Tuesday, February 28, 2012

Arbitration and Lien Rights

The fact that a contractor has lien rights does not waive the right to arbitration.  Lien claims are normally stayed pending resolution of the matters that are arbitrated. Genstar Southern Development Corp. v. Troup Bros., Inc., 396 So.2d 211 (Fla. 3d DCA 1981).  

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Monday, February 27, 2012

Verification of Contractor's License

To verify a contractor's license, you can go to www.myfloridalicense.com or you can go to my website www.trentcotney.com under resources/helpful links and follow the link to verify the license.


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Thursday, February 23, 2012

ABC Seminars - February 24, 2012

I will be presenting two seminars to Associated Builders & Contractors Gulf Coast members tomorrow starting at 8:00 a.m. at ABC's offices.  The topics will be "Construction Licensing" and "The OSHA Inspection and Citation Process."  The seminars are free to members, and attendees will receive 2 hours of CILB continuing education credit.

For more information, please contact ABC at (813) 879-8064 or go to www.abcflgulf.org.



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Wednesday, February 22, 2012

2010 Florida Building Code Update


To All Interested Parties:

Re: The 2010 Florida Building Code and Upcoming Meetings


Effective date and educational materials: This is a reminder that the effective date, March 15, 2012, for the 2010 Florida Building Code is fast approaching.  Also, in order to facilitate your review of the new code, staff has posted on the following link a number of documents which provide educational information on various subjects of the code.  Please take some time to review the materials and share them with your co-workers and local interest groups. http://www.floridabuilding.org/fbc/thecode/resources.htm


Accessibility Code Compliance date: The 2012 Florida Accessibility Code is not yet certified by the US Department of Justice as “substantially equivalent” to the federal ADA Standards for Accessible Design. The 2012 Florida Accessibility Code “the Code” was redeveloped based on the new federal ADA Standards for Accessible Design adopted by DOJ, September 15, 2010. While Florida’s earlier codes were certified they were determined to be substantially equivalent to the 1991 version of the federal standards. The analysis and determination must be based on the 2010 ADA Standards before DOJ certification can be achieved. Note that while it is always a building owners’ responsibility to comply with the ADA Standards for Accessible Design, compliance with a certified state or local accessibility code provides a presumption of compliance with the ADA Standards.  During the interim period while the 2012 Florida Accessibility Code is being evaluated it is particularly important that owners and designers ensure compliance with both the Code and the 2010 ADA Standards.  One of the significant points to consider is the trigger for compliance with the 2010 ADA Standards.For Title II, public entities, the determination of when the 2010 ADA Standards must be followed is based on initiation of construction.For Title III, private entities, the determination of when the 2010 ADA Standards must be followed is based on; the date the last application for a building permit or permit extension is certified to be complete by a building department, or; the date the last application for a building permit or permit extension is received by a building department, or; where no permit is required the date of physical construction or alteration.  For more information regarding the 2010 ADA Standards, please visit the following link: http://www.ada.gov/


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com


Monday, February 20, 2012

Payment Bond Coverage


"In U.S. for the use of Capital Computer Group, LLC v. The Gray Insurance Co., Case No. 10-15519 (11th Cir. December 21, 2011) the claimant alleged that it was an unpaid first tier subcontractor on a Miller Act project. The prime contractor had approached another contractor (Code 4 Systems, Inc.) about the work, but Code 4 could not qualify for financing. Code 4 and the claimant then arranged for the claimant to enter into the “subcontract” and sub-subcontract the work to Code 4. The claimant financed the work via a factoring arrangement. The work had been performed and the prime contractor had not paid for it, but the surety argued that the claimant was simply providing financing and thus was not within the coverage of the Miller Act payment bond. The Court looked to the subcontract, which obligated the claimant to perform the work including maintaining insurance for the prime contractor’s benefit and indemnifying the prime contractor. The fact that the claimant “performed” by hiring Code 4 to do the actual work did not make it any less of a subcontractor. The Court looked to the written documents and concluded that the claimant was a subcontractor within the coverage of the bond. The Court affirmed summary judgment for the claimant." RPPTL Subcommittee Surety Report.

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Friday, February 17, 2012

Miller Act and Arbitration


In U.S. for the use of McAllister Construction Co., LLC v. Diversified Maintenance Systems Inc., 2011 WL 6112903 (N.D. Fla. 2011) a subcontractor on a federal project sued the Miller Act surety for the prime contractor, and the contractor intervened. The subcontract included an arbitration provision requiring that all disputes be settled by arbitration in Utah. The prime contractor demanded arbitration, but the subcontractor did not participate in the arbitration and claimed that it was invalid. The intervening prime contractor and surety moved for summary judgment. The subcontractor argued that by intervening in the Miller Act suit the prime contractor waived the right to have the dispute resolved by arbitration. The court noted that the petition to intervene cited the arbitration provision and sought to enforce it. The court rejected the subcontractor’s waiver argument, granted the motions, and dismissed the case with prejudice.  (From RPPTL Subcommittee).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Thursday, February 16, 2012

NLRB Final Rule on Employee Notification


The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice.
Employers should begin posting the notice on January 31, 2012. Copies of the notice will be available on the NLRB website and from NLRB regional offices by October 1.
Similar postings of workplace rights are required under other federal workplace laws. The 11-by-17-inch notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule.
The notice of rights will be provided at no charge by NLRB regional offices or can be downloaded from the Board website and printed in color or black-and-white. Translated versions will be available, and must be posted at workplaces where at least 20% of employees are not proficient in English.
Employers must also post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there.   (www.nlrb.gov).


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Wednesday, February 15, 2012

Performance Bond and Cardinal Change


Hartford Cas. Ins. Co. v. City of Marathon, 2011 WL 5825503 (S.D. Fla. 2011), held that a performance bond surety is not responsible for a cardinal change on the project, despite language in the contract where the surety consented to changes. (RPPTL Subcommittee).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Tuesday, February 14, 2012

Choice of Law and Offers of Judgment

Southeast Floating Docks, Inc., et. al. v. Auto-Owners Insurance Company, Case No. SC11-285, filed February 2, 2012: In a certified question from the Eleventh Circuit Court of Appeals, the Supreme Court held that s. 768.79 regarding offers of judgment is substantive, and thus does NOT apply to contracts providing for the applicability of another state’s laws (Michigan) that don’t contain such a provision. In this case, a claim was filed on the contractor’s performance bond when a dispute arose for breach of contract. The surety refused the contractor’s offer of judgment to settle for $300,000, which then sought attorney fees after obtaining a judgment of no liability against the surety. (RPPTL Subcommittee).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com


Monday, February 13, 2012

Railing Manufacturer is not a Supplier under Statute

Harbor Landing Condominium Owners Association, Inc. v. Harbor Landing, LLC, et. al., Case No. 2D10-2796 and 1D11-2055, filed January 30, 2012: In an action for damages for breach of statutory implied warranty pursuant to s. 718.203(2), the court affirmed the trial court’s dismissal of a railing manufacturer who was not a “supplier” as that term is used in the statute. The court noted that a manufacturer could also be a supplier to the job, but that was not the situation in this particular case.  (RPPTL Subcommittee Report).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Friday, February 10, 2012

Leading Edges and OSHA

Each employee who is constructing a leading edge 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems. Exception: When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502.
Note: There is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with 1926.502(k) for a particular workplace situation, in lieu of implementing any of those systems.  (osha.gov)

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Thursday, February 9, 2012

Penalty for Failing to Comply with Public Records Requests


A public officer who knowingly violates the provisions of s. 119.07 is subject to suspension and removal or impeachment and, in addition, is guilty of a misdemeanor of the first degree.



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Monday, February 6, 2012

Improper Termination and Notice

A termination may be improper where the general contractor was not provided with sufficient notice in advance.  Bruning Seeding Co. v. McArdle Grading Co., 439 N.W.2d 789 (1989).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Thursday, February 2, 2012

Leasehold Liens and Public Property

Although you cannot lien public property, if a government owner leases property to a private tenant, you can lien the leasehold interest of the tenant.

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

Wednesday, February 1, 2012

FRSA Board Meetings in St. Augustine

The Florida Roofing, Sheet Metal & Air Conditioning Contractors Association (FRSA) quarterly board meetings will be in St. Augustine from February 2-4, 2012 at the World Golf Village Renaissance.

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com