Florida Construction Law

As of January 2013 there were approximately 600 claims totaling $1 million against the Florida Homeowners’ Construction Recovery Fund.   This fund was established to compensate homeowners for losses caused by state licensed contractors.   DBPR is given authority to transfer money it determines is not necessary to fund the Florida Building Code Administrators and Inspectors Board to the recovery fund.   Because excess funds have built up, it is expected that DBPR will transfer $5 million from this board to the recovery fund this year and approximately $1.2 million annually in subsequent years.   This bill has been approved by the Governor and took effect October 1, 2013. (From HCBA Legislative Review )

From DBPR: To All Interested Parties: RE:     2010 Florida Building Code Outcome of the June 12, 2012 - Rule Development Workshop Glitch Supplements to the 2010 the Florida Building Code This is to inform you that the actions and the outcomes from the June 12, 2012 rule development workshop regarding the proposed glitch code changes are now available from the link below. http://www.floridabuilding.org/fbc/thecode/FBC_2009_Icode_Supplement.htm To continue to address certain inconsistencies in the 2010 Florida Building Code including the applications of the 30% of assessed value language pertaining to renovations and the affirmative obligation for energy efficiency requirements for change outs, whether they be windows, AC units, swimming pool pumps or other particular items; an additional rule development workshop will be held in conjunction with the August 6-7, 2012 Commission meeting. Written comments regarding the proposed rule will be accepted through ...

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

Section 489.121, Florida Statutes, provides: "I f an incomplete contract exists at the time of death of a contractor, the contract may be completed by any person even though not certified or registered. Such person shall notify the board, within 30 days after the death of the contractor, of his or her name and address, knowledge of the contract, and ability to complete it. If the board approves, he or she may proceed with the contract. For purposes of this section, an incomplete contract is one which has been awarded to, or entered into by, the contractor before his or her death, or on which he or she was the low bidder and the contract is subsequently awarded to him or her, regardless of whether any actual work has commenced under the contract before the contractor’s death." Trenton H. Cotney Florida Bar Certified in Construction Law www.trentcotney.com

In Piper v. DBPR/ECLB, 50 So.3d 109 (Fla. 1st DCA 2010), the Court stated: "Although Appellant raises three issues on appeal, this opinion only addresses whether the final order incorrectly listed Appellant's unfavorable credit history as a ground for denial of his application. It is clear from the transcript of the hearing the Board was satisfied with Appellant's explanation regarding his finances and, thus, Appellant's credit history was not a basis for denial of the application. Because the error is apparent from the record, we remand for the Board to correct the error by amended final order." Although the opinion is not lengthy, there is some suggestion that an adequate justification may help applicants for licensure avoid rejection based on unfavorable credit history. 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

Final Order Declaratory Statement was issued in DS 2010-055, filed on September 22, 2010 , In Re: Malcolm Drilling Company, Inc ., holding that a subcontractor who was not required to have a Division II license for foundation boring and soil stabilization on the Miami Access Tunnel, did not need a Division I license pursuant to s. 489.113(2) where all work was to be performed under the supervision of a licensed Division I contractor. For full text of the Petition for this Declaratory Statement see Vol. 36, No. 30, of the July 30, 2010 Florida Administrative Weekly. Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com/

Blanco v. Department of Business and Professional Regulation (Council of Community Association Managers) , Case No 10-2905 RX (a rule challenge): Final Order of August 23, 2010, declares invalid Rule 61E14-2.001(5), regarding “Control of Others,” for lack of specific statutory rulemaking authority, in an administrative action against an employer for violations committed by employees. In addition, pursuant to s. 120.595(3), the ALJ found that the licensee would be entitled to an award of reasonable attorney’s fees, pending a hearing to determine if the agency “demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust,” as provided in that statute. While there do not appear to be any similar “control by others” rules governing licensees of the various construction regulatory boards, this case may be the basis for a new defense in administrative disciplinary actions against a construction licensee for violations committed...

DBPR/CILB v. Millman , Case No 10-2463: Recommended order of August 27, 2010, recommends that the CILB impose only a $500 fine for non-payment of a judgment against a Division I contractor in favor of a supplier, and rejects a proposed “restitution” for lack of statutory authority, except as to a “consumer." Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com/  

Earth Trades v. T & G , 35 Fla. L. Weekly D1937b (August 27, 2010): General contractor’s alleged knowledge that subcontractor was unlicensed would not be an affirmative defense for owner under section 489.128, F. S., as amended in 2003 to add subsection (3), which provides, in part: “The section shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien or bond remedies.” 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

MM II v. Silvester , Florida 4th DCA (August 18, 2010): In a breach of contract dispute between homeowner and installer of audio equipment, it was determined that NO contractor or electrical contractor license was required even though the audio wiring involves low voltage electricity. Accordingly, the contractor was NOT “unlicensed” and could enforce the contract. 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 by the Florida CILB on February 3, 2011, responding to a Petition for Declaratory Statement received on July 12, 2010, from Jacqueline Watts, interpreting s. 489.105(3)(f), (g), (i) and (m), F. S., and determining that installing and servicing of LP gas appliance, including disconnection, reconnection and repair, are within the scope of an Air Conditioning (A and B), Mechanical and Plumbing licenses. 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

Carlos M. Arteaga v. Florida Department of Business and Professional Regulation, Regulatory Council of Community Association Managers , Case No 3D10-1419, L.T. Case No. 07-68175, filed February 16, 2011: Licensed community association manager responded to service of an administrative complaint by faxing an election of rights form to the department requesting a formal hearing on charges that he had violated the practice act. While the licensee’s signature on the form was notarized dated within the required 21-day response time, which was the same date licensee claims to have faxed the form, there was no fax confirmation report and the department denied ever receiving it; as a result. After licensee moved to vacate a “final order on wavier” revoking his license, he filed a protective notice of appeal; however, the appeal was dismissed based on a joint stipulation to vacate the order, subject to DBPR approval. While DBPR subsequently disapproved that stipulation, it did not object to the...