New
Web site. Our web site has recently been
expanded and updated with a new look and a new
logo. We are very pleased with the results because
it is easier to navigate and contains additional
information about our firm, as well as a search
capacity. Visit us at www.marlowemcnabb.com.
We welcome your comments.
In
the News. Our firm was featured in a Special
Report on technology in the practice of law in
the May 23, 2003 issue of The Business Journal.
SiteLogic Corporation was also featured as the
company that updated our new web site and designed
the new logo.
Joe
McNabb has been awarded an AV rating from
Martindale-Hubbell, joining a select group of
attorneys who are recognized for their legal expertise
and professional stature. Congratulations, Joe!
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The 2003 Florida Legislature accomplished
less than any session in recent memory. Many construction
bills failed because of a lack of cooperation
between the House and Senate. Important legislation
dealing with retainage reform, building codes
and product approval, owner controlled insurance
programs, certificates of insurance and statutory
bond forms were the victims. However, several
important construction-related bills were passed
in the regular session. In the special session,
which was held after the regular session adjourned,
the workers' compensation reform bill was passed.
Following is a summary of the construction related
bills that were passed:
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This bill is designed to rectify
several bad decisions interpreting Section 489.128
of the Florida Statutes. One court opinion in
particular provided that all contracts on a construction
project were unenforceable if any contractor on
the job was unlicensed. The legislation that was
passed ensures that when a contractor or subcontractor
is not licensed, only that contractor loses its
lien and payment rights. The penalties do not
flow upstream or downstream to other persons supplying
labor, services or materials to the project. The
bill clarifies that an individual is unlicensed
if the license does not cover the scope of work
to be performed under the contract. A business
organization is unlicensed if it fails to have
a primary or secondary qualifying agent. Being
"unlicensed" does not include the failure to have
a Certificate of Authority (QB license) or an
occupational license. The bill certifies that
a townhouse is a single-family residence for the
purpose of performing specialty contracting services
without obtaining a local professional license
if the person is supervised by a contractor. The
bill broadens the scope of work for general contractors,
to include any work currently performed by a licensed
underground utility contractor. This bill has
been signed by the Governor and is now in effect.
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This bill increases the notice provisions
of the lien law. It also gives the State Attorney
increased power to prosecute contractors who defraud
the public. Residential contractors must include
a consumer warning in each of their contracts;
requires minor revisions to the statutory Notice
to Owner form to include additional warning language;
requires revision of the statutory Claim of Lien
form to include a new warning at the top of the
form; creates a new statutory form for a Contractor's
Final Payment Affidavit; requires DBPR to include
a statement of owner's rights in the construction
lien law statement they are currently required
to furnish and requires building departments to
mail that statement to any owner making residential
construction improvements; requires lenders to
provide a written notice to borrower prior to
making any loan disbursement to an owner or jointly
to an owner and another party, instructing the
owner to protect themselves by obtaining lien
releases prior to making payments to their contractor;
makes prosecution of contractors who misapply
construction funds easier; and requires a State's
Attorney to notify DBPR when action is instituted
against a contractor for filing a fraudulent lien,
misappropriating funds, or making a false statement.
Effective date: October 1, 2003
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This bill applies only
to residential construction (including
condominiums and apartments). It creates a process
giving homeowners, subsequent purchasers of a
dwelling, tenants, associations, and construction
professionals the opportunity to settle construction
claims before a lawsuit is filed. The owner must
serve notice at least 60 days prior to filing
suit, and must give the contractor, subcontractor,
supplier or design professional the opportunity
to inspect and assess the alleged defect and respond.
An offer can then be made to repair the defect,
in which case the owner must make the property
available at reasonable hours for such repair,
or an offer to compensate can be made or the claim
can be rejected. Time periods are set for these
actions and requires that specific statutory notice
be given by any contractor, subcontractor, supplier
or design professional entering into a contract
for the sale, design, construction or remodeling
of a dwelling. Effective date: May 27, 2003.
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This bill prohibits the "Living
Wage" ordinances that have been passed by several
municipalities. In the bill, local government
can establish a "Living Wage" for its employees
and the employees of vendors to the local government.
However, local governments are prohibited from
requiring employers to pay a minimum wage other
than a federal minimum wage, or from requiring
employers to apply a federal minimum wage to wages
that are exempt under federal law. Effective date:
June 4, 2003.
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This requires older condominiums
to provide fire sprinklers for the common areas,
but still allows the individual units to be exempted
from the retrofit requirement on a two-thirds
vote of the owners. The language was amended onto
an omnibus bill dealing with condominiums, cooperatives
and home associations. Effective date: May 21,
2003.
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During the special session, the Legislature passed a workers’
compensation reform bill in hopes of stabilizing
the workers’ compensation market in Florida.
The bill is predicted to reduce compensation rates
by 12.5% for all employers, with an additional
4% for the construction industry based on new
construction exemption and fraud provisions. It
is hoped that this will cause some insurance carriers
to return to the Florida market. The bill made
sweeping changes to the overall workers’
compensation law. Construction specific provisions
are provided below.
- Provisions passed during
the 2002 legislative session that eliminated
exemptions from commercial projects of $250,000.00
or more have been repealed. Effective January
1, 2004
- Construction industry exemptions
will be limited to three corporate officers
of a corporation or group of affiliated corporations.
In order to qualify for one of the three exemptions,
the corporate officer must be a shareholder
with at least a 10% interest, and must be listed
as an officer with the Division of Corporations,
Department of State.
- A corporate officer claiming
an election to be exempt, must provide a copy
of their stock certificate evidencing at least
10% ownership in the corporation to the Department
along with the other documentation currently
required.
- Independent contractors
and sole proprietors performing services in
the construction industry will be considered
employees of the contractor who hired them unless
they either qualify for the corporate exemption
described above or have secured their own workers’
compensation coverage. The term “independent
contractor” will no longer apply for purposes
of workers’ compensation, to anyone performing
construction services.
- Horizontal immunity has
been restored to the workers’ compensation
system, except in cases where a subcontractor’s
gross negligence was the major contributing
cause of the injury. If a subcontractor carries
the appropriate workers’ compensation
coverage and is not guilty of gross negligence,
it cannot be sued in tort or be responsible
for payment of compensation to another subcontractor
or its employees.
- Any employer who has employees
working at any time within the State of Florida
(even if they return home to another state every
night) must obtain a Florida policy or endorsement
that utilizes Florida’s class codes, rates,
rules and manuals. Failure to comply with this
provision is a second degree felony. This provision
does not apply to an executive supervisor who
periodically visits a Florida work site, but
is not in direct charge of the work at the Florida
location.
- Effective October 1, 2004,
a contractor will have to provide evidence and
certify to its workers’ compensation coverage
at the time application is made for a building
permit. A copy of the insurance certificate,
exemption certificate, or authority to self-insure
is acceptable.
- The definition of “construction
industry” is amended to clarify the exemption
for owner-builders. The provision mirrors language
in chapter 489, which requires that the property
not be sold, resold or leased by the owner-builder
within one year of commencement of the construction.
- The Department of Financial
Services is given the authority to create specific
industrial classification codes and definitions
for the construction industry.
- A contractor is required
to obtain proof of workers’ compensation
coverage or an exemption certificate from any
subcontractor working for that contractor, and
the subcontractor is required to provide it.
If you need additional information on any of these bills, please contact
our office and we will be happy to assist you.
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Classes are approved for Continuing
Education. Call 813-289-2975 to Register. $85.00,
including lunch. Workshop location: 5444 Bay Center
Dr., Ste 130, Tampa, FL. Class time is 8 a.m.
to 4 p.m.
Business Planning Workshop - Steve is part of a team of presenters. His focus is on Dispute Resolution, Mediation, Litigation, Arbitration and Liability Protection, Business Entities, Differences Between a Subcontractor and an Employee, and Construction Liens. The course covers four areas of long term planning: Retirement benefits for you and your key executives; Business continuation and buy/sell agreements; Innovative techniques to recruit and retain employees, and Maximizing business dollars to pay personal expenses.
Risk
Management Workshop - Topics include business
and contractor license liability, corporate protection
and personal exposure, understanding common law
and contract language and clauses, contract liability,
torts, negligence, fraud, employee liability,
workers compensation liability, OHSA regulations,
workplace and general public safety and liability,
indemnity agreements, evaluation insurance policy
provisions, bankruptcy overview, creditor collections,
protecting your personal assets through investment
and requirement programs. This seminar will help
you understand the real risks associated with
the construction industry.
Classes approved for Continuing Education. Call 1-877-542-3673 to register. Or register online at www.contractorsinstitute.com Classes are $89.00, payable to Contractors Institute, 8301 Joliet St., Hudson, FL 34667. Classes are 8 a.m. to 4 p.m.
Risk Management & Legal Liability - Steve updates this seminar annually. It covers the major liability issues found in today's world of contracting. Topics include Contractor License Liability, Asset Protection and Personal Liability, Understanding Contract Language, Torts, Negligence, Fraud, Worker's Compensation Liability, OSHA Regulations, Workplace and General Public Safety and Liability, and Indemnity Agreements; and Evaluating Insurance policy provisions. Workers Compensation, workplace safety and business practice requirements are also included in this seminar.
Dates:
July 10, Hudson; July 23, Clearwater; August 22, Orlando; August 29, Tampa.
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