Florida Construction Law

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

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

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

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’

"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”

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. Cotne

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 pe

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

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

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

1926.501(b)(2)(i) 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

Section 119.07, Florida Statutes is the public records request statute. Note, under 119.02 :  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

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

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

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