Florida Construction Law

A final order was issued to Jim Phelps, Phelps Engineering Company, on February 7, 2012, interpreting s. 489.105(3), that a contractor’s license is required for the installation of plastic baffle materials to an existing cooling tower. 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

Chapter 489 requires that a separate entity such as a joint venture must be independently qualified even if both members of the joint venture are licensed.  The forms can be downloaded from www.myfloridalicense.com . 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

An order was filed on March 18, 2011, on the Petition for Declaratory Statement filed by John Lohr, The Red Mountain Group on January 6, 2011, finding that a tower specialty contractor is certified to perform work involving the construction, repair and alternation of an uninhabitable tower, and that additions or attachments that do not affect the structural integrity of a tower are not considered an alteration under Rule 61G4-15.034, FAC. 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/  

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

MGM Construction Services Corp., vs. Travelers Casualty & Surety Co. of America, et al., Case No. 3D10-203, filed March 2, 2011: Summary judgment against an unlicensed subcontractor was reversed and remanded in order to allow the trial court to consider specified public policy factors, where only licensure requirement was pursuant to local county ordinance (Miami-Dade), which, unlike s. 489.128, F. S., did not contain any provision regarding contract non-enforceability. In rejecting the contractor’s argument that a contract entered into in violation of law (the ordinance) was void, the court noted that “in the absence of legislative direction, a hard and fast rule declaring contracts unenforceable is bound to result in inequitable or absurd outcomes in certain situation, and that some flexibility in the decision-making process is required.” Instead, the court noted that s. 489.128(1)(a) had been amended effective October 1, 2009, after the case had begun, to provide that a contrac...

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...