Florida Construction Law

Personal guaranties are strictly construed.  Check to see if your personal guaranty covers all accounts or only specific job accounts.   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

Top 10 most frequently cited OSHA standards violated in FY 2011 (Federal OSHA data) Scaffolding, general requirements, construction (29 CFR 1926.451) Fall protection, construction (29 CFR 1926.501) Hazard communication standard, general industry (29 CFR 1910.1200) Respiratory protection, general industry (29 CFR 1910.134) Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147) Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305) Powered industrial trucks, general industry (29 CFR 1910.178) Ladders, construction (29 CFR 1926.1053) Electrical systems design, general requirements, general industry (29 CFR 1910.303) Machines, general requirements, general industry (machine guarding) (29 CFR 1910.212 (from 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

Under a Miller Act payment bond, all first and second tier subcontractors and suppliers are entitled to  make a claim for payment. However, third tier subcontractors and suppliers are not entitled to make a claim on the bond.   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

489.113 requires that “A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air-conditioning work, unless such contractor holds a state certificate or registration in the respective trade category,” but goes on to say “A general contractor shall not be required to subcontract structural swimming pool work. All other swimming pool work shall be subcontracted to an appropriately licensed certified or registered swimming pool contractor.” 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

State agencies are beginning to again promulgate rules since the Governor’s Executive Order of January, 2011, “freezing” new rules has now been stricken down by the Florida Supreme Court , in Whiley v. Scott. However, agencies and boards are still required to identify rules that are obsolete, unnecessary or provided for in federal rules, and to report all such rules to the Governor’s new Office of Economic Development; it is not yet clear if those rules will be repealed via the statutory rule-making process (Chapter 120) or presented to the 2012 legislature for statutory repeal, but many of the rule repeals noted below are a result of that Executive Order. (RPPTL Construction Committee). 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

Jensen v. Bailey , Case No. 2D10-939, filed November 30, 2011 (NOT FINAL): Trial court award of damages pursuant to Johnson v. Davis for code violations not disclosed to residential purchaser was overturned because of lack of evidence that sellers had actual knowledge of deficiencies. The court held that construction knowledge (“should have known”) was not sufficient to support such a claim.  (from RPPTL Construction Committee). 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

I am pleased to announce the opening of my own law firm, Trent Cotney, P.A. For more information, please check out www.trentcotney.com . 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

MHB Construction Services v. RM-NA HB Waterway Shoppes, LLC , Case No. 4D10-3053 and 4D11-363, filed November 23, 2011: Affirmed trial court’s holding that contractor was NOT entitled to foreclose a construction lien against landlord’s interest where landlord had complied with s. 713.10(2) by recording a “blanket” lien prohibition notice, even thought lease expressly provided that tenant would make improvements and be reimbursed by landlord for 10% of those costs. In this case, even though landlord had signed the Notice of Commencement, the tenant was reflected as the owner of the leasehold interest. (from RRPTL Construction Committee). 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

Raymond James Financial Services, Inc. v. Phillips , Case No. 2D10-2144. In a case of first  impression, the court affirmed the trial judge’s finding that the Statute of Limitations provided for  in s. 95.011 did NOT apply to arbitration, absence a contract provision to the contrary, because it is  not an “action” or “proceeding” as used in the statutes. This case has been certified to the Florida  Supreme Court as a case of great public importance. (from RPPTL Construction Committee). 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

US Transportation Secretary Ray LaHood announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the US Department of Transportation to end distracted driving. The effective date of the rule is January 1, 2012. The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck companies that allow their drivers to use hand-held cell p

Employers are required to post, "in a conspicuous place where notices to your employees are customarily posted", the summary sheet of the OSHA Log of illness and injuries. Your summary log from the 2011 year must be posted no later than February 1, 2012. Posting is required even if there were no recordable injuries in the preceding year. You can download the forms by clicking here . (From FRSA Roof Flash). 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

Sexton v. Ferguson , Case No. 4D10-2826, filed November 16, 2011: This was an appeal from a DOAH order denying s. 57.105 fees against a party’s attorney where the parties had entered into a settlement agreement in which fees were waived. The court held that fees could not be awarded against an attorney who was not a party to the proceedings where the prevailing party had waived fees against the non-prevailing party. 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

Siegel v. Rowe , Case No. 2D10-2796 and 2D10-2864, filed October 5, 2011: In an action to collect on an alleged verbal loan of $50,000, trial court’s section 57.105 fees and costs award of $42,413.89 against plaintiff based on mistaken finding that cause of action was barred by Statute of Frauds, was overturned. Here the court found that the opposing and conflicting evidence at trial and the erroneous application of the Statue of Frauds failed to support that the action was “frivolous.”  (from RPPTL Construction Regulation Subcommittee). Trenton H. Cotney Florida Bar Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A lien is valid for one year, unless a lienor files a lawsuit to enforce the lien prior to the expiration of the year. An owner has a right to file a Notice of Contest of Lien during the one-year period. Upon the filing of a Notice of Contest of Lien, a lienor must file a lawsuit to enforce the lien within 60 days.  Failure of the lienor to timely file a lawsuit renders the lien invalid.  (from dbpr). Trenton H. Cotney Florida Bar Certified in Construction Law www.trentcotney.com