Tag Archives: qualifying agent

QUALIFYING AGENTS AND UNLICENSED CONTRACTING – MORE QUESTIONS THAN ANSWERS

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Florida’s licensing requirements for contractors is a complicated statutory framework.  This complication was exemplified in the First District Court of Appeal’s decision in Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286 (Fla. 1st DCA 2015), a case I believe leads to more questions than actual answers relating to the status of a contractor’s qualifying agent. 

 

Homeowners entered into a contract with a homebuilder on February 13, 2004 for the construction of a home.  The homebuilder submitted a building permit application (for purposes of obtaining a building permit).  A qualifying agent of the homebuilder that previously resigned from the company prior to the date of the contract executed the application.  This individual testified she had no involvement with the project, did not authorize the homebuilder to pull a permit for this project, did not supervise this project, and doubted the authenticity of her signature on the application. Notwithstanding, the homebuilder had another designated qualifying agent testify he was employed with the homebuilder during various capacities during the relevant contract period.   However, he also did not appear to supervise the project.

 

After closing, the homeowners sued the homebuilder for negligence by an unlicensed contractor (per Florida Statute s. 768.0425) due to construction defects.  The issue turned on whether the homebuilder was licensed at the time of contract. The trial court ruled the homebuilder was not licensed based on the fact that the person that pulled the building permit was no longer affiliated with the contractor at the time of contract and did not supervise the construction.

 

On appeal, the First District focused on the following applicable language in Florida’s contracting licensing law  (embodied in Florida Statutes Chapter 489):

 

Florida Statute s. 489.128

 

(1) [C]ontracts entered into…by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor

 

(1)(a)  A business organization (e.g, company) 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.

 

(1)(c) A contractor shall be considered unlicensed only if the contractor was unlicensed on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed it, if stated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract

 

Florida Statute s. 489.105

 

(4) “Primary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

 

(5) “Secondary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained a permit, and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

 

 

Based on this language, the homeowners argued that a business organization does not have a primary or secondary qualifying agent unless a licensed contractor (qualifying agent) obtained the building permit for a project and supervised that project.  The First District disagreed and reversed the trial court explaining:

 

The requirement that a business organization have a qualifying agent “concerning the scope of the work to be performed under the contract” refers to the qualifying agent’s type of licensure, not to the agent’s actual performance with respect to a particular job or permit or even to an agent’s assignment to a particular contract. Section 489.128(1)(a)’s requirement that the business organization have a qualifying agent “concerning the scope of the work to be performed under the contract” means the business organization must have at its disposal a person who is recognized as a qualifying agent and licensed as an individual to perform the type of work addressed in the contract.

***

In consideration of the date requirement, the statutory definitions of “qualifying agent,” and the modifier “concerning the scope of the work to be performed under the contract,” we conclude that the licensure question under section 489.128(1) 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, irrespective of whether that person ultimately obtains the permit and supervises the construction under the contract.

***

[A] person can be a qualifying agent in a general sense, even though the person has not obtained the permit for a particular job. In other words, chapter 489 recognizes “qualifying agent” as a position with respect to a business organization and not only as a position in relation to a specific project.

***

Although Appellant may have violated the law by building the home with a contractor other than the one whose name appears on the permit, by using Steiner’s license [person that resigned prior to contract] when she was not affiliated with the project, and by conducting the project with inadequate supervision, these transgressions did not retroactively render Appellant unlicensed within the meaning of section 489.128. Appellant’s apparent violations of the law occurred after the effective date of the contract. Thus, they are irrelevant to the narrow issue of whether Appellant was licensed on that date….

Taylor Morrison, supra, 1290-1292.

 

 

More Questions than Answers

  

What does the First District’s decision actually mean? How far does this decision extend?

 

-Does it mean that a non-licensed contractor that has another licensed contractor pull a permit becomes a licensed contractor simply by having the contractor that pulled the permit testify that he/she served as the qualifying agent? 

 

-Does it mean that a licensed contactor can simply loan his/her license by pulling permits and testifying he/she served as the qualifying agent despite having no involvement or, perhaps, knowledge of the project?

 

-Does it mean that a contracting company that loses its qualifier can have any licensed contractor testify that he/she was serving as the qualifier of the company?

 

-Does it mean that an unlicensed contracting company can have a permit pulled by a sister company, parent company, or related company as long as the person that pulled the permit testifies that he/she served as the qualifier of the company?

 

-Does it mean that it is acceptable for a contractor to construct a project by another person/ licensed contractor that was not identified on the permit?

 

Here, the homebuilder had another employee testify that he served as a qualifying agent of the homebuilder even though he did not pull the permit or supervise the construction.  Apparently, though, he was listed as a qualifier of the company on the effective date of the contract.  Thus, even though the qualifier did not sign the permit application, the homebuilder still had a qualifier, and was thus licensed, as of the effective date of the contract.  This makes sense; it is just uncertain how far this rationale extends relating to qualifying agents when determining whether a contractor was licensed or unlicensed (see unanswered questions above).

 

Importantly, and irrespective of whether the homebuilder was licensed, the court noted that whether the qualifier carried his responsibility faithfully was a separate question not before the court.  Thus, the court left open the door for potential claims and transgressions relating to this issue in other analogous matters. 

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.

 

QUALIFYING AGENTS AND COMMON LAW NEGLIGENCE

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Can a qualifying agent be sued for negligence?   Yes, there is authority for arguments to pursue a qualifying agent under a common law theory of negligence. 

 

A qualifying agent is not individually liable for breaching its statutory duties set forth in Florida Statutes Chapter 489— Chapter 489 governing qualifying agents for contractors does not create a private civil cause of action against qualifying agents.  See Murthy v. Sinha Corp., 644 So.2d 983 (Fla. 1994).  However, the Florida Supreme Court in Murthy held: “We agree that an owner may recover from a negligent qualifying agent, but only under a common law theory of negligence….” Id. at 986-87.

 

Further, in Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011), discussed here, the Second District Court of Appeal found that a qualifying agent of a general contractor could be liable in a personal injury action for control of the job site and supervision of matters relating to safety.

 

Finally, the recent decision in Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286 (Fla. 2015), dealt with the discrete issue of whether the contractor was licensed as of the date of the contract.   That was it.  In dealing with this discrete issue, the First District noted:

 

Even though Guy [qualifying agent] was not listed on the permit as the contractor, he was responsible as the primary qualifying agent for all of Appellant’s [contractor] construction projects.  Whether he carried out this responsibility faithfully is a separate question from whether he could be considered a qualifying agent that Appellant…, and one that the trial court did not need to decide.

 

Taylor Morrison Services, 163 So.3d at 1292, n.6 (noting that while contractor may have had qualifying agent as of the date of the contract to render it a licensed contractor under the law and the discrete issue before the court, this did not eliminate transgressions that may have occurred after the date of the contract). In other words, the Court noted that whether the qualifying agent carried out his responsibilities faithfully was a separate issue not before the court.  

 

The bottom line is that a qualifying agent is not automatically immune from tort liability.  There is authority to sustain arguments for a common law negligence claim against a qualifying agent for torts committed by the qualifying agent.  But, simply violating certain statutory requirements set out in Chapter 489 should not create a private civil cause of action against a qualifying agent.

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.

 

 

ASSERTING NEGLIGENCE AGAINST A CONSTRUCTION-MANAGER OR OWNER’S REPRESENTATIVE

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Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011) is an interesting personal injury case that touches upon whether a contractor’s qualifying agent can be individually liable for acts and omissions of the limited liability construction company he/she qualifies and whether a construction company can be held liable for negligence to a third party.

 

In this case, an owner wanted to build a new house. The owner hired a licensed construction company to essentially serve as a construction manager-agency (not-at-risk), although this case does not use this term. In other words, the owner would contract directly with all of the trade subcontractors, but it was the construction company that helped the owner obtain a residential permit, referred trade subcontractors directly to the owner, and supervised, consulted, and coordinated the trade subcontractor’s work, and assisted with inspections at the project. The construction company undertook many of the tasks a general contractor would ordinarily undertake except for obtaining the residential permit and contracting directly with the trade subcontractors.

 

One of the trade subcontractors the owner hired was a framer. This happened to be the only, or one of the only, subcontractors that did not come referred to the owner by the construction company. During construction, it was discovered that a beam had been incorrectly installed on the second floor. The construction company (through its qualifying agent) met with the framer to discuss a solution to this issue, and it was during the correction of this issue that a carpenter working for the framer fell from the second floor severely injuring himself.

 

The injured worker sued the construction company and its qualifying agent under a negligence theory saying, among other things, they had a duty to perform all work in a competent, safe and workmanlike manner and they breached this duty which resulted in the injured worker falling. The construction company and its qualifying agent moved for summary judgment and the trial court granted summary judgment in favor of the qualifying agent dismissing him from the lawsuit, but declined to enter summary judgment in favor of the construction company.

 

On appeal, the Second District held that the trial court denying summary judgment in favor of the construction company but granting it in favor of its qualifying agent was inconsistent. The Second District held that:

 

“[O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. The same rule applies to limited liability companies. Thus, to the extent that the LLC could be held liable for its acts or omissions in connection with the construction of the Hoffmans’ [owner] residence, Mr. Fournier [qualifying agent] may be held liable as well.” Cannon, 875 So.2d at 881 (internal citations omitted).

 

Under the Second District’s rationale, if the construction company owed a duty of care to the plaintiff injured worker, then presumably, so did the qualifying agent. To determine whether the company owed a duty of care, the Second District focused on whether the construction company was serving in the role of the general contractor. The Court focused on many of the facts previously mentioned that a construction manager-agency would undertake, specifically, the coordination, communication, and supervising of construction workers and activities at the job site (despite not contracting with any of the trade subcontractors). To that end, the Court expressed:

 

“The circuit court continued by correctly identifying the critical point as the extent of the LLC’s control over and supervision of the job site. A person or entity that controls a supervises the job site has a duty to provide workers on the job with a safe place to work. If the LLC assumed such a duty voluntarily or by contract, it may be held liable to workers who sustain injuries on the job caused by a breach of that duty without regard to whether the LLC was acting as a general contractor.” Cannon, 875 So.3d at 882.

 

Accordingly, the Second District reversed the summary judgment entered in favor of the qualifying agent (because if his construction company could be negligent, then so could he under the Court’s rationale.)

 

Outside of the personal injury context, this case can be used to support a negligence argument against an owner’s representative or construction manager-agency by a non-privity subcontractor, etc. The duty owed would be that the entity is essentially acting as a general contractor (or has similar job-related functions), but just without the title. Therefore, the entity owes a duty to ensure that construction is properly supervised, coordinated, and managed in a competent, safe and workmanlike manner.

 

Furthermore, this case can be used to support an argument against a qualifying agent to hold that the qualifying agent should be held individually liable for the torts of the construction company he/she qualifies. This argument would carry more weight if the company, similar to the company in Cannon, was a sole-owned company with the qualifying agent serving in the role of the owner, qualifying agent, and lone employee of the company. However, even if this were not the case, if the qualifying agent is the one overseeing construction activities, then arguably, if their company commits a tort, they too can be held liable for participating in the tort, especially considering companies can only act through people.

 

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.