With a Legislature thoroughly dominated by Republicans and a very conservative Governor, one would have expected to see a lot accomplished in the 2011 Legislative Session. However, as it turned out, they are still politicians and can’t help but bicker among themselves. As a result not a lot was accomplished in the way of issues important to most contractors.
HB 331 – Fire Safety Inspections
This bill abolishes the classification of Special State Fire Safety Inspector effective July 1, 2013 and directs that they may no longer perform any fire safety inspections required by law. It then specifies requirements for Special State Fire Safety Inspectors to become qualified as a Fire Safety Inspector. It further provides for fire safety inspections of all schools and ancillary buildings owned or operated by a school board. These inspections must be made within one year after issuance of a certificate of occupancy and annually thereafter. It also requires an annual fire safety inspection for any chartered schools not located on property owned or leased by a school board.
HB 331 Fire Safety Inspections
EFFECTIVE DATE: July 1, 2011
HB 407 – Residential Building Permits
A local enforcement agency or local building code administrator may not inspect the condition of the portions of a one or two family residential not being improved as a condition of approval of a building permit. There are exceptions:
- if it is a substantial improvement as defined Florida Statutes Sec. 161.54 or as it is defined in the Florida Building Code
- if there is a change of occupancy as defined in the Florida Building Code
- if there is a conversion from residential to nonresidential or mixed-use
- if it is an historic building as defined in the Florida Building Code.
- This bill does not prohibit a local enforcement agency from:
- citing a violation inadvertently observed in plain view during the ordinary course of inspection
- inspecting a physically non-adjacent portion of a building that is directly impacted by the construction for which the permit is sought
- inspecting a portion of a building or real property for which the owner or another person having control of the property has voluntarily consented to the inspection of that portion of the property
- inspecting any portion of a building pursuant to an inspection warrant issued according to Florida Statutes Sec. 933.20 – 933.30.
This bill will be automatically repealed if the Secretary of State receives a written certification by the chair of the Florida Building commission that the commission has adopted an amendment to the Florida Building Code substantially identical to this subsection.
HB 407 Residential Building Permits
EFFECTIVE DATE: July 1, 2012 – Note that this is next year.
House Bill 701 – Amendment of the Burt Harris Property Rights Act
The Burt Harris Property Rights Act provides for compensation when a property is “inordinately burdened” as result a regulation or change of use of the property. The Act does not apply where the property is only temporarily impacted. This bill gives guidance on what is to be considered in determining if an impact is temporary. It may be considered an inordinate burden if the temporary impacts as for more than a year. In determining if an inordinate burden exists consideration may be given to the time lapse between the enactment of the law or regulation and its first application to the subject property.
Present law requires that 180 days prior to filing an action against a governmental entity, the property owner must present a claim in writing to that entity. This has now been shortened to 150 days. After a claim is submitted, the Act provides for a number of responses available to the local entity. This bill modifies that to include payment of compensation as one of the authorized responses.
This bill also deals with technical issues relating to when an action may be brought. The one-year limit on the right to bring an action is maintained but the commencement of that limitation is modified by this bill.
This bill also makes it clear that the sovereign immunity of the state is waived for purposes of application of this Act.
HB 701 Burt Harris Property Rights Act
EFFECTIVE DATE: July 1, 2011
House Bill 723 – Reciprocity in Worker’s Compensation
This was a bill that was pushed largely by the Jacksonville Jaguars to deal with players who were seeking Worker’s Compensation benefits from other more liberal states. It also provides that workers from out-of-state who work in Florida will not be required to obtain coverage in Florida, provided that they are covered by their employer in the states were the employer is located.
This exemption applies only if the state in which the employer is located provides the same reciprocity as does Florida. There are currently 11 states which have the reciprocity in place.
An employee is considered to be temporarily in the state it the work extends for no more than 10 consecutive days and no more than 25 total days during a calendar year.
HB 723 Reciprocity Workers Compensation
EFFECTIVE DATE: July 1, 2011
House Bill 849 – Building Construction and Inspection
This bill exempts the updates of the Florida Building Code and changes mandated by federal standards from the requirement that the rules be submitted to the President of the Senate and Speaker of the House prior to the legislative session for approval in the legislative session.
Section 255.252 of the Florida Statutes established a state policy that buildings constructed and financed by the state are to be constructed to comply with the guidelines of one of several green building groups such as the United States Green Building Council, Leadership in Energy and Environmental Design and the Green Building Initiative’s Green Globes Rating System. It adds the International Green Construction Code to this group.
The persons who may be certified as home inspectors by endorsement is expanded to include one who possesses a one and two family dwelling inspector certification issued by the International Code Council or the Southern Building Code Congress International or has been certified as a one and two family dwelling inspector by the Florida Building Code Administrators and Inspectors Board, or possesses a Division I Contractor’s License under Part I of Chapter 489.
This bill allows the representative of the green building industry on the Florida Building Commission to be a person accredited under the International Green Construction Code.
This bill prohibits the Florida Building Commission from adopting rules that limit any of the statutory exceptions or exemptions to coastal construction control and erosion projection requirements.
It amends Florida Statutes Sec. 468.8316 regarding continuing education for home inspectors to add two hours of hurricane mitigation training to the continuing education requirements.
A home inspector is prohibited from performing repairs on a home for which an inspection has been provided.
This bill changes the requirements for licensing home inspectors. To be grandfathered the person must possess a certificate as an inspector issued by the International Code Council or Southern Building Code Congress International or who has been certified as a building inspector by the Florida Building Code administrators or possesses a Division I contractor’s license.
“Glass and glazing contractor” is added to the categories of specialty licenses provided for under Chapter 489 of the Florida Statutes and a definition of glass and glazing contracting is provided.
It modifies Florida Statutes Sec. 514.0315 to add safety features for public swimming pools and spas in the form of anti-entrapment devices. These devices must be installed by a licensed contractor. A variety of methods to accomplish this are available under the statute.
The National Fire Protection Association (NFPA) 58 is also known as the Liquefied Petroleum Gas Code. The NFPA adopted standards which reduced certain setback requirements for LP gas tanks from 10 feet to 5 feet. The Florida regulators had commenced actions to revise their rules to conform to this change but this was stopped by the governor’s order suspending all new regulations. The effect of this bill is to direct that the enforcement conform to the 2011 version of the NFPA 58 providing for the 5 foot setback. The same language is found in HB – 960.
This bill revises provisions relating to the Florida Americans with Disability Accessibility Implementation Act to incorporate the 2010 ADA Standards for Accessible Design.
The Florida Building Commission is required to use the international codes from the International Code Council, the National Electric Code, or other nationally adopted model codes and standards to develop the base building code in Florida.
Provides that the amendments or modification to the foundation code shall remain effective only until there is a new edition of the Building Code. Amendments or modifications related to state agency requirements which are adopted and integrated into an addition of the Florida Building Code shall be carried forward into the next edition of the code subject to modification. Amendments or modifications relating to wind resistance design and structures within the high velocity hurricane zone of Miami Dade and Broward counties do not expire and will carry forward into the next edition of the code.
Requires evidence to support any amendment of the foundation code beyond the needs or regional variations addressed by the foundation code and an explanation as to why the proposed amendment applies to Florida.
It forbids advertising, selling, offering, providing, distributing or marketing of a product as hurricane, wind storm or impact protection from wind-borne debris from hurricane or windstorm unless it has been approved by the Florida Building Commission. To do so is a violation of the Florida Deceptive and Unfair Trade Practices Act.
Requirements of Florida Statute Sec. 553.909 relating to energy efficiency in the commercial or residential swimming pools are deleted and reference to the Florida Energy Efficiency Code for Building Construction is substituted.
HB 849 Building Construction Inspection
EFFECTIVE DATE: July 1, 2011
Senate Bill 142 – Negligence
This bill primarily addresses what are known as crash worthiness cases. These are cases in which there is an accident caused by a third party, but the injured party sues the manufacturer of the product claiming that the product was defective and caused enhanced injuries separate and distinct from that caused by the initial accident. The debate among the courts has been whether evidence of the cause of the initial accident should be admitted into evidence. An example would be a suit against an automobile manufacturer for a defect in the vehicle which caused injuries greater than what would have been caused in the absence of the defect where the accident was initially caused by another driver. The majority view has been that this evidence should be permitted in any trial relating to the alleged defectiveness of the product. Other jurisdictions hold that because the only issue is the enhanced injuries only evidence related to that part of the claim should be admitted. The Florida Supreme Court has adopted the latter position.
This bill reverses the Court’s position and would allow evidence of the causes of the initial accident in a case involving enhanced injuries allegedly caused by the product. It also requires a judge or jury in a products liability case where there is an allegation of enhanced injury, to apportion fault among all of the contributing parties. This bill provides that the changes are to be applied retroactively so it would impact not only future cases but those cases that are currently pending.
It also defines “accident,” “negligence action,” and “products liability action” and requires consideration of the fault of all persons who contributed to an accident when apportioning damages in a products liability action alleging an enhanced injury.
EFFECTIVE DATE: Upon becoming a law
House Bill 985 – Hillsborough County Bonds
This is a local bill applicable only to Hillsborough County. Florida Statutes Sec. 255.05 requires a surety bond on any public construction in excess of $200,000. At present, Hillsborough County is allowed to waive the statutory requirement for a surety bond on for projects up to $500,000. It is designed to allow small businesses to compete for projects in the County. It is limited to no more than five projects per contractor. This is been in effect for some time, but was scheduled to be repealed this year. This bill extends the date of repeal to September 30, 2016.
HB 985 Hillsborough County Bonds
EFFECTIVE DATE: Upon becoming a law
House Bill 7005 – Changes in Unemployment Compensation
This bill requires any claimant for unemployment compensation to complete an initial skills review test as part of establishing eligibility.
The maximum number of weeks of benefits is reduced from 26 to 20 and the benefit amount is capped at between $7,152 and $5,500 depending of the amount of the weekly benefit. The maximum number of weeks of benefit is now tied to the average unemployment rate in Florida. If the rate is 9% or higher, the maximum benefit is 20 weeks. If the unemployment rate is under 5%, the maximum available is 12 weeks. Each half percent increase above 5% in the unemployment rate adds an additional week of benefits.
This bill addresses employee misconduct which may be a defense to payment of unemployment compensation. The current standard requires the employer to prove willful or wanton disregard of rules has been changed to a lower standard of conscious disregard of rules. It also expands the definition of misconduct to include actions that can jeopardize a business ability to remain open such as chronic employee absenteeism or tardiness. In addition, if an employee receives severance pay, benefits will be reduced in an amount based on a formula provided.
The appeals process for the claimant has also been revised and allows use of hearsay evidence to be used in support of other evidence.
HB 7005 Changes in Unemployment Compensation
EFFECTIVE DATE: Upon becoming a law
Senate Bill 410 – Impact Fees
This re-enacts prior legislation that had been voided by the courts based on technical failures in the prior legislation. It places the burden of proof on the governmental body in any action challenging an impact fee it proposes to levy.
It also provides that a court may not defer to the discretion of the governmental body so that the issues will be determined based on the preponderance of the evidence.
EFFECTIVE DATE: Upon becoming a law. It is retroactive to July 1, 2009
House Bill 960 – Liquefied Petroleum Gas
The National Fire Protection Association (NFPA) 58 is also known as the Liquefied Petroleum Gas Code. The NFPA adopted standards which reduced certain setback requirements for LP gas tanks from 10 feet to 5 feet. The Florida regulators had commenced actions to revise their rules to conform to this change but this was stopped by the governor’s order suspending all new regulations. The effect of this bill is to direct that the enforcement conform to the 2011 version of the NFPA 58 providing for the 5 foot setback. The same language is found in HB – 849.
SB 960 Liquefied Petroleum Gas
EFFECTIVE DATE: July 1, 2011
Senate Bill 1196 – Construction Liens on Leasehold Interests
Florida Statute Sec. 713.10 is part of the Florida Construction Lien Law. It provides procedures where leased properties can be exempted from construction liens.
If the lease or a short form for memorandum of the lease, that contains specific language in the lease prohibiting a construction lien, is recorded in the official records of the county where the property is located, it will be exempted from liens arising out of a lessee contracting for leasehold improvements. To be effective, it must be recorded before the Notice of Commencement of the construction is recorded.
The statute sets out the specific requirements of the notice of lease to be recorded. This bill alters it slightly to provide a statement that there are prohibitions for all or a majority of the leases.
It also provides that no liens may be placed on a mobile home park where the mobile home owner is only leasing the lot.
This bill provides that a contractor or lienor under contract to furnish labor, services or materials for improvements to a leasehold interest may serve a written demand on the lessor for a copy of the provision in the lease prohibiting liens. The copy must be verified under Florida Statute Sec 92.525. The demand must identify the lessee and the premises being improved and must be in a document separate from the Notice to Owner. If the lessor fails to respond, the property is subject to a lien unless the contractor had actual notice that the property was not subject to a lien. The notice must contain a prescribed warning of the results of a failure to respond as set out in the statute.
The notice of commencement form has been altered to reflect these changes.
EFFECTIVE DATE: October 1, 2011
The bills that did not pass are as follows:
House Bill 427 – Fair Competition Act
This bill attempted to deal with the granting of preferences to local contractors in the acquisition of construction services by local governments. This would have preempted any granting of preferences.
House Bill 62/Senate Bill 906 – Changes to Jessica Lunsford Act
This bill was intended to make changes to the Jessica Lunsford Act to streamline the background screening now required for contractors working on K through 12 projects while students were present. It would have set up a single screening of a worker in place of the separate screenings required by multiple school boards. This bill would have adopted the screening process already used for concealed weapons permits. It received no action and died in the Education Pre-K – 12 Committee.
Senate Bill 612 – Regulation of Cranes
This bill was intended to provide for uniform regulations for the safe operation of cranes by preempting local governments from establishing a patch work quilt of separate crane regulations. This died in the Community Affairs Committee.
Senate Bill 830 – Paycheck Protection Act
This bill would have stopped payroll deductions by public employees of union dues. This bill died in the Senate.
There were some bills that contractors seemed to be pleased that they did not pass.
House Bill 135 – Modification to the Competitive Consultants Negotiations Act
This bill would have added price considerations to the selection of professional services including Construction Management. This died in the Governmental Operations Committee.
Senate Bill 288 – Limitation of Liability of Design Professionals
This bill would have limited the economic damages that design professionals could be responsible for in construction. This was killed in Regulated Industries Committee by a vote of 8 to 4.
House Bill 13 – Repeal of Septic Tank Inspections
This bill was intended to repeal the septic tank inspection requirements that were put in place in 2010. The program was to take effect on January 1, 2011, but was delayed until July 1, 2011. This bill would have completely repealed any requirements for septic tank inspections. It passed the House but died in the Senate.
Senate Bill 230 and others – Enforcement of Immigration Laws
This bill and others like it started out with a good deal of enthusiasm but the leadership seemed to back away from it under pressure from agricultural and other interests. These bills would have required participation in the Federal Work Authorization Program known as E-Verify among other items. For contractors, the problem with these bills was that they were too punitive if a business hired undocumented workers despite their best efforts to avoid it. In the legislative process, a lot of progress was made in finding acceptable language but time ran out before they could be acted upon.
House Bill 4079 – Repeal of Health Care Facilities Construction Inspections and Plans Submissions
This bill would have repealed the requirement for plans reviews and inspections of health facilities by the Agency for Healthcare Administration. Contractors who do this kind of work were unhappy about this believing that the reviews and inspections system (paid for by the fees charged to contractors) was working well and served to alert contractors to the Agency’s positions on particular aspects of the construction. It does not appear that any action was ever taken on this bill.