The Gulf Coast Chapter of the Associated
Builders and Contractors named Steve Marlowe
its Member of the Year for 1999. The ABC chose
Steve for this prestigious award because of his
dedicated service during the past year. Among
his many good deeds, Steve has served as chairman
of its Legislative Committee which entailed several
trips to Tallahassee to lobby legislators on construction
related legislation, serving as Chairman of Programs
Committee, and on the Board of Directors. Congratulations,
Steve.
 To
Top
Joe McNabb has recently been appointed
the Chapter Counsel for the American Subcontractors
Association, Florida Gulf Coast Chapter. Joe has
been a member of ASA since 1998. As Chapter Counsel,
he will provide legal advice regarding the operation
of the Florida Gulf Coast Chapter.
To
Top
The American Arbitration Association
recently selected Steve Marlowe to serve on its
Panel for Large Complex Construction Cases serving
Central and Northern Florida. The Panel consists
of 16 highly respected lawyers in the field of
construction law, who will be used as arbitrators
for large, complex construction cases. AAA's criteria
included name recognition, knowledge of subject,
respect, fairness, demeanor and intellectual horse
power. Steve recently completed a day long construction
arbitration workshop sponsored by the AAA.
Joe McNabb, one of the authors of
State-by-State Guide to Architect, Engineer, and
Contractor Licensing, published by Aspen Law &
Business, 1999. Joe wrote the chapter on Florida
licensing requirements. The 2000 supplement was
recently published, making this publication an
up-to-date guide to the licensing laws of the
50 states.
To Top
Under Federal law, projects by the
U.S. Government are required to be bonded. This
requirement is embodied in what is called the
Miller Act. For the first time in some time, Congress
has made modifications to the Miller Act. While
these changes are not major, they are generally
contractor friendly.
Under the old version of the act,
any notices had to be provided by mailing by registered
mail. This has been changed to provide that notice
can be delivered by any means which provides written
third party verification of delivery. This would
include overnight delivery services such as Fed
Ex.
Unlike Florida law, a contractor
or subcontractor could waive rights to claim under
a Miller Act bond in advance of the payment becoming
due. In other words, a contract could contain
a waiver of any rights under the Miller Act. The
law now provides that any waiver is valid only
after work has commenced. Note that this is still
different from Florida law.
The payment bond provision by requiring
the payment bond to be equal to the amount of
the contract. The only exception is if the contracting
officer makes a written determination supported
by specific findings that the amount is impractical.
In any event, the payment bond must be at least
in the amount of the performance bond.
If you have any questions about
these changes or the application of the Miller
Act, please give us a call.
To Top
Effective October 1, 1999, making
contracts that contain provisions requiring legal
actions involving Florida contractors, subcontractors,
sub-subcontractors, or material-men to be brought
outside this state are void as a matter of public
policy. §47.025, Florida Statutes. Contractors,
subcontractors, sub-subcontractors, or materialmen
providing improvements to real property in this
state for multi-state owners or contractors may
not be forced to litigate outside the State of
Florida.
Arbitration agreements that contain
provisions requiring arbitration to be conducted
outside the state are subject to similar provisions.
Florida courts have refused to enforce such agreements
under the Florida Arbitration Act, stating that
if the parties agree to arbitrate their dispute
outside the state, then they do not intend to
arbitrate under the provisions of the Florida
Arbitration Act. See Damora v. Stresscon International,
Inc., 324 So. 2d 80 (Fla. 1975). In essence, the
Florida courts have held that arbitration agreements
calling for arbitration outside the state are
voidable.
Up to this point, a Florida contractor
or subcontractor may assume that it would never
be forced to litigate or arbitrate outside the
State of Florida for work done inside the state.
However, there is still a possibility that construction
contracts containing provisions for arbitration
outside the state will be enforceable if the contract
falls under the Federal Arbitration Act, 9 U.S.C.A.
§2.
The United States Supreme Court
has ruled that the Federal Arbitration Act preempts
state law and that state courts may not apply
state statutes that invalidate arbitration agreements
that are subject to the Federal Arbitration Act.
Southland Corp. v. Keating, 465 U.S. 1, 15 and
16 (1967). This means if you are involved in a
project that affects interstate commerce, and
your contract contains an arbitration provision
making it mandatory that disputes be arbitrated
outside the state, the agreement would not be
enforced under the Florida Arbitration Code, but
instead, would be enforceable under the Federal
Arbitration Act and you would be required to submit
to arbitration outside the state.
What kind of a project would affect interstate commerce? The Supreme Court has answered this question by stating that the reaches of the Federal Arbitration Act are broad and that, in passing the Federal Arbitration Act, Congress intended to exercise its Commerce Clause powers to the full. Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995). In Allied-Bruce Terminix, the Supreme Court found that a contract between a national termite treatment company and a local Alabama homeowner involved interstate commerce, because the termite treatment company was a multi-state company and the material used in the treatment came from outside the State of Alabama.
In other examinations of the powers
of Congress under the Commerce Clause, the Supreme
Court has ruled that since motels and hotels have
a significant impact on interstate commerce, Congress
possesses ample power under the Commerce Clause
of the Constitution to declare robberies against
hotels a federal offense and to pass the Civil
Rights Act of 1964 prohibiting racial discrimination
by motels and hotels. It would necessarily follow
that the Federal Arbitration Act would apply to
contracts involving construction work on hotels
or motels.
It is easy to see that a contractor
could work on a project, which appears to have
nothing to do with interstate commerce, but which
is later found by a court to directly affect interstate
commerce. Therefore, when entering into contracts
with multi-state owners or contractors, whose
contracts contain provisions requiring arbitration
outside the State of Florida, you should be aware
that you may not be protected by section 47.025
or by the Florida courts' application of the Florida
Arbitration Code. Unless you are willing to arbitrate
disputes involving such contracts outside the
state, you may wish to negotiate the arbitration
provision prior to signing the contracts.
By providing the above information,
it is not our intent to convey a negative opinion
on the arbitration of disputes. We believe that
arbitration is an excellent, efficient, and inexpensive
method (when compared to litigation) of resolving
disputes. Our only intent is to let you know that,
in spite of the efforts made by the Legislature
and the Florida courts to assist Florida contractors,
by requiring legal action to take place in this
state, there are still some situations in which
you may be required to travel outside the state
to resolve the dispute.
To Top
Marlowe McNabb & Stayton, P.A. is a fully
staffed, fully automated law practice, with its
main emphasis in Commercial Construction Law.
Both Mr. Marlowe and Mr. McNabb have had many
years of experience practicing law with a large
Tampa firm, and provide clients with more than
30 years of collective experience in handling
construction related disputes. We offer pre-litigation
construction dispute counseling, negotiation and
preparation of construction contracts and alternative
dispute resolution, including construction workouts,
mediation and arbitration. We have extensive experience
in all types of construction disputes as well
as Construction Liens, Surety Law, Construction
Claims, Construction Defects and Performance and
Payment Bonds.
In November, our landlord informed us he had better use for our office space so we were forced to relocate. Never missing a step, we just picked up and moved down the block to our new location. The new address is 324 South Hyde Park Avenue, Suite 210. Our offices are more efficient than our previous ones, and we are very pleased with our new space. Our phone and fax numbers remain the same. Stop by and visit us when you're in the neighborhood.
We also provide Business and Commercial
Law and Corporate representation services, such
as negotiating and preparing contracts, non-compete
agreements, leases, buy-sell, and other agreements,
including purchase and sale of businesses, and
the preparation of corporate documents.
Visit our Web Site at www.marlowefirm.com,
where you will find construction industry related
information. Also available is an extensive listing
of lien forms which may be downloaded in either
Word or Word Perfect format.
Our mission is to establish a relationship
with our clients centered on the individual needs
of each client, using the most current, cost-effective
tools available to effectively and efficiently
solve our clients' problems.
If you need additional information, please contact
our office and we will be happy to assist
you.
To
Top
|
