UPDATE: The 2011 Florida legislative session has ended. Read Steve Marlowe’s FINAL legislative review here.
Welcome to Marlowe McNabb’s Annual Legislative Preview compiled by Steve Marlowe. Our goal is to keep you apprised of the legislative issues that may affect the construction industry, such as the proposed changes to the Florida Lien Law and limitations of liability for design professionals reviewed in this issue. During this year’s Legislative Session, Steve will be attending the annual Construction Meeting in Tallahassee on March 22 and 23, where he will meet with colleagues interested in the bills that are being proposed and discuss the issues with our representatives. Once the Session concludes, watch for his Annual Legislative Update for reports on the bills that become law.
If you have any questions regarding any of these bills and how they might affect your business, please contact us.
This bill makes a number of changes to Florida Statute 255.05 which governs bonds on public construction projects and Chapter 713 which covers construction liens and bonds for private construction work. A complete description is available here.
The Competitive Consultants Negotiations Act (CCNA) is the vehicle by which public agencies acquire professional architectural, engineering, landscape architecture, surveying and mapping services as well as construction management services. It is a two step process for competitive selection. The first step is for the agency to receive qualifications and, based on these, rank the applicants. The agency then enters into negotiations with the highest ranked firm for the price of the services to be provided. If the parties cannot reach agreement those negotiations are closed and the agency proceeds to negotiations with the next most qualified firm. The statute provides that an agency may request, accept or consider proposals for compensation only during the period of the price negotiations after the ranking has taken place.
This bill would delete the provision restricting the receipt of pricing information to the negotiation phase so that proposed pricing could be considered in the initial ranking process. It would also allow the agency to reopen negotiations with any of the selected firms upon terminating negotiations with another firm. This would allow the agency to negotiate with the top ranked firm and if unsuccessful, negotiate with the second ranked firm. If those negotiations are also unsuccessful, the agency may reopen negotiations with the top ranked firm.
This bill has the potential for converting acquisition of professional services into a hard bid process. It was the recognition that this was not the best way to obtain these types of services that led to this Act in the first place.
This bill would prevent any local ordinance or regulation from granting a preference in the acquisition of personal property or construction services based upon maintaining an office or place of business in a particular local jurisdiction, hiring employees or subcontractors from a particular local jurisdiction, or prior payment of local taxes or assessments within a particular local jurisdiction if state money is involved in the purchase.
This bill would also allow a government agency in Florida to extend a preference where the low bidder has a principal place of business in another state which grants a preference for the purchase of construction services. A preference would be awarded to the low bidder having a principal place of business within the state equal to the preference granted by the state or political subdivision in which the low bidder has its principal place of business.
This bill would shield design professionals from economic damages resulting from a construction defect. This limitation would not apply to claims for personal injury or damage to property other than the property that is the subject of the design contract. This protection would not apply if the contract requires professional liability insurance and the design professional fails to maintain the coverage specified in the contract. This limitation would apply to agreements for services performed after July 1, 2011.
This bill passed the legislature last year, but was vetoed by Governor Crist. It is not known what Governor Scott’s position would be on this bill.
This bill amends the Jessica Lunsford Act which requires background screening for contractors working on school grounds when students are present. The Department of Agriculture and Consumer Services would assume responsibility for background checks and issuance of statewide certificates showing that a person has met the uniform statewide screening requirements. Effectively, this adopts the screening process for concealed weapons permitting that is already operated by the Department.
Any person who possesses one of these certificates would be required, under penalty of perjury, to inform his or her employer within 48 hours of a conviction for a disqualifying offense. The Department would be required to maintain a database and compare that database to the Florida Criminal Information Center database at least every three months through the term of the certificate. If found to be disqualified the Department is to notify the contractor and the school district that the person no longer meets the screening requirements. It imposes a $25 fine payable to the school district if the certificate holder does not have the certificate and proper identification upon demand by a duly authorized school system employee.
This bill would eliminate the separate processes at the 67 school boards in the state for certifying an individual to work on school grounds when students are present.
This bill is one of many that propose to deal with immigration issues. This bill would prohibit state agencies from entering into a contract for services with contractors who are not participating in the federal work authorization program known as E-Verify. It would also require subcontractors to participate in the program as well. The contractor would be required to certify in writing that it is in compliance. The subcontractor is required to certify in writing to the contractor that it is in compliance. There is a phase in period based on the number of employees. However, by July 1, 2014 all contractors and subcontractors must participate.
This bill would also require counties and cities who have jailed anyone charged with a crime to verify if they are legally in the United States. If not, they are obligated to report them to the Department of Homeland Security. This bill would also require verification of lawful presence in the United States for obtaining any state or local public benefits.
There has been a concern that local governments may institute regulation of cranes resulting in a patchwork of different requirements. Miami-Dade County attempted to do this, but was blocked by the federal court from enforcing it. The court ruled that regulation of cranes by OSHA preempted any other regulation. Since that time, OSHA has issued new rules on cranes which may now allow local regulation.
This bill would require an applicant for a building permit for construction, demolition or excavation work using a tower crane or mobile crane to submit a site plan identifying the location of the crane, clearances from power lines, location of adjacent buildings and the structural foundation of the crane to the local building officials. Additionally, documentation of compliance with requirements of all governmental authorities relating to the operation of a crane on the work site including compliance with the lighting requirements of the Federal Aviation Administration must be submitted.
When two or more tower cranes or mobile cranes are operating within the same swing radius a clear radio communication must be established between the cranes. Additionally, a hurricane/ high wind preparedness plan for the cranes must be available for inspection at the site. The bill also specifies what must be done to secure a crane in the event of a hurricane or high wind event.
This bill preempts any local laws or building permit requirements regulating cranes, insuring uniformity of requirements throughout the state.
Florida Statute 489.537 establishes regulations that a city or county may apply to electricians. One allows requiring an electrical journeyman to be present on an industrial or commercial construction site of 50,000 square feet or more or where electrical work in excess of 77 volts is being performed. This bill would reduce that requirement to any construction site of 5,000 square feet or where the electrical work is in excess of 98 volts. Note that the square footage requirement is changed from the square footage of the facility to the square footage of the construction site.
In 2010 the Legislature mandated inspection of septic tanks every five years. This program set forth the requirements for the inspections and identified who could perform them. This was to take effect on January 1, 2011, however, in the November Special Session the Legislature extended the commencement date from January 1, 2011 to July 1, 2011.This bill would completely repeal any requirement for the septic tank inspections.
Related bills SB130, SB82, SB168
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 a procedure for a Special State Fire Safety Inspector 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. This inspection 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.
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.
This bill also expands the group who may be certified as home inspectors by endorsement 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 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 would allow 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 would forbid any building official from conditioning issuance of a residential building permit on inspection of any portion of a building, structure or real property that is not directly related to the construction, erection, alteration, modification, repair or demolition of the building, structure, or real property for which the permit is sought.
This bill would repeal Section 395.0163 of the Florida Statutes. This statute provides for plan reviews and inspections by the Agency for Health Care Administration of all public and private health care facilities. It sets fees to pay for the plan reviews and inspections. Contractors involved in construction of health care facilities are concerned that the failure to have this plan review will cause problems by failing to alert contractors of the agency’s position on particular aspects of the construction. It appears that the fees paid by the contractors for the plan reviews and inspections are sufficient to pay the cost of performing these reviews and inspections.
Other Pending Bills of Interest
This bill would stop the paycheck deductions by public employers of union dues used for political purposes and permit an employee to get a refund of any contributions made to political organizations.
This bill 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.
This bill would require the Public Service Commission to allow water utilities to apply a surcharge for capital costs incurred to enhance water quality, fire protection reliability and long term system reliability. The bill would establish eligibility requirements for imposition of the surcharge. Projects included are water quality improvement, waste water quality improvement, main service line and valve replacement, main cleaning and relining, fire hydrant installation and other items related to maintenance and replacement of utility systems.