HomeMy WebLinkAbout1987 03 11 Advisory Legal Opinion - Requirement of Surety Bond.pdfPage 1 of 5
Advisory Legal Opinion
Number: AGO 87-21
Date: March It. 1987
Subject: Requirement of surety bond
Mr. Richard Rozansky
cs. ty Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Dear Mr. Rozansky:
This is in response to your request for an Attorney
General's Opinion on substantially the following question:
IS THE CITY OF WINTER SPRINGS AUTHORIZED TO REQUIRE A
CERTIFIED CONTRACTOR TO PROVIDE THE CITY WITH A SURETY
BOND FOR THE PROTECTION OF CITY PROPERTY AS A
PREREQUISITE TO ISSUANCE OF A BUILDING PERMIT?
Your letter states that the surety bond under consideration
"is for the protection of ... water/sewer lines, swales,
drainage pipes, sidewalks, curbs, streets, etc. II Your
letter does not identify the specific type of contractor
involved in your inquiry except to mention the construction
of swimming pools. I would note that this type of
construction is not restricted to one group of certified
contractors as defined in s. 489.105, F.S. (1986 Supp.).
See, s. 489.105(3)(a), (j), and (k), F.S. (1986 Supp.),
defining respectively a n [g]eneral contractor" as one whose
services are unlimited regarding the type of contracting
work he can do, a "[c]ommercial pool contractor" as a
contractor whose work involves but is not limited to the
construction of public or private swimming pools, and a
11 [r]esidential pool contractor" as one whose scope of work
involves but is not limited to the construction of
residential swimming pools. In the absence of any specific
direction, my comments will, of necessity, be of a general
nature rather than directed to a specific type of certified
contractor.
http://legall.fim.edulago.nsf/aaee37715760bbce852563ccOO 1bacf7/4294af4683c2dOe48525... 12/11/02
Page 2 of5
As provided in s. 2(b), Art. VIII, State Const., and
implemented in s. 166.021, F.S., municipalities possess the
governmental, corporate, and proprietary powers to enable
them "to conduct municipal government, perform municipal
functions, and render municipal services, and may exercise
any power for municipal purposes, except when expressly
prohibited by law. II Section 166.021(1), F.S. Certain
matters are placed outside the scope of municipal
legislative action by s. 166.021(3), F.S., including, in
subsection (c) thereof, II [a]ny subject expressly preempted
to state or county government by the constitution or by
general law ..•. " Cf., e , 166.221, F.S., which provides that
a municipality may levy certain business, professional, and
occupational regulatory fees when such regulation has not
been preempted by the state or a county pursuant to a
county charter.
State regulation of the field of construction contracting
is codified in Part I, Ch. 489, F.S. (1986 Supp.). And see,
s. 489.101, F.S., stating that the Legislature recognizes
the significance of the construction and home improvement
industries and that !lit is necessary in the interest of the
public health, safety, and welfare to regulate the
construction industry" as significant harm to the public
may occur "when incompetent or dishonest contractors
provide unsafe, unstable, or short-lived products or
services."
Part I of Ch. 489, F. S. (1986 Supp.), regulates the
construction industry by requiring contractors to be
licensed by the Department of Professional Regulation as a
prerequisite to practicing in Florida. Section 489.113(2),
F.S. (1986 Supp.). To be licensed a person must be either
certified as a contractor or registered as a contractor.
Section 489.113(1), F.S. (1986 Supp.). A contractor, for
purposes of Ch. 489, F.S. (1986 Supp.), is defined in
pertinent part as
[t]he person who is qualified for and responsible for
the entire project contracted for and means, except as
exempted in this act, 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.
Section 489.105(3), F.S. (1986 Supp.). And see, a , 489.105
htlp:lllegall.fim.eduJago.nsflaaee3 7715760bbce852563ccOO 1bacf7/4294af4683c2d0e48525.. 12/11/02
Page 3 0[5
(a)-(e), F.B. (1986 Supp.), defining respectively the terms
11 [9] eneral contractor I" [b] uilding contractor I" and "Lr-III
esidential contractor"; and s. 489.105(3) (d) - (m) F.S.I
(1986 Supp.) t including definitions for, inter alia, (j)
II IIIol ommexc Le L pool contractor, II (k) [r] esidential pool
contractor, II and (m) II [p] lwnbing contractor. II
A certified contractor (who may engage in contracting on a
statewide basis) must establish his competency and other
qualifications for certification, which requires the
passing of the appropriate examination administered by the
Department of Professional Regulation. Section 489.113(1),
F.B. (1986 Supp.). Compare, the requirements in e . 489.113
(1), supra, regarding a certified contractor, to those
imposed on a registered contractor (who may engage in
contracting only in the counties, municipalities, or
development districts where he or she has complied with
local licensing requirements and only for the type of work
covered by the registration) by s. 489.117, F.S., which
states that to be initially registered an applicant shall
submit the required fee and file evidence of holding a
current local occupational license from a municipality,
county, or development district for the type of work
desired and evidence of successful compliance with local
examination and licensing requirements; no standard
examination administered by the Department of Professional
Regulation is required for registration. Further, s.
489.115(4), F.S., requires that "[a]a a prerequisite to
issuance of a certificate, the applicant [for
certification] shall submit satisfactory evidence that he
has obtained public liability and property damage insurance
for the safety and welfare of the public in ~ounts
11determined by rule of the board •... See, Rule 21E-15.003,
F.A.C., which sets forth the amount of liability and
property aamage insurance required by the board as a
prerequisite to the issuance or renewal of specific
contractors' certificates. As provided in part by s.
4B9.113(4). F.S. (19B6 Supp.):
When a certificateholder desires to engage in
contracting in any area of the state, as a prerequisite
therefor, he shall be required only to exhibit to the
local building official, tax collector, or other person
in charge of the issuance of licenses and building
permits in the area evidence of holding a current
certificate and to pay the fee for the occupational
license and building permit required of other persons.
(e.s.)
htlp://legall.fim.edulago.ns!7aaee3 7715 760bbce852563ccOO 1bacf7/4294af4683c2dOe48525... 12111/02
Page 4 0[5
The surety bond you describe appears to be in the nature of
a bond to recompense the municipality for damages done to
municipal property during the course of the construction
project involved or a financial guarantee of reparation for
such damage. The requirement contained in s. 489.115(4},
supra, that an applicant submit evidence of public
liability insurance and property damage insurance as a
prerequisite to certification when read with the provision
of s. 489.113(4), supra, that " [w]hen a certificateholder
desires to engage in contracting in any area of the state,
[the certified contractor] shall be required only to
exhibit ..• evidence of holding a current certificate and
to pay the fee for the occupational license and building
permit required of other persons" (e.s.), lead me to the
conclusion that this area has been preempted to exclusive
regulation by the state. And see, AGO 73-399 wherein it is
stated that a municipality may not require certified
contractors to show evidence of liability insurance or to
post a perfor.mance bond but that, pursuant to a proper
nondiscriminatory regulatory ordinance, these requirements
may be imposed on registered contractors as prerequisites
to the issuance of a local regulatory license or
certificate of competency; and AGO 70-48. Cf., AGO 73-27
(liThe language of [what is now s , 489.113(4)] makes it
abundantly clear that the Legislature intended that the
presentment of a certificate issued by the board
accompanied by the proper fee for the occupational license
and per.mit would be the only additional requirement for
engaging in business in any part of the state ll ) . See also,
Tribune Company v. Cannella, 458 So.2d 1075, 1077
(Fla.1984) (under the preemption doctrine a subject is
preempted by a senior legislative body from action by a
junior legislative body if the senior legislative bodyls
scheme of regulation of the subject is pervasive and if
further regulation of the subject by the junior legislative
body would present a danger or conflict with that pervasive
regulatory scheme).
It is clear that municipal ordinances are inferior and
subordinate to state law. Therefore an ordinance may not
conflict with any controlling provision of a state statute.
If any doubt exists as to the degree of power attempted to
be exercised which may affect the operation of a state
statute, the doubt must be resolved in favor of the statute
and against the ordinance. City of Mi~i Beach v. Rocio
Corporation, 404 So.2d 1066 (3 D.C.A.Fla., 1981), pet. for
rev. den., 408 So.2d 1092 (Fla.1981); Rinzler v. Carson,
262 So.2d 661 (Fla.1972); AGO's 86-54, 79-71. Cf., Tribune
Company v. Cannella, supra.
http://legall.fim.edulago.nsflaaee37715760bbce852563ccOO 1bacf7 14294af4683c2dOe48525... 12111/02
Page 5 of5
,Therefore l as it appears that the state has preempted
regulation of the area of public liability and property
damage insurance for certified contractors and has
specifically determined the prerequisites for such a
contractor to engage in contracting in any area of the
state I no municipal regulation on this point is authorized.
In sum, it is my opinion that until legislatively or
judicially determined otherwise, the City of Winter Springs
is not authorized to require a certified contractor to
provide the city with a surety bond for the protection of
city property as a prerequisite to issuance of a building
permit.
SincerelYI
Robert A. Butterworth
Attorney General
Prepared by:
Gerry Hammond
Assistant Attorney General
Home I News I Opinions I Consumers I Lemon Law I Crime Victims I Open Government
Prosecution I Criminal Justice I Florida's AG I SG I Services I Jobs I Directory I Maps
http://legall.fim.eduJago.nsf/aaee37715760bbce852563ccOO 1bacf?/4294af4683c2dOe48525 ... 12/11/02