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.