Florida Construction Law

The FRSA’s Convention and trade show will be here before you know it.  The trade show is a two-day event with 11.5 hours of floor time.  Visit exhibitors, see what new products and services are available and watch live exhibitor demonstrations in two places on the show floor.  The focus this year is on education, training, and technology and the FRSA has incorporated them into the convention and trade show.  There are 19 continuing education courses available for a total of 34 credit hours – their largest selection of courses ever!  They have also scheduled business essential courses that don’t have continuing education credit, but focus on new technology through various products and services. The convention will be held from July 18 th -20 th , 2013. Click Here to register (From FRSA) 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 additional details about the closures planned for May 24, June 14, July 5, July 22 and Aug. 30. Because of the current budget situation, including the sequester, all IRS operations—including all toll-free hotlines, the Taxpayer Advocate Service and the agency's nearly 400 taxpayer assistance centers nationwide—will be closed on those days. IRS employees will be furloughed without pay. No tax returns will be processed, and no compliance-related activities will take place. The IRS noted taxpayers should continue to file their returns and pay any taxes due as usual. Taxpayers who need to contact the IRS about their returns or payments should take these furlough dates into account. In some instances, this may include taxpayers with returns or payments due soon after a furlough day, such as the June 17 deadline for taxpayers abroad and those making a second-quarter estimated tax payment, as well as the Sept. 3 deadline for truckers

New this year, the S.T.A.R. Award – the Spotlight Trophy for the Advancement of Roofing award – will highlight FRSA member’s projects. Do you have a great or unique roofing project that you would like to see featured? How about a charity project or a green roofing project. The deadline for project submissions has been extended until May 31. This is your opportunity to have your work profiled in front of your peers. The FRSA have included plenty of FREE promotional exposure for those who submit their projects – a slide presentation Friday, July 19th at the  FRSA's 91st Annual Convention and repeated during the trade show on Saturday, July 20th, profiles in ROOFING FLORIDA Magazine in the post-convention issue and on FRSA’s website. Don’t miss out on the opportunity to thank your team members for a job well done! Click Here to submit your project (From FRSA) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tamp

Construction industry employment climbed for the 10th consecutive month in March, as the sector added 18,000 jobs and surpassed 5.8 million employees for the first time since September 2009, according to an analysis of new government data by the Associated General Contractors of America. Association officials cautioned that the industry could experience both layoffs for some skilled trades and shortages of others unless policy makers boost infrastructure investment and allow importation of needed workers. “The nearly steady expansion of construction payrolls since hitting bottom in January 2011 brought the industry’s unemployment rate down to 14.7 percent last month, the lowest March rate since 2008,”   Ken Simonson , the association's chief economist, said in a statement. “Unfortunately, the decline is less a result of the 370,000 construction hires than because more than a million and a half experienced workers have left the industry since its peak by taking other jobs

NRCA has released a statement regarding tax reform priorities, which was submitted to the House Committee on Ways and Means Working Groups April 15 commending members for their commitment to reform the U.S. tax code.  NRCA's statement outlines how the U.S. tax code can work better for roofing industry employers. NRCA recommends tax reform legislation include pro-growth policies that enable entrepreneurs to invest in and grow their business, which would create more jobs. To read NRCA's statement,  click here (From NRCA Newsletter) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Frank Cleaton, P. E. v. Florida Board of Professional Engineers , DOAH Case No 12-3640F: In an extensive (51 pages) Final Order dated April 24, 2013, attorney fees and costs sought pursuant to s. 57.111, F. S. (2012) were denied. Although the licensee was found to be a "small business" and the "prevailing party" in an administrative disciplinary action that was dismissed by the agency after filing, and the fees were determined to be reasonable, the ALJ found that the board's Probable Cause Panel was "substantially justified" at the time probable cause was found, and that determination was made, in part, on the written opinion of an expert consultant to the board. (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

Mike Cobb v. David Durando and Jane Durando, husband and wife, 38 Fla. L. Weekly D847a, Case No. 2D12-1991, issued April 17, 2013: After prevailing in a bench trial against their roofing contractor for breach of contract, the homeowners sought attorney fees pursuant to section 768.79 based on a single demand for judgment. The award of fees was reversed based on the requirements of Rule 1.442, FRCP, because the demand for judgment failed to "state the amount…attributable to each party," as required by the rule. A dissent by Judge Alterbernd argued, in part, that only the husband had signed the roofing contract, and that application of the rule to a single cause of action which he could have brought in his name alone was "seems to have achieved form over substance." (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

Leonor Sarmiento Camperos v. Thomas Andres Vazquez Estrella, 38 Fla. L. Weekly D855b, Case No. 3D12-1749, issued on April 17, 2013: A non-final order denying motion to dismissed based on forum non conveniens was reversed and remanded for failure of the trial court to articulate the Kinney factors during the hearing. See: Kinney Sys., Inc. v. Cont'l Ins. Co., 674 So. 2d 86 (Fla. 1996), now codified in Fla. R. Civ. P. 1.061.          (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

             Barry Berk, et. al., v. Honey Berk, 38 Fla. L. Weekly D867a, Case NO. 3D12-3216, issued April 17, 2013: The probate division order denying motion to dismiss and compel arbitration based on similar pending actions between the parties, was reversed and remanded based on an Operation Agreement containing an arbitration provision where there was no evidence of a waiver of that provision. (RPPTL Subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

McKenzie Check Advance of Florida, LLC, et. al. v. Wendy Betts, et. al. , 38 Fla. L. Weekly, Supreme Court of Florida Case No. SC11-514, issued on April 11, 2013: The appellate court's decision in McKenzie v. Betts , 55 So. 3d 615 (Fla. 4 th DCA 2011), finding that in a FDUPTA claim,  a class-action waiver in an arbitration agreement violated public policy, was unanimously quashed based on the U. S. Supreme Court's intervening holding in AT&T Mobility, LLC v. Concepcion , 131 S. Ct. 1740 (2011) that such waivers were preempted by the Federal Arbitration Act. (From RPPTL Subcomittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Charlyn Bradshaw and Kenneth Bradshaw, her husband v. Boynton-JCP Associates, LTD, d/b/a Boynton Beach Mall and Simon Property Group, Inc., 38 Fla. L. Weekly D823a, Case No. 4D11-4242, issued April 10, 2013: A final judgment awarding attorney's fees pursuant to an offer of judgment  pursuant to s. 768.79, Fla. Statutes (2007) and Fla. R. Civ. P. 1.442, was reversed because it was "apostrophe-challenged" and, thus, ambiguous. Citing State Farm Mut. Auto. Ins. Co. v. Nichols , 932 So. 2d 1067 (Fla. 2006), the appellate court stated that the issue is not whether it is "fair or logical to apply the requirements" of the rule, the offer must be sufficiently clear to allow the offeree to make a decision without clarification. (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

Plantation Key Office Park, LLLP et. al. v. Pass International, Inc., et. al ., 38 Fla. L. Weekly D736a, Case No. 4D12-169 and 4D12-199, issued April 3, 2013: Following a fire during construction, owner sued contractor and subcontractors for reformation (as well as breach of contract, negligence and statutory violations). On the issue of reformation, the trial court granted summary judgment against owner on the issue of whether A201 (the general conditions that prohibit consequential damages) was incorporated in the A111 contract signed by the parties. Based on conflicting testimony of the parties on this issue, the summary judgment was reversed based on the trial court's inability to determine credibility of the witnesses at that point. Citing its own decision in the analogous case of Resort of Indian Spring, Inc., v. Indian Spring County Club, Inc., 747 So. 2d 974 (Fla. 4 th DCA 1999), the appellate court found the summary judgment to be improper. (From RPPTL Subcommittee)

Marble Unlimited, Inc. v. Weston Real Estate Investment Corporation , 38 Fla. L. Weekly D686b, Case No. 4D11-3113, issued March 27, 2013: Dismissal of contractor's foreclosure of construction lien for failure to served a notice to owner was reversed due to the common identity of the corporate owner (following a transfer of title from one related entity to another) based on Aetna Cas. & Sur. Co. v. Buck , 594 So. 2d 280 (Fla. 1992).  (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 issued a final rule that applies the requirements of the August 2010 cranes and derricks in construction standard to demolition work and underground construction. Application of this rule will protect workers from hazards associated with hoisting equipment used during construction activities. This final rule, which becomes effective May 23, 2013, applies the same crane rules to underground construction and demolition that are already being used by other construction sectors, and streamlines OSHA's standards by eliminating the separate cranes and derricks standard currently used for underground and demolition work. The rule also corrects errors made to the underground construction and demolition standards in the 2010 rule making.  (From 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 announced an initiative to further protect temporary employees from workplace hazards. A memorandum sent to the agency’s regional administrators directs field inspectors to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act. Inspectors will denote when temporary workers are exposed to safety and health violations and assess whether temporary workers received required training in a language and vocabulary they could understand.  In addition, OSHA has begun working with the American Staffing Association and employers that use staffing agencies, to promote best practices ensuring that temporary workers are protected from job hazards. In recent months, OSHA has received a series of reports about temporary workers suffering fatal injuries – many during their first days on a job. Last week, the department's Bureau of Labor Statistics released new data from the Census of Fatal Occupa

NRCA has released a statement commending the "Gang of Eight" senators for developing a bipartisan immigration reform proposal that increases border security; improves enforcement without burdening employers; provides an avenue for workers to enter the U.S. legally when our economy needs them; and addresses the existing illegal work force.  NRCA looks forward to reviewing the proposed legislation and evaluating its effects on the roofing industry. However, NRCA has serious concerns that the bill in its current form may not resolve key problems plaguing the immigration system.  To read NRCA's statement,  click here . (From NRCA Newletter) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

McGraw-Hill Construction, a division of The McGraw-Hill Cos., New York, has reported construction starts increased 8 percent in March. Total construction starts in March were unchanged compared with March 2012.  "After the slowdown in early 2013, the March improvement for total construction is in line with what's been seen during the past year—that being, an up-and-down pattern around a gradual rising trend," says Robert A. Murray, vice president of economic affairs for McGraw-Hill Construction. "The support for total construction in March came from public works and electric utilities, which bounced back from a particularly weak February. Still, both segments are not expected to register much growth for 2013 as a whole, as public works construction is facing federal budget constraints while electric utility construction is pulling back from the record high achieved in 2012. "Residential building in March paused from its steady increases during the past

To commemorate Workers' Memorial Day, OSHA this week hosted an observance at the U.S. Department of Labor headquarters to honor workers who have died on the job and renew a commitment to making work sites across the country safer. "We can and we must save more lives – with even stronger enforcement, even better training and outreach," Acting Secretary of Labor Seth D. Harris said in  his address . "We must use all our tools to protect every worker – whether English is their first language or not, whether they started yesterday or 30 years ago, whether they're a full-time employee or a temporary or contingent worker." As part of a panel discussion, Michaels joined Chris Owens, executive director of National Employment Law Project, and Alma Couverthie, director of the Welcome Center and Education at CASA de Maryland, to discuss the importance of protecting temporary workers on the job. Family members of fallen workers ref

Other Issues – Here is information on some other bills that are in play this session. Design Professionals – After two or more years of trying, this legislation (CS/SB 286 by Joe Negron, R-Palm City) has passed the legislature, and the effort to have Governor Scott veto the bill (just as Governor Crist did a few years back) is underway. This legislation exempts architects, interior designers, landscape architects, engineers, and geologists from individual liability for damages from negligence within the course and scope of a professional services contract under certain circumstances. It does not exempt such business entities – only the individual licensees. The primary opponents of this legislation were general contractors, trial lawyers, and property owners. Jessica Lunsford – This bill is almost passed the Legislature. HB 21 by Keith Perry (R-Gainesville) has passed the House and is expected to pass the Senate, possibly this week. The legislation requires the Department of Ed

Workers’ Compensation – There are four workers’ compensation related bills making progress this year. Right now, it looks like they will all pass. Here they are with a little description and status report. Drug Repackaging – HB 605 by Matt Hudson (R-Naples) and SB 662 by Alan Hays (R-Umatilla) are this year’s companion bills. The legislation moved very well until their last committee stops and that signaled negotiation hour – we all knew that would be the case. While we have the strongest case for closing the existing loophole, the other side, having given a truckload of cash for campaign contributions, has the attention of political leaders. Because of that, they not only have the leverage to stop the entire business community, but they may even have what it takes to make things worse. The risk of that puts us in a position of needing (more than wanting) to find a compromise to get something on the books to protect us from unacceptable rate increases. The “compromise” is thi

Joseph Rickett, P. E. v. Florida Board of Professional Engineers (DBPR ), Case No. 12-1202RX, Final Order filed on March 1, 2013. Held that petitioner did not have standing to challenge Rules 61G15-19.001(4), 61G15-30-34 and 61G15-36 as being invalid; and, (2) the prosecution of negligence in the practice of engineering, a violation of s. 471.033(1)(g), F. S., outside the framework of s. 553.781, F. S., as an unpromulgated rule. A Notice of Appeal was filed on April 9, 2013 in the First District Court of Appeal. (RPPTL Subcommittee) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Unlicensed Activity – In addition to the increased penalties proposed in the building codes / construction legislation above, there will be $250,000 of unlicensed activity funds (at DBPR) dedicated to additional construction sweeps and stings for the coming fiscal year. This money is part of the $5 taken from each licensure fee. I will try to keep this background short. The $5 taken from licensure fees applies to all licensure categories (not just construction) and the money is thrown into one big pot. Last year, the realtors and the CPAs asked that a certain amount of the money in this pot be dedicated to unlicensed activity for their respective professions. The amounts were roughly proportionate to the number of realtor licensees but not so for CPAs (they took more). This year, they both asked for even more, so it was thought to be a good idea to make a grab for dedicated funding for construction before realtors and CPAs drain all the money (especially since neither profession ha