2013 Legislative Review: Part 1

The 2013 Legislative session has come and gone. As usual, there is legislation that will impact members of the construction industry. There seemed to be considerably less political infighting as compared to last year. As a result, more bills were pushed through the system. State revenues have increased with the improvement of the economy which made the legislators’ job easier.

Certainly one of the highlights of the session for contractors working on public school jobs is the modification of the Jessica Lunsford act to set up a uniform system for issuing identification badges to the workers who may come into contact with students.

The discussions of each bill are my initial impressions of the significant aspects of the bills and are necessarily shortened summaries of the full bill so there is not a full review of every matter contained within a bill. If any errors are noted, please bring it our attention so that it can be corrected. As always, Marlowe McNabb is ready to assist you with any questions you may have.

House Bill 21 – Modifications to Jessica Lunsford Act

The Jessica Lunsford Act was passed by the Legislature in 2005. It required security checks for non-instructional personnel in K-12 schools. A wonderful concept, but the execution – not so good. Each school district established its own procedure for issuing the identification badges required. This created an administrative nightmare for contractors doing school work. Each worker had to be separately qualified in each school district in which they worked.

The Department of Education is required to create a uniform state wide identification badge and sets forth the requirements for issuing such badges. They will still be issued by a school district, but only one is needed for any other district. The new badge must be recognized by all school districts. It must be visible at all times that the contractor is on school grounds. The badge will be valid for 5 years. The Department of Education will set the fees for issuing a badge.

Of course nothing is ever easy. There are still issues to be worked out such as what to do when a locally issued badge expires before the state system is in full operation.

This bill has been approved by the Governor and is now in effect.

 HB 21 – Modifications to Jessica Lunsford Act

House Bill 85 – Public Private Partnership

A template for the use of public private partnerships (PPP) for public use facilities is established. It is the intent of the Legislature to encourage investment in the state by private entities and to provide the greatest possible flexibility to public and private entities contracting for the provision of public services. A task force is established to recommend guidelines to the Legislature for the purpose of creating a uniform process for establishing PPP. The final report is due July 1, 2014.

Procedures for a public entity to deal with unsolicited proposals or to solicit proposals from private parties for qualifying projects are established. It allows for an interim agreement before entering into a final comprehensive agreement with a private entity.

This bill has been approved by the Governor and is now in effect.

 HB 85 – Public Private Partnership

Senate Bill 286 – Limitation of Liability of Design Professionals

Several years ago the courts held that individual design professionals could be held liable for their malpractice even if they were employed by a business entity which entered into a contract that limited the liability of the company. As a result, design professionals sought protection from the Legislature from suits against individuals. A design professional is defined as someone licensed in Florida as an architect, interior designer, landscape architect, engineer, surveyor or geologist.

Individual design professionals employed by a business entity are not liable for damages resulting from his or her malpractice. To receive this protection, the individual may not be a party to the contract and there must be a prominent statement in the contract that an individual employee is not individually liable for malpractice. The business entity must maintain any professional liability required under the contract. The flaw here is that if no professional liability insurance is required by the contract the individual is exempt from liability and there may be no avenue for recovery of damages.

This protection is limited to those cases where the damages are solely economic in nature and not personal injury or damage to other property. A business entity is broadly defined and even includes a self-employed individual. It is notable that other professionals in the state of Florida are not exempt from individual liability for any malpractice committed while practicing their profession.

This bill has been approved by the Governor and is now in effect.

 SB 286 – Limitation of Liability of Design Professionals

House Bill 269 – Construction Contracting

Counties and municipalities are required to attach a disclaimer to development permits stating that the permit does not create any rights for the applicant to obtain a permit from any other state or federal agency. Counties and municipalities are required to make it a condition of the permit that all other applicable state or federal permits be obtained before commencement of the development.

The responsibilities of the Department of Health relating to onsite sewage treatment are clarified. Evaluation or assessment of an onsite sewage treatment system for a residential remodeling addition of a single family home is limited if a bedroom is not added.

In 2012 the Legislature modified Section 489.113 which requires that a person must be either certified or registered in order to engage in the business of contracting. One exception added at that time is for work under the supervision of a certified or registered contractor within the scope of the supervising contractor’s license although it cannot be work that would require a specialty contractor’s license under Chapter 489. This bill provides that the amendments passed in 2012 are remedial in nature and intended to clarify existing law. This bill applies the amendments retroactively to any action initiated or pending on or after March 23, 2012. Apparently somebody had an issue doing this and was sued. Whoever it was managed to persuade a legislator to help out.

The maximum fine that cities and counties may charge for unlicensed contracting citations rises from $500.00 to $2,000.00 and the civil penalty for unlicensed contracting is increased from $1,000.00 to $2,500.00 per day for each violation. It also increases the percentage of funds the local government retains when they collect unpaid fines and costs ordered by the CILB from 25% to 75%. This will likely act as an incentive to the local governments.

The policy statement that the collection of fines and penalties on contractors are intended to be secondary to the primary goal of obtaining compliance with state laws and local ordinances is deleted. This seems to be a message that there should be more focus on punishment. The requirement that a local agency issue a notice of non-compliance as its first response to a minor violation of a regulatory law and give the violator an opportunity to correct is removed. Now they can go straight to a citation.

The period in which a registered electrical, specialty electrical and alarm system contractor can be grandfathered into state licenses is extended to November 1, 2015.

A new member is added to the Construction Industry Licensing Board. The new member must be a representative of a natural gas distribution system and be actively engaged in the distribution of natural gas in the state.

Section 553.79 is amended to allow electronic copies of a building site plan to be used for a record retention and inspection purposes at the building site as an alternative to hard copies.

As part of the new Florida Building Code, a product approval system was established for certain specified categories of construction products. This bill adds impact protective systems to the categories that must receive product approval.

The approval process using a product evaluation report based upon testing or comparative or rational analysis or a combination thereof from an approved product evaluation entity is added to the processes that must be acted on within ten (10) business days from receipt.

The Florida Energy Efficiency Code for Building Construction is renamed Florida Building Code-Energy Conservation. The Florida Building Energy Efficiency Rating Act has been modified to identify energy rating systems to be used to promote energy efficiency. This is in lieu of a requirement to develop a state-wide rating system. DBPR no longer has any responsibility to adopt, update or maintain a state-wide uniform building energy efficiency rating system.

This bill has been approved by the Governor and is now in effect.

 HB 269 – Construction Contracting

Senate Bill 530 – Revised Florida Arbitration Code

The Florida Arbitration Code (FAC) has been substantially amended. The FAC was passed in 1957 and revised in 1967. Since that time there have been very few changes. A number of items have been added such as the ability of arbitrators to issue provisional remedies, challenges based on problems with proper notices, consolidation of separate arbitration hearings, requiring conflict disclosure by arbitrator and immunity of arbitrators from suit

The conditions upon which a court may consolidate separate arbitration proceedings are set forth. However, the prior provision that a court may not order consolidation if the agreement to arbitrate prohibits consolidation as is typical in AIA contracts is not changed. The conditions required for a court to vacate an award are provided. The provisions where an award may be modified or corrected are set forth. The grounds for appeal of an arbitration ruling are established, but the appeal must be based on actions or inaction by the court as distinguished from the arbitrators.

This bill has been approved by the Governor. The revised arbitration code does not affect an action that has already been commenced or that right to commence the action accrued before the effective date of the bill which is July 1, 2013. Beginning July 1, 2016 any agreement to arbitrate will be subject to the revised code.

 SB 530 – Revised Florida Arbitration Code

House Bill 1309 – Public Records

This bill requires that each public agency (this means state, county, district, authority or municipal officer or department, division, board, bureau, commission or other separate unit of government created or established by law) to include in the contracts with any contractor a requirement that the contractor comply with the public records law. This includes maintaining public records, providing the public with access to these records and insuring that public records that are exempt from public disclosure are not disclosed. This applies to a contractor who is “acting on behalf of the public agency.” This appears to mean situations where the public agency contracts work that would normally be done by the public agency. An example of this is the Florida Board of Engineers which contracts out its investigation and disciplinary procedures to a private contractor. That contractor would now be subject to the public record law.

All grant managers and contract managers responsible for contracts in excess of $100,000.00 annually will be required to become certified contract managers within twenty-four (24) months after establishment of the training and certification requirement by the Department of Management Services and the Department of Financial Services.

After the state enters into a contract, the Chief Financial Officer is required to audit the contract and contract manager’s records to assure that adequate internal controls are in place for complying with the terms and conditions of the contract and for the validation and receipt of goods and services.

This bill has been approved by the Governor and is now in effect.

 HB 1309 – Public Records

House Bill 7019 – Development Permits

In 2011 the Legislature passed The Community Planning Act. This act prohibited local governments from adopting initiative or referendum processes for development orders, comprehensive plan amendments or map amendments. This bill makes this retroactive to June 1, 2011.

Much of this bill addresses regulation of communication facilities within high speed rail systems. It also authorizes leasing of commercial developments that are connected to professional sports franchise facilities. The deadline for permit holders to notify the authorizing agency that they want to utilize the two year extension provided in 2011 has been extended.

This bill has been approved by the Governor and is now in effect.

 HB 7019 – Development Permits

House Bill 999 – Environmental Regulation

This is pretty much an early Christmas present for developers. The legislative staff analysis took the position that the bill has significant negative fiscal impact on state government and a significant positive fiscal impact on the private sector. This bill contains a wide variety of provisions including:

Allowing the Department of Environmental Protection to require or incentivize electronic transmission of forms, documents, fees or other reports relating to state lands and resources.

A county or municipality can request additional information from an applicant for a development permit no more than three times.

The Board of Trustees of the Internal Improvement Trust Fund is authorized to issue leases or letters of consent to special events promoters such boat shows and sets limits on the length of the use and the duration of a lease.

The Department of Environmental Protection is authorized to issue general permits for mooring fields for boats. This bill increases the size of mooring fields under such general permit to 100 vessels.

It prohibits Water Management Districts from reducing water allocations as a result of bringing sea water desalination plants online.

The Department of Environmental Protection is directed to authorize water management districts to issue permits for the location, construction, repair and abandonment of water wells. It hands over licensing of water well contractors to the water management districts and forbids anyone else from requiring any other license.

It forbids classifying land as a wetland where it is created solely by the unauthorized flooding or interference with the natural flow of surface, but requests for this exemption must be made within seven years after the flooding or interference begins.

It specifies that a permit is not required for the restoration of sea walls at their present locations or upland or within 18 inches instead of 12 inches waterward of their previous locations.

This bill has been approved by the Governor and is now in effect.

 HB 999 – Environmental Regulation

Florida Bar
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