What a qualifier is liable for

The statute, in one paragraph

All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job. Florida Statute 489.1195(1)(a).

All primary qualifying agents. A company can have more than one, and where it does, each of you carries the whole thing rather than a share of it.

Two carve-outs exist and they are worth knowing about before you assume none do. Where a financially responsible officer has been approved by the Board, you become responsible for all construction activities instead, and the money moves to them. And a secondary qualifying agent, under 489.1195(2)(e), is responsible only for field work at sites where his own license obtained the permit, plus anything he specifically accepts, and is not responsible for supervision of financial matters.

• Secondary status is not something you can simply ask for. Under 489.1195(1) you are a primary unless a Board-approved joint agreement, signed by every qualifying agent at a company that has more than one, makes you otherwise.

What the Board can actually do

Most descriptions of this stop at fines and revocation. The list is longer, and the parts people leave off are the ones with teeth.

The board may place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution. Florida Statute 489.129(1).

• Restitution to the consumer, which is money out of your pocket for somebody else's harm.
• The cost of investigating and prosecuting you, whether or not you contested it.
• Interest and penalties on unpaid fines under 489.129(6)(a), and no issuance or renewal of your license until fines, costs and restitution are paid in full under (7).
• A five year bar. Under 489.129(9) a licensee whose license is revoked may not be a partner, officer, director or trustee of a construction business organization, or be employed in a managerial or supervisory capacity, for five years, and may not reapply for five years.
• A mandatory suspension of at least one year on all your licenses if you are convicted of misapplying construction funds under Florida Statute 713.345, per 489.129(1)(r).

The criminal provision written for qualifiers

Most pages about unlicensed contracting quote the statute aimed at unlicensed people. There is a separate subsection aimed at licensed ones, and it is the one that concerns you.

A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not enter into an agreement, oral or written, whereby his or her certification number or registration number is used, or to be used, by a person who is not certified or registered as provided for in this chapter, or used, or to be used, by a business organization that is not duly qualified. Florida Statute 489.127(4)(a).

Penalty at 489.127(4)(d): a first degree misdemeanor, and a felony of the third degree where there has been a prior finding of guilt. There is also 489.127(4)(c), which makes it an offense to pull a permit unless the business you have qualified has actually contracted to do the work on that property.

One clarification, because this provision gets quoted at qualifiers and should not be. The enhanced penalty for a violation committed during a declared state of emergency, at 489.127(2)(c), reaches unlicensed persons violating subsection (1). It is aimed at storm chasers rather than at license holders.

The sentence that decides most cases

If you read nothing else on this page, read this, because it converts an argument about intent into an argument about attendance.

When a certificateholder or registrant allows his or her certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part. Florida Statute 489.129(1)(e).

Prima facie evidence means the Board does not have to prove you meant to evade anything. Your absence is the proof, and the burden moves to you to explain it away.

You do not have to be caught doing anything. You have to be able to show you were there.

This is why the practical question is never how the arrangement is described. It is whether you could sit opposite somebody who does not believe you and describe what you actually controlled, when, and with what evidence.

What is not as bad as you have been told

Three corrections, all of which run in your favor, and one of which an earlier version of this page got wrong in a way that would have frightened you unnecessarily.

First, qualifying a company does not by itself make you personally liable for its debts. The statute says so, which is easier to check than a case: under Florida Statute 489.131(12), unless specifically provided, the provisions of this part shall not be construed to create a civil cause of action. The Florida Supreme Court reached the same conclusion in Murthy v. N. Sinha Corp., 644 So. 2d 983. But read what that decision preserves, because an earlier version of this page did not. It leaves an ordinary common law negligence claim intact. This closes one door, not all of them, and it is no shield against having been careless.

Second, discipline does not fall only on you. Florida Statute 489.129(2) allows an additional fine of up to $5,000 per violation against the business organization or against any partner, officer, director, trustee or member who participated in the violation or knew or should have known of it and failed to take reasonable corrective action. And under 489.132, an unlicensed principal who conceals material activities from the primary qualifying agent, or causes the firm's work to be conducted without his supervision, commits a violation of his own. That statute exists precisely for the qualifier who was kept in the dark.

Third, a long record counts, though it cuts both ways and an earlier version of this page told you only the flattering half. Rule 61G4-17.002 is titled Aggravating and Mitigating Circumstances, and the length of time a licensee has practiced sits among the factors the Board weighs. Thirty years can argue that this was out of character. It can equally argue that you of all people knew better. Under 489.129(4) the department must advise the administrative law judge of both.

What is worse than you have been told

• Knowledge is not always required, but it is not always irrelevant either. Several grounds under 489.129(1) turn on what you knew, including (d), which applies where the certificateholder knows or has reasonable grounds to know that a person or entity was uncertified. Others do not. Which one you are facing depends entirely on what went wrong.
• Responsibility does not end when you resign. Under 489.1195(3)(d) a change of status is prospective only and you remain responsible for matters for which you were responsible while in that status. Chapter 489 sets no limitations period for Board discipline.
• The company dissolving does not clean anybody's slate. Under 489.129(10) the Board may deny or revoke a qualifier's license on the basis that a business organization he qualifies, or its officers, were previously fined, and under 489.119(2)(c) it may deny an application to qualify a business whose listed officers have been involved in past disciplinary actions.
• A licensed subcontractor works under its own license and its own qualifying agent, not under yours. But an unlicensed one is a different matter, and combining or conspiring with an unlicensed person by allowing your license to be used is a ground under 489.129(1)(e) in its own right.