Florida Construction Law

U.S. manufacturing increased in July and the manufacturing sector expanded for the second consecutive month, according to a report from the Institute for Supply Management (ISM).  ISM's manufacturing index rose from 50.9 in June to 55.4 in July. A reading above 50 indicates growth, and a reading below 50 indicates a contraction.  Thirteen of the 18 major manufacturing industries reported growth in July, including furniture and related products; textile mills; printing and related support activities; paper products; wood products; nonmetallic mineral products; electrical equipment, appliances and components; computer and electronic products; food, beverage and tobacco products; primary metals; transportation equipment; chemical products; and fabricated metal products.  Additionally, the employment index increased from 48.7 in June to 54.4 in July, and production increased from 53.4 to 65. New orders increased from 51.9 to 58.3.  "The purchasing managers' index (

The Department of Labor (DOL) announced in its July 3 regulatory agenda that it will be indefinitely suspending previous wage calculation methods for H-2B temporary worker visas – which have been blocked both in federal courts and on Capitol Hill – and moving forward with its “emergency” interim final rule issued in April in conjunction with the Department of Homeland Security (DHS). The interim final rule became effective April 24, when it was issued. The interim final rule uses the average wage from all four tiers of the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey. It also permits employers to use wages calculated under the Davis-Bacon Act but does not require such wage rates unless the H-2B workers are working on a federal construction project. In addition, the rule requires union signatories to pay the wage rates stipulated in their respective collective bargaining agreements—a provision that remains unchanged from previous rules. ABC oppos

The Environmental Protection Agency (EPA) continues to move forward with a potential rulemaking that would expand the existing Lead Paint Renovation and Repair and Painting rule to include public and commercial buildings. The proposed rulemaking, which likely would regulate renovation, repair and painting activities on and in public and commercial buildings to address possible lead-based paint hazards, is listed on EPA’s regulatory agenda for July 2015. ABC, as part of the Commercial Properties Coalition, aired their concerns regarding the possible rule June 26 during an EPA public hearing. The coalition reiterated many of the points from their April 1 comments, stating that EPA should not rely on the information that was gathered for “target housing” to justify a public and commercial program. Instead, the agency could use the massive stock of federal buildings to collect the scientific, technical and work practices they are seeking. Post-Construction Stormwater Also on

According to OSHA’s latest semiannual regulatory agenda, released July 3, the agency plans to issue two new proposals related to recordkeeping and cranes and derricks in construction. The regulatory agenda lists the priorities of the administration and the rulemakings they expect to release this year; however, OSHA is not required to adhere to the timeline. Recordkeeping New to OSHA’s agenda is a proposed rule with a target release date of November, which would amend its recordkeeping regulations. The proposal would, “clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.”  According to the agency, if the employer fails to create a record when first required to do so, the duty does not expire. OSHA’s timing of the new rulemaking is notable in light of a recent recordkeeping case involving an ABC member, in which the U.S. District Court of Appeals for the District of Columbia ruled that a company’s failur

The U.S. House of Representatives July 25 passed in a bipartisan vote of 265-155 to pass the Coal Residuals Reuse and Management Act (H.R. 2218), which would establish a baseline for coal combustion residuals (CCR) disposal while maximizing flexibility for individual states. In a letter sent to all members of the House, ABC expressed support for the bill because it would help Congress reclaim some of the regulatory authority that has been usurped in recent years by the Environmental Protection Agency (EPA). In particular, ABC expressed concern that a proposed EPA regulation could lead to the labeling of CCRs as hazardous waste, which would virtually eliminate the construction industry’s ability to use them in many building materials. The construction industry is the primary end user of CCRs. More than 40 percent of all CCR output is converted into high-quality building materials, such as concrete, asphalt, brick and wallboard. If CCRs are no longer available, manufacturers

The U.S. Court of Appeals for the Fourth Circuit agreed with two other courts July 17 by ruling the president violated the Constitution when he bypassed the U.S. Senate to make recess appointments to the National Labor Relations Board (NLRB). In the original case, the U.S. Court of Appeals for the D.C. Circuit ruled Jan. 25 that the president’s January 2012 recess appointments of three members to the NLRB were invalid, supporting the argument made by the ABC-led Coalition for a Democratic Workplace. On May 16, the U.S. Court of Appeals for the Third Circuit issued another ruling that agreed with the January decision and also declared the March 2010 recess appointment of Craig Becker unconstitutional. Despite the initial court ruling, President Obama re-nominated two out of the three unconstitutional recess appointees in February. The nominations were withdrawn July 16 and new members were nominated as part of a deal to avert a plan to radically change long-standing rules of

The White House corporate tax reform proposal unveiled July 30 by President Barack Obama in Chattanooga, Tenn., is no ‘grand bargain,’ said ABC. Obama’s plan consists of the same corporate tax cuts proposed last year paired with new stimulus spending for infrastructure and manufacturing paid for with one-time tax revenue. “Corporate-only rate reduction does not amount to business tax reform,” said ABC Vice President of Federal Affairs Geoff Burr stated. “The president’s plan not only widens the existing gap between Main Street and the Fortune 500, but would actually mean billions of dollars in increased taxes for construction contractors.” In fact, 80 percent of the construction industry is comprised of pass-through entities and the majority of the private-sector workforce also is employed under these tax structures. The president’s plan did not contain any meaningful reform for those businesses or their employees. “A tax cut for large corporations financed on the backs of

Nonresidential fixed investment in structures expanded 4.6 percent on an annualized basis during the second quarter of 2013, according to the July 31 gross domestic product (GDP) report by the U.S. Commerce Department. This increase followed a 4.6 percent decline in the first quarter of the year. Fixed investment in equipment rose 4.1 percent in the second quarter and overall investment in structures expanded 6.8 percent. Residential fixed investment increased 13.4 percent following 12.5 percent expansion in the first quarter. Fixed investment in the nation’s residential sector has been growing at a double-digit clip since the third quarter of 2012. Personal consumption expenditures expanded 1.8 percent in the second quarter, with spending on goods rising 3.4 percent. Expenditures on services, on the other hand, advanced only slightly at 0.9 percent. Expansion in real private inventories contributed 0.4 percentage points to real GDP growth for the second quarter after adding 0

The seasonally adjusted producer price index (PPI) for materials and components used in construction fell 0.1 percent in June from May, according to  www.abc.org . The PPI program measures the average change over time in the selling prices received by domestic producers for their output.  The index was up 1.5 percent on a yearly basis. Nonresidential construction materials prices were unchanged in June, rose 0.1 percent for the quarter and increased 1.2 percent during the past 12 months.  "With the global economy beginning to tread water, the good news is materials prices are unlikely to rise significantly during the next several months," says Associated Builders and Contractors Chief Economist Anirban Basu. "However, even as global economic growth slows, equity and certain other asset prices have been on the rise due in large measure to accommodative monetary policy.  "It is always possible that investors will begin to shift greater focus toward commoditie

McGraw-Hill Construction, a division of The McGraw-Hill Cos., New York, has reported construction starts decreased 1 percent in June. Total construction starts in June were down 2 percent compared with June 2012.  "The first half of 2013 revealed a mixed performance by project type, producing a hesitant pattern for total construction starts," says Robert A. Murray, vice president of economic affairs for McGraw-Hill Construction. "On the plus side, the housing market continues to strengthen, and it should be able to register further gains this year even with the recent hike in mortgage rates. Commercial building continues to slowly advance, and public works construction to this point has not seen much dampening as the result of the sequester.  "However, on the negative side, the retreat for institutional building has turned out to be steeper than expected; manufacturing plant construction has weakened; and new electric utility starts have plunged from last year

NRCA University will offer NRCA University Webinar: Obamacare: Understanding the Myths and Mandates Aug. 15 at noon CST.  Various effective dates are approaching for the Affordable Care Act, also known as Obamacare. The one-hour webinar will address the confusing requirements, allowing you to fully understand how health care reform will affect you and your business.  The webinar will be presented by Dewitt Smith, vice president of sales at National General Insurance (formerly GMAC), the A-rated insurance carrier and parent company of The Association Benefits Solution, NRCA's partner for the NRCA National Health Care Program.  The webinar is free for members and $55 for nonmembers. For more information or to register,  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

A public workshop will be held on August 22, 2013, beginning at 8:30 at the Hilton Ft Lauderdale Beach Resort.  Regarding rule 61G20-1.001, adopting annual “glitch” amendments to the 2010 Florida Building code will be considered by the Florida Building Commission during this public workshop.  Proposed changes to rules 61G20- 3.001, 3.002, and 3.007 will also be a subject at this workshop.  The proposed changes are to have the new product category ‘impact protective systems’ to include applications for product approval using product evaluation reports from evaluation entities, other than from licensed engineers or architects. (From RPPTL Subcommittee, Florida Building Commission section) 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) July 11 released guidance on the one-year delay of the employer shared responsibility provisions (or employer mandate) and information reporting requirements in the Patient Protection and Affordable Care Act (PPACA). The delay was originally announced July 2 by the Treasury Department in a blog post. The IRS guidance includes Q&As discussing the transition relief for 2014. Both the information reporting and the employer mandate will be fully effective for 2015.  Please note the transition relief for the information reporting and employer mandate has no effect on the effective date or application of other PPACA provisions. On July 9, ABC sent a letter advocating for full repeal of the employer mandate in response to a U.S. House of Representatives subcommittee hearing titled, “Delay of the Employer Mandate.” “It is important to note the employer mandate tax penalties are only delayed—the employer mandate provision is not repealed,” A

In response to concerns that the changes in LEED v4 were too abrupt, USGBC announced last year that it would ease into it, with project teams allowed to register for either LEED v4 or LEED 2009 until June 1, 2015. In addition, projects registered under LEED 2009 will be allowed to complete the certification process under that system as long as they do so before it “sunsets,” which could happen as late as 2021.  USGBC is trying to attract new projects to the system by offering free certification for the first Platinum LEED v4 projects.  In addition, USGBC is planning to have LEED online forms, updated LEED credentialing exams, reference guides and educational offerings ready by the conference.  To help members understand LEED v4,  ABC is hosting a webinar Sept. 24 at 2 p.m. (ET),  that will provide an update of the development process, a general overview of the technical changes proposed and information of specific interest to the chapter. It will also include an early look a

Last month Florida’s First District Court of Appeals held that certain portions of the Florida Workman’s Compensation Statutes are unconstitutional.  Florida Statute 440.105(3)(c) and 440.34 no longer prohibit a claimant from paying an attorney for legal services performed in defense against an employer or carriers motion to tax costs.  However, this holding is limited to this specific application, the defense of a motion to tax costs.  Additionally, Judges of Compensation Claims’ are not prohibited from approving a fee agreement for the defense of a motion to tax costs under Fla. Stat. 440.34.  In other words, if an employer moves to tax costs against a workman’s compensation claimant, that claimant may hire legal counsel with or without approval from the JCC.  The case is Jacobson v. Southeast Personnel Leasing Inc./ Packard Claim Administration, Inc. , 38 Fla. L. Weekly D1242a. (FL Law Weekly) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A.

The Department of Labor (DOL) on July 3 released its spring regulatory agenda outlining the activities of its sub-agencies for the remainder of 2013, including OSHA. The regulatory agenda lists the priorities of the administration and the rulemakings they expect to release this year; however, OSHA is not required to adhere to the timeline. Crystalline Silica Exposure:   OSHA continues to move forward with a proposed rule which would alter the permissible exposure limits for crystalline silica dust. The proposed rule not only would lower the exposure limits, but also set new requirements on engineering controls and regulated areas. The agenda lists the proposed rule for July; it has been under review at the Office of Management and Budget (OMB) since Feb. 11, 2011. ABC and the construction industry continue to express concerns about the economic and technological feasibility of compliance with such changes and the possibility of inconsistency or conflict with other federal regula

The 10 th United States Circuit Court of Appeals has recently made a decision pertaining to one of the branches of litigation sprung from the Patient Protection and Affordable Care Act, otherwise known as Obamacare.  The Court found that for-profit corporations may be exempt from providing contraception coverage to employees, as is required by Obamacare.  This is because of the first amendment’s freedom of religion clause.  The Court rationed that if corporations are protected and capable of donating as much money to political campaigns as they wish under the free speech clause, then they must also be protected under the freedom of religion clause.  Previously, this protection was only extended to not-for-profit corporations.  The case is Hobby Lobby Stores Inc v. Sebelius , 10th U.S. Circuit Court of Appeals, No. 12-6294. (Reuters Legal) Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentco

The Occupational Safety and Health Administration (OSHA) has announced a new national emphasis program (NEP) to protect workers from serious health effects caused by occupational exposure to isocyanates.  OSHA develops NEPs to focus outreach efforts and inspections on specific hazards in an industry for a three-year period. Through this NEP, OSHA will make efforts to reduce occupational illnesses and deaths by focusing on workplaces in general, construction and maritime industries that use isocyanate compounds.  Isocyanates are chemicals used in materials such as paints, varnishes, auto body repair and building insulation and can cause occupational asthma; irritation of the skin, eyes, nose and throat; and cancer. Deaths have occurred because of asthma and hypersensitivity pneumonitis from isocyanate exposure. Respiratory illnesses also can be caused by isocyanate exposure to the skin. Jobs that involve exposure to isocyanates include spray-on polyurethane manufacturing of produ

The Senate has approved immigration reform legislation (S. 744) that, though positive in many ways, effectively excludes construction employers from participating in a new temporary worker program created by the bill. The Senate bill restricts the number of visas allocated to the construction industry to a maximum of 15,000 annually nationwide; employers in other industries face no similar restriction.  House members will attempt to draft an alternative immigration reform bill in July, and NRCA asks all members to contact their representatives and urge support for immigration legislation that meets the needs of the roofing industry. NRCA supports a temporary worker program that is governed by market forces, protects U.S. workers and enables employers to legally obtain the workers needed to meet business demands.  NRCA has posted an Action Alert urging members to communicate the roofing industry's views and concerns to House members regarding immigration reform legislation. To

OSHA and the NOAA National Weather Service   are teaming up again to prevent heat-related deaths and illnesses. Record-breaking heat the past two years has exacerbated heat-related injuries and fatalities in outdoor workers. With the peak of summer heat beginning, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels and NOAA's National Weather Service Director Dr. Louis Uccellini are reminding employers that heat-related illnesses can be prevented. "Each year, thousands of workers across the country suffer from serious heat-related illnesses," said Michaels. "This can easily be prevented with water, rest, and shade. If outdoor workers take these precautions, it can mean the difference between life and death." In 2011, 4,420 workers experienced heat illnesses and 61 workers died according to the Bureau of Labor Statistics data.  To help prevent heat related deaths and illness among workers, NOAA will continue to include th