THE PALMS, 2100 OCEAN BLVD., LTD., AND PLAZA PROPERTIES GROUP, INC., APPELLANTS,
v.
MAGIL CONSTRUCTION FLORIDA, INC., APPELLEE
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The court held that the 2000 amendment to Florida Statute § 489.128, which eliminated a contractor's right to cure unlicensed status, is not retroactive and therefore does not apply to contracts entered into before the amendment. The trial court properly denied the owner's motion to stay arbitration based on the new statutory language.
The 2000 amendment to § 489.128 is not retroactive because it works a substantive change in law by removing a previously existing right to cure. Therefore, the amendment does not apply to contracts executed before its enactment, and the trial court properly denied the owner's motion to stay arbitration.
[1] A statutory amendment that removes a previously existing right to cure an unlicensed status operates as a substantive change in law.
[2] Statutory amendments that effect substantive changes in law do not operate retroactively.
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Join FLexlaw to unlock all legal intelligence“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.”
Original statutory language providing the right to cure by obtaining licensure
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Join FLexlaw to unlock all legal intelligenceIn April 1997, an owner entered into a construction contract with a contractor who had applied for licensure but never received a license due to a pro…
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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. (1995).
The appellee contractor applied for li-censure prior to executing the construction contract. Owing to a processing error, or insufficient filing fee, no license was issued.
The owner terminated the construction contract and the contractor brought suit. While the suit was pending, the legislature amended the statute to delete the second sentence of the above-quoted statute. Ch.2000-372, § 35, Laws of Fla. The owner contends that the effect of the 2000 amendment is to eliminate a contractor’s right to cure its unlicensed status. The owner argues that since the contractor never cured its unlicensed status, it is now prohibited from doing so. The owner says that the contractor is now barred from seeking any relief in its action for breach of contract.
Based on this analysis, the owner moved to stay the parties’ pending arbitration. The trial court denied the motion and the owner has appealed.
For present purposes we assume, without deciding, that the owner’s analysis of the amended statute is correct. We therefore assume that the amended statute precludes a contractor from curing its unlicensed status. So construed, the effect of the amendment is to remove the contractor’s previously existing right to cure.
If that is the effect of the amendment, then it worked a change in the substantive rights of contractors. Since that is a substantive change in law, the 2000 amendment does not operate retroactively. Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla.1994); Hotelera Naco, Inc. v. Chinea, 708 So. 2d 961 (Fla. 3d DCA 1998). We entirely agree with Judge Muir in the denial of the motion to stay arbitration.
Affirmed.
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R.A.M. OF S. Fla., Inc. v. WCI Cmtys., Inc., 869 So. 2d 1210 (Fla. 2d DCA 2004)…. argues that the 2000 version of the statute cannot be applied to remove R.A.M.’s vested right granted by the 1999 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 bec…1 / 2
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Mivan (Florida), Inc. v. Metric Constructors, Inc., 857 So. 2d 901 (Fla. 5th DCA 2003)…930 n. 1 (Fla. 4th DCA 2003) (“We find the trial court properly applied the pre-2000 version of this statute, since the amendment constitutes a substantive change of the law, not to be applied retroactively.”); The Palms v. Magil Constr. Fla., Inc., 785 So. 2d 597 (Fla. 3d DCA), review denied sub. nom., The Palms, 2100 Ocean Blvd., Ltd. v. Magil Constr. Fla., Inc., 805 So. 2d 811 (Fla.2001). The evidence in the record before us, when taken in the light most favorable to Mivan, the nonmoving party, clearly sh…
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Michnal v. Palm Coast Dev., Inc., 842 So. 2d 927 (Fla. 4th DCA 2003)…s of Fla., eff. July 1, 2000. We find the trial court properly applied the pre-2000 version of this statute, since the amendment constitutes a substantive change of the law, not to be applied retroactively. See The Palms v. Magil Constr. Fla., Inc., 785 So. 2d 597 (Fla. 3d DCA 2001). . Although Behrens testified he had parted ways with Palm Coast on June 6, 1997, Palm Coast testified Behrens had let them "hang his license” until July 17, 1997. Department of Professional Regulation ("DPR") records reflected B…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arrow AIR, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994)
- Hotelera Naco, Inc. v. Chinea, 708 So. 2d 961 (Fla. 3d DCA 1998)