Part II of this series will discuss civil judgments and how they can affect a certified contractor’s license. The governing authority the Department of Business and Professional Regulation (“DBPR”) cites to when prosecuting civil judgment violations is section 489.129(1)(q), Florida Statutes. This section allows for disciplinary action to be taken against a licensee for:
failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee’s profession.
The Construction Industry Licensing Board (“CILB”) defines what “reasonable time” means. 61G4-17.001(1), Florida Administrative Code, states a “reasonable time” means sixty (60) days following the entry of a civil judgment that is not appealed. The only way to not receive contractor discipline is to satisfy the judgment. The CILB will consider a mutually agreed upon payment plan as satisfaction of such judgment, so long as the payments are current. Also, the CILB has allowed for the bonding off of the judgment but this is really only allowed in the most limited of circumstances.
The DBPR prosecutors must prove that the judgment relates to the practice of construction contracting. Section 489.105(6), Florida Statutes, defines contracting as, “except as exempted in [chapter 489, part I, Florida Statutes], engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors.” Section 489.105(3), Florida Statutes, defines a “Contractor” as 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;
- whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection.
It is never a good feeling being sued, however the actions a certified contractor takes after being served with a lawsuit may prevent them from having the DBPR knocking at their door. The majority of civil judgment violations that the DBPR prosecutes are from default judgments where contractors take no action in defending themself in a civil lawsuit. Ignoring a civil complaint does not alleviate liability from a civil or licensing perspective. When a certified contractor is served with a civil lawsuit the first thing he or she should do is to consult an attorney practicing in construction law.
There are multiple ways to limit liability from a licensing perspective even if an opposing party obtains a civil judgment against a certified contractor and/or their qualified company. First, the most effective and efficient way to limit liability is to negotiate a payment plan with the opposing party. Another way is to prove that the civil judgment does not relate to the practice of construction contracting, as defined by Chapter 489, Florida Statutes. From a prosecution perspective, civil judgment violations are not hard to prove because it does not require a lot of resources for the DBPR. It is the only violation that the CILB’s Probable Cause Panel does not have to approve.
In many instances the CILB may order the restitution to the homeowner for the judgment. This can present a multitude of issues for the contractor. The civil judgment may render eligibility for a claim on the Construction Recovery Fund. Formulating a plan after being served with a civil complaint is paramount in avoiding prosecution from the DBPR.
Click here to read Part One of this series.