November 25, 2011
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Question
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Ken,
I have been following your mailing list for years now and I truly appreciate the information that you put out for free! I have a question that I am not sure has been asked before:
In the state of Florida there is a requirement for Burglar Alarm companies to obtain a BASA certification through training. BASA stands for Burglar Alarm Systems Agent and the requirement states that anyone who SELLS, Installs, Maintains, or Supports burglar alarm systems must have this certification. In order to get the BASA certification, you must work for a company that is licensed for burglar alarms (EF and EC electrical contractors licenses) and you must attend a course that costs money and you must pass the test.
I know that there are many companies who hire sales people on commission only to sell burglar alarm systems who have never even heard of the BASA.
So my question is, if a sales person who is not BASA certified sells a system and has the customer sign a contract for the company (even if the company is properly licensed), is the contract still valid?
I would prefer to stay anonymous with this question.
Thanks,
D
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Answer
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Florida takes it licensing requirements very seriously and enforcement is stringent. This is from the licensing statute:
489.501 Purpose.--The Legislature deems it necessary in the interest of public health, safety, and welfare to regulate the electrical and alarm system contractors in this state. This regulation seeks to enable qualified persons to obtain licensure, while ensuring that applicants have sufficient technical experience in the applicable trade prior to licensure, are tested on technical and business matters, and upon licensure are made subject to disciplinary procedures and effective policing of the profession.
Also from the statute - the exemption for "employees:
489.503 Exemptions.--This part does not apply to:
(1) Any employee of a certificate holder, registrant, or business organization authorized to engage in contracting who is acting within the scope of the license held by that certificate holder or registrant and with the knowledge and permission of the license holder.
And now for the answer to the question. Here is how the statute defines employee:
"For the purpose of this part, "employee" is defined as a person who receives compensation from, and is under the supervision and control of, an employer who regularly deducts the F.I.C.A. and withholding tax and provides workers' compensation, all as prescribed by law."
Employee clearly means a W2 employee and not a subcontractor who would receive a 1099 tax report, also for whom there would be no withholding or deductions.
Check out licensing in your jurisdiction at http://www.kirschenbaumesq.com/alarmlicreqstate.htm
Keep in mind that you need to be licensed in all jurisdictions where you do business that requires a license. At Kirschenbaum & Kirschenbaum we can assist you with your license compliance and regulatory requirements. Call Jennifer Kirschenbaum, Esq., at 516 747 6700 ext 302 for license and compliance legal assistance.