Florida/Georgia Personal Injury & Workers Compensation

...jects. THF moved the district court for an order compelling arbitration in accordance with the arbitration clauses. In opposing the motion, Appellees argued that since the contracts were performed in part by an unlicensed contractor, Fla. Stat. Ann. § 489.128 rendered the contracts, and the arbitration clauses within the contracts, unenforceable....

...The current version of this statute reads: 3 As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. 4 Fla. Stat. Ann. § 489.128 ....

...s, L.P. v. RTM General Contractors, Inc., 779 So.2d 537, 538 (Fla.Dist.Ct.App.2000) for the proposition that "[t]he Court, not the arbitration panel, must determine in the first instance whether the contracts at issue are enforceable." Finding that "Section 489.128, Florida Statutes (2001), makes clear that the arbitration provisions at issue are unenforceable," the district court denied Appellant's motion to compel arbitration....

...6 We conclude that, under the Federal Arbitration Act (FAA) and the Florida Arbitration Code, once the district court is satisfied that the parties actually agreed to arbitrate the dispute, it is for the arbitration panel, not the district court, to determine whether the underlying contracts in general are enforceable under § 489.128....

...Additionally, the comment notes that a majority of the states recognize some form of the separability doctrine under state arbitration laws. 2 Appellees cite other cases that hold or suggest that the court, not the arbitrator, should decide whether § 489.128 renders a contract containing an arbitration clause unenforceable See Micronair, Inc....

...n rather than in the courts, but did not adequately explain why Prima Paint 's doctrine of separability does not apply when the party opposing arbitration alleges the underlying contract, containing a valid arbitration clause, is unenforceable under § 489.128....

...License Defendants seek summary judgment on Furmanite's claims for lost business opportunities in Counts I though VIII, arguing that Furmanite cannot legally recover such damages because it was not licensed to perform "line stop" and "wet tap" services, and thus that it could not legally undertake these jobs under Section 489.128, Florida Statutes....

...regarding Furmanite's right to use the Foushi license after the resignation of Greg Foushi. Furthermore, TDW offers no evidence that Furmanite's claims for lost business opportunities encompass only claims for work for which a license was required. Section 489.128 only bars unlicensed contractors from enforcing contracts for work requiring a license. § 489.128, Fla. Stat. (2006). A license is not required for all potential work a contractor could conceivable undertake. See, e.g., id. at § 489.128(b) ("if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed.")....

...simply as "TDW." [3] The last named individual Defendant in the instant case, Bryan McDonald, is an employee of T.D. Williamson, Inc., and is alleged to have assisted the former employees in their actions. (E.g., Doc. No. 61, ¶ 15, 71). [4] (See Doc. No. 61). [5] Furthermore; the Court questions whether Section 489.128 bars an unlicensed contractor from being a Plaintiff in the instant case....

...It was also agreed that the legal issue of the enforceability of the contract was ripe to be decided. The trial court granted WCI's motion to stay the arbitration, ruled that the contract between R.A.M. and WCI was illegal and unenforceable pursuant to section 489.128, Florida Statutes (2000), and discharged R.A.M.'s lien on WCI's property. R.A.M. now appeals those rulings. B. The Statutory Framework This case turns on whether R.A.M.'s claims were properly barred by the provisions of section 489.128: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part [i.e., part I, chapter 489] shall be unenforceable in law or in equity....

...e version in the 2000 Florida Statutes, except that it contained an additional sentence at the end of the section: "However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply." § 489.128, Fla....

...This cure provision present in the 1999 statute was repealed by the legislature effective July 1, 2000. See ch. 00-372, § 35, at 4338 (repealing cure provision), § 48, at 4344 (providing effective date of July 1, 2000), Laws of Fla. [2] *1215 The provisions of section 489.128 concerning the enforcement of contractual rights under construction contracts performed or entered into by unlicensed contractors should be viewed in the context of section 489.127(1)(f), Florida Statutes (1999), which makes it a crim...

...or act in the capacity of a contractor ... without being duly registered or certified as having a certificate of authority." II. ISSUE ON APPEAL The dispositive issue on appeal is whether R.A.M. was entitled to cure its unlicensed status pursuant to section 489.128, Florida Statutes (1999), when the cure provision of the statute was no longer in force....

...version of the statute to cure its unlicensed status. In support of its position, R.A.M. relies on Palms v. Magil Construction, Inc., 785 So.2d 597, 598 (Fla. 3d DCA), review denied, 805 So.2d 811 (Fla.2001), which held that "the 2000 amendment" to section 489.128 "does not operate retroactively," and thus would not be applied to a suit that was pending when the 2000 version of the statute became effective....

...ise agreements would unconstitutionally impair the obligation of contract if applied to contracts entered before the effective date of statute). B. Application of the Law to R.A.M.'s Claims Here, R.A.M. claims that application of the 2000 version of section 489.128 impairs R.A.M.'s vested right to cure its unlicensed status. R.A.M's argument is predicated on the assumption that the trial court retroactively applied the 2000 version of the statute to preclude R.A.M.'s cure of its unlicensed status. We conclude that the trial court's application of the 2000 version of section 489.128 was not a retroactive application of law....

...he 2000 statute that has a sufficient "degree of connection" with the "operation of the new rule" to justify the conclusion that the application of the 2000 statute has a retroactive effect. Id. In sum, the right R.A.M. had under the 1999 version of section 489.128 was not a vested right....

...tus of the underlying agreement: "Regardless whether a contract entered into by an unlicensed contractor is unenforceable, illegal, or both, such a contract cannot give the contractor a vested right that may be impaired by retroactive application of section 489.128, Florida Statutes (2003)." Id....

...to defeat judgment against employee that was obtained prior to effective date of statute). [5] We do not conclude that there are no circumstances in which a vested right could come into existence pursuant to the cure provision of the 1999 version of section 489.128....

...statutory cure provision while that provision was still in force. The circumstances of the instant case thus are distinguishable from those cases in which a contractor cured its unlicensed status prior to the effective date of the 2000 amendment to section 489.128....

...f the 2000 statute, the right of the contractor to enforce the contract based on the contractor's completed action pursuant to the cure provision of the statute is a vested right that could not be abrogated by the subsequently effective amendment to section 489.128....

...The decision of the Third District in Magil Construction, 785 So.2d 597, appears to involve facts similar to those of the instant case and an analysis of the retroactivity issue at odds with our holding here. In Magil Construction, while suit was pending, the 2000 amendment to section 489.128 became effective....

...Corp., 737 So.2d at 499 (quoting Landgraf, 511 U.S. at 269), or of the distinction between vested rights and contingent or expectant rights. To the extent that Magil Construction is understood to hold that it is a retroactive application of law to apply the 2000 version of section 489.128 to preclude action to cure a contractor's unlicensed status after the effective date of the 2000 statute, we recognize that Magil Construction is inconsistent with our holding in this case....

...COVINGTON and VILLANTI, JJ., Concur. NOTES [1] We recognize that the Eleventh Circuit has concluded that both the Federal Arbitration Act and the Florida Arbitration Code allow an arbitrator, rather than a court, to decide whether a contract is unenforceable under section 489.128 once a determination has been made by a court that the dispute falls within the scope of a valid agreement to arbitrate....

...THE Constr., Inc., 321 F.3d 1094 (11th Cir.2003); see also Rewards Hotel Mgmt. Co. v. Elite Gen. Contractors, Inc., 860 So.2d 1011 (Fla. 3d DCA 2003) (holding that the Federal Arbitration Act permits an arbitrator to decide whether a contract is unenforceable under section 489.128 and suggesting in dicta agreement with Goodman that applying the Florida Arbitration Code would have the same result). [2] The 2000 version of section 489.128 was in force from July 1, 2000, through June 25, 2003. In response to questions concerning the interpretation of the various versions of section 489.128 and related statutory provisions, the legislature in 2003 while this appeal was pending—adopted legislation with certain provisions intended to "clarify existing law."Ch. 03-257, § 8, at 1294, Laws of Fla. The 2003 version of section 489.128 provides, in pertinent part: "(1) 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." Id. § 1, at 1290. The 2003 version of the law contains no cure provision like the cure provision in the 1999 version of the statute. The 2003 legislation— which became effective on June 25, 2003— explicitly provides that its provisions affecting section 489.128 "are intended to be remedial in nature and to clarify existing law," and that those provisions "shall apply retroactively to all actions ......

...There only was the potential for transformation of the illegal and unenforceable agreement into a lawful and enforceable obligation under the statutory provision permitting a contractor to cure its unlicensed status. R.A.M. thus could not cross the threshold necessary to claim that application of the 2000 version of section 489.128 worked an impairment of the obligation of contract. [4] We note that the holding in Promontory Enterprises that the contract was not unenforceable under section 489.128 turned on the retroactive application of the particular provisions of the 2003 version of section 489.128 concerning what constituted unlicensed status. See § 489.128(1)(b)....

...When Sangles's construction proved unsatisfactory, the Castros brought this action for his breach of the agreement. The case was referred to a General Master, who recommended dismissal of the action on the ground that the alleged agreement was unenforceable under section 489.128, Florida Statutes (1991). [1] The Castros now appeal from a final judgment confirming that report. We affirm. In our view, the conclusion that the action is barred by the clear terms of the statute that a contract like this one is "unenforceable in law," § 489.128, is entirely correct....

...h an unlicensed contractor, so that it would be contradictory to deny an innocent victim the right to recover against that wrongdoer. Cooper, 413 So.2d at 773-74; 11 Fla.Jur.2d Contracts § 83 (1979). This underlying premise is pointedly not true of section 489.128....

...RTM sued and arbitration proceedings commenced pursuant to arbitration clauses in the contracts. Thereafter, Riverwalk filed a motion to stay arbitration to allow the circuit court to consider its claim that the contracts were procured by fraud and were unenforceable under section 489.128, Florida Statutes (1997), which provides that contracts with unlicensed contractors are void and unenforceable....

...5th DCA 2000); Alphagraphics Franchising, Inc. v. Stebbins, 617 So.2d 463 (Fla. 4th DCA 1993). The issue before us is whether the actions taken by RTM necessarily resolved Riverwalk's challenge to the enforceability of the contracts. *539 As it did in the circuit court, RTM argues that section 489.128 and our decision in Poole and Kent Co. v. Gusi Erickson Const. Co., 759 So.2d 2 (Fla. 2d DCA 1999), allowed it to cure the licensing problem and render the contracts enforceable. Section 489.128 provides that "as a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenfo...

...t its contracts with subcontractor Gusi Erickson Construction Co. were unenforceable because Gusi Erickson did not have a valid qualifying agent until several months after the subcontracts were signed. Poole and Kent argued that the last sentence of section 489.128 only allowed for the enforcement of contracts entered into after correction of the licensing problems....

...Larsen with the state as the qualifying agent for Gusi...." We held that the trial court did not err in refusing to vacate an arbitration award to Gusi on the basis of the licensing issue. After the circuit court rendered its decision in this case, the legislature amended section 489.128 to delete the "cure" language....

...Sess. (Fla. 2000). The Journal of the Senate published a statement of intent concerning Senate Bill 220: Statement of Intent A couple of the provisions in this bill are designed to clarify the unlicensed contract invalidation provisions in section [] 489.128.......

...1991) (holding that courts may consider subsequent legislation to determine the intended result of a previously enacted statute). Thus, on the one hand RTM urges us to apply Poole and Kent for a proposition that is not expressly set forth in it, while on the other hand Riverwalk urges us to apply the amendment to section 489.128 retroactively....

...ctor's license. The construction contract, and thus the arbitration clause therein, are unenforceable, Promontory contends, because Southern did not have a license at the time it entered into the contract. Southern argues that the 2003 amendments to section 489.128, Florida Statutes, should be retroactively applied to the instant case and that under that statute, it was licensed and it may therefore enforce the contract and the arbitration provision contained therein. Promontory argues that the 2000 version of section 489.128 applies and that under that statute, the contract containing the arbitration clause is unenforceable. Hence the issue we must resolve is which version of section 489.128 applies. In order to resolve this issue, we will discuss the factual background of the instant case and the general principles of retroactivity, and then we will apply those principles to both versions of section 489.128 to reach a conclusion....

...ontract. Promontory filed the stay motion asking the trial court to stay the final arbitration until such time as the court could determine whether the contract was enforceable. At the hearing on the stay motion, which predated the 2003 amendment to section 489.128, the central issue argued to the trial court was whether the 1999 or 2000 version of section 489.128, Florida Statutes, applied....

...r who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply. § 489.128, Fla....

...00-372, §§ 35, 48, at 3143, 3147, Laws of Fla. Promontory argued that the 2000 amendment should be applied retroactively and the fact that Southern belatedly obtained its license does not matter. This *482 argument is premised on the deletion of the cure provision in the 2000 version of section 489.128....

...it entered into the contract. To apply the 2000 version would abrogate its vested right, argued Southern, and therefore the 1999 version, not the 2000 version, applied. During the pendency of this appeal, the Legislature enacted the 2003 version of section 489.128. The 2003 amendment provides 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. § 489.128(1), Fla....

...For example, the 2003 version of the statute provides that "[a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract." § 489.128(1)(a), Fla....

...ing to have an occupational license certificate issued under the authority of chapter 205" and that "[a] business organization shall not be considered unlicensed for failing to have a certificate of authority as required by ss. 489.119 and 489.127." § 489.128(1)(b), Fla. Stat. (2003). The enactment of the 2003 version of section 489.128 was not unanticipated by Southern....

...When the 2003 version was enacted into law, Southern filed a notice of supplemental authority bringing this fact to our attention. This court then ordered that each party provide supplemental briefs regarding the issue of the retroactive application of the 2003 version of section 489.128 to the instant case....

...cure provision, until it is realized that the new provisions contained in the 2003 statute actually benefit Southern. Specifically, the facts below established that Southern was unlicensed because it did not have a certificate of authority. However, section 489.128(1)(b), Florida Statutes (2003), provides that a business organization is not considered unlicensed if it does not have the certificate of authority required under sections 489.119 and 489.127. Therefore, if the 2003 version of section 489.128 is applicable to the instant case, Southern would be considered a licensed contractor and may seek enforcement of the contract. In order to resolve which version of section 489.128 is applicable, we must first discuss the general principles of retroactivity that apply to legislative enactments....

...at 396 (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995) (citations omitted)); see also Romine. Having explained these general principles of retroactivity, we will proceed to apply them to the 2000 and 2003 versions of section 489.128. The 2000 Version of Section 489.128 Application of the first inquiry to the 2000 version of section 489.128 leads to the inescapable conclusion that there is no clear evidence that the Legislature intended the statute to be applied retroactively....

..., is misplaced. Promontory contends that the legislative declaration that it was "necessary in the interest of the public health, safety, and welfare to regulate the construction industry" is evidence of legislative intent that the 2000 amendment to section 489.128 be applied *484 retroactively. § 489.101, Fla. Stat. (2000). We disagree. This same provision also appears in section 489.128 of the 1999 statutes, and the 1999 version clearly allows an unlicensed contractor to cure his or her status....

...ut as we have indicated, the cure provision in the 1999 statute is clear and unambiguous. See Foreman v. Russo, 624 So.2d 333 (Fla. 4th DCA 1993), review denied, 637 So.2d 234 (Fla.1994). This court and others have concluded that the 2000 version of section 489.128 is a substantive change that may not be applied retroactively....

...Metric Constructors, Inc., 857 So.2d 901 (Fla. 5th DCA 2003). We adhere to that conclusion. Although substantive statutes may be applied retroactively if that is what the Legislature clearly intended, the following analysis dispels that application in this case. When the Legislature amended section 489.128 in July 2000 to delete the cure provision, rather than include a statement of retroactivity, the Legislature specifically provided that the amendment would take effect July 1, 2000....

...intended."); Foreman; Middlebrooks v. Department of State, Div. of Licensing, 565 So.2d 727 (Fla. 1st DCA 1990). If the Legislature intended to make the statute retroactive it could easily have said so, as it did when it enacted the 2003 version of section 489.128. It is not our function to divine legislative intent of retroactivity with guess or assumption. If there is not clear evidence that the Legislature intended to apply the statute retroactively, and there is not with regard to the 2000 version of section 489.128, we must answer the first inquiry in favor on non-retroactivity. See Mivan (holding that the 2000 version of section 489.128 may not be retroactively applied). Hence, our inquiry as to the retroactive application of the 2000 version of section 489.128 shall proceed no further. The 2003 Version of Section 489.128 When it enacted the 2003 version of section 489.128 in chapter 03-257, section 1, Laws of Florida, the Legislature stated in clear, unmistakable and unequivocal terms that the statute was to be retroactively applied: Sections 1, 2, 3, and 4 are intended to be remedial in nature and to clarify existing law....

...Florida Parole & Prob. Comm'n, 441 So.2d 663 (Fla. 1st DCA 1983); see also Lockheed Space Operations v. Pham, 600 So.2d 1261 (Fla. 1st DCA 1992) (Ervin, J., concurring). The Legislature did not provide a savings clause when it enacted the 2003 version of section 489.128. It is clear that the Legislature intended the 2003 version of section 489.128 to be remedial and to clarify existing law....

...oyment' and also as `an immediate right of present enjoyment, or a present, fixed right of future enjoyment." City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514-15 (1935); see also Romine; Earnhardt. Contracts entered into in violation of section 489.128 are declared by the Legislature to be against public policy and, therefore, unenforceable....

...Sangles, 637 So.2d 989, 990 (Fla. 3d DCA 1994). Regardless whether a contract entered into by an unlicensed contractor is unenforceable, illegal, or both, such a contract cannot give the contractor a vested right that may be impaired by retroactive application of section 489.128, Florida Statutes (2003). Accordingly, we conclude that retroactive application of the 2003 version of section 489.128 does not impair a vested right in the contract. We also do not believe that there is a vested right in the statutory cure provisions. The 1999 version of section 489.128 provided a cure provision that allowed the contractor to subsequently obtain its license and thereby render the contract enforceable....

...1459, 99 L.Ed.2d 690 (1988); Earnhardt; In re Will of Martell, 457 So.2d 1064, 1068 (Fla. 2d DCA 1984) ("To be vested, a right must be more than a mere expectation based on anticipation of the continuance of an existing law....") (citation omitted). The cure provision in the 1999 version of section 489.128 merely provides the contractor with a possibility to make the contract enforceable if the contractor obtains a license in the future....

...Hence, the statutory cure provision is nothing more that an expectation based on the anticipated continuance of the statute that creates the possibility to cure, and once that statute is abrogated, the possibility for cure is completely lost. Conclusion We conclude that the 2003 version of section 489.128 should be retroactively applied to the instant case....

...ficate of authority until after the contract was executed. However, the Legislature has declared that a business organization's failure to obtain a certificate of authority does not necessarily mean that the business organization is unlicensed under section 489.128. See § 489.128(1)(b), Fla....

...of Chapter 489 in order for a business organization to be issued a certificate of authority in the category of the business conducted for which the qualifying agent is certified or registered. See § 489.119(3)(a), Florida Statutes (2004). Finally, section 489.128, Florida Statutes (2004), provides in part: (1) 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....

...ficant harm to the public" and the perceived need "in the interest of the public health, safety, and welfare to regulate the construction industry." § 489.101, Fla. Stat. (1997). Specifically, the trial court entered summary judgment in reliance on section 489.128, Florida Statutes (1997), which provides: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply. § 489.128, Fla....

...n arm, the Construction Industry Licensing Board. Mivan contends that even if it did not have a valid license at the time it contracted with Universal, it obtained a license shortly thereafter. Specifically, Mivan argues that the "cure" provision of section 489.128 cures the delay in licensing from May 16, 1997, when the contract with Universal was actually signed, to June 3, 1997, the date on the business qualifier license. Hence, under the "cure" provisions of section 489.128, summary judgment for Metric was inappropriate....

...m since it did not have a qualifying agent when the contract was terminated, since Behrens, Palm Coast's sole qualifier, had left Palm Coast back on June 6, 1997. See § 489.119(3)(a), Fla. Stat. (1997). This motion was denied; the trial court found section 489.128 salvaged the legality and enforceability of the contract between Michnal and Palm Coast up to the date of the termination, regardless of Palm Coast's lack of a qualifying agent....

...the 90 day window, where the last date physical construction occurred on the property had been July 16, 1997. Consistent with its previous ruling on Michnal's summary judgment, the trial court found the legality of Palm Coast's lien was salvaged by s. 489.128....

...ubject to disciplinary sanctions by the DPR. See § 489.129(1)(I), Fla. Stat. (1997). However, failure to maintain its license (through a qualifying agent) does not render Palm Coast's lien on Michnal's home unenforceable. The controlling version of section 489.128, Florida Statutes (1999), provides: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity....

...See also Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537 (Fla. 2d DCA 2000)(finding contractor's attempt to cure past licensing defect by filing of fictitious name registration after termination of contract, but before filing of lien, was ineffectual under section 489.128, since the contractor failed to obtain or reinstate its license)....

...by the DPR against parties that enter into improper qualifier arrangements. See 489.129(1)(e), Fla. Stat. (1997). That, however, did not affect Palm Coast's ability to seek payment under the mechanic's lien laws, pursuant to the "salvaging statute," § 489.128, Fla....

...This fact served as the basis for the trial court's ruling that Palm Coast could not sue for lost profits on the job on its breach claim; Palm Coast could not recover for profits for work it would not have been licensed to undertake. However, the trial court found Palm Coast's lien claim, as a whole, was salvaged by s. 489.128.

...struction of the Mariniches' home ("the construction agreement"). The Mariniches asserted that because Special Edition did not have a qualifying agent, it was an unlicensed contractor who was precluded from enforcing the construction agreement under section 489.128(1), Florida Statutes (2005)....

...The contract required MIC to have all required licenses and permits, and the City took the position that MIC was required to have a Florida contractor's license to perform the work it undertook and that MIC had failed to meet this contractual requirement. The City then took the position that under section 489.128, Florida Statutes (1999), the contract between MIC and the City was void as against public policy because MIC was an unlicensed contractor....

...ing further, and it should stay both the arbitration and the litigation until the issue is resolved. If the trial court finds MIC was required to have a contractor's license and it did not have one, the contract is void as against public policy. See § 489.128, Fla....

...Orders granting or denying motions for summary judgment are reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). "Summary judgment is appropriate if *380 there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. Section 489.128, Florida Statutes (2001), provides that contracts made by unlicensed contractors are unenforceable....

...Quality did not meet the criteria for the exception to the licensing requirement under section 489.113(2). Quality was therefore an "unlicensed contractor," and the contracts it entered into with Deep South are unenforceable as a matter of law. See § 489.128....

...been changed to reflect that he was a qualifying agent for Gusi until November 1996, at the earliest. Apparently, Gusi was a newly created Florida corporation, but there is no dispute that it was a corporation in good standing at all material times. Section 489.128, Florida Statutes (1995), entitled "Contracts performed by unlicensed contractors unenforceable," provides: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any cont...

...nforceable in arbitration or a court of law. [6] It claims that the last sentence of the statute allows for enforcement of contracts entered into after correction of licensing problems, but not for enforcement of contracts signed under such a cloud. Section 489.128 is a relatively new statute with little development in the case law....

...[5] From our perspective, the fact that this order was nonfinal allowed the circuit court file to remain open, saving Gusi and Poole filing fees when they filed their respective applications addressing the award. A sentence in this nonfinal order discussing section 489.128, Florida Statutes (1995), was merely included to disclose the trial judge's reasoning in dissolving the injunction; it created no law of the case or collateral estoppel between these parties....

...n revealed to see if the Legislature made any indication that the amendment was intended to be a clarification of the statute. See Earth Trades, Inc. v. T & G Corp., 108 So.3d 580, 585 (Fla.2013) (“In the title of the 2003 session law amending section 489.128, the Legislature stated that its intent was to ‘clarify! ] that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor.’ Ch.2003-257, at 1290, *118 Laws of Fla.”); see also Kasischke v....

...Centeno, of Schoel, Ogle, Benton and Centeno, Birmingham, AL, for Appellee. PER CURIAM. We discuss only one of the issues raised on appeal: whether the trial court abused its discretion [1] in granting Appellee's motion to compel arbitration, based on Appellant's claim of contract unenforceability pursuant to section 489.128, Florida Statutes. We reverse. Appellant raised below the issue of contract enforceability in light of the question whether Appellee had a valid general contractor's license. See §§ 489.128, [2] 682.02, 682.03, Fla.Stat.; Castro v. Sangles, 637 So.2d 989, 990-91 (Fla. 3d DCA 1994) (holding construction contract unenforceable pursuant to section 489.128 because contractor was unlicensed); Doan v....

...1st DCA 1992) (trial court's role in *1378 considering motion to compel arbitration, inter alia, to determine whether valid written agreement exists containing arbitration clause). However, the trial court declined to make a finding on whether Appellee was validly licensed for section 489.128 purposes....

...Thus, the trial court's arbitration order is reversed, and the case is remanded for proceedings consistent with this opinion. BOOTH, JOANOS and BENTON, JJ., concur. NOTES [1] See Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA), cert. dismissed, 238 So.2d 110 (Fla.1970). [2] Section 489.128 provides that contracts "performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law or in equity....

...[1] NHRC timely moved to compel arbitration and the other three defendants joined the motion. Rewards Hotel Management moved to strike the demand, arguing that the construction *1013 contract was unenforceable. Rewards Hotel Management contended that NHRC had violated section 489.128, Florida Statutes (2002), which provides: 489.128....

...Contracts performed by unlicensed contractors unenforceable As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. § 489.128, Fla. Stat. (2002). [2] Rewards Hotel Management argued that NHRC did not hold a Florida general contractors license at the time it signed the construction contract, nor during construction. Rewards argued that the issue of whether a party has violated section 489.128 is an issue for the court, not for the arbitrators. Rewards maintained that the trial court must conduct a hearing regarding the claimed violation of section 489.128 and, should the violation be shown to exist, the contract and its arbitration clause would fail. NHRC contended that the alleged violation of section 489.128 was an issue to be decided by the arbitrators, not an issue for the court....

...a Arbitration Code, once the [trial] court is satisfied that the parties actually agreed to arbitrate the dispute, it is for the arbitration panel, not the [trial] court, to determine whether the underlying contracts in general are enforceable under § 489.128." See id....

...is a general contractor affiliated with NHRC; and defendant Yizi Weingarten is a principal of Elite. [2] The 2002 version of the statute was in effect when the parties executed the contract. In 2003, during the pendency of this appeal, the legislature amended section 489.128, with the amendment to be effective retroactively....

...The parties have not addressed this amendment. So far as we can determine, the amendment does not have any impact on the arbitration issue now before us. [3] NHRC denied that there was any violation which would render the contract unenforceable under section 489.128....

...Supple, Miami, for appellants. Weiss Serota Helfman Pastoriza & Guedes, P.A. and Joseph H, Serota and Joseph Serota, Miami; Robert D. Hertzberg, Miami, for appellee. Before COPE, FLETCHER and SORONDO, JJ. COPE, J. The question before us is whether the 2000 amendment to section 489.128, Florida Statutes, is retroactive. We conclude that it is not. In April 1997 the appellant owner entered into a construction contract with the appellee contractor. At that time, the relevant version of section 489.128, Florida Statutes, provided: Contracts performed by unlicensed contractors unenforceable.—As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply. § 489.128, Fla.Stat....

...[2] Phillips defended by asserting that the contract was unenforceable because it was not in writing; and that Sterner was an unlicensed building contractor who was not entitled to recover the monies spent on renovations in the absence of a license. Phillips then moved for summary final judgment relying on section 489.128, Florida Statutes (1995), which generally provides that contracts entered into on or after October 1, 1990 and performed by a contractor who had failed to maintain his license were unenforceable in law or in equity....

...ensed contractor; and (4) the major portion of the work which had been done involved *452 typical "home improvement/handyman work," such as painting and carpeting. The court entered summary final judgment in favor of Phillips in apparent reliance on section 489.128, Florida Statutes....

...escribed in one of the subsequent paragraphs of this subsection.... § 489.105(3), Fla. Stat. (1995) (emphasis added). Here, the allegations contained in the complaint [3] appear sufficient to show that Sterner was a contractor within the meaning of section 489.128....

...er items [was] less than $1,000." Thus, he is unable to claim the benefit of the exemption contained in section 489.103(8). Finally, Sterner failed to come forward with any evidence to show that he was a materialman or supplier who was exempted from section 489.128, by virtue of section 489.103, which exempts: (12) Any person who only furnishes materials or supplies without fabricating them *453 into, or consuming them in the performance of, the work of the contractor. In fact, the assertion that Sterner was exempt from the operation of section 489.128 because he was nothing but a materialman appears to contradict the allegations contained in the complaint, wherein Sterner alleged that: During the Plaintiff's term of occupancy of that property, the Plaintiff was to expend money and labor for the improvement and rehabilitation of the real property. Nor do the statements made in Sterner's affidavit create an issue as to the applicability of any exceptions to section 489.128....

...DAUKSCH and PETERSON, JJ., concur. NOTES [1] The nature of the building cannot be discerned from the record on appeal. [2] Sterner's complaint did not contain a count seeking to recover the cost of materials furnished to Phillips in quantum meruit. We do not decide whether section 489.128, Florida Statutes would preclude recovery of the value of the materials. Prior to the enactment of section 489.128 in 1990, a number of courts, including the Florida Supreme Court, had recognized that a contractor could recover in quantum meruit, even if the contractor could not recover on the contract because of the contractor's failure to comply with the state's licensing requirements....

...ontract. Kvaerner then demanded American remedy the default under the performance bond. When American declined to do so, Kvaerner filed this lawsuit against American for breach of its bond obligations. American moved for summary judgment pursuant to section 489.128, which renders contracts by unlicensed contractors unenforceable....

...y cannot recover on the performance bond because American's liability as a surety cannot be greater than that of its principal Steel Tec. Part one of chapter 489 provides for the licensing, registration and certification of construction contractors. Section 489.128, Florida Statutes (1999) provided: Contracts performed by unlicenced contractors unenforceable.—As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply. [3] Section 489.128 was enacted to protect the public from the activities of incompetent contractors....

...See § 489.101 ("The Legislature deems it necessary in the interest of the public health, safety, and welfare to regulate the construction industry"); Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994). See also Poole & Kent Co. v. Gusi Erickson Const. Co., 759 So.2d 2 (Fla. 2d DCA 1999) (legislative history suggests that section 489.128 was intended to address the problems consumers and the public face due to shoddy work by unlicensed, unqualified contractors)....

...nvolved and signed an affidavit to that effect. When Sangles' construction proved unsatisfactory, the Castros filed suit against him for breach of contract. The trial judge dismissed the lawsuit on the basis that the contract was unenforceable under section 489.128....

...American Manufacturing Mutual Insurance Co. v. Tison Hog Market, Inc., 182 F.3d 1284 (11th Cir.1999), cert. denied, 531 U.S. 819 (2000). Here Kvaerner (the creditor) hired Steel Tec knowing it had no license and allowed Steel Tec to work on the project without a license. Under section 489.128, it seems Kvaerner could not enforce its contract with Steel Tec....

...[2] The bond provided: NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Subcontractor shall promptly and faithfully perform said Subcontract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. [3] In 2000, the Legislature amended section 489.128 to delete the last sentence, which allowed a contractor to cure its unlicenced status....

...United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir.2005). III. DISCUSSION A. Whether defendants were required to hold a construction license Plaintiff's main assertion is that because defendants performed the construction work without a proper license, section 489.128(1), Florida Statutes, precludes them from seeking legal or equitable relief. The threshold inquiry is whether defendants were required to have a license for the type of work they performed under the Agreement. Fla. Stat. § 489.128(1)(a) codifies Florida's licensure requirements, and provides, in pertinent part: For purposes of this section, an individual is unlicensed if the individual does not have a license required by this part concerning the scope of the work to be performed under the contract....

...defendants were not required to be licensed under § 489.113(2). See Deep South, 843 So.2d at 380. Therefore, defendants were required by law to be licensed and were not; they may not seek payment under the Agreement in an action at law. Fla. Stat. § 489.128(1)(a)....

...that even if the Court finds (as it has) that defendants were unlicensed contractors, and unable to prevail in an action at law to recover damages for a breach of contract, defendants may obtain equitable relief via a quantum meruit claim. Fla Stat. § 489.128(1) provides, 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....

...Defendants assert that the statute does not preclude equitable claims by an unlicensed contractor because, under common law, an aggrieved party cannot "enforce" a contract in equity; any such action to "enforce" a contract must be at law. In undertaking this analysis, a discussion of the Florida Legislature's changes to § 489.128(1) is necessary. In 1993, the Legislature, with Laws 1993, c. 93-166, § 17, amended § 489.128(1). Prior to the 1993 amendments, § 489.128(1) read: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable i...

...n its discretion may extend this provision to equitable' remedies. However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply. (Emphasis added). While there have been other changes to § 489.128(1) since, the relevant changes occurred in 1993 with the addition of the words "or in equity" and the deletion of the phrase "and the court in its discretion may extend this provision to equitable remedies." [9] Defendants submit that this change merely means that an unlicensed contractor is precluded from using defensive measures, such as equitable estoppel, to defend a contract claim. One Florida court has declared, albeit in dicta, that the 1993 amendments to § 489.128(1) may not necessarily clear up the issue of whether an unlicensed contractor can proceed in *1350 equity. See Sterner v. Phillips, 721 So.2d 450, 451 n. 2 (Fla. 5th DCA 1998) ("We do not decide whether section 489.128, Florida Statutes would preclude recovery of the value of the materials (at issue)....

...It provided that such contracts were unenforceable `at law' but not in equity. The current version of the statute denies enforcement `in law or, in equity.' This imprecise language arguably does not answer the question"). Because Sterner notes that § 489.128(1) may not be entirely clear, this Court must discern the meaning of the statute by first looking to its actual language and then, if necessary, applying other rules of statutory construction to ascertain legislative intent....

...sion to equitable remedies", it becomes apparent that the statute precludes unlicensed contractors not only from bringing an action at law, but also one in equity. [10] The only legislative history the Court uncovered relating to the 1993 changes to § 489.128(1) came from the Florida House of Representatives, and provides: "Section 13[a]mends section 489.128, Florida Statutes, to make unlicensed contracts unenforceable in equity as well as in law." See H.R....

...unlicensed contractors from bringing equitable claims in those same situations where they are disabled from bringing actions at law. Otherwise, the language has no real meaning. [11] D. Whether the prohibition against equitable claims in Fla. Stat. § 489.128(1) violates Article I, Section 21 (Access to Courts) of the Florida Constitution. Having now found that § 489.128(1) prohibits an equitable claim in quantum meruit in these circumstances, the Court turns to the issue of whether this proscription of equitable claims violates the access to courts provision in the Florida Constitution....

...Statutes — the predecessor to Chapter 489 — does not preclude an equitable cause of action even though it might subject the unlicensed contractor to certain other (criminal) penalties). Plaintiff interprets the Florida Legislature's amendments to § 489.128(1) as merely creating some procedural conditions (i.e....

...e contractor's actions there "might subject it to certain other (criminal) penalties." See C.B. Jackson, 365 So.2d at 208. Because this Court is of the view that the Supreme Court in Wood crafted a discrete equitable claim and that the amendments to § 489.128(1) entirely proscribe equitable claims by unlicensed contractors, it follows that, in enacting the 1993 amendments, the Florida Legislature abolished the equitable common law cause of action recognized in Wood that existed in Florida prior to the adoption of the Declaration of Rights of the Florida Constitution....

...on a legislative showing of "an overpowering public necessity for the abolishment of such a right, and no alternative method of meeting such public necessity can be shown.") Whether the Florida Legislature articulates sufficient findings relating to § 489.128(1)'s proscription of equitable claims to satisfy the "overpowering public necessity" prong of Kluger presents a difficult question. While the Legislature made no additional contemporaneous legislative findings with the passage of the 1993 and 2003 amendments to § 489.128(1) proscribing equitable claims by unlicensed contractors, this Court finds persuasive the argument that §§ 455.201 and 489.101, when read together, satisfy the "overpowering public necessity" prong of Kluger....

...Though this Court *1354 knows of no "magic words" that meet the "overpowering public necessity" test in Kluger, the undersigned finds that the legislative pronouncements in Fla. Stat. §§ 455.201 and 489.101 are sufficient. Further, it cannot be ignored that what the Legislature seeks to address in § 489.128(1), the performance of unlicensed contractor work in Florida, is also a crime under Florida law....

...s to masquerade their contract claims as equitable claims, thus vitiating the full deterrent effect that the Legislature seeks. Therefore, while conceding it is a close question, the Court holds that the prohibition of equitable claims in Fla. Stat. § 489.128(1) does not violate the access to courts provision in Article I, Section 21 of the Florida Constitution....

...IV. CONCLUSION For the foregoing reasons, this Court hereby holds: a. Defendants acted as roofing contractors under Fla. Stat. § 489.105(3)(e); b. Defendants were not supervised by a licensed contractor under Fla. Stat. § 489.113(2); c. Fla. Stat. § 489.128(1) precludes defendants from seeking legal and equitable relief for the roofing portions of the parties' Agreement; and d. The proscription against equitable relief for an unlicensed contractor under Fla. Stat. § 489.128(1) does not violate the access to courts provision in Article I, Section 21 of the....

...[8] The parties even stipulate that "[d]efendants were not working under the supervision of anyone who was certified or registered in the State of Florida as those terms are used in Chapter 489 of the Florida Statutes." (Doc. 69, Stip. at ¶ 14). [9] In 2000, the Florida Legislature amended § 489.128(1) by deleting "However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply." See Laws 2000, c.2000-372, § 35. Again, in 2003, the Legislature amended § 489.128(1) by adding the phrase "by the unlicensed contractor" immediately after the phrase "or in equity" at the end of the statute, meaning that only the unlicensed contractor (and not the owner) who seeks to enforce the contract (in law or in equity) is barred from doing so. See Laws 2003, c.2003-257, § 1. [10] Such a reading of § 489.128(1) furthers the prescribed legislative intent set forth in §§ 455.201 and 489.101, that regulation of the construction industry is necessary to protect the health, safety and welfare of Florida's citizens....

...s thus requiring this Court to permit defendants herein to proceed, nothing in those cases foreclosed the Legislature (nor could they) from removing all causes of action from an unlicensed contractor, which the Legislature did with the amendments to § 489.128(1)....

...if any. Thus, a qualifying agent, according to the statute, had to be certified under Part 1 of Chapter 489 in order for a business organization to be issued a certificate of authority. See § 489.119(3)(a), Fla. Stat. (2002). Finally, we noted that section 489.128, Florida Statutes (2002), provided in part: (1) 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....

...In this case we consider the defense to a breach of contract claim that the parties were in pan delicto — equal wrongdoers. We have for review Earth Trades, Inc. v. T & G Corp., 42 So.3d 929, 930 (Fla. 5th DCA 2010), in which the Fifth . District Court of Appeal held that section 489.128, Florida Statutes (2005), which governs construction contracting, precluded an unlicensed contractor from employing this common law defense....

...(Sealord), claiming that Sealord was responsible for Earth Trades’ breach as surety on the performance and payment bond. *582 In the ensuing litigation, T & G argued that because Earth Trades was unlicensed, its breach of contract claim against T & G was barred under the plain language of section 489.128, Florida Statutes (2005). This statute provides in pertinent part that “[a]s 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.” § 489.128(1), Fla....

...id not hold the contractor license required under chapter 489, Florida Statutes. The trial court rejected Earth Trades’ defense and granted T & G’s motion for summary judgment. In ruling against Earth Trades, the trial court cited changes to section 489.128 making any construction contract unenforceable in law or equity by an unlicensed contractor who was a party to it....

...The Fifth District acknowledged that “[s]ome Florida courts interpreted the former statute to preclude a party from enforcing a contract against an unlicensed contractor (or its bonding company), where that party had knowledge of the lack of a license.” Id. However, the court pointed out that the amendments to section 489.128 made construction contracts unenforceable by the unlicensed contractor only....

...Accordingly, the district court affirmed the trial court’s conclusion that the statute precluded Earth Trades from raising the in pari delicto defense, concluding that the “decision ... was consistent with the clear and unambiguous language of section 489.128, as amended in 2003.” Id. The Fifth District’s holding that section 489.128 precluded the unlicensed contractor from raising an in pari delicto defense to a breach of contract claim conflicts with the decision in Austin Building....

...After being terminated for defective work, Rago sued the successive general contractors: Austin Building Co. (ABC) and Austin Commercial L.P. (ACLP). ABC coun-tersued, and Rago and ABC filed opposing motions for summary judgment, “each asserting that the other was an unlicensed contractor under section 489.128.” Id. at 33 . The trial court granted both summary judgment motions. In ABC’s appeal of its suit against Rago, the Third District Court of Appeal applied the same version of section 489.128 in reversing....

...g”). Id. at 34 n. 2. Thus, unlike the Fifth District, the district court in Austin Building expressly acknowledged that an unlicensed contractor could claim the defense that the parties were in pari delicto in a breach of contract case implicating section 489.128....

...The statute addressing the enforceability of a construction contract with an unlicensed contractor provides 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.” § 489.128(1), Fla....

...American Safety Casualty Insurance Co., 847 So.2d 534 (Fla. 5th DCA 2003). In these cases the district courts addressed questions regarding unlicensed contracting and the in pari delicto defense. However, these cases were decided under prior versions of section 489.128 that contrast sharply with the statute applicable in this case....

...The 1991 statute applicable in that case provided that a construction contract “performed in full or in part” by an unlicensed contractor was “unenforceable in law,” and the court had discretion to “extend this provision to equitable remedies.” § 489.128, Fla. Stat. (1991). The more recent case of Kvaemer was decided under the 1999 statute, which provided that a contract “performed in full or in part” by an unlicensed contractor “shall be unenforceable in law or in equi *585 ty.” § 489.128, Fla....

...cases do not address the same issue presented here. Our decision regarding Earth Trades’ in pari delicto defense necessarily rests in an analysis of the version of the statute applicable in this ease. In 2003, the Legislature substantially amended section 489.128....

...State, 991 So.2d 803, 809 (Fla.2008) (citing State v. Webb, 398 So.2d 820, 825 (Fla.1981) (“The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.”)). In the title of the 2003 session law amending section 489.128, the Legislature stated that its intent was to “clarify[ ] that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor.” Ch.2003-257, at 1290, Laws of Fla....

...ents empowered the other party to the construction contract — whether a consumer, owner, or licensed contractor — to seek judicial enforcement of the contract, regardless of the unlicensed status of the contractor. Two other subsections added to section 489.128 in 2003 emphasize the comparative disadvantage of the unlicensed contractor under the statute: (2) Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this section, no lien or bond...

...This section shall not affect the obligations of a surety that has provided a bond on behalf of an unlicensed contractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section. § 489.128(2), (3), Fla....

...and] clarify[ ] that sureties of unlicensed contractors have continuing bond obligations”); see also id. at 1291-92 (making nearly identical changes to section 489.532). Moreover, the statute that governs liens generally reinforces the language of section 489.128 as follows: *586 Notwithstanding any other provision of this part, no lien shall exist in favor of any contractor, subcontractor, or sub-subcontractor who is unlicensed as provided in s. 489.128 or s. 489.582. Notwithstanding any other provision of this part, if a contract is rendered unenforceable by an unlicensed contractor, subcontractor, or sub-subcontractor pursuant to s. 489.128 or s....

...s of a surety that has provided a bond on behalf of the unlicensed contractor, subcontractor, or sub-subcontractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed as provided in s. 489.128 or s. 489.532. § 713.02(7), Fla. Stat. (2005). Thus, as a matter of state policy, the Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract. Under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract....

...After examining these same changes to the law, the trial court held the in pari delicto defense was unavailable under the amended statute, and the Fifth District affirmed, holding the trial court’s order “consistent with the clear and unambiguous language of section 489.128, as amended in 2003.” Earth Trades, 42 So.3d at 930 ....

...felony. § 489.127(1)-(2), Fla. Stat. (2005). In addition, DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. (2005). More importantly, as explained above, the Legislature in 2003 amended section 489.128, removing 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....

...ter of law to establish the defense of in pari delicto. 1 C. CONCLUSION The district court in Earth Trades correctly concluded that the defense that parties to a contract are in pari delicto was not available to the unlicensed contractor governed by section 489.128, Florida Statutes. Under the amended version of section 489.128, the fault of the person or entity engaging in unlicensed contracting is not substantially equal to that of the party who merely hires a contractor with knowledge of the contractor’s unlicensed status....

...Thus, even if proven, the other party’s knowledge is insufficient as a matter of law to place the parties in pari delicto. In light of this holding, we disapprove the Third District’s decision in Austin Building to the extent that court held that under section 489.128, a party’s knowledge that a contractor is unlicensed places the parties in pari delicto....

...On appeal, Earth Trades contends that the trial court erred in granting a partial summary judgment, precluding it from raising as an affirmative defense that the contract was unenforceable because of T & G's alleged knowledge of Earth Trades' lack of a license. We affirm. Prior to June 25, 2003, section 489.128, Florida Statutes (2001), provided that contracts performed in full or in part by an unlicensed contractor, shall be "unenforceable in law or in equity." Some Florida courts interpreted the former statute to preclude a party from enfo...

...This section shall not affect the obligations of a surety that has provided a bond on behalf of an unlicensed contractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section. § 489.128, Fla. Stat. (2005) (emphasis added). The trial court's decision below was consistent with the clear and unambiguous language of section 489.128, as amended in 2003....

...The owner sued both McNully and EJH because the roof repairs were substandard and subsequent rains caused water damage to the units. The trial court struck certain counts and granted summary judgment for the defendants on the remaining counts, relying on-contractual defenses for the rulings. Section 489.128, Florida Statutes (1993), provides that contracts entered into on or after October 1, 1990 and performed by a contractor who has failed to maintain his license are unenforceable in law or in equity....

...all subcontractors. This was error because the trial judge ignored the indemnification provisions of the Roofing Contract, which superceded the provisions of the Prime Contract. Additionally, as previously stated, this ruling ignores the mandate of section 489.128, which prevents McNully, as an unlicensed contractor, from enforcing his contract with the owner....

...riors was not entitled to payment because the subcontracts were illegal—Commercial Interiors did not have a contractor’s license. The arbitrator ruled that although Commercial Interiors may have violated a local ordinance, it had not violated section 489.128, Florida Statutes (2002), which is titled “Contracts performed by unlicensed contractors unenforceable.” Further, the arbitrator ruled that Pinkerton had waived its right to assert the subcontracts were illegal....

...The trial court entered an order setting aside the arbitrator’s order and dismissed the case with prejudice. Id. The trial court held that, although it accepted the arbitrator’s findings of fact, the subcontracts were not enforceable, and the arbitrator had misapplied section 489.128....

contract” on the effective date of the contract. § 489.128(1), Florida Statutes (2008). We reverse because

...ssociation (“AAA”) for arbitration of its claim. In October 2010, the Owner filed its answering statement and affirmative defenses in the arbitration. As its first affirmative defense, the Owner asserted that the contract was unenforceable under section 489.128(1), Florida Statutes (2009), which states: “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.” 2 The Owner also filed a counterclaim against CSS seeking damages from CSS. At the same time, the Owner filed this action seeking a declaration that CSS’s claim of lien was invalid under section 489.128(1)....

...After twelve days of hearings, the arbitration panel issued an award in favor of CSS. CSS then filed a motion in the circuit court seeking confirmation of the award and the Owner filed a motion to vacate the award based on CSS’s failure to comply with section 489.128....

...e Court ruling in Earth Trades, Inc. v. T & G Carp., 108 So.3d 580 (Fla.2018). Earth Trades does not answer the enforceability issue presented in this case. Rather, Earth Trades addresses the issue of whether a contractor who was in violation of section 489.128 can raise the common law defense of in pari delicto when sued....

...This rule has been applied by other courts addressing claims identical to those made by the Owner. In Commercial Interiors Corp. of Boca Raton v. Pinkerton & Laws, Inc., 19 So.3d 1062 (Fla. 5th DCA 2009), Pinkerton sought dismissal of an arbitration arguing that its contract with Commercial Interiors was illegal under section 489.128, Florida Statutes....

...ndermine the purpose of settling disputes through arbitration.”). Likewise, in Charles Boyd Construction, Inc. v. Vacation Beach, Inc., 959 So.2d 1227 (Fla. 5th DCA 2007), a property owner claimed that its construction contracts were illegal under section 489.128 and filed a declaratory judgment action regarding the legality of the contract....

...ecided by the arbitrator, not the court.” Id. at 1232. Those cases make clear that a trial or appellate court’s view that an arbitration panel wrongly decided the issue of illegality of a contract, and specifically illegality of a contract under section 489.128, is not a basis to vacate an arbitration award....

...Accordingly, we affirm the confirmation of the arbitration award and the enforcement of CSS’s lien. Affirmed. . Shortly after the contract was signed, CSS satisfied all the statutory requirements and became fully licensed. This does not cure the statutory requirement of section 489.128, Florida Statutes (2009), that the contractor must be licensed at the time of contracting and, if not, is in violation of the statute....

...ith Oak Park. We reverse as a genuine issue of material fact remains regarding whether the parties' contract contemplated that A-1 would perform services requiring a contractor's license. Oak Park moved for summary judgment, arguing that pursuant to section 489.128, Florida Statutes (2007), entitled "Contracts entered into by unlicensed contractors unenforceable," A-1 could not enforce its contract with Oak Park because A-1 was an unlicensed contractor....

...ted improvements to real estate, for others...."). *167 A-1 responded that the parties' contract contemplated that A-1 would perform only services that did not require a contractor's license, thereby exempting A-1 from the licensing requirement. See § 489.128(1)(a), Fla....

...1 In October 2008, the Contractor, UM, and Travelers (collectively, “the moving parties”) ah moved for summary judgment on the contract-based *886 counts in the Subcontractor’s counterclaim and third-party complaint. B. First Version of Summary Judgment Arguments At first, the moving parties focused on section 489.128(1), Florida Statutes (2008), which provides that “[a]s 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 contracto...

...l not be considered unlicensed.” (Emphasis added). Accordingly, the original arguments made by the moving parties may be fairly summarized as follows: (1) the MDCO requires a local license; (2) the Subcontractor never possessed such a license; (3) section 489.128 provides that such a contractor is unlicensed; and therefore (4) under the express language of section 489.128(1), the subcontract was unenforceable by the Subcontractor....

...“Case closed,” it seemed, and as the trial court noted, the moving parties appeared destined for certain victory. “But,” in the immortal words of Phil Collins, “something happened on the way to heaven.” 2 C. Amended Summary Judgment Arguments and Decision In 2009, the Legislature amended the last sentence of section 489.128(l)(a) to read: “For purposes of this section, if a state license is not required for the scope of the work to be pei'formed under the contract, the individual performing that work is not considered unlicensed.” § 489.128(l)(a), Fla. Stat. (2009) (emphasis added); see Ch. 2009-195, § 38, at 1955, Laws of Fla. (detailing amendments to section 489.128(l)(a))....

...n this act becomes a law,” or on October 1, 2009. Ch. 2009-195, §§ 66, 68, at 1972, Laws of Fla. The bottom-line result of these changes was that the Subcontractor’s lack of a local license no longer triggered the unenforceability provision of section 489.128(1)....

...Despite the 2009 amendments to the law, the moving parties continued to pursue their summary judgment motions, arguing that the Subcontractor’s violation of the MDCO, standing alone, was sufficient to render the subcontracts unenforceable as a matter of law. Unlike section 489.128(1), the MDCO does not expressly provide that contracts entered into by unlicensed contractors will be rendered unenforceable by the unlicensed party....

...The existence of an unresolved or disputed issue of material fact precludes summary judgment. MacKendree & Co., P.A. v. Pedro Gallinar & Assocs., P.A., 979 So.2d 973, 976 (Fla. 3d DCA 2008). B. The Dial Court’s Order Following the 2009 amendments to section 489.128, the issue before the trial court was substantially modified....

...r is immaterial. *296 Accordingly, we conclude that section 95.11(3)(c) applies here. Reaching the foregoing conclusion does not end our analysis. Appellants argue in the alternative that Appellee may not assert the limitations defense, pursuant. to section 489.128, Florida Statutes, because Appellee was not properly licensed to perform the work. In support of this argument, Appellants rely on Earth Trades, Inc. v. T&G Corp., 108 So.3d 580 (Fla.2013). Again, we disagree. Section 489.128 precludes an unlicensed contractor from enforcing a contract....

...t, notwithstanding the statute, by asserting that the owner was in pari delicto because it was aware of the unlicensed status of the contractor when it entered into the contract. Here, Appellee is not attempting , to enforce the contract. Nothing in section 489.128 or Earth Trades, Inc., precludes a defendant in this circumstance from asserting statutory defenses such as the statute of limitations....

...Section 489.119(3)(a). For a business organization to receive a certificate of authority, it must designate a primary qualifying agent [2] who has final approval authority for all construction work performed by the organization. Section 489.119(2)(a)(1). Section 489.128(1) declares that, 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." An individual contractor is to be considered unlicensed for purposes of Section *1319 489.128 if he or she "does not have a license required by this part concerning the scope of the work to be performed under the contract." Section 489.128(1)(a). In contrast, the statute specifies that the lack of a certificate of authority is not grounds for considering a business organization to be unlicensed. Section 489.128(b). Rather, a business organization contractor is to be considered unlicensed if it "does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract." Section 489.128(1)(a). Finally, the statute provides that the contractor's licensing status is to be assessed as of the effective date of the contract except under circumstances not present here. Section 489.128(1)(c)....

...B was unlicensed, Metropolitan argues that LEB's failure to even apply for a license by that date requires the same result. Simply stated, Metropolitan argues that, as a matter of law, an organization cannot "have" a qualifying agent for purposes of Section 489.128 until it files its application in accordance with the requirements of that section. Metropolitan also argues that previous versions of Section 489.128 allowed contractors to "cure" their lack of a license after entering into the contract, thereby gaining the ability to enforce it. See, e.g., Kvaerner Construction, Inc. v. American Safety Casualty Insurance Co., 847 So.2d 534, 536 n. 3 (Fla. 5th DCA 2003) (discussing amendment of Section 489.128)....

...atute. Neither of these arguments is persuasive. By directing courts to look at whether an organization has a qualifying agent rather than whether it has the necessary paperwork to demonstrate this fact, the Legislature has expressed a preference in Section 489.128 for substance over form....

...Making the mailing date of the application dispositive reverses these priorities. As for Metropolitan's "cure" argument, if an organization has a qualifying agent on the proper date, it is entitled to enforce its contract, leaving nothing to cure. Section 489.128 was created "to protect the public from the activities of incompetent contractors." Kvaerner Construction at 536. See also Poole & Kent Co. v. Gusi Erickson Constr. Co., 759 So.2d 2, 6 (Fla. 2d DCA 1999) (stating that legislative history of Section 489.128 "suggests that the statute is intended to address the problems that consumers and the public face due to shoddy work by unlicensed, unqualified contractors.")....

...The foregoing evidence would support a conclusion that Owens, a licensed general contractor, was responsible for the Four Points project beginning with the effective date of the contract. As such, that evidence would support a conclusion that LEB should be considered licensed for purposes of Section 489.128....

...t. See § 812.014(1)(a), Fla. Stat. (2004). Unlike the contractor in Crawford v. State, 453 So.2d 1139, 1140 (Fla. 2d DCA 1984), a case upon which appellant relies, Hebert was unlicensed and thus did not hold a lawful claim to the deposit money. See § 489.128(1), Fla....

...compliance, it did not have the luxury of waiting month after month to pull the trigger, all the while accepting the work of the architects in the interim. Our review of a somewhat analogous chapter of the Florida Statutes tends to confirm our view. Section 489.128, Florida Statutes (1999), indicates that contracts performed in full or in part by a contractor who fails to obtain or maintain a license "shall be unenforceable in law or in equity." Contractors are then given the opportunity to obta...

...hich case the contract is enforceable. As to construction contractors, therefore, the legislature specifically provided that contracts by unlicensed persons are void. No similar language is found in Chapter 481. Later, however, the legislature added section 489.128(1)(b), Florida Statutes, providing that a "business organization shall not be considered unlicensed for failing to have a certificate of authority as required by sections 489.119 and 489.127." Thus, it seems clear that the legislature...

...that contrary to Chapter 489, the fictitious name was not separately registered and licensed. Strickland argued that because Martin Daytona had failed to separately register and license its fictitious name, the contract was unenforceable pursuant to section 489.128, Florida Statutes. At the time of the hearing, section 489.128 provided: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. The trial court agreed with Strickland and granted the motion to stay arbitration based on Martin Daytona's failure to obtain a license and register under its fictitious name. After the briefs were filed in this case, the legislature modified section 489.128 to add subsection 489.128(1)(b): For purposes of this section, an individual or business organization shall not be considered unlicensed for failing to have an occupational license certificate issued under the authority of chapter 205....

...Southern Engineering & Contracting, Inc., 864 So.2d 479 (Fla. 5th DCA 2004). Moreover, this subsection applies retroactively. Id. Martin Daytona's failure to register and obtain a license under its fictitious name did not render it unlicensed for the purposes of section 489.128....

...NOTES [1] Strickland cites R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So.2d 1210 (Fla. 2d DCA 2004), but we conclude that R.A.M. does not apply in the instant case. As pointed out in footnote 4 of the opinion, R.A.M. does not involve subsection 489.128(1)(b).

...y allowed DeVore or DeVore and Associates to use its certification or registration number. The pertinent inquiry concerns not DeVore's violations, but rather RTM's violations. DeVore's subsequent licensure, which arguably cured DeVore's violation of section 489.128, Florida Statutes (1997), did not cure RTM's violation of section 489.127(4)....

...The complaint alleged that Central Florida Lumber acted in the capacity of a contractor, even though it did not have a contractor's license, and alleged that the contracts between Central Florida Lumber and Doug Ross and ICC were therefore unenforceable under section 489.128, Florida Statutes (1999)....

...s to preclude workers' compensation immunity. Central Florida Lumber also argues that Judge Arnold was precluded from revisiting Judge Holder's holding that workers' compensation immunity was not affected by a contractor's status as unlicensed under section 489.128....

...Ross, Central Florida Lumber, and ICC were not properly licensed under *770 chapter 489, Central Florida Lumber was not entitled to workers' compensation immunity. Central Florida Lumber suggests three reasons Judge Arnold's ruling is erroneous: (1) section 489.128, which renders a contract unenforceable because the contractor is unlicensed, cannot be applied to void the contract so as to preclude workers' compensation immunity under section 440.11(1); (2) section 489.127(1)(f), which criminaliz...

...oid the contract so as to preclude workers' compensation immunity under section 440.11(1); and (3) the doctrines of res judicata and collateral estoppel prohibit Judge Arnold from revisiting Judge Holder's earlier ruling on the issue. Chapter 489 A. Section 489.128 Section 489.128, Florida Statutes (1999), provides that contracts performed by an unlicensed contractor are "unenforceable in law or in equity." In 2003, the statute was amended to clarify that the contract was "unenforceable in law or in equity by the unlicensed contractor " and does not affect the rights of other parties to enforce the contract. § 489.128(1) (emphasis added), (3). This amendment was intended to apply retroactively. Ch. 2003-257, § 8, at 898, Laws of Fla. Section 489.128 was passed to aid homeowners who have hired unlicensed contractors who performed substandard work. See Poole & Kent Co. v. Gusi Erickson Const. Co., 759 So.2d 2, 6 (Fla. 2d DCA 1999). Section 489.128 operates to preclude the unlicensed contractor from enforcing the contract without consequence to the homeowner. Id. There is no dispute that the evidence produced at the summary judgment hearing in this case established that Central Florida Lumber, Doug Ross, and ICC were unlicensed contractors under section 489.128. [2] The Plaintiffs argue that under section 489.128, Central Florida Lumber cannot enforce Doug Ross's duty to pay for the truss work or ICC's obligation to perform the truss work. The Plaintiffs argue that Central Florida Lumber therefore cannot enforce the subcontract agreements to create the statutory employer relationship that is necessary for workers' compensation immunity. We reject the Plaintiffs' argument that section 489.128 operates to somehow extinguish the statutory employer relationship....

...In order for Doug Ross and Central Florida Lumber to become statutory employers, they must each subcontract part of their obligation under the contract. § 440.10(1)(b). While Doug Ross and Central Florida Lumber's unlicensed status may deprive them of their ability to enforce the provisions of the contract under section 489.128, it does not extinguish the contractor/subcontractor relationship or otherwise affect the application of chapter 440....

...umber to be a statutory employer under section 440.10. We note that we do not find this argument anywhere in the appendices before this court, and we question whether it is preserved for review. Regardless, for the same reasons that the operation of section 489.128 does not preclude the application of workers' compensation immunity, the operation of section 489.127 does not....

...renders this argument moot because our holding is consistent with Judge Holder's previous holding on the issue. Conclusion We conclude that because workers' compensation immunity arises from a statute and is not a contractual right, the operation of section 489.128(1) would not affect that right....

...[2] Central Florida Lumber argued at the hearing on its motion to clarify that there was evidence that ICC was actually licensed at the time the causes of action arose in this case. However, Judge Arnold refused to consider any new evidence at that time, and this issue is moot based on our holding that section 489.128 does not affect a contractor's entitlement to workers' compensation immunity....

PER CURIAM. We affirm the trial court’s grant of summary judgment in favor of Edwina Brown who was the defendant in a personal injury action brought by James Johnson. We reject appellant’s argument that under Section 489.128, Florida Statutes (1999), appellee is barred from utilizing the independent contractor defense....

...Martin and Strickland also litigated another issue that previously reached this court in Martin Daytona Corp. v. Strickland Construction Services, 881 So.2d 686 (Fla. 5th DCA 2004). This court held that failure to register a fictitious name does not invalidate the underlying contract under section 489.128(l)(b), Florida Statutes (2003)....

defenses, including unlicensed contracting under section 489.128, Florida Statutes, and unlicensed mold remediation

...In this appeal we are required once again to examine the interplay between a trial court and an arbitrator. In the pres *1063 ent case the arbitrator denied a defense motion to dismiss, finding that although the plaintiff may have violated a local ordinance, it had not violated section 489.128, Florida Statutes (2002), and finding further that the contract under which the arbitration arose was not illegal....

...At the conclusion of the first evidentiary hearing the arbitrator issued a detailed order in which he ruled in favor of Commercial Interiors, and thus denied the motion to dismiss. The arbitrator found, among other things, that Commercial Interiors did not violate section 489.128, and that P & L was estopped from asserting (and had waived its right to assert) the claimed illegality of the subcontracts....

...ejudice. The trial court held, in particular, that while it accepted the findings of fact made by the arbitrator, it was holding that the subcontracts, including the arbitration provision, were not enforceable, and that the arbitrator had misapplied section 489.128....

...§ 1033(e)(2) provides for a waiver, his employment contract is not illegal. He ignores the fact, however, that despite the efforts of Mr. Auer as well as his own, he never received a waiver from FOIR. Absent the waiver, Mr. Griffin could not engage in the business of insurance. Section 489.128(l), Florida Statutes (2016), is also helpful by analogy. Under that statute, a "contract [] entered into ....

...enrichment, stemming from BSO’s failure to provide proper notice before termination and failure to pay D Electrician’s invoices. Ten months after BSO initially had answered the complaint, BSO amended its answer to allege for the first time that the agreement was unenforceable under section 489.128, Florida Statutes (2019), because D Electrician had not been licensed to perform underground utility and excavation work. The parties filed competing summary judgment motions....

...D Electrician Was Properly Licensed to Conduct the Excavation Work Incidental to D Electrician’s Conduit Work 3  Chapter 489, part I, Florida Statutes (2019), governs “Construction Contracting.” Within that part is section 489.128(1), Florida Statutes (2019), which states that, in furtherance of public policy, a contractor cannot enforce a construction contract in law or equity if the contractor is “unlicensed.” A contractor is considered “unlicensed” if he or she “does not have a license required by this part concerning the scope of the work to be performed under the contract.” § 489.128(1)(a), Fla....

...with Florida law, under which it is irrelevant if Appellant knew that TMS was unlicensed. “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.” § 489.128(1), Fla....

...The Fifth District has rejected the notion that an unlicensed contractor can enforce an agreement when the other party knew the contractor was unlicensed. See Earth Trades, Inc. v. T & G Corp., 42 So. 3d 929, 930 (Fla. 5th DCA 2010). This holding was based on the text of section 489.128, which the Legislature amended in 2003 to clarify that a party other than the unlicensed contractor can enforce the agreement. See id.; § 489.128(3), Fla....

...T & G Corp., 108 So. 3d 580 (Fla. 2013). The Supreme Court held that “[t]he district court in Earth Trades correctly concluded that the defense that parties to a contract are in pari delicto* was not available to the unlicensed contractor governed by section 489.128, Florida Statutes.” Id....

...contractor shall be considered unlicensed” if the contractor did not have a license “on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed it, if stated therein.” § 489.128(1)(c), Fla. * An in pari delicto defense alleges that the parties are equal wrongdoers....

...Indeed, De L’Etoile agreed at the hearing that “under the law, the real inquiry, the real relevant fact is whether or not the party was licensed at the time of contract.” Law Firm also argues that “TMS had at least a plausible claim and defense to the application of § 489.128,” which was that TMS worked under the supervision of Vulcan Builders, a licensed general contractor....

...Law Firm’s assertion that its pleadings—which never reference Vulcan—had plausible merit—because of Vulcan—is baseless. The bottom line is that Law Firm filed a breach of contract complaint for a contractor it knew to be unlicensed—even though the contract was unenforceable. See § 489.128(1), Fla. Stat. Law Firm compounded this error by filing an answer to Appellant’s counterclaims that relied upon the unlicensed contractor’s subsequent licensure—a complete irrelevancy under the law. See § 489.128(1)(c), Fla....

PER CURIAM. Affirmed. § 489.128, Fla.Stat....

...parties' contract by failing to pay ICC for consulting services rendered during the construction of a high-end home. Match moved for summary judgment, alleging that the appellants were not entitled to enforce the contract because McCulla was not a licensed contractor, citing section 489.128(1), Florida Statutes (2015) ("As a matter of public policy, contracts entered into ....

...kitchen or build out the bathroom or install new drywall throughout the house, did not replace damaged wood framing, and did not repair the air conditioning ducts. Further, the trial court determined that Guevara admitted that he did not carry a contractor’s license, citing to section 489.128 and 489.105(3)(c), Florida Statutes, regarding contractor license requirements....

...3d DCA 1997) (holding lack of transcripts of attorney's fee hearing was no impediment to appeal where the record showed issues had been raised below). We conclude that the trial court erroneously based its legal conclusions on inapplicable law. The trial court cites to section 489.128, Florida Statutes, which provides in subpart (1), that “[a]s 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.” Further, “[f]or purposes of this section, an individual is unlicensed if the individual does not have a license required by this part concerning the scope of the work to be performed under the contract.” §489.128(1)(a), Florida Statutes (2022)....

...First, SG argues that because Complimenti is not licensed as a contractor, it cannot enforce its 4 contract with SG. SG also argues that Complimenti is not entitled to a lien. For the reasons that follow, we reject these arguments.2 SG relies on section 489.128(1), Florida Statutes (2020), which makes contracts entered into by unlicensed contractors unenforceable: (1) As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlic...

...Antonio Luvara.” We agree with Complimenti that these findings are supported by competent substantial evidence, and therefore, the trial court did not err in concluding that Complimenti was not a “contractor” as defined in section 6 489.105(3). Consequently, section 489.128(1), which prohibits an unlicensed contractor from enforcing a contract, is not applicable. SG also argues that the trial court erred in concluding that Complimenti was entitled to a lien....

...nnection with work the subcontractor performed to construct improvements in a public park. The trial court determined that because the subcontractor, Scott & Son, was unlicensed it could not recover, either in law or in equity, for its work. See § 489.128, Fla....

...If the Board determines the business is qualified, the Department will issue the business organization a certificate or registration. See id. §§ 489.115(2)(a), .119(6). Under Florida law, only a licensed contractor can enforce its contracts. See id. § 489.128(1) (“As a matter of public policy, contracts entered into ....

...by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”). To be considered licensed, a business organization contractor must have a qualifying agent that is itself licensed to perform the work contemplated in the contract. See id. § 489.128(1)(a) (“A business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.”); see also id....

...§ 489.119(3)(a) (“A qualifying agent must be certified or registered under this part in order for the business organization to operate in the category of contracting in which the qualifying agent is certified or registered.”).3 Thus, whether a business organization is a licensed contractor within the meaning of section 489.128 “turns on whether the business organization is [legally] associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract.” Ecos, 163 So....

...As Bradford never applied, the business never had a qualifying agent and was never licensed by the Department. As an unlicensed contractor, Appellant could not enforce the contract, and the trial court did not err in granting summary judgment. See id. § 489.128(1); see also id. § 489.128(2) (“[I]f a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.” (em...

...solely upon review of the pleadings, and may be granted only if the moving party is clearly entitled to judgment as a matter of law. Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001). The trial court found that pursuant to section 489.128, Florida Statutes (2000), 2 the initial contract between Boatwright and GMRI was unenforceable because Boatwright was not a licensed contractor....

...ounts. However, we reverse the trial court’s order as to the breach of contract count. For the reasons set forth below, we find that the second contract alleged to have been entered into by Tarr and Boatwright was a legal and enforceable contract. Section 489.128, Florida Statutes (2000) 3 provides: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity....

...d on the alleged second contract between Boat-wright and Tarr. AFFIRMED, in part; REVERSED, in part; REMANDED. GRIFFIN and PALMER, JJ„ concur. . Tarr sought attorney's fees pursuant to section 57.105, Fla. Stat. (2004). . Effective July 1, 2000. . Section 489.128 was amended effective April 13, 2007....

...riors was not entitled to payment because the subcontracts were illegal—Commercial Interiors did not have a contractor’s license. The arbitrator ruled that although Commercial Interiors may have violated a local ordinance, it had not violated section 489.128, Florida Statutes (2002), which is titled “Contracts performed by unlicensed contractors unenforceable.” Further, the arbitrator ruled that Pinkerton had waived its right to assert the subcontracts were illegal....

...The trial court entered an order setting aside the arbitrator’s order and dismissed the case with prejudice. Id. The trial court - 13 - held that, although it accepted the arbitrator’s findings of fact, the subcontracts were not enforceable, and the arbitrator had misapplied section 489.128....

...In this construction dispute, the issue is whether the contract between the parties is unenforceable, thereby rendering the arbitration clause contained therein, likewise, unenforceable. The resolution of this issue centers upon whether the contract should be declared invalid pursuant to section 489.128, Florida Statutes (2000), which precludes the enforcement of any contract performed by an unlicensed contractor....

...However, based on the work performed by the Contractor, it does not appear a state license was required pursuant to section 489.105(3). Significantly, the Homeowner makes no argument on appeal that the Contractor was required to have a state license for the work performed. Section 489.128, Florida Statutes (2018), provides a limited remedy for parties who have contracted with unlicensed contractors: “As a matter of public policy, contracts entered into . . . by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” § 489.128(1), Fla....

...This remedy applies not only to individual contractors, but also to entities: “A business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.” § 489.128(1)(a), Fla....

...edy, however, is explicitly restricted to contractor work requiring a state license: “if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed.” § 489.128(1)(a), Fla. Stat. (emphasis added). More importantly, section 489.128 contains no provisions permitting local entities to enforce this remedy. Section 489.127, Florida Statutes (2018), in contrast, provides remedies for contractors who “[e]ngage in the business or act in the capacity of a contractor ....

...without being duly registered or certified [as 4 competent.]” § 489.127(1)(f), Fla. Stat. (emphasis added). The remedies are mostly criminal penalties. § 489.127(2)-(6), Fla. Stat. Notably, no language in section 489.127 refers to section 489.128. Section 489.127 provides a much broader remedy than section 489.128, in that section 489.127 specifically permits local entities to enforce its provisions: Each county or municipality may, at its option, designate one or more of its code enforcement officers ....

...hich a county or municipal certificate of competency or [state] license or state certification or registration is required. § 489.127(5), Fla. Stat. (emphasis added). 1 Again, it is notable that no language in section 489.127 refers to section 489.128....

...In other words, the local codes and ordinances only provide for administrative discipline and criminal punishment for violations of contractor competency or licensing requirements. 3. The Trial Court Did Not Apply the Plain Language of Section 489.128 and County Ordinances. In finding the contract in this case was unenforceable, the trial court cited section 489.128(1) and found: As Palm Beach County Ordinances and the Law of Florida Chapter 67-1876 grants the authority to enforce Florida Statutes Chapter 489 against those who do not possess a Certificate of Competency; t...

...acts of this case. 6  Although, in opposing summary judgment, the Contractor had raised the argument that the statutory “unenforceable contract” remedy did not apply, the trial court did not address the section 489.128(1)(a) language, explicitly restricting the contractual unenforceability remedy to state license violations. Nor did the trial court recognize that section 489.128 does not contain any provisions permitting enforcement by local entities. Further, the trial court overlooked the plain language of penalty provisions in the local laws relied upon in finding the contract unenforceable....

...§ 489.127 and the Special Act.” Id. (emphasis added). The ordinance does not otherwise incorporate the penalties provided in chapter 489. Id. The trial court’s error apparently stems from the failure to recognize that sections 489.127 and 489.128 are wholly separate statutory schemes. When the two statutes are read together, it is clear the remedies for the asserted contractor competency violations stem from section 489.127, and not section 489.128. The trial court erred in applying section 489.128’s “unenforceable contract” remedy to this case. Conclusion Having determined the trial court erred in construing statutes and local ordinances and codes in applying the statutory unenforceable...

...Documents applicable to this Subcontract. Florida state law provides that “if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed.” § 489.128(1)(a), Fla. Stat....

...jects. THF moved the district court for an order compelling arbitration in accordance with the arbitration clauses. In opposing the motion, Appellees argued that since the contracts were performed in part by an unlicensed contractor, Fla. Stat. Ann. § 489.128 rendered the contracts, and the arbitration clauses within the contracts, unenforceable....

...The current version of this statute reads: As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. Fla. Stat. Ann. § 489.128 ....

...v. RTM General Contractors, Inc., 779 So.2d 537, 538 (Fla.Dist.Ct.App.2000) for the proposition that “[t]he Court, not the arbitration panel, must determine in the first instance whether the contracts at issue are enforceable.” Finding that “Section 489.128, Florida Statutes (2001), makes clear that the arbitration provisions at issue are unenforceable,” the district court denied Appellant’s motion to compel arbitration....

...We conclude that, under the Federal Arbitration Act (FAA) and the Florida Arbitration Code, once the district court is satisfied that the parties actually agreed to arbitrate the dispute, it is for the arbitration panel, not the district court, to determine whether the underlying contracts in general are enforceable under § 489.128....

...Additionally, the comment notes that a majority of the states recognize some form of the separability doctrine under state arbitration laws. . Appellees cite other cases that hold or suggest that the court, not the arbitrator, should decide whether § 489.128 renders a contract containing an arbitration clause unenforceable....

...rather than in the courts, but did not adequately explain why Prima Paint’s doctrine of separability does not apply when the party opposing arbitration alleges the underlying contract, containing a valid arbitration clause, is unenforceable under § 489.128....

PER CURIAM. Affirmed. See § 489.128, Fla....

...Mineo & Mineo and Peter Mineo, Jr., Fort Lauderdale; Marjorie Gadarian Graham, Palm Beach Gardens, for appellant. Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff and Teresa Ragatz, Miami, for appellee. Before COPE, CORTIÑAS, and ROTHENBERG, JJ. PER CURIAM. Affirmed. See § 489.128, Fla....

...se and Hudson for $80,000 plus costs and interest. Affirmed in part, reversed in part, and remanded with instructions. CASANUEVA and VILLANTI, JJ„ Concur. . Breach of contract was not alleged and would, we suspect, have been unavailing pursuant to section 489.128, Florida Statutes (2003), which makes contracts with unlicensed contractors unenforceable....

...fication and licensure. § 489.105(3), Fla. Stat. (2020). The failure to obtain a license may have adverse consequences for the contractor performing the work, including criminal penalties. § 489.127(2)(a), Fla. Stat. (2020). Additionally, under section 489.128(1)(a), Florida Statutes (2020), the centerpiece of this appeal, contracts entered into by unlicensed contractors are unenforceable: (1) As a matter of public policy, contracts entered into ....

...roofing services, and because Bollinger was unlicensed, any agreement between the two was unenforceable by Bollinger. Thereafter, Bollinger filed suit. Marlin and Bollinger filed cross motions for summary judgment on the issue of the contract’s enforceability under section 489.128....

...selling roof repair and replacement services without a license, he was engaged in unlicensed contracting, and any underlying agreement between Bollinger and Marlin for a commission as a result of those sales was unenforceable by Bollinger under section 489.128. Bollinger, in turn, argued in his motion that he was not a “contractor,” a “roofing contractor,” or “contracting” as defined by sections 489.105(3), (3)(e), or (6), but rather was a salesman selling roofing services on behalf of Marlin (itself a licensed contractor). Thus, he could not be an “unlicensed contractor” such that his agreement with Marlin would be unenforceable under section 489.128(1)....

...determined that Bollinger was not engaged in “contracting” as defined by section 489.105(6) because that definition “require[d], in the first instance, that the person doing the ‘contracting’ be a ‘contractor.’” Accordingly, the trial court found that section 489.128, making contracts entered into by unlicensed contractors unenforceable, was not applicable to Bollinger....

...ABC, in turn, countersued Rago for damages arising from Rago's purportedly defective work on the Project and filed a third party complaint against Federal, which was also serving as Rago's surety. Rago and ABC filed opposing motions for summary judgment, each asserting that the other was an unlicensed contractor under section 489.128, Florida Statutes, and therefore, could not enforce the Subcontract....

...nd when work was performed by Rago, and the parties' knowledge of each other's lack of licensure, were disputed, and when viewed in the light most favorable to ABC, present genuine issues of material fact sufficient to preclude summary judgment. *34 Section 489.128, Florida Statutes (2005) provides: (1) 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....

...tated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract. § 489.128(1)(c), Fla....

...Rago's Cross-Appeal On cross-appeal, Rago seeks review of the entry of a final summary judgment in its action against ABC. The trial court granted final summary judgment on the issue of licensure against Rago. Rago argues on cross-appeal that it was not an unlicensed contractor under section 489.128, Florida Statutes (2009). We agree and reverse the summary judgment as to Rago. As amended in 2009, section 489.128(1)(a), Florida Statutes, provides: (1) 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....

...erning the scope of work to be performed under the contract. For purposes of this section, if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed. § 489.128(1)(a), Fla....

...The trial court, in granting final summary judgment, applied a prior version of the statute and determined Rago to be unlicensed and unable to enforce its contract against ABC and its surety, Federal. We note that "[e]ffective [June 16, 2009], the amendments made . . . to ss. 489.128(1)(a) and 489.532(1)(a), Florida Statutes, shall apply retroactively to contracts entered into on or after October 1, 2000, and shall apply retroactively to all actions pending when this act becomes law." Ch....

...Servs. Corp. v. Travelers Cas. & Surety Co. of Am., 57 So.3d 884 (Fla. 3d DCA 2011). Under the facts of this case, the 2009 version of the statute applies retroactively to the contract between Austin and Rago. Austin and Federal argue that even under section 489.128, as amended in 2009, Rago would still be considered unlicensed because the last sentence in section 489.128(1)(a) is applicable only to an "individual" and not a "business organization." We disagree....

...In a recent case, the Fourth District reversed a summary judgment against a business organization on the identical issue of licensure. A-1 Quality Corp. v. Oak Park Terrace, Inc., 32 So.3d 166 (Fla. 4th DCA 2010). In A-1, the trial court had granted summary judgment after determining that, under section 489.128, Florida Statutes (2007), the business organization could not enforce its contract because it was an unlicensed contractor. A-1 Quality Corp., 32 So.3d at 166. On appeal, the Fourth District found that the contract was ambiguous as to whether the business organization would perform services requiring a contractor's license, and citing section 489.128(1)(a), Florida *36 Statutes (2007), [3] reversed the summary judgment....

...[4] MMII, Inc., 42 So.3d at 878. We note that although MMII, Inc. involved the application of a different a section of Chapter 489 to a business organization, the language in section 489.532(1)(a), Florida Statutes (2009), is identical to the pertinent language in section 489.128(1)(a), Florida Statutes (2009). We agree with the Fourth District in its application of section 489.128(1)(a), and the similar provision of 489.532(1)(a), to the issue of licensure as it relates to business organizations....

...nt, who in turn, must be an individual person. A business organization cannot in itself be authorized to engage in contracting absent a qualifying agent. See § 489.119, Fla. Stat. (2009). As such, the phrase "the individual performing that work" in section 489.128(1)(a) would have little consequence if it could not also apply to an individual serving as a qualifying agent for a business organization. Chapter 489 sets forth the relationship between the licensed contractor and his/her business organization. The Chapter explains that, for purposes of determining contracting licensure under section 489.128(1)(a), "[a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent. . . ." § 489.128(1)(a), Fla....

...r damages resulting from the wrongdoing"). [3] "For purposes of this section, if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed." § 489.128(1)(a), Fla. Stat. (2007). While the 2009 amendment of section 489.128(1)(a) changed this language to "[f]or purposes of this section, if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed," the analysis and application of the statute to a business organization remain analogous....

...[6] While not applicable here, under certain circumstances, a "temporary nonrenewable certificate or registration" may be issued to a business organization following the departure of a qualifying agent. See § 489.119(3)(a), Fla. Stat. (2009). [7] The legislative history of section 489.128 also supports our conclusion. As set forth in a staff analysis of House Bill 1351, which amended section 489.128 in 2006 to include substantially the same provision we now examine in the 2009 version of the statute, "[w]ith certain statutorily specified exceptions, individuals who practice contracting in Florida must be certified (i.e., licensed...

...adverse jury verdict in favor of Homexpo Miami Corp. (“Homexpo”) and the trial court’s subsequent order denying Southpoint’s motion for a new trial. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Because the trial court misapplied section 489.128, Florida Statutes, we reverse and remand for further proceedings. I. In 2017, Southpoint hired Homexpo to soundproof and level the floors at its South Beach property, and to obtain and...

...Homexpo filed a counterclaim for money owed to it. The litigation proceeded and both parties moved for summary judgment. In its motion, Southpoint argued that because Homexpo was an unlicensed contractor it could not raise contractual defenses or counterclaim for damages based on the contract, pursuant to chapter 489.128, Florida Statutes, which states, in pertinent part: “[a]s 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.” § 489.128(1), Fla....

...Stat. “[T]he Legislature has, as a matter of state policy, greatly disadvantaged the contractor who chooses not to obtain the legally required license.” Earth Trades, Inc. v. T & G Corp, 108 So. 3d 580, 586-87 (Fla. 2013). “Under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract.” Id....

...We stated: “Not only did McNully defend on the basis of his unenforceable contract with the owner, he used the contract between the owner and the general contractor to interpose defenses which are clearly prohibited by statute.” Id. at 296 (emphasis added). Applying the clear statutory language of section 489.128 and our prior holding in McNully, we conclude that the trial court erred when it permitted Homexpo to present defenses that it could not legally enforce....