Tag Archives: unlicensed contractor

FLORIDA IS NOT PLAYING GAMES WITH UNLICENSED CONTRACTING

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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. 5th 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.

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.