Definition of Unlicensed Contracting
Under Florida law, the offense of “Contracting Without a License” can encompass a broad range of conduct related to the construction and home improvement industries. Section 489.127, Florida Statutes, provides as follows:
(1) No person shall:
(b) Falsely impersonate a certificateholder or registrant;
(c) Present as his or her own the certificate or registration of another;
(d) Knowingly give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a certificate or registration that has been suspended or revoked;
(f) 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;
(g) Operate a business organization engaged in contracting after 60 days following the termination of its only qualifying agent without designating another primary qualifying agent, except as provided in ss. 489.119 and 489.1195;
(h) Commence or perform work for which a building permit is required pursuant to part IV of chapter 553 without such building permit being in effect; or
(i) Willfully or deliberately disregard or violate any municipal or county ordinance relating to uncertified or unregistered contractors.
Thus, there are nine different ways to commit a crime of unlicensed contracting in Florida. Proof of any one violation is sufficient to sustain a conviction.
For purposes of the Florida statute, the term “Certificate” means a certificate of competency issued by the Department of Business and Professional Regulation. “Registration” means registration with the department in accordance with Chapter 489, Florida Statutes.
The term “Contracting” means that the accused engaged in the business of a “contractor,” as defined in Section 489.105, Florida Statutes. The statute defines “contractor” as a person who is responsible for a qualifying construction project and the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others.
Penalties for Unlicensed Contracting
In Florida, unlicensed contracting is generally charged as a first degree misdemeanor, with penalties of up to 1 year in jail or 12 months of probation, and a $1,000.00 fine.
However, if the accused has been previously convicted of contracting without a license, the offense may be charged as third degree felony, with penalties of up to 5 years in prison or 5 years of probation, and a $5,000 fine. A third felony may also be charged where a person contracts without a license during a State of Emergency, as declared by executive order.
Aside from potential fines and jail sentences, a person convicted of or who pleads to a charge of Contracting Without a License will often be subject to court-ordered restitution. This occurs where the alleged victim claims that the defendant performed sub-standard work or used sub-standard materials and caused a loss.
If a sufficient causal connection is shown between the defendant’s work and the alleged loss, the defendant will likely be ordered to compensate the alleged victim through a restitution award. In many cases, restitution awards can be tens of thousands of dollars. A failure to pay the restitution or to pay it in a timely manner could result in the defendant being held in contempt of court.
Defenses to Unlicensed Contracting
There are multiple defenses available to contest a charge of unlicensed contracting in Florida. Some of the more common issues include:
Evidentiary and Factual Defenses
The first problem for the prosecution is evidentiary and factual in nature. If the charge is that the defendant falsely held himself out as a license holder or registrant, there will usually be a factual dispute as to what representations were actually made to the alleged victim.
If the allegation is that the defendant engaged in the business of contracting or acted in the capacity of a contractor, then the issue becomes whether the defendant actually acted in a “contracting” role. If it can be shown that the alleged contracting was more limited in scope, or if a factual dispute can be raised on the issue, this can provide a complete defense to the charge.
The second problem for the prosecution is technical in nature. The fact is that most misdemeanor prosecutors do not know how to properly prove that an accused was in fact “unlicensed” or “unregistered.”
Although it may sound simple, proving the absence of a certificate or license (and doing so in accordance with Florida rules of evidence) can be a challenging task for inexperienced prosecutors, who lack the time to conduct legal research. If proper evidentiary objections are made, this may prevent the State from proving every element of the offense.
License Not Required
Not all contracting or construction work requires a license, and the allegations of the State Attorney must be closely analyzed to see whether the conduct engaged in by the defendant fell within the purview of a licensing statute or regulation.
In addition, there are numerous exemptions provided in Chapter 489 where an individual or business entity is not required to have a contracting license. If an accused falls into one of these exemptions, this will serve as a complete defense to the charge.
Importance of an Attorney
In unlicensed contracting cases, an attorney is a critical asset to identify defenses and to minimize potential penalties. To avoid the expense of an attorney, however, many defendants simply plead to the charge. In doing so, they acquire permanent criminal records, jeopardize their chances of obtaining a license in the future, and incur financial responsibility for unjustified restitution awards.
If you have been accused of unlicensed contracting in West Palm Beach, Palm Beach County, Martin County, Broward County, Baker County, or St. Lucie County, contact attorney Steven Sessa today. Our consultations are free and confidential.