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Wednesday, February 6, 2013

FLORIDA CONSTRUCTION LAW LEGISLATIVE UPDATE 2012


HB 0521 Regulation of Cranes

This issue has been before the legislature for several years and finally passed in this session. It amends Section 489.113 of the Florida Statutes to preempt any regulation of hoisting equipment, mobile cranes, conveyors, and tower cranes used in construction. This prevents a patchwork of different regulations by cities and counties. The effect is to make the recent OSHA changes to the rules regulating crane operations as the single standard to be followed. In addition, the prohibitions and preemptions include work site regulations regarding hurricane preparedness or public safety.

Effective Date:  April 2012
  
SB 1202 Construction Liens and Bonds

Section 95.11 was amended to make it clear that payment bonds under Section 255.05 and Chapter 713 as well as payment bonds under Section 337.18 are subject to the one year statute of limitation established in those sections. Payment bonds which are not subject to those sections also have a one year statute of limitation under Section 95.11(5)(e).

For Section 255.05, this bill now:
  • Requires that the bond number assigned by the surety be placed on the first page of the bond.
  •  Requires that the contractor, before commencing work, record the required statutory bond in the official records of the county where the project is located and provide the public entity contracting for the work a certified copy of the recorded bond. The public entity may not make any payments on the project until it receives the certified copy.
  •  Requires the governmental entity having charge of the work to provide a certified copy of the   contract with the general contractor and the recorded bond upon the request of a claimant.
  • Provides, for contracts entered into after October 1, 2012, that any limitation or expansion of the effective duration of the bond or any additional conditions precedent to the enforcement of a claim are unenforceable.
  • Requires that the contractor or its attorney serve a Notice of Contest of Claim Against Payment Bond rather than the Clerk of Court.
  • Changes the requirement that a Notice to Contractor be “delivered” to a requirement that it be “served.”
  • Provides that where the contractor records and furnishes the public entity with a bond and written  consent of surety, the public entity may not condition payment on the production of a release or waiver from a claimant. The surety may revoke its consent by serving written notice on the public entity. This will apply only to contracts entered into on or after October 1, 2012.
Section 255.0518 was amended to:
  • Require that sealed bids for construction work which include prices be opened in a public meeting  and the name and amount of the bid must be announced at that time.
  • Require a public entity to make available, upon request, the name of a bidder and amount of the bid.
For Chapter 713 Part I, this bill:

    Amends 713.10 – Liens on Leaseholds – to make the prohibition of liens on a particular property effective for a leasehold that has a lien prohibition even if some of the other leases on the property do not have language prohibiting liens.

    Amends 713.13 – Notice of Commencement – to delete language in the Notice of Commencement stating that the Notice of Commencement may not expire before the completion of construction and final payment to the contractor.

    Amends 713.132 – Notice of Termination – to require service of the Notice of Termination only upon those who have served a Notice to Owner or who have a direct contract with the owner.

    Amends 713.16 – Demand for copy of contract and statements of account – to require that any request for a sworn statement include a description of the property, the names of the owner, contractor, and the lienor’s customer as set forth in the lienor’s Notice to Owner or for a bonded job, the Notice to Contractor.

    Amends 713.18 – Manner of serving notices and other instruments – to add “common carrier delivery service” and “global express guaranteed” to the methods of service and deleting “overnight or second day delivery. It would allow posting of a notice on a site only when other methods of service cannot be accomplished.

    Amends 713.18 – Manner of serving notices and other instruments – to provide that service of a Notice to Owner or a Notice to Contractor is effective as of the date of mailing if it is sent by one of the specified methods and is mailed within forty days of commencing work and a log of the mailing is maintained.

    Amends 713.18 – Manner of serving notices and other instruments – to allow reformatting a bad address in a Notice of Commencement and use of an address from the building permit application if the address in the Notice of Commencement is bad.

    Amends 713.23 – Payment bond – to provide that where a copy of the bond is not attached to the recorded Notice of Commencement, the Notice to Contractor may be served up to forty-five days after the lienor is served with a copy of the bond.

    Amends 713.23 – Payment bond –  to provide that a Notice to Owner served on a contractor meets the requirement for a 45 day Notice to Contractor.

    Amends 713.23 – Payment bond – to clarify that a combined Notice to Owner and Notice to Contractor may be used and makes minor changes to the statutory form of the Notice to Contractor.

    Amends 713.23 – Payment bond – to provide that where the bond is not recorded before commencement of construction, the time for serving a Notice of Nonpayment may be calculated, at the option of the lienor, as 90 days from final furnishing of labor or material or 90 days after  the lienor is served with a copy of the bond.

    Amends 713.23 – Payment bond – to allow a contractor to serve a Notice of Contest of Bond rather than the current requirement that the Clerk serve it.

    Amends 713.23 – Payment bond – to provide that, for contracts entered into after October 1, 2012,  any limitation or expansion of the effective duration of the bond or any additional conditions precedent to the enforcement of a claim are unenforceable.

    Amends 713.23 – Payment bond – to require that the bond be attached to any Notice of Bond.

    Amends 713.23 – Payment bond – to allow a contractor to serve a Notice of Bond rather than the current requirement that the Clerk serve it.

Effective Date: October 1, 2012

HB 1013 Construction Warranties
A number of years ago, Florida courts created a common law implied warranty for construction called the Warranty of Habitability. This is similar to the implied Warranty of Fitness and implied Warranty of Merchantability that is applicable to goods. The implied part means that it exists as a matter of law as distinguished from a written warranty. The Warranty of Habitability extends only to residential improvements and only to the first purchaser. Several cases have addressed the issue of how far the coverage of this warranty extends. They have held that the warranty only extends to the home or other improvements immediately supporting the home.

In a recent case, this warranty was extended to cover roads and drainage systems that were part of the subdivision improvements where the home in question was located. This Act creates Section 553.835 in the Florida Building Codes section of the statutes and contains legislative findings that this warranty should not extend to “off-site Improvements.” Off-site improvements are defined as the street, road, driveway, sidewalk, drainage, utilities or any other improvement or structure that is not located on or under the lot except for improvements that are shared by two or more separately owned structures that are attached, if such improvements affect the habitability of one or more of the structures.

This act forbids any cause of action by the purchaser of a home or a homeowners’ association for off-site improvements. This does not alter any existing rights of purchasers of homes or homeowners’ associations to pursue any other causes of action arising from defects on offsite improvements based on contract, tort or statute including, but not limited to, Sections 718.203 and 719.203. This act is retroactive which means that it will apply to any pending cases.

Effective Date: July 2, 2012

SB 704 Building Code Bill

This is the glitch building code bill for the Session.  It has the same language as SB 1202 requiring local governments to publicly open and read bids. It also has the same language as HB 387 allowing voluntary electronic filing of construction plans.
 
Among other things, this bill:
  • Defines a “bedroom.”
  • Allows transfer of permits for onsite sewage treatment along with title to the property; provides that an onsite sewage treatment system is not abandoned by disconnection caused by a disaster and that change to an onsite sewage treatment system is not required for a remodeling addition that does not add a bedroom.
  •  Requires use of an electrician for work on solar panels when the local government is participating in the Department of Energy Rooftop Solar Challenge.
  • Adds skylights and related work to the scope of work of a roofing contractor.
  • Allows Class A and Class B Air Conditioning Contractors and Mechanical Contractors to test and evaluate HVAC systems, but mandatory licensing is not established for these services.
  •  Deletes the provision for licensing glass and glazing contractors added last year. This language is also in HB887/SB 1252.
  •  Makes the contractor responsible for the work of an unlicensed subcontractor working under his license.
  •  Exempts reconstruction and repair of hunting cabins from the Building Code under certain conditions.
  • Requires specific identification of reasons for denying or revoking a building permit.
  • Sets up a work group to develop a rule for alternate design of screen enclosures to allow removal to accommodate high wind events.

Effective Date: July 1, 2012

HB 887 Department of Business and Professional Regulation

Up until 2005 there were provisions for registered contractors to be grandfathered in to become certified contractors.  It required a valid registered local license, passing of a written exam substantially similar to the requirements of a certified contractor, at least 5 years of experience as a contractor, no license revocation or suspension and no fine in excess of $500.00 in the previous 5 years and there is compliance with the insurance and financial responsibilities set out in Section 489.115(5).  This has been effectively reenacted by moving the expiration date to November 1, 2014.

Effective Date: October 1, 2012

By: Christina L. Feyen, Esq.

EEOC Provides New Guidance on Criminal Background Checks


             The Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance regarding employers’ criminal background policies, taking a tougher stance against blanket employment policies that automatically reject job candidates with criminal records. The new Enforcement Guidance is rooted in the EEOC’s long-held view that an employer’s use of criminal history information has a tendency to disproportionately and adversely affect minority groups and, thus, violate Title VII.
             Previously, employers had to consider three criteria when making the decision to hire an applicant with a criminal background: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the specific position the applicant has applied for.
            Now the EEOC recommends that employers go through an extensive “individual assessment” on each candidate, including but not limited to, the following criteria:
  • the number of offenses for which the applicant was convicted
  • evidence that the applicant performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct
  • the length and consistency of employment history before and after the offense or conduct
  • rehabilitation efforts, such as education or training
  • employment or character references and other information regarding fitness for the particular position
  • whether the applicant is bonded under a federal, state or local bonding program.
However, if the applicant does not cooperate in providing the background information requested by the employer, the employer can make the hiring decision based on the information at hand.      
     
            Employers who choose to utilize criminal background checks should use the following suggested “best practices” to avoid possible discrimination complaints or lawsuits:
     General Considerations
  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring staff and decision makers about Title VII and its prohibition on employment discrimination.
Develop a Policy
  • Develop a narrowly tailored written applicant screening procedure and policy; identify essential job requirements and determine specific offenses that may demonstrate unfitness for performing such a job.
  • Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment of each potential or current employee’s background report.
Questions About Criminal Records
  • Limit job application inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
Confidentiality
  • Keep information about applicants’ and employees’ criminal records strictly confidential. Only use the information for the purpose for which it was intended.
          Employers should consult an attorney when evaluating or establishing new policies to ensure compliance with any applicable local or state laws.

By: Christina L. Feyen, Esq.