whether the business organization is associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract, irrespective of whether that person ultimately obtains the permit and supervises the construction under the contract.

***

[A] person can be a qualifying agent in a general sense, even though the person has not obtained the permit for a particular job. In other words, chapter 489 recognizes “qualifying agent” as a position with respect to a business organization and not only as a position in relation to a specific project.

***

Although Appellant may have violated the law by building the home with a contractor other than the one whose name appears on the permit, by using Steiner’s license [person that resigned prior to contract] when she was not affiliated with the project, and by conducting the project with inadequate supervision, these transgressions did not retroactively render Appellant unlicensed within the meaning of section 489.128. Appellant’s apparent violations of the law occurred after the effective date of the contract. Thus, they are irrelevant to the narrow issue of whether Appellant was licensed on that date….

Taylor Morrison, supra, 1290-1292.

QUALIFYING AGENTS AND COMMON LAW NEGLIGENCE

Posted on September 19, 2015November 8, 2024 by Edward Garber

Can a qualifying agent be sued for negligence? Yes, there is authority for arguments to pursue a qualifying agent under a common law theory of negligence.

A qualifying agent is not individually liable for breaching its statutory duties set forth in Florida Statutes Chapter 489— Chapter 489 governing qualifying agents for contractors does not create a private civil cause of action against qualifying agents. See Murthy v. Sinha Corp., 644 So.2d 983 (Fla. 1994). However, the Florida Supreme Court in Murthy held: “We agree that an owner may recover from a negligent qualifying agent, but only under a common law theory of negligence….” Id. at 986-87.

Further, in Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011), discussed here, the Second District Court of Appeal found that a qualifying agent of a general contractor could be liable in a personal injury action for control of the job site and supervision of matters relating to safety.

Finally, the recent decision in Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286 (Fla. 2015), dealt with the discrete issue of whether the contractor was licensed as of the date of the contract. That was it. In dealing with this discrete issue, the First District noted:

Even though Guy [qualifying agent] was not listed on the permit as the contractor, he was responsible as the primary qualifying agent for all of Appellant’s [contractor] construction projects. Whether he carried out this responsibility faithfully is a separate question from whether he could be considered a qualifying agent that Appellant…, and one that the trial court did not need to decide.

Taylor Morrison Services, 163 So.3d at 1292, n.6 (noting that while contractor may have had qualifying agent as of the date of the contract to render it a licensed contractor under the law and the discrete issue before the court, this did not eliminate transgressions that may have occurred after the date of the contract). In other words, the Court noted that whether the qualifying agent carried out his responsibilities faithfully was a separate issue not before the court.

The bottom line is that a qualifying agent is not automatically immune from tort liability. There is authority to sustain arguments for a common law negligence claim against a qualifying agent for torts committed by the qualifying agent. But, simply violating certain statutory requirements set out in Chapter 489 should not create a private civil cause of action against a qualifying agent.

DESIGN-BUILD PROJECT DELIVERY IN FLORIDA (AND LICENSING EXEMPTIONS)

Posted on May 31, 2014November 8, 2024 by Edward Garber

Under a design-build project delivery, typically the general contractor contracts with the owner to be responsible for both the design and construction of the project. This benefits the owner because if there is a design or construction issue–whether causing an increase in budget, a defect, or a delay–the owner can point to the contractor since it is the entity responsible for both disciplines. This benefits the contractor (in addition to the owner) because it is now working closely with the design professional so their interests are aligned and the contractor can have more control over value engineering or cost savings implementation and obtaining answers to requests for information or approvals to submittals and shop drawings. Since the contractor is fully accountable for both the design and construction, it is working closely and collaborating with the design professionals to improve the efficiency in the construction process. Furthermore, since the contractor is responsible for the design, it has more flexibility fast-tracking the construction in phases even though the complete design is not finalized. By fast-tracking the construction and overlapping the construction with the design, the contractor is ideally in a position to efficiently meet scheduling and production requirements.

A contractor is able to offer and perform design-build services because there is an exemption under the required licensing statutes for a contractor, architect, and engineer that allow these entities to negotiate / contract for design-build work as long as they are engaging a licensed professional to perform those tasks in which they are not licensed. For instance, a contractor is exempt from the requirement of being a licensed architect when contracting and offering design-build work as long as the contractor engages a licensed architect to perform the design. This is set forth in Florida Statute s. 481.229(3) that provides:

“Notwithstanding the provisions of this part, a general contractor who is certified or registered pursuant to the provisions of chapter 489 is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter.”

Similarly, while less common, an architect or engineer is exempt from the requirement of being a licensed contractor when contracting and offering design-build work as long as these design professionals engage a licensed contractor to perform the construction. This is set forth in Florida Statute s. 489.103(16) that provides:

“An architect or landscape architect licensed pursuant to chapter 481 or an engineer licensed pursuant to chapter 471 who offers or renders design-build services which may require the services of a contractor certified or registered pursuant to the provisions of this chapter, as long as the contractor services to be performed under the terms of the design-build contract are offered and rendered by a certified or registered general contractor in accordance with this chapter.”

Despite these exemptions, recently the Florida Board of Architecture and Interior Design in Diaz & Russell Corp. v. Department of Business and Professional Regulation, 39 Fla. L. Weekly D 1125a (Fla. 3d DCA 2014), charged a general contractor for improperly performing services as an architect (when it was not a licensed architect) simply because the general contractor was offering design-build services. Basically, the Florida Board of Architecture maintained that the contractor needed to identify the designated architect in its proposal to the owner offering the architectural services. On appeal, the Third District Court of Florida correctly reversed this ruling because there is nothing that requires the contractor to identify the architect or engineer at the time of the proposal / contract just like there is nothing requiring the architect or engineer to identify the contractor at the time of the proposal / contract. The statutory exemption would simply require the contractor to engage a licensed architect to perform the design, which was not an issue in this case because the contractor properly hired an architect to prepare the design.

Category Archives: Licensing