Unlicensed Contracting Crimes
If you were charged with an unlicensed contracting crime in the greater Tampa Bay area, then contact an attorney at Sammis Law Firm.
We represent companies, their owners, and their employees charged with unlicensed contracting crimes in Hillsborough County, Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, and Polk County, FL.
The best result is getting the case dismissed on the merits. Some investigations for unlicensed contracting begin with a consumer’s complaint, but many involve undercover sting operations.
Recently, law enforcement officers in Hillsborough County and the greater Tampa Bay area have started increasing the number of undercover sting operations for “unlicensed” contractors.
Many of these sting operations target a handyman or contractor who has no intention of violating the law but reluctantly agrees to perform work that might violate the statute at the suggestion of an undercover officer.
Too many people plead guilty to these crimes without talking to an experienced criminal defense attorney about important defenses that can be asserted on a pre-trial basis, including a motion to dismiss the charge.
In the recent sting operation in Hillsborough County, several people were arrested for performing or offering to perform “UNLAWFUL ACTS IN CAPACITY OF A CONTRACTOR” under Florida Statute Section 489.127(1) (MISC0605 (MF).
In Pasco County, FL, the crime is often listed as a violation of Section 489.127(1)(f) for PUBLIC ORDER CRIMES ENGAGE CONTRACTING BUSINESS WITHOUT CERT.
The purpose of these stings is to catch people willing to perform unlicensed construction work on a project which requires certification or registration when that work is being performed without a current, valid certificate or registration.
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 (DBPR) and local law enforcement agencies for workers’ compensation fraud, unlicensed specialty contracting violations, and various other criminal charges unrelated to unlicensed contracting.
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.
We also represent clients who receive a “cease and desist” notice from the Florida Department of Business and Professional Regulation (DBPR), along with an administrative complaint, the election of rights form, and a proposed settlement agreement.
At Sammis Law Firm, we represent contractors, general contractors, electrical contractors, and those without a contracting license or with an expired license. We understand the licensing. regulation, and reporting requirements for contractors, general contractors, and electrical contractors.
In some cases, a code enforcement officer will issue a non-criminal citation for performing unlicensed contracting work and you only have 10 days to contest the citation.
Call (813) 250-0500 to discuss your case.
Unlicensed Contracting Sting Operations in Hillsborough County
Officers with the Hillsborough County Sheriff’s Office just conducted one such sting at five houses throughout Hillsborough County, FL, in a sting operation called “Operation House Hunters.”
Sheriff Chad Chronister announced the arrest of 118 people during a press conference on February 4, 2020. Similar sting operations were set up in 2021 as well.
During the “Operation House Hunters” sting, detectives working undercover pretended to be homeowners in need of repair work or painting services. The sheriff’s office used five hours and scheduled more than 200 appointments for home repair services.
The undercover officers searched for people selling services on social media platforms like Craigslist and Facebook. Eight of the suspects were allegedly classified as repeat offenders of performing, or attempting to perform, unlicensed contracting work.
During the Operation House Hunters sting, the undercover officers would request that the handyman and painter come to the condo to discuss:
- laying tile
- disconnecting and reconnecting a toilet
- installing recessed lighting
- repairing a driveway
- ceiling repair
- water heater installation
- installing a doorway through a block wall to connect two rooms
In some cases, the undercover officer would channel the handyman into agreeing to perform one of these tasks even if the handyman refused at first.
If the handyman was not already predisposed to commit the crime, then the sting operation constitutes entrapment.
History of Unlicensed Contractor Crimes in Florida
The Florida Legislature has, as a matter of state policy, greatly disadvantaged the contractor who chooses not to obtain the legally required license.
This regulatory scheme was created to protect the public and to prod contractors into obtaining the required licensing. By not complying, contractors face a host of negative consequences. The only way to avoid those negative consequences is to 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 declared instead that only the unlicensed contractor had no enforceable contract or lien rights with regard to the contract.
A first offense of unlicensed contracting is a first-degree misdemeanor and a second offense is charged as 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.
Duties of Florida’s DBPR
The Department of Business and Professional Regulation (DBPR) is the agency that licenses and regulates businesses and professions in Florida including construction contractors and electrical contractors.
Pursuant to Section 489.105(3), F.S., the term “contractor” is defined to mean the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, 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; and
- whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection.
The Construction Industry Licensing Board (CILB) and the Electrical Contractors’ Licensing Board (ECLB) oversee the regulations for construction contracting and electrical contracting.
Under Section 489.115(1), F.S., all construction and electrical industry contractors in Florida must be licensed as a contractor either by certification or registration.
DBPR issues certifications or registrations to each person qualified by the Board after the payment of the license fee required by Section 489.115(2)(a). Certified licenses are valid throughout Florida and allow the contractor to work anywhere in the state.
On the other hand, registered licenses are limited to certain local jurisdictions and only allow a contractor to work in the cities or counties where the contractor holds a certificate of competency.
Under Section 489.115(2)(b), F.S, licensure by registration is available after the applicant has taken and passed a local competency examination. The licensure by registration permits the licensee to practice within that specified locale.
Licensure by certification is available when the applicant has taken and passed a state competency exam, which permits the certificate holder to engage in contracting in any jurisdiction in the state without being required to fulfill the competency requirements of that jurisdiction.
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) prohibits and of the following acts:
- (a) prohibits falsely holding yourself or your business organization out as a licensee, certificate holder, or registrant;
- (b) prohibits falsely impersonating a certificate holder or registrant;
- (c) prohibits presenting as your own the certificate or registration of another;
- (d) prohibits knowingly giving false or forged evidence to the board or board member;
- (e) prohibits using or attempting to use a certificate or registration that has been suspended or revoked;
- (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;
- (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;
- (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
- (i) prohibits willfully or deliberately disregarding or violating any municipal or county ordinance relating to uncertified or unregistered contractors.
For purposes of 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 layperson 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 can be filed as either a misdemeanor or a felony depending on the circumstances.
Penalties for Unlicensed Contracting Crimes in Florida
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 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 Florida’s 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.
Proposed Legislation to Enhance Penalties for Unlicensed Contracting
Each year, legislation is proposed to enhance the penalties for persons engaged in the business or acting in the capacity of a contractor.
For example, in 2022, CS/SB 332 would have amended Section 489.127 to increase the criminal penalties when an unlicensed person violates the provisions of s. 489.127(1)(f).
The proposed legislation created a tiered penalty structure for such penalties, increasing in severity with the contract price based on the contract price including:
- for a contract price of less than $1,000, the penalty would remain a first degree misdemeanor;
- for a contract price of $1,000 or more, but less than $20,000, the penalty would become a third degree felony;
- for a contract price of $20,000 or more, but less than $200,000, the penalty would become a second degree felony;
- for a contract price of $200,000 or more, the penalty would become a first degree felony.
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 a property that is owned by the contractor.
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.
The main purpose of the statute criminalizing unlicensed contracting is to ensure that certain contractors meet minimum levels of competence. For this reason, deficient workmanship on the contracted job might be found to be “related” to the offense of contracting without a license.
The courts in Florida have held that deficient workmanship on the contracted job might be “related” to the offense of contracting without a license. See Bianchini v. State, 77 So. 3d 247, 248 (Fla. 4th DCA 2012).
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.
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.
If you enter a plea to the charge then you are entitled to a restitution hearing in court. A restitution award “must be based on competent evidence.” Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997).
An issue might arise about whether, by agreeing to pay restitution, the defendant is waiving his right to contest the applicability of restitution in the case. If so, it might be better to clarify that issue at the time of the plea.
As a general rule, “‘[h]earsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.'” McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010) (quoting Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009).
For example, in T.J.N. v. State, 977 So. 2d 770, 773-74 (Fla. 2d DCA 2008), the court reversed a restitution award, in part, because the state’s witness, an insurance adjustor, “bas[ed] his testimony on an estimate he had received from an auto body shop”; thus, “[n]o competent evidence was presented concerning the amount of the damages.”
At the restitution hearing, the alleged victim might ask for:
- disgorgement which is repayment of illegally gotten gains including any money paid by the alleged victim to the defendant;
- out of pocket expenses to undo the damage caused by the unlicensed contractor when there is a causal connection between the lack of license and the shoddy work done.
The defendant might argue that disgorgement is not allowed as a basis for restitution in unlicensed contracting cases and would result in the alleged victim being unjustly enriched by getting back all funds paid while retaining the benefit of the materials purchased or the work done.
For example, in Bianchini v. State, 77 So. 3d 247 (Fla. 4th DCA 2012), the defendant was convicted of contracting without a license. The court found that the victim’s son “testified, properly, that his parents paid appellant $20,000 for a roofing job and $4,000 for other repairs.” The trial court made a restitution award of $23,975 which was roughly the amount paid by the victims to the defendant. The Fourth District Court of Appeals found that testimony on how the work was deficient and the amount needed to remedy the deficiency had been hearsay. Therefore, it determined there was no competent substantial evidence to support the restitution award and remanded the case back to the trial court for a new restitution hearing.
In McCarron v. State, 6 Fla. L. Weekly Supp. 486c (Opinion issued April 7, 1999), the court found it was an error to require the defendant, who pled no contest to the charge of contracting without a license, to pay restitution based on the victim’s testimony and repair bill without making a determination that there was a causal connection between defendant’s lack of license and shoddy work.
Report Construction Fraud in Hillsborough County – Visit the website for Hillsborough County to report construction fraud or unlicensed construction activity. Anyone caught knowingly aiding or abetting an unlicensed contractor faces a $500 fine.
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.
DBPR Construction Industry Licensing Board – Visit the website of the Department of Business and Professional Regulation to find the definition of Occupation and Class Codes.
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 oneself as a licensed contractor under 489.127(1)(a).
Contact us to find out about crimes for unlicensed contracting in Pasco County and unlicensed contracting in Pinellas County, FL.
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 Thursday, December 29, 2022.