Construction Regulation Subcommittee Monthly Report Months of July-August 2016
The Florida
Bar: Real Property, Probate and Trust Law Section
Construction
Law Committee
Construction
Regulation Subcommittee Monthly Report
Months of
July-August 2016
STATE AND FEDERAL
APPELLATE DECISIONS:
Altman Contractors, Inc. v. Crum & Forster
Specialty Insurance Company, 2016 WL 4087782, --- F.3d --- (U.S. Ct. of
Appeals, Eleventh Circuit, 2016). The
District Court held that a chapter 558 notice unambiguously does not trigger
the insurer’s duty to defend or indemnify.
The Eleventh Circuit is “not as sure” and certified the matter to the
Florida Supreme Court.
Great American Insurance Company v. Brewer, et al.,
2016 WL 3640395 (M.D. Fla., Orlando Division).
The trial court granted partial summary judgment to a surety on the
indemnitor’s defense that section 725.06, Fl. Stat., applies to nullify an
indemnity agreement. Section 725.06 does
not apply to a surety as plaintiff because it is not an owner of real property,
or an architect, engineer, general contractor, subcontractor,
sub-subcontractor, or materialman.
Maschmeyer Concrete Company of Florida v. American
Southern Insurance Company, 2016 WL 3746379 (M.D. Fla., Orlando
Division). In a section 255.05 payment
bond case, the trial court held the surety liable on summary judgment. The contract was for an initial term of one
year with a provision to allow the parties to renew the term for up to 60
months. The bond term expressly limited
the surety’s liability to a single term year that was prior to plaintiff’s
provision of materials. The trial court
found that section 255.05(1)(e) rendered the limitation unenforceable. That statute provides in part that “any
provision in [a statutory bond] issued on or after October 1, 2012, . . . which
limits or expands the effective duration of the [statutory bond] . . . is
unenforceable.”
DOAH ORDERS (if
any):
Department of Financial
Services, Division of Workers’ Compensation v. Soler and Son Roofing,
DOAH Case No. 15-7356: Recommended order issued on July 19, 2016. A roofing
company was assessed over $63,000 for having one (1) uninsured worker, with the
penalty calculated based on the department’s statutory “imputation” that the
worker: (1) had been employed for the past two (2) years, and, (2) at the
“average weekly wage” of $841.57 (as determined annually by the Department of
Economic Opportunity). Since the evidence showed that the worker earned only
$10 per hour, which was found to rebut the statutory presumption of the
“average weekly wage,” the Administrative Law Judge determined that the penalty
assessment should have been calculated at only $15,000 (as an alternative to
only a $1,000 fine).
HOWEVER, in addition, even
though the company failed to produce payroll records, the ALJ found that the
department had failed to prove by “clear and convincing evidence” that the
worker had been employed for more than just one (1) day, and rejected the
two-year imputation of employment based on a conflict between the statutory
provisions of section 440.107(7) (d)1, and Rule 69L-6.028(2). In particular,
the ALJ held that the employer’s failure to produce business records was not a
basis for the department to impute a two-year employment period.
By invalidating this rule, the
ALJ then applied the July 1, 2016, effective date change in section
120.57(1)(e), which now provides the authority to invalidate a rule in a 57.105
hearing, and prohibits agency or ALJ action based on an invalid exercise of
delegated legislative authority.
Anticipating, based on prior
decisions, that the department would attempt to make an Exception to this
Conclusion of Law, and override it with a contrary conclusion, the ALJ noted
that this area of law (i.e., determination of rules of evidence) may not be in
the agency’s “substantive jurisdiction” (which, if so, would prevent the agency
from overturning the ALJ’s “conclusion of law” on this point.
Editor’s Note:
This is a very important decision; however, it’s only a “recommended” order,
and must now go to the agency to enter a “final” order; accordingly, we will
continue to monitor this case for any changes the agency may make in its final
order (and for any appellate actions based thereon).
AGENCY
REGULATIONS:
A. Department of Business and Professional
Regulation:
1.
Construction
Industry Licensing Board – Chapter 489, Part I, FS and Chapter 61G4
FAC:
(a)
Rule
Changes (if any):
NOTE: The board will hold a rules workshop on August 12,
2016, in Jacksonville on a Petition for Rulemaking filed by the Florida Pool
and Spa Association, requesting clarification of the scope of a pool
contractor’s license with regard to replacing pool equipment that is operated
by electricity.
Rule 61G4-12.011:
The terms “active experience”
and “proven experience,” and the items of work that are not exempted from
licensure under section 489.103(9) [“casual, minor, or inconsequential], is to
be clarified, but the preliminary text of this rule change is not yet
available.
Rule 61G4-15.001, regarding qualifications for work experience and
verification, has been amended by the board, but have been objected to the
Joint Administrative Procedures Committee (“JAPC”) by letter dated December 15,
2015, and the rule changes are not effective until these objections have been
addressed. In the meantime, the board has postponed changes to this rule.
(b) Petitions
for Declaratory Statement (if any):
Charlie
Deathridge – Petition filed on February 8, 2016, seeking a determination of
the applicability of section 489.105 as it relates to the activities of
installing ground anchors, utility poles and backfilling. By order entered on
July 6, 2016, the board declined to answer because petitioner was not a
substantially affected person and had no standing.
Roger
W. Feicht – Petition filed on February 22, 2016, seeking a determination of
the applicability of sections 455.227 (grounds for discipline) and 489.129
(disciplinary proceedings) based on conduct of a contractor that occurred in
2007, 2008 and 2009. By order entered on July 6, 2016, the board declined to
answer because the petitioner was not substantially affected and did not have
standing.
Larry Carnley – Petition filed on April 5, 2016, seeking a
determination of whether the scope of a pool/spa contractor’s license in
performing electrical work, has not yet been scheduled for hearing.
Editor’s Note: It is not likely that the board will address
this petition in light of the Rules Workshop noted above.
(c) Petitions for Variance or
Waiver (if any):
Richard Albert Stolte – Petition filed on April 12, 2016, seeking a
waiver of the rule requiring a passing score on the Business and Finance Exam.
Nolan Carl Sweeting – Petition filed on May 11, 2016, seeking a
waiver from the building contractor’s license examination until December 31,
2016.
Scott Douglas Chambers – Petition filed on July 15, 2016, seeking a
waiver of the financial responsibility and stability requirements of Rule
61G4-15.006 in order to change the status of the petitioner license to that of
a certified pool/spa servicing contractor.
Editor’s Note: This petition currently holds a
certified pool/spa contractor’s license, so such a change of status is a
“downgrade.”
2.
Electrical
Contracting Licensing Board (includes both electricians and alarm
contractors) – Chapter 489, Part II, FS and 61G6, FAC;
(a)
Rules Changes (if any): None
noticed.
(b)
Petitions for Declaratory Statement (if
any): None noticed.
(c)
Petitions
for Variance or Waiver (if any): Nathan
Macksey – Petition filed on June 23, 2016, seeking a waiver of the rule
that examination scores are valid only for a period of two (2) years.
3.
Board
of Architecture and Interior Design – Chapter 481, Part I, FS and 61G1
FAC:
(a)Rules Changes (if any): None
noticed.
(b)
Petitions
for Declaratory Statement (if any): None noticed.
(c)
Petitions
for Variance or Waiver (if any): None noticed.
4.
Board
of Professional Engineers – Chapter 471, FS and 61G15 FAC:
(a) Rules
Changes (if any):
Rule 61G15-19.004, regarding grounds for disciplinary proceedings
to delete the discretionary phrase “depending on the severity of the offense.”
Rule 61G15-24.001 to reduce licensure fees and established fees for
CE courses.
(b) Petitions
for Declaratory Statement (if any): Mr. and Mrs. Tom Shoquist, seeking
a determination of whether one-site inspections to determine the percentage of
work completed and compliance with drawings and specifications on a new,
permitted construction project, is required to be performed by a licensed
engineer or architect. By order filed on April 14, 2016, the petitioner’s
motion to withdraw this petition was
granted.
(c)
Petitions for Variance or Waiver (if any):
Julian B. Irby – Petition filed on January 19, 2016, seeking a waiver
of Rule 61G15-23.003(1) requiring that engineering documents be signed by
“hand.” By order filed on March 1, 2016, the board granted the waiver based on
undue hardship.
Adriana Jaegerman – Petition filed on January 21, 2016, seeking a
waiver of Rule 61G15-35.000(1) requiring that relevant experience be gained
with seven (7) years of the application. By order filed on February 11, 2016,
the board granted petitioner’s request to withdraw
the petition.
Olof H. Jacobson – Petition filed on May 11, 2016, seeking a waiver
of Rule 61G15-21.001(1) (a) and licensure by endorsement. By order filed on
July 5, 2016, the board granted the petition because the petitioner meet the
purpose of the underlying statute by passage of a state Fundamentals of
Engineering and Principals Exam, which is substantially equivalent to Parts I
and II of the NCEES licensure exam.
Wassin Naguib – Petition filed on May 17, 2016, seeking a waiver of
Rule 61G15-20.007(5) and allowing petitioner to be licensed by endorsement. By order filed on July 5, 2016, the petition was denied for failure to meet the purpose of the underlying statute by other means.
Rule 61G15-20.007(5) and allowing petitioner to be licensed by endorsement. By order filed on July 5, 2016, the petition was denied for failure to meet the purpose of the underlying statute by other means.
David Bush – Petition filed on May 18, 2016, seeking a waiver of
Rule 61G15-21.001(1) (a) and licensure by endorsement. By order filed on July
5, 2016, the board granted the petition because the petitioner meet the purpose
of the underlying statute by passage of a state Fundamentals of Engineering and
Principals Exam, which is substantially equivalent to Parts I and II of the
NCEES licensure exam.
Manoj Tadhani – Petition filed on August 1, 2016, seeking a waiver
from Rule 61G15-20.007(3) requiring that CLEP courses be used to satisfy
educational deficiencies in General Education but not in Math and Basic Science
(to be heard by the board on August 18).
Raghavender Joshi – Petition filed on August 3, 2016 seeking a
waiver of Rule 61G15-20.007(1) (b) requiring that applicants for licensure with
non EAC/ABET accredited degrees demonstrate 9 hours of general education credit
(to be heard by the board on August 18).
5.
Building
Code Administrators and Inspectors Board – Chapter 468, Part XII and
61G19 FAC:
(a)
Rule Changes: (if any): None
noticed.
(b)
Petitions for Declaratory Statement
(if any): None noticed.
(c)
Petitions
for Variance or Waiver (if any): None noticed.
Note: The current Florida Building Code is the 5th
edition (2014).
(a)
Rule
Changes (if any): The commission has announced a series of meetings of
its various Technical Advisory Committees (TACs) for the purpose of taking
public input on changes to the 6th edition (2017) of the Florida
Building Code.
Rule 61G20-1.001, to make changes to the 5th edition
(2014) of the Florida Building Code, effective
June 8, 2016, pursuant to Chapter 2016-129 and Chapter 2016-211, Laws of
Florida. The newly created Energy
Rating Index Workgroup has completed its first meeting and is expected to make
recommendations regarding “onsite renewable power generation” at the
commission’s August 17th meeting in Fort Lauderdale.
(b)
Petition(s)
for Declaratory Statement (if any):
Patriot Plumbing Corp. of USA – seeking a determination of whether
Section 405.3.1 of the Plumbing volume considers the built out on the left
corner of a bathtub to be a sidewall or an obstruction.
Ted Berman & Associates – seeking clarification of Section 1609.1.2, Building volume of whether an opening protection system that is tested and analyzed for load resistance would be within the exemption.
Deco-Flash – seeking clarification as
to whether its products, a hybrid between a window buck and a window flashing,
falls within the scope of Rule 61G20-3.001.
(c)
Petitions
for Variance or Waiver (if any): None noticed.
(d)
Petitions
for Interpretation of Building Code (if any): None noticed.
C. Department of Financial Services:
Important Note: You can check compliance with worker’s
compensation insurance requirements (coverage or exemptions) by name of
company, federal employer ID number, employer policy number, and exemption
holder name or exemption holder SS number at https//:secure.fldfs.com/WCAPPA/Compliance.
Division of Workers’ Compensation – Chapter 440 and 69L FAC:
(a)
Rule
Changes (if any):
Rule 69L-6.028 – clarification of time periods of employer
non-compliance for penalty calculations and imputation of employer’s payroll.
Rule 69L-6.035 – defines remuneration to include expense
reimbursements, and that occurring on the day the stop-work order is issued.
(b)
Petitions
for Declaratory Statement (if any): None noticed.
(c)
Petitions
for Variance or Waiver (if any): None noticed.
Legislative
Action: There is nothing to
report at this time; the next regular legislative session is due to commence on
March 7, 2017
for 60 consecutive calendar days. No bills will be filed prior to the
General Election on November 8, 2016, except Senate Claims bills that are
required to be filed no later than August 1, 2016; as of that date, nine (9)
such bills have been filed.
[1]
The Florida Building Commission is not
allowed to grant variances or waivers from the Florida Building Code, expect as
to handicapped accessibility issues, but is specifically authorized to issue
declaratory statements interpreting sections of the code.
From Real Property, Probate, & Trust Law Section
Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
407 N. Howard Avenue
Suite 100
Tampa, FL 33606
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