MyFloridaCode.com

Robert, you need to post the question to "codetalk at myfloridacode.com"
for the group to see it. I have answered you to the best of my ability
but remember; - I am not a lawyer.

What Orange County would be true ONLY when working on residential
contracts only, and ONLY if the general contractor had AGREED to
specifically "supervise" him and any other "subs" that sub had hired.
This adds a legal burden to the contractor that they may not be aware of
and (in my experience) most attorneys will counsel the contractor of
record against assuming such added responsibility by agreeing to
supervise persons not in their employ. The genesis of this exception is
found at F.S. 489.117 (3)(e) and is commonly referred to as "the Jim
Walters Rule."

Providing a General Contractor AGREES to supervise such workers on a
commercial project, Commercial work is still in-eligible for this
exemption if a local category exist for that particular subcontracted
trade. This exception has origin at 489.113(2)

So, what you describe can NEVER, NEVER, occur on any commercial project
where the county has a local drywall or framing licensure category.

There is an Attorney's General Opinion on the 2 statutes. I assume you
will want to read it so here it is:

Dear Mr. Lopez-Cantera:
      You ask substantially the following question:

      To what extent do the recent amendments to ss. 489.113 and
489.117, F.S., 
      operate to preclude local professional licensing on persons
working under 
      the supervision of certified or registered contractors?
      In sum:
      Section 489.113, F.S., as amended by s. 8, Ch. 93-166, Laws of
Florida, 
      creates a limited exception to requirements set forth in Ch. 489,
F.S.; it 
      does not create an exemption from any local licensing requirements
imposed 
      by local ordinance. Section 489.117, F.S., as amended by s. 12,
Ch. 
      93-166, Laws of Florida, however, does creates a limited exemption
from 
      local licensing requirements for persons who meet the conditions
specified 
      therein. Thus a person who, pursuant to s. 489.113, F.S., is
exempt from 
      the State's certification or registration requirements, is still
subject 
      to local licensing unless such person falls within the exemption
from 
      local licensing provided in s. 489.117, F.S.
Section 489.113(2), F.S., as amended, thus creates a limited exception
to 
      requirements set forth in Ch. 489, F.S.; it does not, however,
create an 
      exemption from any local licensing requirements imposed by local 
      ordinance. As the statute itself expressly states: "This
subsection does 
      not affect the application of any local construction licensing 
      ordinances." Thus, to the extent that such persons are subject to
local 
      professional licensing ordinances, s. 489.113(2), F.S., does not
exempt 
      such persons from the requirements of such local ordinances. 

      Section 489.117(e), F.S.,[11] on the other hand, does establish a
limited 
      exemption from local licensing requirements for persons who are
not 
      required to obtain registration or certification pursuant to s. 
      489.105(3)(d)-(o), F.S. Such persons are not required to obtain a
local 
      professional license to perform speciality contracting services
for the 
      construction, remodeling, repair or improvement of single-family 
      residences if they are under the supervision of a certified or
registered 
      general, building, or residential contractor. 

      Accordingly, a person who, pursuant to s. 489.113, F.S., is exempt
from 
      the requirements imposed by Ch. 489, F.S., is not by virtue of
that 
      statute exempt from local licensing; however, such person may be
exempt 
      from local licensing if he or she qualifies for the exemption
provided in 
      s. 489.117, F.S.

If he subs to you illegally (commercial projects or residential projects
where the builder does not specifically agree to supervise you) he can
face licensing charges, criminal charges, civil liability that might not
be covered by his policy, and the IRS (last I knew) can fine up to
$100,000.00 for each 1099 issued illegally. He would not however be
responsible for taxes you owed regardless of whether or not he withheld
such taxes. Additionally, he probably will owe State Unemployment tax,
Workers Compensation Premiums, and Overtime Wages under the FLSA.
(Morgan and Morgan are prosecuting many such cases and are actively
seeking them by advertisement)

I would report the work situation to the Florida Workers Compensation
Fraud Division, Department of Insurance, State's Attorney's Office, and
the County boards that he is licensed in as well as the CILB and the
FLSA (federal). Additionally, there is a fraud number for the IRS. I
will bet that the General Contractors' he contracts from are not aware
he is "brokering" the work illegally, that is the first place you report
it.

I would be happy to talk to you (or him, or both) if you wish.


R.J.Koning - Director
Contractors Institute
rjkoning at contractorsinstitute.com
8301 Joliet Street
Hudson, Fl 34667
727-863-5147


-----Original Message-----
From: codetalk-bounces at myfloridacode.com
[mailto:codetalk-bounces at myfloridacode.com] On Behalf Of Rob Harvey / L
& H Contracting, Inc.
Sent: Wednesday, January 28, 2009 10:21 PM
To: codetalk at myfloridacode.com
Subject: [Florida Code Talk] Fw: Unlicensed contractors


Robert Harvey
L & H Contracting, Inc.
lhcontracting at tampabay.rr.com
352-280-0061
Fax: 1-866-254-3245


-----Original Message-----
From: "Rob Harvey / L & H Contracting, Inc."
<lhcontracting at tampabay.rr.com>

Date: Thu, 29 Jan 2009 03:17:18 
To: Glen Mast<glenmast at comcast.net>; <codetalk at myfloridacodetalk.com>
Subject: Re: [Florida Code Talk] Unlicensed contractors


Thanks Glen, I may have rambled on a bit. My question, to whom that may
know, is an occupational license acceptable in my trade.commerical
drywall,metal framing, and will clib respond to a compliant. And is it
spelled out in the florida statute.
Robert Harvey
L & H Contracting, Inc.
lhcontracting at tampabay.rr.com
352-280-0061
Fax: 1-866-254-3245


-----Original Message-----
From: "Glen Mast" <glenmast at comcast.net>

Date: Wed, 28 Jan 2009 21:17:53 
To: <lhcontracting at tampabay.rr.com>
Subject: Re: [Florida Code Talk] Unlicensed contractors


I think that you may be mixing two or more different sets of rules.  The

IRS's definition of a subcontractor, the state unemployment division and
the 
CILB's definition.

If you go to the IRS website and do a search for "subcontractor" you
should 
find their rules for determining if a person is a sub or an employee.
They don't care about licenses.  It is merely how the person is directed
and 
the oversight given and the financial responsibility they bear.

The other tax is the state unemployment division.  Their take should be 
basically the same as that of the IRS.

As for the CILB I will leave that to someone more knowledgeable.  I can 
however say that as far as I know their rules have nothing to do with
taxes.

glen mast
MAST DRAFTING & DESIGN




----- Original Message ----- 
From: <lhcontracting at tampabay.rr.com>
To: <bob at contractorsinstitute.com>
Cc: <codetalk at myfloridacode.com>
Sent: Wednesday, January 28, 2009 8:37 PM
Subject: [Florida Code Talk] Unlicensed contractors


> Can anybody help. Here is the situation. Hiring an unlicensed sub 
> contractor, commercial work. I am a state certified drywall contractor

> specializing in interior and exterior metal framing (labor only). The
sub 
> contractor I am working for is a registered contractor that does
framing 
> hanging finishing and stucco work directly for the general contractor.

> This sub excepts a business tax (occupational license) as a license to

> perform his labor only work. All of his subs, including myself are
paid on 
> percentage of completion, weekly draws off a total contract amount and

> 1099 at year end. In an effort to educate him (and myself)  and obtain

> more work from him, where can I look in the Florida statute to further

> discuss this topic with him. Remember it must pertain to sub sub 
> contractors. I seem to remember from class that if he were caught he
would 
> be responsible to pay all back company matched taxes on every employee
of 
> all unlicensed subs. Here's the kicker all the counties I cal!
> led advised me to call code enforcement, except orange county where I
am 
> currently working. They said it was ok as long as the sub sub
contractor 
> was not pulling permits and that they were working under the
supervision 
> of a real licensed contractor. Finding it harder and harder to compete

> with unlicensed subs. Thanks for your input.
>
> Robert Harvey
> L & H Contracting, Inc.
> Ph: 352-280-0061
> Fax: 1-866-254-3245
> lhcontracting at tampabay.rr.com
>
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