Florida Construction Law

Florida Building Code – A mildly interesting wild ride this session has been the annual building codes bill. As usual, it was intended to be for non-controversial codes/construction changes. Because of that, we could not get traction for our effort to pull back on the ICC takeover of Florida. The starting point was HB 1245 by Daniel Davis (R-Jacksonville) and SB 1252 by Wilton Simpson (R-New Port Richey). Of interest to us, the bills contain the following changes: - Increases the maximum civil penalty a local government may impose against an unlicensed contractor from $500 to $2,000 - Increases the per day civil penalty that may be imposed by a local enforcement or licensing board (or designated special magistrate) from $1,000 to $1,500 - Allows local building departments to keep 75% of fines imposed against licensed contractors (registered or state-certified) - Eliminates the monopoly on things energy held by Florida Solar Energy Center (FSEC) All was moving as expecte

Robert Wood, P. E. v. Florida Board of Professional Engineers (DBPR ), Case No. 12-2900RU, Final Order filed on February 20, 2013. Held that the following did not constitute "unadopted rules:" (1) the annual term of the contract between DBPR and Florida Engineers Management Corporation ("FEMC"); (2) the determination of whether a complaint is "legally sufficient" to begin an investigation is made by FEMC; and, (3) the imposition of "project review" as a condition of probation in disciplinary proceedings. (RPPTL Subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

The Internal Revenue Service (IRS) has announced it will provide penalty relief to anyone unable to file on time because of severe storms in parts of the South and Midwest during the week of April 8.  In some cases, power outages and transportation problems made it difficult or impossible for some taxpayers and tax professionals to meet the regular April 15 filing deadline. As a result, taxpayers directly affected by these storms qualify for penalty relief, based on reasonable cause, if they were unable to file their returns or pay tax due until after the April 15 midnight deadline because of these storms. This relief applies to the late-filing penalty (typically 5 percent per month) and the late-payment penalty (typically 0.5 percent per month) provided taxpayers file the return or pay the tax within a reasonable time after the power outages and transportation problems have been resolved. Affected taxpayers may receive penalty notices from the IRS. If so, the IRS will abate

General Information – The regular legislative session will end in a little less than two weeks. Both the House and Senate will be in session almost all day every day between now and Friday, May 3, 2013. This is the most intense time of session. One of the major topics for any session is the budget, and, if controversial, it can often throw everything else off track. This year is not one of those years. The budget conference process is proceeding well and most all issues have been resolved. To date, of the 1,833 bills filed, 38 have passed. This is not unusual. Predictions (or intention) coming from the Senate president are that no more than about 300 bills pass this session. This would be a relatively low number (but a total of 1,833 bills filed is also a relatively low number).  (From FRSA Legislative Report prepared by FRSA Lobbyist Cam Fentriss) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602

  OSHA has cited Ryan Roofing Inc. in Salina with three willful safety  violations after a worker suffered a broken neck and was paralyzed when he  fell 20 feet from the roof of a commercial building the company was  replacing in Hoisington on Oct. 3, 2012. Proposed penalties total $115,500.  The willful violations include failing to ensure the integrity of a roof structure employers were working on, to provide and use fall protection  systems on a low-sloped roof and to provide training on fall protection to  workers. Due to the nature of the hazards and the violations cited, Ryan  Roofing has been placed in OSHA's Severe Violator Enforcement Program, which  mandates targeted follow-up inspections to ensure compliance with the law. (OSHA Newsletter) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

  OSHA has cited Mike Neri Sewer & Water Contractor Inc. for seven safety  violations, including three willful, for failing to protect workers from  cave-ins and moving soil and chunks of asphalt during trenching operations. The inspection was initiated under OSHA's national emphasis program for  trenching and excavation after an OSHA inspector witnessed apparent cave-in  hazards while traveling past a construction site in Des Plaines on Oct. 3,  2012. Proposed penalties total $110,440. Because of the hazards and the  violations cited, the company has been placed in OSHA's Severe Violator  Enforcement Program, which mandates targeted follow-up inspections to ensure  compliance with the law.  "This is not the first time this contractor has exposed vulnerable workers  to dangerous excavation hazards," said Nick Walters, OSHA's regional  administrator in Chicago. "These types of hazards result in numerous  fatalities and injuries every year. No job should

DK Arena, Inc., v. EB Acquisitions I, LLC , 38 Fla. L. Weekly S187a, Case No SC10-897, filed March 28, 2013. Florida Supreme Court quashed and remanded appellate decision based on Tanenbaum v. Biscayne Osteopathic Hospital, Inc ., 190 So. 2d 777 (Fla. 1966) and held that the judicially-created doctrine of promissory estoppels cannot be used to avoid the Statute of Frauds (Section 725.01 F. S.). Specifically, the court held that an oral statement by the seller of real property (celebrity boxing promoter Don King) for an extension of the due diligence period in the written contract was not effective, even though it otherwise meet the criteria for "promissory estoppel." NOTE; While Justice Canady dissent based on his disagreement that there is conflict with Tanenbaum ,  he finds jurisdiction based on conflict with Bradley v. Sanchez , 943 So. 2d 218 (Fla. 3d DCA 2006), but agrees with the analysis of the district court. (RPPTL Subcommittee) Trenton H. Cotney Flori

This past Saturday April 20, 2013, Rough Riders held its fourth annual Rough Riders Charity Sporting Clay Tournament, of which Trent Cotney of Trent Cotney, P.A. was a proud sponsor. Rough Riders is a dynamic organization and supports many charities ranging from Special Olympics to the Make a Wish  Foundation to Ronald McDonald House. The event was held at the Tampa Bay Sporting Clays.  Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

OSHA's Hazard Communication Standard has been revised to align it with the United Nations' Globally Harmonized System of Classification and Labeling of  Chemicals. This update to the Hazard Communication Standard provides a  common and coherent approach to classifying chemicals and communicating  hazard information on labels and safety data sheets. Chemical manufacturers  and importers are now required to provide a label that includes a harmonized  signal word, pictogram, and hazard statement for each hazard class and  category. Precautionary statements must also be provided. In addition, Safety Data Sheets will now have a specified 16-section format. By December 1, 2013, all employers with hazardous chemicals in the workplace must conduct new training for workers on the new label elements and safety data sheets format to facilitate recognition and understanding. (OSHA Newsletter) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 121

In a series of Workers' Memorial Day events on and around April 28, 2013,  OSHA's national and regional offices will honor the sacrifices made by those  who have been lost, disabled, injured or made sick by their jobs. Workers'  Memorial Day is also an opportunity to rededicate ourselves to protecting the health and safety of every worker. To find a Workers' Memorial Day event in your area, contact your regional  OSHA office. (From OSHA Newsletter) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602

Roy Jossfolk, v. United Property & Casualty Insurance Company , 38 Fla. L. Weekly D649a, Case No. 4D12-443, filed March 20, 2013.  Summary judgment for insurer for denial of "Ordinance and Law" coverage for hurricane roof damages was reversed based on such coverage not being originally appraised, but subsequently "incurred" ( Ceballa v. Citizens Property Insurance Corp ., 967 So. 2d 811 (Fla. 2007) when city ordinance required replacement of entire roof where more than 25% had be replaced. NOTE: The arbitration process does not apply to the appraisal process. Allstate Insurance Co. v. Suarez , 833 So. 2d 762 (Fla. 2002). (RPPTL Subcomittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

On April 11, a federal judge sentenced Water Cardin, former safety manger of  the Shaw Group, to 78 months in prison for deliberately falsifying records  of workplace injuries. Shaw, formerly Stone and Webster Construction, held a  contract for construction services at several TVA facilities, and used the  false injury reports to claim bonuses of more than $2.5 million under the  contract. Dr. David Michaels, assistant secretary of labor for occupational safety and  health, issued the following statement: "This case shows the destructive consequences that purely rate-based  incentive programs can have. Far from promoting safety, the bonus led to  a  systematic effort to conceal injures. Injured workers were denied or delayed  medical treatment. Underlying workplace safety issues went un-addressed.  There is a better way. A comprehensive injury and illness prevention programm ing which employers commit to finding and fixing hazards can achieve real  safety in the workplace.&q

Florida Diversified Films, Inc., v. Simon Roofing and Sheet Metal Corp ., 38 Fla. L. Weekly D664b, Case No. 3D12-389, filed March 20, 2013.  Based on the "law of the case," an order denying motion for attorney's fees based on an offer of judgment was reversed due to the lack of "manifest injustice" required to alter that law based on Specialty Restaurants Corp. v. Elliott , 924 So. 2d 834 (Fla. 2d DCA 2005). (RPPTL Subcomittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Carriage Hills Condominium, Inc., v. JBH Roofing & Construction, Inc ., 38 Fl. L. Weekly D643a, Case No. 4D11-2251, filed on March 20, 2013. Summary judgment in favor of roofing contractor for breach of a "full scope contingency contract" (in which payments were to be approved and paid by insurer), based soled on the deposition of the defendant's corporate representative, was reversed due to the improper use of Rule 1.310(b)(6) regarding notice of deposing a corporation representative, and the trial court's improper striking of opposing affidavits as contradicting that deposition. This opinion details the correct use of the rule, and the strict adherence required to bind the corporate entity. In this case, the notice of deposition was not compliant with the rule because it failed to cite to the rule and required production of "the person with the most knowledge," while failing to specify the issues to be addressed rather than the "over broad"

Bernardo Kopel v. Leon Kopel , 38 Fla. L. Weekly 'D666a, Case No. 3D11-536, filed March 20, 2013. Trial court judgment based on amended complaint that alleged a new cause of action barred by the statutes of limitation was reversed based on the non-applicability of the "relation back" doctrine. In addition, a claim of unjust enrichment against individual defendants was also reversed where the evidence showed that any such benefit was to corporate entities instead. (RPPTL subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

On April 2, U.S. Citizenship and Immigration Services (USCIS) announced it temporarily has suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to a federal district court order entered March 21 in  Comite de Apoyo a los Trabajadores Agricolas et al v. Solis . This could have significant implications for contractors planning to use the H-2B temporary worker program. (Please note that this case was brought by nonbusiness p arties against the H-2B wage-determination process set in 2008 and is separate from and predates cases brought against the 2011 H-2B wage and program rules in which several H-2B Workforce Coalition members, including NRCA, are involved.)  The court's order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department of Labor (DOL) 30 days to comply

Truck Insurance Exchange v. Pediatrix Medical Group, Inc ., et. al ., 38 Fla. L. Weekly D619b, Case No. 4D12-2061 and 4D12-2080, filed March 13, 2013.  Order denying motion to compel arbitration and denying stay of proceedings of an insurance bad faith action was reversed based on a "presumption of abitrability" where a contract contains an arbitration provision, unless the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.  (From RPPTL Subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

University of Miami v. Great American Assurance Company, 38 Fla. L. Weekly D392a, Case No. 3D09-2010, filed February 2013. Order of summary judgment in favor of insurer regarding indemnification of attorney's fees and costs based on beach of insurance policy and bad faith was reversed in favor of the "additional named" party to the commercial liability policy, who retained independent legal counsel in the defense of a claim after unsuccessfully demanding that the insure provide it with legal counsel separate from that of the insured. In this case of first impression the court found that, where there are diverse legal positions of liability between the insured and the additional named party (rather than of coverage or excess polity limits) there is a conflict of interest which requires the insurer to provide separate and independent legal counsel for each party. NOTE: A dissent by Judge Shepherd would appear to rely on Rule 4-1.7, Florida Rules of Professional Condu

Suzlon Energy, A/S v. Ventus De Nicaragua, S. A. ., 38 Fla. L. Weekly D304a, Case No. 3D11-1087, filed February 6, 2013. An order confirming an arbitration award in a dispute over sales commissions for wind turbines was reversed due to the lack of authority by the buyer's corporate representative to initiate arbitration. While the contract contained an arbitration provision, and the tribunal found that it had jurisdiction, the court found that the arbitrators had "exceeded their powers" under s. 682.13(1)(c) as a basis for vacating the arbitration award. NOTE: A dissent by Judge Salter was based on the fact that the issue of authority to initiate arbitration proceedings was for the arbitrators to determine rather than for the court to determine. In his view the majority decision "judicially vaporized" the contract provision directing arbitration of "any dispute or controversy." Trenton H. Cotney Florida Bar Certified Construction Lawyer

Suncoast Home Improvements, Inc., v. Robichaud , 38 Fla. L. Weekly D265a, Case No. 2D12-2645, filed February 1, 2013: In reversing trial court's nonfinal order transferring venue from Pinellas County to Charlotte County, judge Silberman found that, since the defendant owners did not file an affidavit disputing venue in Pinellas County, the "place of payment rule" applies, notwithstanding that the defendants resided, and the work was performed, in Charlotte County. Note: As this opinion points out, the "place of payment" rule for venue does not apply where the damages are unliquidated. (From RPPTL Subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Pilot Construction Services, Inc. v. Babe's Plumbing, Inc. 38 Fla. L. Weeikly D256a, Case No. 2D11-6009, filed February 1, 2013: In reversing and remanding a final summary judgment entered against contractor in its action against plumbing subcontractor, it was held that (1) a settlement agreement between the subcontractor and the owner did not preclude contractor's claim against subcontractor for indemnification, and (2) section 725.06, F. S. (2005) did not bar contractor's claim against subcontractor since contractor's claim was not based on its own negligence.  (From RPPTL subcommittee).  Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Pompano Masonry Corporation v. Anastasi , 38 Fla. L. Weekly D295a, Case No. $d12-181, filed February 6, 2013: In upholding the imposition of trial court attorney fees as a sanction pursuant to Rule 1.730(c), F.R.C.P., for failure of a party to execute a release pursuant to a settlement agreement, the court held that the trial court had made sufficient oral findings to support the sanction, even though those findings had not been included in the order awarding fees  (From RPPTL Subcommittee).   Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

OSHA is reminding employers to post OSHA's Form 300A, which summarizes the total number of job-related injuries and illnesses that occurred during 2012 and were logged on OSHA Form 300, Log of Work-Related Injuries and Illnesses. The summary must be posted between Feb. 1 and April 30, 2013, and should be displayed in a common area where notices to employees are usually posted. Employers with 10 or fewer employees and employers in less hazardous industries are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A complete list of exempt industries in the retail, services, finance, insurance and real estate sectors can be found at http://s.dol.gov/YP . (FRSA newsletter)   Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Marcum, LLP v. Alan Potakin , 38 Fla. L. Weekly D390b, Case No. 3D12-1867, filed February 20, 2013: Upheld trial court's denial for a declaratory judgment that the right to arbitrate is non-assignable, unless assignment was prohibited by contract, the contractual obligation are of a personal nature, or public policy precludes assignment. In so holding, the court affirmed that any determination of assignability was within the jurisdiction of the arbitrator, and not for the court to decide. (From RPPTL Subcommittee).   Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Fernando Subirats v. Fidelity National Property ,  38 Fla. L. Weekly D396a, Case No. 3D12-68, filed February 20, 2013: The Department of Financial Services was found to have exceeded its rulemaking authority by enacting Rule 69J-166.031, F.A.C., requiring an insurer to notify its insured within five (5) days of receiving a claim of the right to participate in a state-sponsored mediation program, failing which the insurer waived his or her right to enforce a policy appraisal provision. The court found that subsection (4) of s. 627.7015, F. S., requiring the creation of a property insurance mediation program, did not include the rulemaking authority to provide for a wavier of this right, and affirmed the trial court's order staying litigation of the breach of contract claim unti l the parties complete the appraisal process. (RPPTL Subcommittee)   Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.t

OSHA's Hazard Communication Standard is now aligned with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals. This update to the Hazard Communication Standard provides a common and coherent approach to classifying chemicals and communicating hazard information on labels and safety data sheets. The first deadline in the implementation phase is Dec. 1, 2013, the date by which employers must train workers on the new label elements and safety data sheet. OSHA has prepared a number of additional materials that explain the new changes to the requirements of the HCS, including QuickCards, fact sheets, a list of frequently asked questions and a brief (PDF*) on labels and pictograms. These and other materials are available on OSHA's Hazard Communications page. (FRSA Newsletter)   Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com