The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PALM BEACH RESURFACING, INC.,
Appellant,
v.
MICHELLE RENEE FLOYD,
Appellee.
No. 4D2024-0019
[January 15, 2025]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes and Carolyn R. Bell, Judges; L.T. Case
No. 50-2021-CA-007932-XXXX-MB.
Wesley T. Mathieu of Sklawyers, PLLC, Cape Coral, for appellant.
Alterraon Phillips of APLaw, LLC, Royal Palm Beach, for appellee.
CONNER, J.
In this construction lien enforcement case, the plaintiff, Palm Beach
Resurfacing, Inc. (“the Contractor”), appeals the final summary judgment
and attorneys’ fees award in favor of the defendant, Michelle Renee Floyd
(“the Homeowner”). For the reasons discussed below, we reverse the final
summary judgment and the attorney’s fees award.
Background
This case stems from pool-area resurfacing work which the Contractor
completed for the Homeowner. After the Contractor completed the work,
the Homeowner refused to pay the Contractor. The Contractor recorded a
claim of lien and filed suit.
The Homeowner asserted affirmative defenses and a counterclaim for
poorly performed work. The Homeowner’s primary defense was that the
Contractor’s claims were barred because the Contractor was not properly
licensed under the Palm Beach County codes pertaining to construction
contractors. The Homeowner asserted this defense in moving for summary
judgment.
The summary judgment motion cited various state statutes preventing
unlicensed contractors from enforcing construction liens. The Homeowner
also cited Palm Beach County code and ordinance provisions governing
contractor competency certification requirements.
The only Palm Beach County code penalty provision that the
Homeowner cited in the summary judgment motion was section 7-20,
which provides:
Any person who commits an act prohibited by section 7-17 of
this article may be charged with a first degree misdemeanor
and may be punished accordingly. In accordance with the
F.S. section 489.127, any unlicensed person who commits a
violation of subsection 7-17(a) of this article, after having been
found previously guilty of such violation, commits a felony of
the third degree. In accordance with F.S. section 489.127,
any person who refuses to accept a citation commits a second
degree misdemeanor.
Palm Beach County Code, § 7-20 (Nov. 30, 2018).
The Homeowner also filed a copy of Palm Beach County Ordinance 97-
56, which was incorporated into the county code in 1997. Ordinance 97-
56 granted the county certification board (or a special master) with
authority to “assess fines as set forth in Fla. Stat. § 489.127 and the
Special Act.” (emphasis added). The ordinance did not otherwise
incorporate the penalties provided in chapter 489.
The Contractor responded that while it did not hold a state license or
county certificate at the time of the work, its president held a certificate of
competency, albeit listing a different company. The Contractor admitted
that Palm Beach County ordinances required a certificate of competency
for the work performed for the Homeowner. However, the Contractor
emphasized that a state contractor’s license was not required for the work.
The Contractor argued that chapter 489’s unenforceable contract remedy
was unavailable to the Homeowner.
After finding the contract was unenforceable, the trial court granted
summary judgment in favor of the Homeowner on the Contractor’s claims.
In addition, the trial court ordered the contractor’s lien and lis pendens
dissolved, but did not resolve the Homeowner’s counterclaim. Eventually,
the Homeowner voluntarily dismissed the counterclaim, and the trial court
issued a final summary judgment. The Contractor appealed.
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Appellate Analysis
The standard of review of an order granting summary judgment is de
novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000).
[W]here the question involves interpretation of a statute, it is
subject to de novo review.” Brown v. City of Vero Beach, 64
So. 3d 172, 174 (Fla. 4th DCA 2011) (emphasis omitted).
“Municipal ordinances are subject to the same rules of
construction as are state statutes.” Rinker Materials Corp. v.
City of North Miami, 286 So. 2d 552, 553 (Fla. 1973). “When
the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious
meaning.” Valencia Rsrv. Homeowners Ass’n v. Boynton
Beach Assocs., XIX, LLLP, 278 So. 3d 714, 717 (Fla. 4th DCA
2019) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141,
137 So. 157, 159 (1931)).
ABA Interior Inc. v. Owen Grp. Corp., 338 So. 3d 264, 266 (Fla. 4th DCA
2022).
The Contractor argues on appeal that the trial court erred in granting
summary judgment because, as a matter of law, chapter 489’s
unenforceable contract remedy applies exclusively to state (not local)
licensing violations.
Whether chapter 489’s “unenforceable contract” remedy was correctly
applied by the trial court requires an analysis of two categories of law: (1)
chapter 489’s governing remedies for licensing violations; and (2) Palm
Beach County ordinance and code provisions governing remedies for
competency certification violations.
1. State Provisions
Section 489.105(3), Florida Statutes (2018), defines who is a
“Contractor” as the term used in Chapter 489:
“Contractor” means the person who is qualified for, and is only
responsible for, the project contracted for and means, except
as exempted in this part, the person who, for compensation,
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undertakes to, submits a bid to, or does himself or herself or
by others construct, repair, alter, remodel, add to, demolish,
subtract from, or improve any building or structure, including
related improvements to real estate, for others or for resale to
others; and whose job scope is substantially similar to the job
scope described in one of the paragraphs of this subsection. .
. . Contractors are subdivided into two divisions, Division I,
consisting of those contractors defined in paragraphs (a)-(c),
and Division II, consisting of those contractors defined in
paragraphs (d)--(q)[.]
§ 489.105(3), Fla. Stat. (emphasis added). The listing and definition of
contractor types in subsections (a)-(q) that are potentially relevant to this
case are “commercial pool/spa contractor,” “residential pool/spa
contractor,” and “swimming pool/spa servicing contractor.”
§ 489.105(3)(j), (k), and (l), Fla. Stat. 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. Stat. 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. Stat. In other words,
if a contracting entity does not have at least one agent with an appropriate
license, the entity is also considered “unlicensed.”
Chapter 489’s “unenforceable contract” remedy, 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
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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 . . . to enforce, as set
out in this subsection, the provisions of subsection (1) and s.
489.132(1) against persons who engage in activity for which 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. Importantly,
section 489.127 makes clear that the grant of power to local entities is
limited to the section 489.127 remedies, not chapter 489 in general.
Thus, chapter 489 provides separate and exclusive remedies against (1)
contractors failing to hold state licenses when required, and (2) contractors
that are not “registered or certified” when required. Chapter 489 permits
counties to enforce remedies against registration and certification
violations but not state license violations. 2 As discussed further below,
the trial court appears to have missed this distinction.
2. County Provisions
Below, and on appeal, the Homeowner has relied on “Chapter 67-1876,
Special Act as amended” which was a 1967 session law that, years ago,
was incorporated into the Palm Beach County local laws. The local law
provisions have been amended several times over the years.
Palm Beach County local law section 7-52 requires all Contractors to
obtain a certificate of competency before performing certain work:
1 Section 489.132 governs administrative investigations and penalties, including
fines and suspension or revocation of certificates or registrations. § 489.132, Fla.
Stat. (2018).
2 Because the issue is not before us, we do not address whether Palm Beach
County could enforce any violations regarding the Contractor not being certified
or registered to perform the work under the contract with the Homeowner.
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Contractor means the person who is qualified for and
responsible for the entire project contracted for and means,
except as exempted in this chapter, the person who, for
compensation, undertakes to, submits a bid to, or does
himself or by others construct, repair, alter, remodel, add to,
subtract from, or improve any building or structure, including
related improvements to real estate, for others or for resale to
others. A Contractor shall hold a certificate of competency as
provided by this chapter before bidding or performing work
requiring certification.
Palm Beach County Code, App. G (Local Laws), § 7-52(A) (Nov. 30, 2018)
(underline emphasis added). Section 7-56(B) states, “When approved, the
certificate of competency shall be in the name of the qualifying individual
and the name of the business organization shall be noted thereon.” Palm
Beach County Code, App. G (Local Laws), § 7-56(B) (Nov. 30, 2018).
The local law provisions provide a single penalty, apart from
administrative disciplinary action, for contractors “engag[ing] in the
business or act in the capacity of a contractor without having met the
provisions of this [article]”: a “first degree misdemeanor” conviction. See
Palm Beach County Code, App. G (Local Laws), § 7-60(A), (E) (Nov. 30,
2018). 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; this Court finds the Plaintiff has no
remedy in law or equity and Final Summary Judgment is
Granted in favor of [the Homeowner].
We conclude the trial court erred as a matter of law because neither the
county code nor chapter 489 permitted the trial court to impose an
“unenforceable contract” remedy on the facts of this case.
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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. The trial court claimed that Palm Beach County Ordinance
97-56 broadly “grants the authority to enforce Florida Statutes Chapter
489 against those individuals and/or entities that are required to hold a
certificate of competency as issued by the county.” The ordinance’s actual
text is much narrower: it grants a local administrative board the authority
to “assess fines as set forth in Fla. Stat. § 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 contract
remedy, we reverse the grant of summary judgment and direct the trial
court to vacate the order granting summary judgment and the final
summary judgment. Because we reverse the final summary judgment, we
also reverse the order granting attorney’s fees to the Homeowner.
Reversed and remanded for further proceedings.
KLINGENSMITH, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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