The 2023 Florida Statutes
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The Florida Supreme Court reviewed Section 149.128 and concluded that “as a matter of state policy, the Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract.” Id. at 586. The Florida Supreme Court explained that “the applicable statute has clearly placed the onus of unlicensed contracting on the unlicensed contractor and that the in pari delicto doctrine did not preclude [the general contractor] from enforcing the contract.” Id. Moreover, “[the general contractor's] alleged knowledge of [the subcontractor's] licensure status, if proven, would make both parties wrongdoers, but they would not share substantially equal fault” because in amended Section 489.128, the Legislature had, “as a matter of state policy, greatly disadvantaged the contractor who chooses not to obtain the legally required license.” Id. at 586. Accordingly, the Florida Supreme Court determined that where Section 489.128 applies, “a party's knowledge that a contractor is unlicensed is insufficient as a matter of law to establish the defense of in pari delicto.” Id. at 587.We conclude that the trial court erroneously based its legal conclusions on inapplicable law. The trial court cites to section 489.128, Florida Statutes, which provides in subpart (1), that "[a]s 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." Further, "[f]or purposes of this section, an individual is unlicensed if the individual does not have a license required by this part concerning the scope of the work to be performed under the contract." §489.128(1)(a), Florida Statutes (2022). Here, the record shows that there was no contract between Guevara and the Homeowner, and that Guevara never claimed to be a "contractor" or to hold a contractor's license. The trial court cites to the definition of "contractor" in section 489.105(3)(c), Florida Statutes, which states, in relevant part,Florida state law provides that "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. (2019). That said, Palm Beach County Code section 7-17(b)(2) makes it unlawful for a person who is required but failed to possess a certificate of competency "to hold himself/herself out as a contractor, whether as a plaintiff, defendant or witness in any court in this county."Affirmed. See § 489.128( 2), Fla. Stat. (2018) (providing: "Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto .") (emphasis added.); Fernandez v. Fla. Nat'l Coll., Inc., 925 So. 2d 1096, 1101 (Fla. 3d DCA 2006) (holding that "issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing"); Am. Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996) (reversing summary judgment where trial court relied on estoppel theory not raised in the pleadings). See also Elison v. Goodman, 395 So. 2d 1201, 1202 (Fla. 3d DCA 1981) (holding: "The judgment is affirmed, notwithstanding the filing of an affidavit in opposition to the summary judgment in which Mr. Elison directly contradicted his deposition testimony concerning the date of discovery, so as to bring it within the limitations period. The trial court properly struck this affidavit under the now well-settled rule, which had its genesis in Ellison… SG relies on section 489.128(1), Florida Statutes (2020), which makes contracts entered into by unlicensed contractors unenforceable:We reject Seawatch's contention, without further elaboration, that Guarantee must be a licensed general contractor in order to avail itself of the election provision set forth in Paragraph 4.2. See § 489.128(3), Fla. Stat. (2019) (distinguishing between surety and contractor); see also Richard S. Wisner & James A. Knox, Jr., The ABCs of Contractors' Surety Bonds, 82 Ill. B.J. 244, 246 (1994) (explaining that, in exercising a takeover and completion option, "[t]he surety does not undertake the construction itself").Turning finally to Citizens' remaining arguments, there is the obvious point that Citizens has raised these arguments as part of its affirmative defenses against claims that Citizens breached its insurance policies. The record is devoid of any support for those defenses by the Department of Financial Services, The Florida Bar, Mrs. Matusow, or Mr. Difilippi, who are the pertinent regulatory authorities and contracting parties. When the Legislature has intended to invalidate (and render entirely unenforceable) contracts between private, consenting parties for the protection of the public, it has been quite clear. See, e.g., §§ 489.128, .532, Fla. Stat. (2017) (entitled "Contracts entered into by unlicensed contractors unenforceable"); §§ 686.415 and .612, Fla. Stat. (2017) (specifically declaring unenforceable various sales, distribution, and franchise relationships); § 687.071(7), Fla. Stat. (2017) (specifically declaring unenforceable extensions of credit in excess of certain usury and loansharking limits).Section 489.128(1), Florida Statutes (2016), is also helpful by analogy. Under that statute, a "contract [ ] entered into ... by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor." Id. The other party to the contract, however, retains its rights to enforce the contract against the contractor. See Earth Trades, Inc. v. T & G Corp., 42 So.3d 929, 930 (Fla. 5th DCA 2010). Like an unlicensed contractor, Mr. Griffin, lacking a waiver, lacked the ability to enforce the terms of his employment contract against ARX.Reaching the foregoing conclusion does not end our analysis. Appellants argue in the alternative that Appellee may not assert the limitations defense, pursuant to section 489.128, Florida Statutes, because Appellee was not properly licensed to perform the work. In support of this argument, Appellants rely on Earth Trades, Inc. v. T & G Corp., 108 So.3d 580 (Fla.2013). Again, we disagree. Section 489.128 precludes an unlicensed contractor from enforcing a contract. It does not preclude an unlicensed contractor from defending against an action to enforce a contract by the owner. Earth Trades, Inc., addressed the question of whether an unlicensed contractor could enforce a contract, notwithstanding the statute, by asserting that the owner was in pari delicto because it was aware of the unlicensed status of the contractor when it entered into the contract. Here, Appellee is not attempting to enforce the contract. Nothing in section 489.128 or Earth Trades, Inc., precludes a defendant in this circumstance from asserting statutory defenses such as the statute of limitations.To be considered licensed under section 489.128(1), a business organization must have a “qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract,” and this determination must be made as of the contract's effective date when, as here, that date is known. Section 489.128(1)(c) precludes considering events that occur after that date, by instructing that a contractor be considered unlicensed “only if” the contractor is unlicensed at that specific time. Contrary to this date requirement, the trial court's application of section 489.128(1) depended entirely on events that occurred after the effective date of the contract, namely the permitting of the project and its supervision, or lack thereof.. . . See, e.g., §§ 489.128, .532, Fla. . . .
. . . Section 489.128(1), Florida Statutes (2016), is also helpful by analogy. . . .
. . . argue in the alternative that Appellee may not assert the limitations defense, pursuant. to section 489.128 . . . Section 489.128 precludes an unlicensed contractor from enforcing a contract. . . . Nothing in section 489.128 or Earth Trades, Inc., precludes a defendant in this circumstance from asserting . . . I agree with the majority that nothing in section 489.128, Florida Statutes, or Earth Trades, Inc., would . . .
. . . . § 489.128(1), Florida Statutes (2008). We reverse because Appellant met this requirement. . . . Section 489.128(l)(c) further instructs that “a contractor shall be considered unlicensed only if the . . . Section 489.128(l)(c) precludes considering events that occur after that date, by instructing that a . . . Section 489.128(1)(a)’s requirement that the business organization have a qualifying agent “concerning . . . Although the plain language of sections 489.128(1) and 489.105(4) and (5) is sufficient to establish . . .
. . . that although Commercial Interiors may have violated a local ordinance, it had not violated section 489.128 . . . findings of fact, the subcontracts were not enforceable, and the arbitrator had misapplied section 489.128 . . .
. . . its first affirmative defense, the Owner asserted that the contract was unenforceable under section 489.128 . . . the Owner filed this action seeking a declaration that CSS’s claim of lien was invalid under section 489.128 . . . award and the Owner filed a motion to vacate the award based on CSS’s failure to comply with section 489.128 . . . Rather, Earth Trades addresses the issue of whether a contractor who was in violation of section 489.128 . . . 5th DCA 2007), a property owner claimed that its construction contracts were illegal under section 489.128 . . .
. . . T & G Corp., 108 So.3d 580, 585 (Fla.2013) (“In the title of the 2003 session law amending section 489.128 . . .
. . . District Court of Appeal held that section 489.128, Florida Statutes (2005), which governs construction . . . In ruling against Earth Trades, the trial court cited changes to section 489.128 making any construction . . . The Fifth District’s holding that section 489.128 precluded the unlicensed contractor from raising an . . . However, these cases were decided under prior versions of section 489.128 that contrast sharply with . . . In 2003, the Legislature substantially amended section 489.128. . . .
. . . Section 489.128, Florida Statutes (2005) provides: (1) As a matter of public policy, contracts entered . . . We note that “[effective [June 16, 2009], the amendments made ... to ss. 489.128(l)(a) and 489.532(l) . . . unlicensed because the last sentence in section 489.128(l)(a) is applicable only to an “individual” . . . As such, the phrase “the individual performing that work” in section 489.128(l)(a) would have little . . . The legislative history of section 489.128 also supports our conclusion. . . .
. . . First Version of Summary Judgment Arguments At first, the moving parties focused on section 489.128(1 . . . pei'formed under the contract, the individual performing that work is not considered unlicensed.” § 489.128 . . . (detailing amendments to section 489.128(l)(a)). . . . Unlike section 489.128(1), the MDCO does not expressly provide that contracts entered into by unlicensed . . . The Dial Court’s Order Following the 2009 amendments to section 489.128, the issue before the trial court . . .
. . . Prior to June 25, 2003, section 489.128, Florida Statutes (2001), provided that contracts performed in . . . indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section. § 489.128 . . . The trial court’s decision below was consistent with the clear and unambiguous language of section 489.128 . . .
. . . Oak Park moved for summary judgment, arguing that pursuant to section 489.128, Florida Statutes (2007 . . . See § 489.128(l)(a), Fla. . . .
. . . See § 489.128, Fla. Stat. (2005). . . .
. . . finding that although the plaintiff may have violated a local ordinance, it had not violated section 489.128 . . . The arbitrator found, among other things, that Commercial Interiors did not violate section 489.128, . . . including the arbitration provision, were not enforceable, and that the arbitrator had misapplied section 489.128 . . .
. . . Central Florida Lumber suggests three reasons Judge Arnold’s ruling is erroneous: (1) section 489.128 . . . Section 489.128 Section 489.128, Florida Statutes (1999), provides that contracts performed by an unlicensed . . . The Plaintiffs argue that under section 489.128, Central Florida Lumber cannot enforce Doug Ross’s duty . . . We reject the Plaintiffs’ argument that section 489.128 operates to somehow extinguish the statutory . . . Regardless, for the same reasons that the operation of section 489.128 does not preclude the application . . .
. . . an unlicensed contractor who was precluded from enforcing the construction agreement under section 489.128 . . .
. . . Breach of contract was not alleged and would, we suspect, have been unavailing pursuant to section 489.128 . . .
. . . Finally, we noted that section 489.128, Florida Statutes (2002), provided in part: (1) As a matter of . . .
. . . The trial court found that pursuant to section 489.128, Florida Statutes (2000), the initial contract . . . Section 489.128, Florida Statutes (2000) provides: As a matter of public policy, contracts entered into . . . Section 489.128 was amended effective April 13, 2007. See Ch.2007-5, 2007, Fla. . . .
. . . stop” and “wet tap” services, and thus that it could not legally undertake these jobs under Section 489.128 . . . Section 489.128 only bars unlicensed contractors from enforcing contracts for work requiring a license . . . . § 489.128, Fla. . . . See, e.g., id. at § 489.128(b) (“if no state or local license is required for the scope of work to be . . . Furthermore, the Court questions whether Section 489.128 bars an unlicensed contractor from being a Plaintiff . . .
. . . Stat. § 489.128(l)(a) codifies Florida’s licensure requirements, and provides, in pertinent part: For . . . Stat. § 489.128(l)(a). C. . . . In 1993, the Legislature, with Laws 1993, c. 93-166, § 17, amended § 489.128(1). . . . Prior to the 1993 amendments, § 489.128(1) read: As a matter of public policy, contracts entered into . . . While there have been other changes to § 489.128(1) since, the relevant changes occurred in 1993 with . . .
. . . An individual contractor is to be considered unlicensed for purposes of Section 489.128 if he or she . . . Section 489.128(l)(a). . . . Section 489.128(b). . . . Section 489.128(l)(a). . . . Section 489.128(l)(c). . . .
. . . that failure to register a fictitious name does not invalidate the underlying contract under section 489.128 . . .
. . . Finally, section 489.128, Florida Statutes (2004), provides in part: (1) As a matter of public policy . . .
. . . See § 489.128, Fla. Stat. (2003). . . .
. . . Section 489.128, Florida Statutes (1999), indicates that contracts performed in full or in part by a . . . Later, however, the legislature added section 489.128(l)(b), Florida Statutes, providing that a “business . . .
. . . At the time of the hearing, section 489.128 provided: As a matter of public policy, contracts entered . . . After the briefs were filed in this case, the legislature modified section 489.128 to add subsection . . . 489.128(l)(b): For purposes of this section, an individual or business organization shall not be considered . . . obtain a license under its fictitious name did not render it unlicensed for the purposes of section 489.128 . . . As pointed out in footnote 4 of the opinion, RAM. does not involve subsection 489.128(l)(b). . . .
. . . DeVore’s subsequent licen-sure, which arguably cured DeVore's violation of section 489.128, Florida Statutes . . .
. . . The provisions of section 489.128 concerning the enforcement of contractual rights under construction . . . In sum, the right R.A.M. had under the 1999 version of section 489.128 was not a vested right. . . . In Magil Construction, while suit was pending, the 2000 amendment to section 489.128 became effective . . . The 2000 version of section 489.128 was in force from July 1, 2000, through June 25, 2003. . . . See § 489.128(l)(b). Those provisions of the 2003 statute are not at issue in the instant case. . . . .
. . . resolution of this issue centers upon whether the contract should be declared invalid pursuant to section 489.128 . . .
. . . Hence the issue we must resolve is which version of section 489.128 applies. . . . . § 489.128(1), Fla. Stat. (2003). . . . The 2000 Version of Section 489.128 Application of the first inquiry to the 2000 version of section 489.128 . . . The 2003 Version of Section 489.128 When it enacted the 2003 version of section 489.128 in chapter 03 . . . See § 489.128(l)(b), Fla. . . .
. . . Rewards Hotel Management contended that NHRC had violated section 489.128, Florida Statutes (2002), which . . . provides: 489.128. . . . Rewards argued that the issue of whether a party has violated section 489.128 is an issue for the court . . . NHRC contended that the alleged violation of section 489.128 was an issue to be decided by the arbitrators . . . In 2003, during the pendency of this appeal, the legislature amended section 489.128, with the amendment . . .
. . . Specifically, the trial court entered summary judgment in reliance on section 489.128, Florida Statutes . . . contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply. § 489.128 . . . Specifically, Mivan argues that the “cure” provision of section 489.128 cures the delay in licensing . . . Hence, under the “cure” provisions of section 489.128, summary judgment for Metric was inappropriate. . . .
. . . Section 489.128, Florida Statutes (2001), provides that contracts made by unlicensed contractors are . . . See § 489.128. . . .
. . . American moved for summary judgment pursuant to section 489.128, which renders contracts by unlicensed . . . Section 489.128 was enacted to protect the public from the activities of incompetent contractors. . . . Co., 759 So.2d 2 (Fla. 2d DCA 1999) (legislative history suggests that section 489.128 was intended to . . . Under section 489.128, it seems Kvaerner could not enforce its contract with Steel Tec. . . . In 2000, the Legislature amended section 489.128 to delete the last sentence, which allowed a contractor . . .
. . . This motion was denied; the trial court found section 489.128 salvaged the legality and enforceability . . . Michnal’s summary judgment, the trial court found the legality of Palm Coast’s lien was salvaged by s. 489.128 . . . The controlling version of section 489.128, Florida Statutes (1999), provides: As a matter of public . . . registration after termination of contract, but before filing of lien, was ineffectual under section 489.128 . . . However, the trial court found Palm Coast’s lien claim, as a whole, was salvaged by s. 489.128. . . .
. . . . § 489.128 rendered the contracts, and the arbitration clauses within the contracts, unenforceable. . . . Ann. § 489.128. . . . Finding that “Section 489.128, Florida Statutes (2001), makes clear that the arbitration provisions at . . . the district court, to determine whether the underlying contracts in general are enforceable under § 489.128 . . . Appellees cite other cases that hold or suggest that the court, not the arbitrator, should decide whether § 489.128 . . .
. . . Section 489.128, Florida Statutes (1999), states that, as a matter of public policy, contracts performed . . . Pursuant to section 489.128, she did not have an enforceable contract with her brother; therefore, she . . . Sangles, 637 So.2d 989 (Fla. 3d DCA 1994)(holding that section 489.128 barred homeowners’ action against . . . We reject appellant’s argument that under Section 489.128, Florida Statutes (1999), appellee is barred . . .
. . . Section 489.128, Florida Statutes (1993), provides that contracts entered into on or after October 1, . . . Additionally, as previously stated, this ruling ignores the mandate of section 489.128, which prevents . . .
. . . The City then took the position that under section 489.128, Florida Statutes (1999), the contract between . . . See § 489.128, Fla. Stat. (1999); Riverwalk Apartments, 779 So.2d at 539. . . .
. . . The question before us is whether the 2000 amendment to section 489.128, Florida Statutes, is retroactive . . . At that time, the relevant version of section 489.128, Florida Statutes, provided: Contracts performed . . . contractor obtains or reinstates his license, the provisions of this section shall no longer apply. § 489.128 . . .
. . . to consider its claim that the contracts were procured by fraud and were unenforceable under section 489.128 . . . As it did in the circuit court, RTM argues that section 489.128 and our decision in Poole and Kent Co . . . Section 489.128 provides that “as a matter of public policy, contracts entered into on or after October . . . Poole and Kent argued that the last sentence of section 489.128 only allowed for the enforcement of contracts . . . After the circuit court rendered its decision in this case, the legislature amended section 489.128 to . . .
. . . Section 489.128, Florida Statutes (1995), entitled “Contracts performed by unlicensed contractors unenforceable . . . Section 489.128 is a relatively new statute with little development in the case law. . . . A sentence in this nonfinal order discussing section 489.128, Florida Statutes (1995), was merely included . . .
. . . Phillips then moved for summary final judgment relying on section 489.128, Florida Statutes (1995), which . . . The court entered summary final judgment in favor of Phillips in apparent reliance on section 489.128 . . . the complaint appear sufficient to show that Sterner was a contractor within the meaning of section 489.128 . . . We do not decide whether section 489.128, Florida Statutes would preclude recovery of the value of the . . . Prior to the enactment of section 489.128 in 1990, a number of courts, including the Florida Supreme . . .
. . . to compel arbitration, based on Appellant’s claim of contract unenforceability pursuant to section 489.128 . . . See §§ 489.128, 682.02, 682.03, Fla.Stat.; Castro v. . . . .2d 989, 990-91 (Fla. 3d DCA 1994) (holding construction contract unenforceable pursuant to section 489.128 . . . However, the trial court declined to make a finding on whether Appellee was validly licensed for section 489.128 . . . Section 489.128 provides that contracts "performed in full or in part by any contractor who fails to . . .
. . . . § 489.128, Fla.Stat. (1991); Hanna v. JPC, Inc., 538 So.2d 958 (Fla. 3d DCA 1989); Bowleg v. . . .
. . . recommended dismissal of the action on the ground that the alleged agreement was unenforceable under section 489.128 . . . barred by the clear terms of the statute that a contract like this one is “unenforceable in law,” § 489.128 . . . This underlying premise is pointedly not true of section 489.128. . . . Affirmed. . 489.128 Contracts performed by unlicensed contractors unenforceable. — As a matter of public . . .