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Articles Posted in Contractor Licensing

Arbitration is one of the most common forms of dispute resolution in construction today, but the recent ruling by the Third District Court of Appeal illustrates some of the difficulties that parties to arbitration proceedings can face in appealing or vacating the arbitrator’s award.

In The Village of Dolphin Commerce Center, LLC v. Construction Service Solutions, LLC, the contractor was not licensed at the time of the contract and became licensed after the execution of the contract with the Dolphin Commerce Center. The contractor recorded a construction lien subsequent to a payment dispute along with a demand for arbitration with the American Arbitration Association pursuant to the contract. The property owner responded by asserting that the contract was unenforceable under Florida Statute s. 489.128 which provides: “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.” Section 489.128 further provides that, “[i]f a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor.”

arblogo.jpgThe owner also filed suit in circuit court seeking to declare that that the contractor’s claim of lien was unenforceable because of the contractor’s unlicensed status at the time of contract. However, the court ruled that the parties were compelled to arbitrate the dispute.

The owner, at the start of the arbitration, never objected to the arbitrator’s jurisdiction to rule on whether the contractor’s unlicensed status at the time of contract prevented it from enforcing the contract and the construction lien. The contractor went on to succeed in the arbitration and then moved to enforce the arbitration award in circuit court. The owner asked the court to vacate the award based on the unenforceability of the contract and lien because the contractor was not properly licensed. When the trial court affirmed the arbitration award, the owner appealed.

The Third DCA was asked to determine whether the arbitrator had jurisdiction to determine the enforceability of the contract and the lien pursuant to s. 489.128. The unanimous opinion held that “the issue of enforceability was submitted to the [arbitration] panel and neither party objected. As such, based on the American Arbitration Association rules, the panel had jurisdiction to determine the issue. To ask the trial court to revisit the issue would require the trial court to step into an appellate position. The Florida Arbitration Statutes do not provide for such. Pursuant to section 682.13, Florida Statutes, the authority of the trial court to vacate an arbitration award is very narrow.”

3rd district court of appeal.jpgBased on the United States Supreme Court decision in Buckeye Check Cashing, Inc. v. Cardegna as well as other Florida appellate decisions, the Third DCA wrote that when a party is challenging the legality/enforceability of a contract as a whole (versus only the arbitration provision), that determination must go to the arbitrator and not the court. “Those cases make clear that a trial or appellate court’s view that an arbitration panel wrongly decided the issue of illegality of a contract, and specifically illegality of a contract under section 489.128, is not a basis to vacate an arbitration award.”

The lessons to be learned for owners and contractors from this decision are clear. Parties are free to determine the scope of the arbitration provision and the issues to be determined by the arbitrator. If an owner seeks to avoid an arbitrator deciding licensing issues, it should specifically exclude the issue from the arbitration provision and make it clear that any licensing issues or issues concerning the enforceability of the contract, as a whole, are to be decided by the court. Additionally, if an owner disputes the authority of an arbitrator, an objection must be made in order to preserve the owner’s rights. For contractors, the case is yet another reminder of the importance of ensuring that they are properly licensed.

Our other construction law attorneys and I write about important legal and business issues impacting the construction industry in Florida in this blog, and we encourage industry followers to enter their email address in the subscription box at the top right of the blog in order to receive all of our future articles.

The Florida Supreme Court recently issued a decision that has significant implications for contractors, subcontractors and property owners in Florida. On January 24, 2013, the court ruled in the case of Earth Trades, Inc., et al., v. T&G Corporation that Florida law precludes an unlicensed subcontractor from employing the common law defense of in pari delicto – referring to equal wrongdoers – by arguing that the general contractor knew or should have known that the subcontractor did not hold the required state licenses for the work to be performed.

As the general contractor, T&G Corp. subcontracted with Earth Trades to perform site work on a parking garage construction project. When T&G stopped making payments, Earth Trades sued T&G for breach of contract for nonpayment. T&G counterclaimed claiming that Earth Trades breached the contract and was unlicensed, therefore its breach of contract claim against T&G was barred under Florida Statute 489.128 which provides that: “As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”

Earth Trades responded by arguing that T&G should be barred from enforcing the construction contract because it knew or should have learned during the performance of the work that Earth Trades did not hold the required state license. As a result, the subcontractor claimed that T&G was equally at fault and could not recover against Earth Trades because both parties stand in pari delicto.

The trial court in Orange County, Fla., rejected Earth Trades’ arguments and granted the motion for summary judgment by T&G, and the Fifth District Court of Appeal affirmed the decision. Because this decision expressly and directly conflicted with the opinion by the Third District Court of Appeal in the case of Austin Building Co. v. Rago, Ltd. in 2011, the Supreme Court of Florida had jurisdiction to review the case.

Fla supreme court 1.jpgThe Supreme Court upheld the Fifth DCA’s opinion, noting that Section 489.128, Florida Statutes plainly places the onus for unlicensed contracting on the unlicensed contractor. The court concluded that the state legislature amended the statute in 2003 and stated that its intent was to “clarify that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor.” The defense of in pari delicto requires that the parties be wrongdoers of relatively equal fault. Under Section 489.128, Florida Statutes, the fault of the person or entity engaging in unlicensed contracting is not substantially equal to that of the party who merely hires a contractor with knowledge of the contractor’s unlicensed status. Accordingly, even if it was proven that T&G knew Earth Trades was unlicensed, such knowledge, as a matter of law, would be insufficient to place the parties in pari delicto. The Supreme Court disapproved of the Third DCA’s decision in the Austin Building case to the extent that it held that under section 489.128, a party’s knowledge that a contractor is unlicensed places the parties in pari delicto.

This decision is yet another reminder of the perils of working without the required state licenses for contractors and subcontractors in Florida. Our construction law attorneys and I will continue to monitor and write about important court rulings for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to receive all of our future articles.

Some major changes are now in effect for new applicants for contractor licenses in Florida, and the submission process has become simpler and less time consuming as a result. The Department of Business and Professional Regulation and the Construction Industry Licensing Board have revised their application process in an effort to avoid confusion and reduce the amount of time it takes to approve a license.

One of the most significant changes is that applicants are no longer required to include a third-party verification of their experience and qualifications. Instead, they are now required to attest to their experience under penalty of perjury, and they may be subject to disciplinary action for including false information on their application.

florida_dbpr.jpgThe new application does, however, maintain the requirement for applicants to submit a credit report that includes a FICO or Beacon score, which the board requires to be more than 660. If the score is under 660, applicants must obtain a licensing bond or letter of credit for $20,000 for Division I contractors and $10,000 for Division II contractors. The amount of the required bond or letter of credit may be reduced to $10,000 for Division I contractors and $5,000 for Division II contractors by taking a board approved financial responsibility course, and information on these requirements and courses can be found by clicking here.

The new application package and procedures, which took effect on July 16, should effectively streamline the licensure process and reduce the number of deficient applications. The new application forms feature clearer instructions, significantly diminish the amount of paperwork that is required, and provide clear criteria to establish financial stability/responsibility and work experience. Click here to access the different categories of applications from the Construction Industry Licensing Board.

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