Kyle Rea, Attorney, Cotney Construction Law
As the State of Florida prepares itself for another hurricane season, most will recall that in 2017, as Hurricane Irma increased in power and turned its eye towards Florida, Governor Rick Scott declared a State of Emergency in all
sixty-seven counties within the State of Florida. Businesses and homeowners boarded up their windows and closed shop. Some individuals stuck around, while others traveled up the interstates, braving stop-and-go traffic to escape the hurricane's destructive power.
As the hurricane passed, powerlines went down, roofs were destroyed, and countless homeowners and businesses
had their property damaged. When the sun came up the day following the storm, those same homeowners and businesses started looking for help to get their homes and businesses pieced back together. Whether it was roofing, electrical, or HVAC repair, or general major remodeling following the storm, countless frustrated individuals were on the hunt for contractors.
Unfortunately, not all contractors that were holding themselves out to be available were licensed contractors, and many of the homeowners and businesses looking for assistance ended up contracting with those unlicensed contractors. As this created several issues under Florida law, many state attorneys' offices, sheriffs' offices, and police
departments around the state created task forces to ensure that the law was being enforced.
The major concern of these task forces was enforcing certain provisions of the Florida Statutes relating to unlicensed
contracting. The Florida Statutes indicate that it is a crime in the state of Florida to engage in the business, or act in the capacity, of a contractor without being registered or certified. Fla. Stat.§ 489.127 (1)(f). Additionally, it is a crime to commence or perform work for which a business building permit is required without such a building permit being in effect. Fla. Stat.§ 489.127 (1)(h). A person or a business that is operating on an inactive or suspended certificate or registration is considered to be unlicensed. Fla. Stat.§ 489.127(1). Because of that, even someone who believed that their license was in fact valid, can be charged criminally if their license was not valid at the time of rendering services.
While a first offense for contracting without a license is typically treated as a misdemeanor of the first degree, punishable by up to one-year imprisonment in a county jail, a violation of the law during a state of emergency can in some circumstances be treated as a felony of the third degree, punishable by up to five years in the Florida Department of Corrections. While sentencing on a felony of the third degree can include prison time, probation, or house arrest, a felony conviction can also carry several long-lasting burdens on the contractor convicted of such a crime. Such burdens may include: the loss of the right to own a ft rearm, the loss of the right to vote, the imposition of criminal restitution payments assessed against the contractor, and the reality that such a conviction could impact future business opportunities and licensure. As anyone who has applied for a contractor's license can attest, the application for licensure requires the disclosure of past criminal activity, and an application for licensure can be
denied for criminal activity related to the act of contracting.
Furthermore, criminal punishment and the loss of business may not be the only issues for someone contracting
without a license, as a lack of a license can have another damning effect as well; the inability for the contractor to have a construction lien found to be in their favor. The State of Florida takes a strong stance against unlicensed contractors, and, through Fla. Stat.§ 713.02 (7), delineates that despite that fact that a contractor may have the right to a lien on a piece of property that they have performed work on, if that same contractor performs that work without being correctly licensed, such a lien will not exist in their favor. That means even if all lien ft ling procedures are followed and all notices are ft led correctly, a contractor who provides labor and/or materials for a job could do so without being compensated for their work.
Now again, as we face another season of storms, it is extremely important for contractors to check to make sure
their licenses are in active status, that they are correctly licensed for the work that they are performing, and that they are controlling the means and methods of the work that is being performed under their licenses; as the penalties for aiding and abetting an unlicensed contractor can be the same as the penalties for contracting for and performing the work itself.
Hurricanes will continue to strike the State of Florida, impacting current jobs and creating new ones, but as one can
see, there are a multitude of pitfalls that can occur should a contractor knowingly or even unknowingly perform work in the State of Florida without a license. Because of that, it is imperative that even the savviest of contractors continuously ensure that they are in full compliance with the laws of the State of Florida if they plan to do business in Florida. As the law continues to change and evolve, contractors must be vigilant to ensure that they do not find themselves in their own state of emergency, jeopardizing their businesses, careers, and livelihoods.
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