Florida Construction Law

A final order was issued to Homesure of America, d/b/a Cross County Home Services, on February 7, 2012, interpreting s. 489.103(9) and 489.105(3), that a home warranty association and service warranty association must obtain a contractor’s license in order to market and sell a program to provide minor (less than $1,000) routine air conditioning or maintenance services utilizing a network of licensed contractors to perform any such work. (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

A final order was issued to Arnold M. Verway, Okeechobee County Construction Industry Licensing Board, on February 7, 2012, interpreting paragraph 61G4-15.015(2)(b) to permit a specialty contractor to be the primary contractor when the subcontracted work involves the installation or replacement of window and door assemblies.  (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

A final order was issued to Pete Quintella, City of Miami Beach Building Department, on February 7, 2012, interpreting s. 489.105(3)(g), that a Class B air conditioning contractor may replace water cooled 2-ton unit which is connected to a 500 ton water cooling tower. (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

Griffis v. Florida Department of Business and Professional Regulation , 37 Fla. L. Weekly D488a, Case No. 1D10-5645, filed February 23, 2012. Appeal of final order revoking construction license was dismissed as untimely where licensee breached his statutory duty to keep the department advised of his current mailing address (a state correctional facility to which the licensee had been incarcerated). (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

A condominium association cannot make a claim on a performance bond where the developer was the owner.  The association is not a third party beneficiary.   Beach Point Condominium Association, Inc. v. Beach Point Corp. , 480 So.2d 239 (Fla. 4th DCA 1985). 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

Repor Brothers, Inc., v. Donald Moore , 37 Fla. L. Weekly D454b, Case No. 3D10-2251, filed February 22, 2012. Trial court’s summary judgment was reversed and remanded based on a contract indemnity clause that had been construed so as to indemnify the indemnitee against losses resulting from him own negligent acts, absence such intention being expressed in clear and unequivocal terms.  (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

Omar Haber v. Deutsche Bank National Trust Company, as Trustee , 37 Fla. L. Weekly D464a, Case No. 4D10-4458, filed February 22, 2012. Trial court’s summary judgment for lender in mortgage foreclosure was reversed based on lack of evidence that lender had given notice and opportunity to cure as required by the mortgage agreement. (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

As a reminder, the 2010 Florida Building Code (FBC) goes into effect on March 15, 2012. If you pull a permit prior to March 15, 2012, you will need to work under the 2007 FBC with the 2009 supplements (the same code you are using now). If you pull a permit on March 15, 2012 or later, you will need to use the 2010 FBC. The Fourth Edition of the FRSA/TRI Concrete and Clay Roof Tile Installation Manual is referenced in the 2010 FBC. The code is available online at www.floridabuilding.org . You can also order code manuals using this website and receive a discount. There is a link on floridabuilding.org that takes you to the International Code Council (ICC) website and offers you a discount for ordering the 2010 Florida Building Codes. There will also be a link to these sites on the home page (upper right side) of FRSA’s website, www.floridaroof.com .  Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813

Panjikaran v. State Farm Florida Insurance Company , 37 Fla. L. Weekly D273a, Case No. 2D10-5841, filed February 1, 2012: Trial court’s summary judgment for insurer was reversed based on disputed issue of coverage for policy’s Building Ordinance or Law endorsement, which required insured to provide an appraisal of damages. (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

A prime contractor subject to an upstream termination for convenience clause should ensure that any subcontract agreement also allows for the prime to terminate the sub for convenience.  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

558.004, Florida Statutes provides:  "In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action, or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter." 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 surety may assert any defense available to its principal. U.S. Fidelity and Guaranty Company v. Miami Sheet Metal Products, Inc. , 516 So.2d 29 (Fla. 3d DCA 1987). 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

If you are acting as an agent for another person, you must disclose the identity of the principal and indicate that you are representing the interests of the principal.   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

If you are renting equipment with an operator, make sure that the operator is adequately covered by insurance. Injury to the operator or damage to person or property caused by the operator can be catastrophic for the lessee if insurance coverage is not present. 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

In at least one case, the failure of a prime contractor to produce evidence of payment to subtiers was held not to be a material breach.   Eng v. Stein , 599 P.2d 796 (1979). 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