Category Archives: unlicensed contracting

TREND CONTINUES WHERE UNLICENSED CONTRACTORS HAVE NO RECOURSE

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There’s been a recent trend in Florida case law that has figuratively “killed” unlicensed contractors.  Here’s another one.  The moral to this trend and case is simple: make sure you have the proper licenses prior to serving as a contractor under Florida law. Trying to be cute, as seemed to be the situation in this case with a creative argument, is not an argument that will carry the day and your resources will be devoted to being creative versus the ultimate merits of the dispute.

In Ramindesign, LLC v. Skarzynski, 2026 WL 1649571 (S.D.Fla. 2026) an owner of real property hired a company to design and construct a spec home on the property. The company and its owner were NOT licensed contractors. The contract stated the company was serving as a “spec developer” and referred to it as the contractor throughout the contract. Other than this, the contract was set up as a cost plus a fee.

About 5 months after the spec developer contract was executed, the company/spec developer hired a licensed contractor, which pulled the building permits. Thereafter, the owner of the real property terminated the spec developer, and the spec developer recorded a lien for unpaid work and initiated a lawsuit. The real property owner moved for summary judgment arguing the spec developer was not licensed as a contractor and, therefore, could not sustain causes of action against it. The Southern District Court of Florida agreed.

Under Florida Statute s. 489.128, contracts entered into by unlicensed contractors are unenforceable in both law and in equity.

Under Section 489.128, a business organization contractor must be licensed, and “[a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with… the scope of the work to be performed under the contract.” Fla. Stat. Ann. § 489.128(1)(a); See also Taylor Morrison Servs., Inc. v. Ecos, 163 So. 3d 1286, 1291 (Fla. Dist. Ct. App. 2015) (noting that whether a business is a licensed contactor “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[.]”). Section 489.119 provides that if an “applicant proposes to engage in contracting as a business organization, including any…corporation..the applicant must apply for registration or certification as the qualifying agent of the business organization.” Further, an application for secondary qualifying agent must include an affidavit on a form provided by the Construction Industry Licensing Board (the “Board”) attesting that the applicant has authority to supervise all construction work performed by the business organization. §489.119(2)(b)(3), Fla.Stat.

Ramindesign, supra, at *4.

The spec developer could not argue against the fact that it was unlicensed or did not have a primary qualifying agent.

However, the spec developer argued that the contractor it hired should be considered a secondary qualifier.  In shooting down the spec developer’s argument, the Southern District went through a methodical process.

First, it looked at whether the spec developer was acting as a contractor. This was a pretty easy yes as the contract was premised on the design and construction of a spec home. “[T]he Court finds that the Contract and the evidence presented to the Court show that it is undisputed that [the spec developer] did, for compensation, undertake to by itself or by others, contract a building for [the owner].” Ramindesign, supra, at *5.

Second, after determining the spec developer was acting as a contractor, it looked as to whether the contractor the spec developer hired was serving as a qualifying agent for the company. The Southern District dismissed this argument.

Under Florida law, a business entity seeking to become a contractor must:

procure an individual licensed contractor as its qualifying agent. § 489.119, Fla.Stat. (1991). The qualifying agent must apply for registration or certification with the Department of Professional Regulation on behalf of the corporation before the corporation can engage in any construction. See id. Additionally, the qualifying agent is responsible for supervising, directing, managing, and controlling both the corporation’s contracting and construction activities. See §§ 489.105(4), .1195, Fla.Stat. (1991).

Murthy v. N. Sinha Corp., 644 So. 2d 983, 984 (Fla. 1994). That is to say, “[i]n Florida, all contractors must be certified or registered with the Department [of Business and Professional Regulation]”. CAM Bradford Homes, LLC v. Arrants, 415 So. 3d 266, 268 (Fla. Dist. Ct. App. 2025) (citing § 489.115(1), Fla. Stat. (2020)); Fla. Stat. Ann. § 489.105.

Additionally, Florida courts have held that “[t]he obvious purpose of the[ ] statutes allowing a company to act as a contractor through a licensed contractor is to ensure that projects undertaken by a company are to be supervised by one certified and licensed by the [B]oard.” Alles v. Dep’t of Pro. Regul., Const. Indus. Licensing Bd., 423 So. 2d 624, 626 (Fla. Dist. Ct. App. 1982). Reasoning that allowing “a contractor to be the ‘qualifying agent’ for a company without placing any requirement on the contractor to exercise any supervision over the company’s work done under his license would permit a contractor to loan or rent his license to the company” which would “completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor.” Id. Thus, “qualifying agents have the professional duty to supervise the construction projects entered into under their names[ ]” by the qualified entity. Gatwood v. McGee, 475 So. 2d 720, 723 (Fla. Dist. Ct. App. 1985); See Boatwright Const., LLC v. Tarr, 958 So. 2d 1071 (Fla. 5th DCA 2007).

Ramindesign, supra, at *5-6.

Additionally, Florida law places requirements on an application for secondary qualifying agent of a business organization seeking to engage in contracting such as submitting an affidavit to the Board attesting that the applicant has authority to supervise all construction work performed by the business organization, and requiring that a qualifying must inform the Department if he ceases to be affiliated with a business organization. § 489.119, Fla. Stat. Here, it is undisputed that [the licensed contractor hired by the spec developer] did not comply with the registration requirements of a secondary qualifying agent for [the company] and so could not legally serve as its qualifying agent.

Ramindesign, supra, at *6.

And if the technical omissions were not enough, the Southern District found the contractor hired by the spec developer did not provide the supervision required of it to even be a secondary qualifier.

Going back to the moral of the case: avoid the scenario where you are performing unlicensed contracting. Otherwise, the recent trend in case law analyzing statutory authority is against you!!

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.

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

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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!!

 

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.

UNLICENSED CONTRACTING AND FLORIDA STATUTE s. 489.128

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Florida Statute s. 489.128 is a statute that provides a remedy against unlicensed contracting.  However, keep in mind that this argument—the unlicensed contractor argument—is a technical statutory argument. In other words, it’s not so much of a fact-based merits argument, but an argument that’s solely based on the technicality of the statute. This, by no means, is not a recommendation that the argument should not be raised. In instances, it absolutely should be and could have legitimate traction. However, when deciding whether to or how to pursue a dispute, including settlement, you want to keep in mind whether this is an argument you want to bank your outcome on because there are always costs (attorney’s fees, court costs, etc.) that should get factored into any business decision regarding a dispute.

A recent decision out of Florida’s Fourth District Court of Appeal discussed the application of Florida Statute s. 489.128:

Section 489.128, Florida Statutes…provides a limited remedy for parties who have contracted with unlicensed contractors: “As a matter of public policy, contracts entered into . . . by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” § 489.128(1), Fla. Stat. This remedy applies not only to individual contractors, but also to entities: “A business organization 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.” § 489.128(1)(a), Fla. Stat. In other words, if a contracting entity does not have at least one agent with an appropriate license, the entity is also considered “unlicensed.”

Chapter 489’s “unenforceable contract” remedy, however, is explicitly restricted to contractor work requiring a state license: “if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed.” § 489.128(1)(a), Fla. Stat. (emphasis added). More importantly, section 489.128 contains no provisions permitting local entities to enforce this remedy.

Section 489.127, Florida Statutes (2018), in contrast, provides remedies for contractors who “[e]ngage in the business or act in the capacity of a contractor . . . without being duly registered or certified [as competent.]” § 489.127(1)(f), Fla. Stat. (emphasis added). The remedies are mostly criminal penalties. § 489.127(2)-(6), Fla. Stat. Notably, no language in section 489.127 refers to section 489.128.

Section 489.127 provides a much broader remedy than section 489.128, in that section 489.127 specifically permits local entities to enforce its provisions:

Each county or municipality may, at its option, designate one or more of its code enforcement officers . . . to enforce, as set out in this subsection, the provisions of subsection (1) and s. 489.132(1) against persons who engage in activity for which a county or municipal certificate of competency or [state] license or state certification or registration is required.

489.127(5), Fla. Stat. (emphasis added). Again, it is notable that no language in section 489.127 refers to section 489.128. Importantly, section 489.127 makes clear that the grant of power to local entities is limited to the section 489.127 remedies, not chapter 489 in general.

Thus, chapter 489 provides separate and exclusive remedies against (1) contractors failing to hold state licenses when required, and (2) contractors that are not “registered or certified” when required. Chapter 489 permits counties to enforce remedies against registration and certification violations but not state license violations.

Palm Beach Resurfacing, Inc. v. Floyd, 50 Fla.L.Weekly D194a (Fla. 4th DCA 2024).

In Palm Beach Resurfacing, a homeowner hired a company to perform pool resurfacing work.  A dispute arose and the company recorded a construction lien. The homeowner argued the contractor was not licensed pursuant to a Palm Beach County ordinance and, as a result, the lien and contract should be unenforceable as a matter of law.  The contractor countered that while it was not licensed in Palm Beach County, a state license was NOT required for it to perform pool resurfacing work, which is correct, and thus, Florida Statute s. 489.128 does not apply. The trial court nonetheless granted summary judgment against the contractor for not being licensed in Palm Beach County.

However, based on the analysis above, the Fourth District Court of Appeal reversed: “Having determined the trial court erred in construing statutes and local ordinances and codes in applying the statutory unenforceable remedy, we reserve the grant of summary judgment and direct the trial court to vacate the order granting summary judgment….”  In other words, there is no state license requirement for the contractor to have a state license to perform pool resurfacing work.

 

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.