Unlicensed Contracting Crimes
In order to protect the public and to prod contractors into obtaining the required licensing, the Florida Legislature has, as a matter of state policy, greatly disadvantaged the contractor who chooses not to obtain the legally required license. To avoid the draconian effects of the statute, the unlicensed contractor need only comply with the law.
In many of these cases, the Florida Department of Business and Professional Regulation (DBPR) will issue a cease and desist notice to and impose fines of up to $5,000 on anyone who knowingly hires an unlicensed contractor. § 455.228(1)-(2), Fla. Stat. DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. These crimes are aggressively prosecuted because construction fraud can cost unwitting homeowners thousands of dollars for work that was never done or left incomplete.
In 2003, the Florida Legislature amended section 489.128 to remove language that made contracts with unlicensed contractors unenforceable by either party and declaring instead that only the unlicensed contractor had no enforceable contract or lien rights with regard to the contract.
Unlicensed contracting is a crime for which a first offense is a first-degree misdemeanor and a second is a third-degree felony. § 489.127(1)-(2), Fla. Stat. Criminal penalties can also apply to a licensed contractor who is working outside the scope of that license.
If you are charged with a criminal offense, you need an experienced criminal defense attorney to represent you at every stage of the case including at arraignment, during any pre-trial motions to dismiss the charges entirely, or at trial as you fight for a “not guilty” verdict.
Attorney for Unlicensed Contracting Charges in Tampa, FL
If you were accused of violating Florida statute prohibiting unlicensed contracting jobs under Florida Statute § 489.127, then contact an experienced criminal defense attorney at Sammis Law Firm. Our main office is located in downtown Tampa in Hillsborough County. We have a second office located in New Port Richey in Pasco County, FL.
We represent clients throughout Tampa, Hillsborough County, and the surrounding area in Tampa Bay. We fight unlicensed contracting jobs throughout Hillsborough County, Pinellas County, Pasco County, Hernando County and Polk County, FL.
Our attorneys are familiar with the tactics used by investigators with the Florida Department of Business and Professional Regulation and local law enforcement agencies for workers’ compensation fraud, unlicensed specialty contracting violations, and various other criminal charges unrelated to unlicensed contracting.
We also represent client who receive a cease and desist notice from the Florida Department of Business and Professional Regulation (DBPR), along with an administrative complaint, election of rights form, and proposed settlement agreement.
Call (813) 250-0500 to discuss your case.
Florida Statute § 489.127 – Crimes for Unlicensed Construction
Title XXXII governs the Regulation of Professions and Occupations. Chapter 489 governs the contracting profession.
- Section 489.127(1)(a) prohibits falsely holding yourself or your business organization out as a licensee, certificate holder, or registrant;
- Section 489.127(1)(b) prohibits falsely impersonating a certificate holder or registrant;
- Section 489.127(1)(c) prohibits presenting as your own the certificate or registration of another;
- Section 489.127(1)(d) prohibits knowingly giving false or forged evidence to the board or board member;
- Section 489.127(1)(e) prohibits using or attempting to use a certificate or registration that has been suspended or revoked;
- Section 489.127(1)(f) prohibits engaging in the business or acting in the capacity of a contractor or advertising yourself or your business organization as available to engage in the business or acting in the capacity of a contractor without being duly registered or certified;
- Section 489.127(1)(g) prohibits operating 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;
- Section 489.127(1)(h) prohibits engaging in commence or performing work for which a building permit is required pursuant to part IV of chapter 553 without such building permit being in effect; and
- Section 489.127(1)(i) prohibits willfully or deliberately disregarding or violating any municipal or county ordinance relating to uncertified or unregistered contractors.
For purpose of the engaging in unlawful contracting, a business tax receipt issued under the authority of chapter 205 is not a license for purposes of this part. Electrical Contracting has similar regulations listed in Florida Statute 489.531(1)(a) thru (3)(c).
Chapter 489, Florida Statutes, regulates the “construction industry” in Florida “in the interest of the public health, safety, and welfare.” § 489.101, Fla. Stat. (2005). Section 489.128(1), addresses the enforceability of a construction contract with an unlicensed contractor by providing in pertinent part:
“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.”
“The statute plainly applies to all contracts with unlicensed contractors—whether the other party is a lay person or a licensed contractor—and places the onus for unlicensed contracting on the unlicensed contractor.” See Earth Trades, Inc. v. T & G Corp., 108 So. 3d 580, 584 (Fla. 2013).
Nevertheless, if an unlicensed contractor is accused of a criminal offense, important defenses exist that could lead to an outright dismissal of the charges. Crimes related to unlicensed contracting and working as an unlicensed electrical contractor an be filed as either a misdemeanor or a felony depending on the circumstances.
Penalties for Unlicensed Contracting Crimes
The criminal penalties for crimes related to being an unlicensed contractor are not exclusive. Other penalties can be imposed under Florida Statute Section 489.129(2).
As a matter of state policy, the Florida Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract. For instance, under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract. Earth Trades, Inc. v. T & G Corp., 108 So. 3d 580, 586 (Fla. 2013)
Any unlicensed person who violates any of the provisions of subsection (1) Section 489.127 of commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, punishable by up to 12 months in jail and a $1,000 fine. A second offense is punishable as a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, punishable by up to five (5) years in prison and a $5,000 fine.
If the offense for performing any unlicensed contracting crime is committed during the existence of a state of emergency declared by executive order of the Governor, then the crime is a felony of the third degree, punishable by up to five years in Florida State Prison and a $5,000 fine.
The criminal offense can also be prosecuted as a third degree felony if the person operates as an internal pollutant storage tank lining applicator, precision tank tester, or pollutant storage systems contractor.
Crimes by a Certified or Registered Contractor
Under Section 489.127(4)(a), any certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not enter into an agreement, oral or written, whereby his or her certification number or registration number is used, or to be used, by a person who is not certified or registered as provided for in this chapter, or used, or to be used, by a business organization that is not duly qualified as provided for in this chapter to engage in the business, or act in the capacity, of a contractor.
Under Section 489.127(4)(b), any certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not knowingly allow his or her certification number or registration number to be used by a person who is not certified or registered as provided for in this chapter, or used by a business organization that is not qualified as provided for in this chapter to engage in the business, or act in the capacity of, a contractor.
Under Section 489.127(4)(c), any certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not apply for or obtain a building permit for construction work unless the certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, or business organization duly qualified by said contractor, has entered into a contract to make improvements to, or perform the contracting at, the real property specified in the application or permit.
This paragraph does not prohibit a contractor from applying for or obtaining a building permit to allow the contractor to perform work for another person without compensation or to perform work on property that is owned by the contractor.
The Most Common Defenses to Unlicensed Contracting Crimes
A criminal defense attorney can help you assert any defenses to Section 489.127 during a pre-trial motion or at trial. If the evidence is insufficient to support the charges, the criminal defense attorney can file and litigate a motion to dismiss the charges entirely.
The most common defense asserted in these cases is that a license is not required. Not all construction projects are governed by the licensing statute or the regulatory scheme, although a state certified or registered contractor’s license is required for the following jobs:
- Any additions or major remodeling jobs;
- Any plumbing work that requires a permit or is over $1,000 (total contract);
- Roofing work (except the “dry-in” to a structure):
- Major A/C replacement or repair jobs; or
- Any electrical item that becomes fabricated into the structure.
Florida law also provides for several different types of exemptions that apply to crime prosecuted under Chapter 489 where the business or individual is not required to have a contracting license.
Compliance with the statutory scheme is complicated by the fact that when the contract is first signed, the business organization is not able to actually ensure compliance with the permitting and supervision requirements of chapter 489 with respect to the project. This inability to ensure compliance occurs because a contractor is prohibited from even applying for a building permit until after the contract is in effect.
Under Florida Statute Section § 489.127(4)(c), Fla. Stat., a contractor is prohibited from applying for or obtaining a building permit for construction work unless the contractor or “business organization duly qualified by said contractor … has entered into a contract to make improvements to, or to perform contracting at, the real property specified in the application or permit,” except where the contractor proposes to perform the work without compensation or on property owned by the contractor. See Taylor Morrison Services, Inc. v. Ecos, 163 So. 3d 1286, 1290 (Fla. 1st DCA 2015).
Restitution for Crimes of Contracting Without a License
In addition to the criminal penalties that can be imposed by the court, the court also has wide discretion to award restitution after a restitution hearing. Under Florida law, restitution is authorized for “[d]amage or loss caused directly or indirectly by the defendant’s offense” and for “[d]amage or loss related to the defendant’s criminal episode.” § 775.089(1)(a) 1.2., Fla. Stat.
One purpose of the statute criminalizing unlicensed contracting is to ensure that certain contractors meet minimum levels of competence. The courts in Florida have held that deficient workmanship on the contracted job is “related” to the offense of contracting without a license. See Bianchini v. State, 77 So. 3d 247, 248 (Fla. 4th DCA 2012).
If you agree to enter any kind of diversion program such as the (Misdemeanor Intervention Program), then you will be required to agree to the restitution amount proposed by the State Attorney’s Office which can be thousands of dollars higher than the actual amount of restitution owed. The complaining witness in the case often seeks out a criminal investigation as a way to recoup money damages. As a result, the restitution amount requested is often much higher than it should be.
DBPR Unlicensed Activity Reference Guide – Visit the website of the Department of Business & Professional Regulation (DBPR) to find a Law Enforcement Quick Reference Guide to learn more about when a state certified or registered contractors license is required, statutory authority to cite unlicensed contracts other than electrical or alarm contracting, and the DBPR unlicensed activity toll free line.
Finding a Lawyer for Unlicensed Contracting in Hillsborough County, FL
To protect yourself you should get licensed before the original contract date. If the contractor loses its qualifying agent after the contract is entered, then it loses its ability to continue to engage in contract work requiring a license. A company may, however, seek a temporary non-renewable certificate to continue work on existing contracts.
We represent clients charged with workers comp fraud under 440.105(4)(a)(3) and related offenses for unlicensed specialty contracting under 489.127(1) / 489.127(2)(c) and portraying onself as licensed contractor under 489.127(1)(a).
Our criminal defense attorneys represent those accused of being unlicensed contractors, electrical contractors, and alarm contracts. Let us put our experience to work for you.
Call (813) 250-0500.
This article was last updated on Friday, December 21, 2018.