The 60-day legislative session for 2006 is
underway. It will be an interesting session since this is the
last legislative session with Jeb Bush as Governor. There
is also an unexpected budget surplus. There are a
number of construction issues being considered by the
legislature. The summaries of the bills are current as of
the time this went to press. The legislative process is
dynamic so most of these bills will change and a number
of them will not become law.
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In response to the kidnaping and murder of
Jessica Lunsford, by a known sexual predator, the 2005
Legislature passed the Jessica Lunsford Act. This Act
expanded requirements for background screening to
include construction workers among others. The goal, with
which no one can disagree, is to prevent contact between
students and those who would cause them harm.
However, the law of unintended consequences has hit
hard causing a number of problems for both school
districts and contractors in complying with the Act.
Currently, construction personnel who have
access to school grounds when students are present,
must have a Level 2 screening. This screening requires
fingerprinting of each worker and submission of the prints
to the Florida Department of Law Enforcement. The FDLE
then checks the information against State and Federal
offender databases. It can also include a local criminal
records check through local law enforcement agencies.
Interpretations of the Act by the school districts
vary widely. While it arose out of the actions of a sexual
predator, the language is broad enough to include many
other criminal acts. Some school districts have interpreted
the Act such that virtually any criminal conviction, whether
a felony or misdemeanor, is sufficient to bar a worker from
a school site. For example, at least one district has
included DUI on the list of crimes barring workers from a
school site.
An additional problem is that each school district
has adopted different procedures. Workers must go
through the particular screening procedures for each
district. The cost for the screening has been variously
estimated at $50 to $70. However, this does not include
the cost of transporting the worker to be fingerprinted nor
does it include the wages that must be paid to the worker
while going through the process. Many contractors are
taking the position that this is an extra cost of doing the
work and believe that they are entitled to a change order
for such costs.
It has been acknowledged that the problems
caused by the Act need to be addressed. The proposed
bill replaces the existing system with one that uses driver’s
licenses to identify sex offenders. New drivers’ licenses
will be issued to sex offenders and have references to the
particular Florida Statute that was violated. The driver’s
license will be used as an identification card to control
access to school grounds. Where there is no driver’s
license, an identification card issued by the DMV can be
obtained. W orkers who do not have a Florida driver’s
license or identification card will be allowed on a site, but
they must be under the immediate supervision of a school
district employee at all times.
In addition, under the proposed bill employers will
have the obligation to check the names of the workers
against the National Sex Offender Public Registry. The
employer will then provide the school district with an
affidavit certifying that the contractor has examined the
Florida driver’s license or identification card and that only
employees who have been so examined will be working on
school grounds. This affidavit would be valid for the period
covered by the contract for the work or one year,
whichever is shorter.
However, the Bill does allow a school
superintendent to impose the requirements of the level 2
screening. This is somewhat mitigated by restricting the
fee that the school district can charge to the total of the
fees which would be assessed by the agencies providing
the screening and fingerprinting. This Act would take
effect July 1, 2006.
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A statute of limitations sets the time period within
which a lawsuit must be brought or it will be forever
barred. Construction lawsuits (except for matters relating
to bonds) are governed by a four year statute of limitations
running from the date of discovery of the defect. For
example, if the roof begins to leak as a result of defective
design or construction, the owner would have four years
from the date the leak started in which to file suit.
However, the ability to file a suit is cut off after a period of
fifteen years regardless of the date of discovery. This
fifteen year cutoff is known as the statute of repose.
This bill would shorten the statute of repose to ten
years. Because the average statute of repose for
construction in other states is eight years, amendments
are expected to reduce Florida’s statute to eight years.
Under Section 718.203 of the Florida Statutes the
developer, general contractor, subcontractors and
suppliers are obligated to provide certain warranties to
condominium purchasers. It is not clear whether these
statutory warranties are applicable to conversions.
This bill address these warranty issues where
there is a conversion of an existing building to a
condominium. This bill recognizes the unfairness of
imposing the added obligations arising under the
condominium warranty statute without the contractor’s
knowledge. This bill makes it clear that those warranties
will apply only to a building that was designated as a
condominium by the developer in the construction
contract.
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Presently Chapter 558 of the Florida Statues
establishes a procedure requiring that an owner of
residential property give notice of a construction defect to
the contractor and an opportunity to investigate and if it
may be responsible for correcting the defect. There have
been problems caused by owners proceeding with repairs
without the contractor’s knowledge, then bringing suit to
recover the cost of the repairs from the contractor. This
bill extends the notice and opportunity to repair to cover
commercial property. In both the present and proposed
law a statutory notice must be included in the contract
between the owner and contractor.
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This bill imposes new requirements on those
holding themselves out as home inspectors. It does not
establish a state licensing requirement. It defines a “home
inspector” and “home inspection” and among other things
it requires an 80 hour course of study together with an
examination on various components of a home. It also
requires eight hours of continuing education each year.
A home inspector would have to provide a
disclosure to the consumer prior to a home inspection.
Among other things it would tell the consumer that home
inspectors are not regulated by any State agency but any
violation of the Section is considered an unfair and
deceptive trade practice. This bill would require business
entities providing the inspection services, to only employ
home inspectors who meet all of the requirements to
qualify as a home inspector. It will exempt licensed
construction contractors, architects, engineers, building
code administrators, plans examiners or building code
inspectors and licensed real estate appraisers from its
requirements. This bill will prevent the home inspector
from performing any repairs to a home which has been
inspected. It will also prohibit referral fees from owners
and brokers. Violations will be misdemeanors, rising to a
felony for repeat violations. It will also require that the
home inspector maintain commercial general liability
insurance coverage of not less than $300,000.00.
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The present law allows a person who is not certified or
registered as a contractor to engage in contracting
provided that the work is under the supervision of a
licensed person. This Bill would allow some unlicensed
contractors to work under the supervision of a property
owner who is acting as his or her own contractor. This
would not apply to those trades that are licensed by the
State, such as roofers and electricians.
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A contractor who purchases and installs building
materials is responsible for paying the sales tax on the
materials. However, a number of school boards have
established procedures to buy the materials themselves
since they are exempt from the sales tax. The materials
are then turned over to the contractor for installation. The
process is quite cumbersome and difficult for the
contractor to administer since it usually involves purchases
that would have been made by subcontractors. This bill
would allow a direct exemption for the contractor or
subcontractor for materials purchased for use in public
pre-kindergarten or elementary school construction.
Similar bills have been proposed for the last
several years, but they have been defeated because of the
revenue that the State would expect to lose. This bill is a
compromise that allows the direct sales tax exemption
only for public, pre-kindergarten and elementary school
construction projects.
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This bill would authorize the Florida Building
Commission to update the wind design standards. It would
also authorize amendment of the Florida Building Code
between the mandated triennial updates, but only to
address conflicts within the Code, conflicts between the
Code and the Florida Fire Prevention Code, to address
Florida specific amendments, or to address unintended
results from the integration of Florida specific
amendments adopted with the model codes.
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There have been instances where a
subcontractor provides a general contractor an insurance
certificate that does not comply with contract
requirements. The general contractor then fails to raise
any objection to the noncompliant certificate until work
had been performed by the subcontractor. The general
contractor then demands compliant certificates and uses
that as a basis for refusing to pay the subcontractor for
the work performed. This bill address that by establishing
procedures for rejection of the noncompliant insurance
certificate but requires payment for all work performed up
to the time of rejection. The noncompliant certificates
could still be used as a basis for refusing to pay for the
work where it does not comply with the insurance
coverage limits, is fraudulent, has been cancelled or not
renewed.
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This bill would establish licensing requirements
for those who do mold assessments or mold remediation
work. This bill is similar to one which passed the House
and Senate last year, but was vetoed by the Governor
primarily because he felt some other requirements were
too restrictive. The bill has been modified in an attempt to
meet the Governor’s prior objections. This differs
somewhat from the typical construction licensing
procedures by allowing proof of certification by an
organization that requires the same testing and
examination that the licensing board would require. Other
than that, the regulatory scheme is similar to existing
licensing requirements such as requiring qualifying agents
for a business entity, allowing for financially responsible
officers and secondary qualifying agents. It also impose
continuing education requirements and establishes
disciplinary procedures.
Contractors licensed under Chapter 489 or
licensed engineers, architects and interior designers are
exempt from the requirements when they are engaged in
mold related activities incidental to services within the
scope of their respective licenses.
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This bill makes some minor changes to the Lien
Law, mostly by authorizing electronic filing and some
notices. It has been a third degree felony to furnish a false
affidavit to induce payment. This bill makes false waivers
or releases of liens a crime.
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Brian and Steve will again be teaching at a
number of seminars which meet the continuing education
requirements of the Construction and Electrical Licensing
Boards.
Contractor’s Institute - (877) 542-3673
Contractor’s Education Academy - (813) 289-2975
Associated Builders & Contractors - (813) 879-8064
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