Proper construction licensing is important. The recent spate of cases have come out harshly against the unlicensed contractor. Naturally the solution is to ensure you have the proper licenses complying with Florida law to transact your construction business PRIOR to entering into your contract.
In Ramindesign, LLC v. Skarzynski, 2026 WL 3181066 (S.D.Fla. 2026) the federal district court was asked to reconsider a summary judgment that was entered against the plaintiff finding it operated as an unlicensed contractor. (See here for the original ruling.) The plaintiff argued that the court overlooked language in the contract that it was not acting as a general contractor. In the contract, the plaintiff was designing and building a residential spec home, and the contract provided that it was an agreement for the development of a residential home. Notably, the contract did not define the term development and never used the term developer even though the plaintiff contended it was not acting as a contractor but as a “spec developer.” The court was not persuaded by the motion for reconsideration and struck with its ruling that the plaintiff acted as an unlicensed contractor.
The court explained that regardless of any exculpatory language in the contract, Florida Statute s. 489.128 “reflects a clear public policy, both to protect homeowners and the public, and to induce contractors to obtain and maintain licenses … allowing the enforcement of a waiver [or exculpatory] clause purporting to effectively void the statutory penalty imposed on an unlicensed contractor for its failure to obtain a license would violate Florida’s public policy.” Ramindesign, supra at *2.
Here the “spec developer” was serving as a contractor within the meaning of Florida law, specifically Florida Statute s. 489.105(3). Its role was to construct and make improvements to residential real property, irrespective of its self-label as a “spec developer,” and met the definition of a contractor under Florida law. And, therefore, it acted as an unlicensed general contractor which has no rights or remedies under Florida law. Ramindesign, supra at *1-2.
The plaintiff further argued that even if it was not licensed as a contractor because it did not believe it needed to be, it was affiliated with a qualifying agent (licensed contractor) and, therefore was a proper contractor. While the court did not factually buy the argument that the plaintiff was affiliated with the qualifying agent prior to performing construction, it explained that even if the court accepted the plaintiff’s argument, the fact that plaintiff never registered itself with Florida’s Department of Business and Professional Regulation presented an issue as to the plaintiff properly having a qualifying agent.
When drafting a contract, remember, including waiver or exculpatory language that condones an illegality will not be enforceable. The parties cannot legalize an illegality. Had the language been drafted differently, that better caters to the role of the plaintiff and the licensure circumstance, perhaps a contract could have been drafted where plaintiff’s “spec developer” label would have been given more consideration. Unfortunately, here, the contract was not drafted with that forethought to better create that argument down the road that it was not serving as a contractor, but as a developer.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
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