Trent Cotney, Partner, Adams and Reese LLP
I routinely get asked the question: Can I subcontract out roofing labor if I supervise it? The legal answer is no.
According to Florida Statute 489.105(3)(e), “Roofing contractor means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof.”
Further, contractors are not allowed to subcontract the aforementioned roofing scopes of work to unlicensed roofers. Roofers must be employees of a licensed contractor or be leased via a duly licensed employee leasing company, to qualify for an exemption under the licensing requirements. An employee leasing company operates by assigning its workers to clients, allocating the direction and control of leased workers to the contractor.
Unlicensed contractors may charge lower rates than licensed contractors; however, they often lack the proper training, experience and insurance. That means they may provide substandard work and not have the necessary insurance and coverages to address on-the-job injuries or other claims.
Beyond said liability concerns, according to Florida Statute 489.127, it is a crime for any person to “falsely hold himself or herself or a business organization out as a licensee, certificate holder, or registrant.” It is also illegal for a person to “engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified.”
This law is often called the Florida Contractors’ Unlicensed Activity statute. It has two main goals:
■ To protect consumers from inexperienced, unqualified and uninsured contractors.
■ To protect licensed contractors from unfair competition by those who have not followed the rules by lawfully obtaining a license.
To assure those protections, any holder of a roofing contractor’s license who aids another person in the act of unlicensed contracting runs the risk of punishment by the Florida Department of Business and Professional Regulation’s (DBPR) Construction Industry Licensing Board (CILB), the state agency in charge of overseeing the construction industry in the State of Florida. Pursuant to the rules of the CILB, a license holder who is found to have assisted an unlicensed person in evading any provision of § 489 of the Florida Statutes may be punished by not only a
monetary fine and a payment of restitution but also severe penalties of license probation, suspension and revocation.
The Florida Statutes dictate that the act of unlicensed contracting in the State of Florida can result in criminal charges ranging from a first-degree misdemeanor to a third-degree felony. In fact, any unlicensed person or business advertising or performing contracting work can be charged with a first-degree misdemeanor.
In addition, if the accused unlicensed person has been convicted of contracting without a license previously or if the unlicensed activity occurs during a designated State of Emergency, the charges can result in a third-degree felony, with penalties as high as five years in jail or five years of probation.
In addition to potential jail and prison sentences, if a person convicted of contracting without a license performs substandard work or uses substandard materials, the unlicensed individual may be subject to criminal restitution claims, possibly amounting to thousands upon thousands of dollars.
Contractors and property owners must use caution when hiring a roofing contractor and take the time to check that the contractor is appropriately licensed before signing a contract. The public can verify licenses through DBPR’s online search system or by calling your local building department.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is a Partner and Construction Team Leader at the law firm of Adams & Reese LLP and FRSA General Counsel. For more information, you can contact him at trent.cotney@arlaw.com or by phone at 813-227-5501.
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