Liability of Qualifying Agent

As all certified and registered Florida contractors know, every company which engages in the business of contracting (be it general contracting or specialty contracting) must have a designated "qualifying agent," the person who personally holds a contractor's license and who bears the responsibility to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected and who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit. A qualifying agent who does not fulfill these responsibilities is subject to sanctions imposed by the Division of Professional and Business Regulation (DBPR), including fines, suspensions, and license revocations. The responsibilities and sanctions are set forth in Chapter 489, Florida Statutes, and the accompanying regulations.

Recently, a private property owner attempted to use the sanctions in chapter 489 as a basis for a private cause of action (lawsuit) against a qualifying agent. The court held (reaffirming existing law) that the qualifying agent's breach of the duties imposed by chapter 489, providing administrative remedies against a qualifying agent, does not give rise to a private cause of action against the qualifying agent for a building code violation. Scherer v. Villas Del Verde Homeowners Ass'n, Inc., --- So.3d ----, 2011 WL 148801 (Fla.App. 2 Dist.,2011). In other words, only the state agency can use Chapter 489 against a qualifying agent, and a person cannot bring a lawsuit in court based only on an individual's status as a qualifying agent.

Most contractors are honest businesspeople who strive to fulfill responsibilities which come along with their trade and status as qualifying agent. However, when exceptions to this rule arise, despite the court's recent ruling, the threatened or actual consequences of a complaint to the DBPR which may result in a DBPR action for sanctions can often inspire a qualifying agent to act to remedy a situation for which he is ultimately responsible. Therefore, even though the remedies of Chapter 489 belong only to the DBPR, they still can often indirectly address private grievances because anyone can file a complaint asking the DBPR to exercise its powers under Chapter 489.