Local Government Prompt Payment Act. This bill modifies the existing Local Government Prompt Pay Act in an attempt to provide some greater clarity to its requirements and to add incentives/punishments for the local government’s failure to follow it.
The definition of “agent” is added. A local government entity must identify the agent or employee to which the contractor may submit its payment request. This identification must be included in the contract or provided by a separate written notice within 10 days after the award of the contract or issuance of the notice to proceed. This agent is required to date stamp payment requests as received and this commences the time periods for payment or rejection of payment.
The definition of “payment request” is revised to require that everything necessary for completing a request for payment must be included in the contract. The period for payment remains 25 business days after receipt. If the governmental entity fails to respond within the time period, a contractor can deliver an overdue notice. Then if the payment request is not rejected within four business days of the notice, it is deemed accepted. The only exception is for any portion that is fraudulent or misleading.
The requirement for the punch list, completion of which is necessary for payment has been modified to make clear that only a single punch list may be provided by the local government entity. The contract is required to specify the date for the delivery of the punchlist which must be within five days of its preparation.
The final contract completion date must be at least 30 days after delivery of the punchlist. If the punch list is not timely delivered, the contract time for completion must be extended by the number of days that the local government entity delays delivery of the punchlist. No damages may be assessed against the contractor for failure to complete prior to the extended completion date.
It is clarified that neither warranty items nor items not included on the punch list will affect payment of retainage. On the failure of the local government entity to provide the punch list, the contractor may submit a payment request for all remaining retainage and such retainage shall be paid less any amount withheld pursuant to the contract for incomplete or uncorrected work. It must be paid within 20 business days after receipt of a payment request. This is not applicable if the local government entity has provided written notice to contractor specifying the failure of the contractor to meet contract requirements in the development of the punchlist.
In the instance of an improper payment request, the local government entity has 10 days to advise the contractor that it is improper and to set forth the corrective action. The statute has been amended to make it clear that this notice must be in writing.
The law now requires that there be a dispute resolution procedure in the contract or by way of an ordinance. Where it is in an ordinance there must be a reference to it in the contract.
A dispute resolution procedure must be commenced within 45 days from the date the payment request was received by the local government entity and be concluded by final decision of the local government entity within 60 days. If the local government entity does not commence the dispute resolution procedure within the time period required and the contractor sends written notice of the failure, a failure to commence the dispute procedure within four business days after the notice results in mandatory interest from the date the payment request was submitted. If the dispute resolution procedure is not commenced within four business days after the notice, the objection to the payment request or invoice shall be deemed waived. However, the waiver of an objection pursuant to this paragraph does not relieve a contractor of its contractual obligations.
Existing law allows attorney’s fees to the prevailing party only if the court finds that the non-prevailing party withheld any portion of the payment without any reasonable basis in law or fact. This bill amends that section to make it clear that attorney’s fees are payable to the prevailing party regardless.
SB 1964 Design Professionals
This bill created Section 558.035 and abolished any claim against an architect, landscape architect, interior designer engineer or surveyor in tort for recovery of economic damages where the parties have entered into a contract. This bill was vetoed by the Governor.
HB 7157 Sales Tax Exemption for Materials Used In a Public Project
Public bodies are exempt from sales taxes on purchases by the public body. However, because building materials used in a public project are purchased by the contractors they are subject to the sales tax. For a public body to get the benefit of the exemption, it must directly purchase the materials. This bill works to protect the contractor where an owner direct purchase is used. The contractor is now protected from a later claim by the Department of Revenue that the process did not meet the requirements for the tax exemption. If this is the case, the owner not the contractor will now be liable for the sales tax. To get this protection, it is important that a tax exemption certificate be obtained.
SB 982 Underground Facility Damage Prevention and Safety
Chapter 556 of Florida Statutes established a system requiring any persons intending to engage in excavations or demolition activities must provide notice of this intent to allow operators of underground facilities the opportunity to identify and locate their underground facilities to prevent damage or injury. This is presently handled by the Sunshine State One Call System.
Under this bill local governments may not adopt or enforce ordinances or rules that conflict with the provisions of this act. Nor may they require operators of underground facilities to obtain permits from the local government; require pre-marking or marking; specify the types of paint or other marking devices that are used to identify underground facilities; or require removal of marks.
A provision has been added to provide that where the excavation or demolition is to be beneath the waters of the state, then notice must given not less than 10 full business days before beginning the excavation or demolition. This compares with the two full business days for excavation or demolition on land.
New civil infractions have been added for falsely notifying the One Call System of an emergency situation or condition, or failure to follow low impact marking practices. The civil penalty has been increased from $250 to $500.
The clerk of the court is now obligated to submit a report to the One Call System listing each violation notice that has been issued for civil infractions for the preceding calendar year.
A new section has been added relating to low impact marking practices. When a notice of intent to excavate has been provided, the excavator shall identify only the area that will be excavated during the 30 day period that the information of such notice is considered valid. If the excavation is not completed within that time period additional notice must be provided.
Where an excavation site cannot be described sufficiently to enable a utility owner to ascertain the site, the excavator is required to premark the proposed area of the excavation before the utility is required to identify the route of its underground facilities. In identifying the route of underground facilities, use of flags or stakes or temporary nonpermanent paint or other industry accepted low impact marking practices are required.
The One Call System is required to create a voluntary alternative dispute resolution to resolve disputes between excavators and utilities for damages that arise from the work.
A section relating to high priority subsurface installations has been created. These are defined as underground gas pipelines, pipelines transporting gasoline, jet fuel, or hazardous or highly volatile liquid such as anhydrous ammonia or carbon dioxide. Where an excavator gives notice of intent to excavate within 15 feet of the route of a high priority subsurface installation, the operator must not only identify the route of the piping, but must notify the excavator that it is a high priority subsurface installation. This triggers an obligation for an excavator to notify the operator of the planned excavation start date and time before beginning the excavation. If there is an incident relating to such pipelines, a fine of up to $50,000 may be imposed.
HB 663 Building Safety
This is a very large bill that covers a multitude of matters. Among the subjects addressed are termination of homesteads, upgrading of elevators to add firefighter services controls, regulating home inspection services and mold assessment and remediation services, among others.
- Section 196.031, Florida Statutes is amended to remove the homestead exemption where a homesteaded property has not been rebuilt within three years after damage or destruction.
- Elevators are regulated by the Division of Hotels and Restaurants within the Department of Business and Professional Regulation. Section 399.02 is amended to permit the Division to have reasonable access to all buildings, rooms, or spaces where elevators or their equipment are located. The division may now grant variances for undue hardship and sets forth the requirement for the processing of such requests.
- Current law requires that all elevators meeting certain criteria be upgraded to provide firefighter services controls. This requirement has been delayed until July 1, 2015, or until the elevator is replaced or requires major modifications, whichever occurs first. An alternative is also created allowing use of a uniform lockbox containing keys to all elevators. The lockbox must be keyed to allow opening with the master key for the emergency responders.
- The same language is also found in HB 1035.
- Section 455.2122 and 455.2123 have been amended to require approval of distance learning courses for real estate professionals, appraisers, community association managers, home inspectors and mold assessors and remediators.
Building Permit Surcharge
- Presently there is a one-half cent per square foot surcharge on building permits for use in licensing and regulation of building code administrators and inspectors. Any excess funds are to be placed in the Homeowner’s Construction Recovery Fund within the DBPR.
- This bill revises Sections 468.631 by changing the surcharge to 1.5 percent of the permit fees associated with enforcement of the Florida Building Code with a minimum surcharge of $2.00 per permit. The local government retains 10 percent to fund participation in the building code promulgation process and to provide education in code enforcement.
- The remaining funds are allocated equally between the Construction Recovery Fund and the Building Code Administrators and Inspections Board. Local governments must begin remitting the surcharge as revised no later than December 31, 2010 for the previous quarter.
- Section 468.83 is modified to clarify requirements for licensing as a home inspector. A requirement and procedure for performing background checks has been added.
- The requirement for a certificate of authorization for a corporation or partnership to offer home inspection services has been deleted. This is consistent with the previous revisions deleting requirements for certificates of authority for contractors.
- Licensing requirements for home inspectors become effective July 1, 2011.
- There is a provision for grandfathering existing home inspectors, provided an application is submitted on or before March 1, 2011 which shows the applicant is certified as a home inspector by a state or national association that required passing a written examination and completing 14 hours of verifiable education in such services or has three years experience as a home inspector at the time of application and completed 14 hours of verifiable education. To establish the three years of experience an applicant must submit at least 120 home inspection reports prepared by the applicant.
Mold Related Services.
- The mold related services licensing program within the DBPR is clarified. It covers both mold assessment and mold remediation.
- A two-year degree had been required, but an equivalent to the two-year degree with at least 30 hours in microbiology, engineering, architecture, industrial hygiene, occupational safety or a related field may be substituted for the degree. The same equivalent is applicable to a mold assessor as well.
- A requirement for a background check is established for mold assessors or remediators.
- Insurance coverage is required for licensing including general liability and errors and omissions coverage for both preliminary and post remediation mold assessment in an amount not less than $1 Million Dollars.
- The requirement for certificates of authorization for partnerships and corporations has been deleted.
- The licensing requirements become effective July 1, 2011.
- Grandfathering in existing mold assessors or mold remediators will be permitted, but it requires certification by a state of national association requiring an examination on mold assessment or mold remediation and at least 60 hours of education on mold assessment, or at least 30 hours of education on mold remediation as applicable.
- For manufactured buildings there has been some confusion over certification processes. Certification is handled by the DBPR as distinguished from local building officials. This contemplated repeated construction of the same approved manufactured building. What had not been addressed were custom or one-of-a-kind prototypes. The statute has now been amended to provide that these are not required to have state approval but must be in compliance with the local building department requirements.
- Recertification of a manufactured building that is being moved has now been changed to be required only when it is being moved to a site that has a higher design wind speed.
Building Permit Surcharge.
- In addition to the surcharge addressed above, there is presently a one-half cent per square foot surcharge on building permits for use in licensing and regulation of building code administrators and inspectors. Any excess funds are to be placed in the Homeowner’s Construction Recovery Fund within the DBPR.
- This bill revises Sections 553.721 by changing the surcharge to 1.5% of the permit fees associated with enforcement of the Florida Building Code with a minimum surcharge of $2.00 per permit. The local government retains 10 percent to fund participation in the building code promulgation process and to provide education in code enforcement.
- The remaining funds are to be used by the Department of Community Affairs and the Florida Building Code to carry out their duties related to the Building Code. Local governments must begin remitting the surcharge as revised no later than December 31, 2010 for the previous quarter.
- At the present, counties and municipalities are not permitted to adopt any ordinances modifying the Florida Building Code without a burdensome and lengthy process. This has eased somewhat but only for modifications that are necessary to implement the national flood insurance program or its incentives.
- The Florida Building Commission is required to update the Florida Building Code every three years. The update must be based on the most current versions of the International Building Codes and the National Electric Codes.
- The requirement that the applicable model building code version be available to the public at least six months prior to its selection by the Commission has been deleted.
- No agency or local government may require the removal of roof mounted equipment until the units must be replace.
- The Florida Building Commission is not allowed to adopt the portion of the International Residential Code relating to mandated fire sprinklers for one and two family homes.
- It is no longer a conflict of interest for a member of a Florida Building Commission’s Technical Advisory Committee to represent someone before the Florida Building Commission provided that such person may not participate in decisions that will result in a direct financial benefit to them.
- Under the Florida Building Code requests may be made for binding or nonbinding interpretations of the application of the building code. A fee of $125 for a request for nonbinding interpretation has been established. The $250 fee for binding review has been retained.
- The core curriculum requirements for continuing education for contractors on the technical portions of the code have been deleted.
- Under the Florida Building Code there is a process for product evaluations and approval. It is now required that an application for state approval of a product be approved by the department after it has been verified that the application and related documentation are complete. The verification must be completed within ten business days.
- The International Association of Plumbing and Mechanical Officials Evaluation Service has been statutorily approved to perform product evaluations required by the Florida Building Code.
- Exposed mechanical equipment or appliances fastened to a roof or installed on the ground in compliance with the code using rated stands, platforms, curbs, slabs or other means are deemed to comply with the wind resistance requirements of the 2007 Florida Building Code. Further support or enclosure is not required. This provision expires on the effective date of the 2010 Florida Building Code.
- Under certain circumstances carbon monoxide alarms are required. Section 553.885 has been clarified as how and when such alarms are required and may be used.
- Florida law provides that insurance companies must provide discounts on insurance if the homeowner has performed certain wind storm mitigation projects. Licensed home inspectors may issue such mitigation verification forms provided that they have at least three hours of training in hurricane mitigation requirements. Home inspectors must complete two hours of continuing education as a requirement for license renewal. A disciplinary process is established for anyone who fraudulently completes a mitigation inspection form.
- In Section 633.021, definitions of fire equipment dealers with classes A through D were inserted.
- In Section 633.0215 a process for obtaining an expedited declaratory statement relating to interpretations of the Florida Fire Prevention Code by the State Fire Marshal has been established. This is similar to that existing under the Florida Building Code. Expedited means within 45 days after receipt of the request. It must be limited to a single question that can be answered either with a yes or no. The response must be published in the Florida Administrative Weekly.
In Section 633.026 a process for obtaining a nonbinding interpretation of the Fire Code is also established. A Florida Fire Code Interpretation Committee is to be organized to handle these. Responses to the non-binding request must be within ten business days
- A condominium of one or two stories in height with exterior corridors providing a means of egress is exempt from installing a manual fire alarm system as required in the most recent edition of the life safety code.
- Section 633.025 has been amended to provide that change of use of a property to rental property does not trigger a requirement to install fire sprinklers.
- This bill repeals Subsection 6 of Section 718.113 which required that a condominium of greater than three stories in height had to be inspected every five years by an architect or engineer who would provide a report on required maintenance, useful life and replacement costs of the common elements.
SB 846 Residential Fire Sprinkler Requirements.
Florida has established a statewide Florida Building Code which replaced the multitude of building codes for counties and cities previously in existence. The Florida Building Commission was established to update the building code every three years. The update of the building code is based on codes promulgated by the International Building Congress. The most recent version of the International Residential Code would require fire sprinklers to be installed in one family and two family residential dwellings and townhouses effective January 1, 2011. This bill mandates that this provision may not be incorporated into the Florida Building Code and may not be adopted as a local amendment to the Florida Building Code. The same language also appears in HB 663.
Further, a local government entity may not require installation of fire sprinklers in any residential property based on the use of the property as a rental property or any change in or reclassification of the property’s primary use to a rental property. This act takes effect upon the coming law.
HB1035 Elevator Safety.
Elevators are regulated by the Division of Hotels and Restaurants within the Department of Business and Professional Regulation. Section 399.02 is amended to permit the Division to have reasonable access to all buildings, rooms, or spaces where elevators or their equipment are located. The division may now grant variances for undue hardship and sets forth the requirement for the processing at such request.
Current law requires that all elevators meeting certain criteria be upgraded to provide firefighter services controls. This requirement has been delayed until July 1, 2015, or until the elevator is replaced or requires major modifications, whichever occurs first. An alternative is also created allowing use of a uniform lockbox containing keys to all elevators. The lockbox must be keyed to allow opening with the master key for the emergency responders.
The same language also appears in HB 663.
Also added are additional disciplinary actions that may be taken against certified elevator inspectors. These include failing to maintain inspector credentials in good standing; having a license acted against or denied by the licensing authority of another state, territory or county; or engaging in fraud or deceit, negligence, incompetency, or misconduct in the practice of the profession.
Section 399.16 is created to identify unlicensed activities in connection with elevators. A fine up to $1,000 per violation is established for each day that a violation continues.
A certified elevator inspector must annually register with DBPR and provide proof of completion of eight hours of continuing education, proof of good standing, and proof of general liability insurance coverage.
SB 550 Environmental Protection.
This is a massive 171 page bill addressing water supply policy, planning, production and funding; meeting EPA requirements relating to nutrient discharge; and alternate water supply developments among many other items.
A program is established commencing January 1, 2011 for an onsite sewage treatment and disposal system evaluation program. All septic tanks will be required to have a system evaluation at least every five years to assess the operational condition of the system and identify any failures within the system. Evaluation or pump outs must be performed by a septic tank contractor or master septic tank contractor registered under Part 3 of Chapter 489, a professional engineer with waste water treatment system experience, licensed pursuant to Chapter 471, or an environmental health professional certified under Chapter 381 in the area of onsite sewage treatment and disposal systems evaluation. A fee for the evaluation report will be established.
HB 713 Department of Business and Professional Regulation.
DBPR regulates many more professions than contracting. This bill addresses some issues specific to contractors as well as a number of other professions.
DBPR will be allowed to issue a temporary professional license to the spouse of a member of the armed forces who is on active duty. This temporary license expires six months after the date of issuance and is not renewable.
Section 455.275 sets forth requirements for assuring service of a complaint on a licensee. It requires attempted contact by mail, email, telephone and publication.
This bill also has the same language relating to licensing of home inspection services and mold assessment and remediation as is found in HB 663.
Section 468.8319 has been amended to make it clear that a licensed contractor is not required to have a separate license as a home inspector. However, it authorizes DBPR to adopt rules requiring that if such contractor performs a home inspection and offers to perform any necessary repairs, the contract for repairs must disclose that the homeowner has a right to request competitive bids. Section 468.8419 is also amended to add the same provision for mold assessors.
SB 1118 Docks.
This bill will allow slips at single family homes which contain boat lifts or davits to have a roof placed over the dock.
The permitting authority is directed to adopt a rule which includes special criteria for approving docking facilities that have 10 or fewer slips if the construction and operation will not result in the closure of shellfish waters.
There is also a requirement that the use of online self-certification and other forms of online authorization for appropriate exemptions and permits be expanded.
SB 1136. Fire Safety Inspections.
This bill requires that public entities periodically inspect fire hydrants on public property. It also permits the public bodies to use their employees for such inspections without requiring certifications from the State Fire Marshal.
HB 821. International Arbitration.
International arbitration in Florida is governed by the Florida International Arbitration Act. This bill repeals this Act and substitutes the model International Commercial Arbitration Law which was drafted under the supervision of the United Nations Commission on International Trade Law. It is referred to as the Florida International Commercial Arbitration Act. It is designed to apply primarily in those instances in which there are parties from more than one nation who have agreed that the place of the arbitration will be in Florida.
This Act establishes definitions and procedures for conducting the international arbitration. It does not grant a right to arbitration where arbitration is not permitted by law. The statute requires that a court refers the parties to arbitration where it finds that there is a valid arbitration agreement.
The number of arbitrators is determined by agreement of the parties. If there is no agreement, there will be three arbitrators. Each party is to appointment an arbitrator and those arbitrators are to appoint the third arbitrator. In the event that a party does not appoint their arbitrator or the parties cannot agree on the third arbitrator, the court is empowered to appoint the arbitrator.
A procedure is established to challenge an arbitrator and an arbitrator is obligated to disclose any potential conflicts of interest.
The right to determine whether or not an arbitration agreement confers jurisdiction is one for the arbitration tribunal. The parties then have 30 days to appeal that ruling to a court. The decision by the court on arbitrability is not appealable.
An arbitration panel is empowered to grant interim measures. This includes such things as maintaining or restoring status quo; taking actions to prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice; provide a means for preserving assets out of which a subsequent award may be satisfied; or preserve evidence that may be relevant and material to the resolution of the dispute.
SB 1196. Community Associations.
This is another large bill addressing a multitude of issues for condominium associations and homeowners associations. Its review will generally be limited to impacts on contractors.
The provisions found in HB 663 and HB 1035 limiting modifications of elevators for phase two firefighter services also appears in this bill.
It also has the provision found in exempting condominiums, cooperatives and multi-family residential buildings less than four stories in height with an exterior quarter from being required to install a manual fire alarm system. Compare to HB 663 which has this exemption but only for condominiums of two stories or less.
The time period for retrofitting condominiums with fire sprinkler systems has been extended from 2014 to 2019. A condominium is obligated to commence the fire sprinkler refit by December 31, 2016 to be completed by December 31, 2019. The provision allowing unit owners to vote to forego the retrofitting continues.
When a condominium is occupied by a tenant and the unit owner is delinquent in paying the association, it may require the tenant to make his or her payments to the association. Further, if the tenant fails to make the payments, the association has the authority to evict the tenant.
This bill includes the Distressed Condominium Relief Act. It establishes a definition of a bulk assignee as someone acquiring more than seven condominium units and receives an assignment of some or all of the rights of the developer set forth in the declaration of condominium. A bulk buyer is defined as someone who acquires more than seven condominium units but does not receive an assignment of developer rights. These are exempted from the warranties of the developers under Section 718.203 except for design, construction, development or repair work performed by or on behalf of such bulk assignee. Most of the other turnover duties of a developer are also exempted. For a party to qualify as a bulk assignee or a bulk buyer, the condominium parcels must be acquired before July 1, 2012.