Are You One of the Three Types of People/Companies that can File a Construction Lien in Florida?

Most contractors believe that their only claim for a lack of payment is to file a lien and that if the lien right expires they are out of luck for payment. While a lien is a powerful and important payment tool, it is only one of many available to contractors looking to be paid. In reality, a construction lien is a very unique and narrow remedy, only intended to be exercised by certain people or companies and only for certain amounts due to the person filing the lien. Are you one of those people?

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What Does Governor Desantis' New Plan Mean for Construction?

As you probably are aware, yesterday Governor DeSantis rolled out his Phase I for reopening Florida. For the construction industry, the order changes almost nothing. Essential businesses, like construction, are required to continue to follow safety guidelines issued by the CDC and OSHA. If employee screening or the use of personal protective equipment was previously required, it is to continue to be required. You can click here to view a copy of the actual executive order implementing the Governor’s plan. This order goes into effect on Monday, May 4, 2020 at 12:01 am.

Notably, the new executive order does not expressly extend all parts of the initial, state-wide stay at home order that was enacted on April 1, 2020 and expires at 12:01am on May 4, 2020.

The expiration of the state-wide stay at home order, brings the Pinellas County and Hillsborough County orders that are current, into effect. Pinellas County has indicated that it will determine, what, if any amendments to make to its stay-at-home orders tomorrow, May 1, 2020. Hillsborough County has extended government office closures/limitations through May 15, 2020, and is expected to make decisions on what to do with its stay-at-home order sometime today or tomorrow. Neither county’s orders expire automatically; they have to be rescinded by the relevant county.

The bottom line is that if you have already been safely operating your business, you should continue to do that for the forseeable future. If you are not located in Hillsborough County or Pinellas County, you should also check to see if your local municipality has a stay at home order that expires automatically, or will continue in effect after next Monday.

Stay safe out there, and please don’t hesitate to reach out if you have any questions

Now Is the Time to Master These Construction Fundamentals →

Over the last three months, much has been written about COVID-19’s impact on businesses in general and construction specifically, and rightfully so. It’s a once-in-a-century, global event that is disrupting every facet of construction, from employees, to safety protocols, to sales, to the work itself. It’s easy to try to focus only on what it takes to make it through the next day, week or month, but there has never been a better time to prepare the company for what comes next and what will sustain it for the future. 

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Pinellas County Clarifies Essential Businesses; Orders Non-Essential Businesses to Close

Early Friday morning, the Pinellas County Board of County Commissioners passed another executive order, clarifying and altering when and how businesses could operate following the implementation of the statewide stay at home order on Thursday of last week. I have an updated summary of the statewide stay at home order that you can read by clicking here.

The new Pinellas County order, which went into effect April 3, requires businesses that are not essential services or essential activities, as defined in the statewide stay at home order, to close. All businesses that remain open, must implement social distancing and sanitization standards recommended by the CDC to the maximum extent possible. You can view that full order by clicking here.

The latest Pinellas County order is pretty short, but subsequently, the Pinellas County Board of County Commissioners and Pinellas County Sheriff’s Office issued guidance on what businesses are considered non-essential and essential. You can click here to view the full list, but it’s important to note that the Pinellas County lists both indicate that they are not exclusive. So if your business is similar to a business on either list, that should give you an indication of whether Pinellas County considers it official or unofficial.

As you might expect, there appears to be some conflict between the Pinellas County list of non-essential businesses, and the list of businesses that the State of Florida considers essential. First, in these situations, the State of Florida’s list is supposed to prevail and be the controlling list. But, I will give you an example, because Pinellas County will be the entity actually enforcing the distinction between essential and non-essential, so you can likely guess which list they will refer to more often.

So here’s the example, under the Florida-wide stay at home order Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions are considered essential. So are Workers in hardware and building material stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors.

Under the Pinellas County order, décor and lighting sales businesses are listed as non-essential, even though they would seem to fall under the category of providing fixtures or building materials under the statewide list of essential businesses. My suggestion, if you’re in a business that you think could be impacted by the Pinellas County non-essential list, is that you print a copy of the statewide essential business list, and highlight the section you fall under in case you have to deal with anyone from Pinellas County regarding this.

Finally, Pinellas County lists a narrower scope of construction under its essential businesses list than is included in the statewide order. This scope is not intended to be exclusive, but again I suggest keeping a copy of state-wide order listing the essential business categories with you as you travel so that you can justify being out if you are questioned about it. Again, you can access a copy of that by clicking here.

I know some of this is confusing, so please feel free to call me if you have any questions. Stay safe out there!

Governor Desantis Issues Statewide "Stay at Home" Order; Commercial and Residential Construction Still Deemed Essential Businesses

Earlier today Governor Desantis indicated that he would be issuing a 30 day “stay at home” order for Floridians. Similar to the orders issued by Pinellas and Hillsborough County last week, this Florida-wide order allows certain essential industries to continue to operate. Construction is one of the industries, both residential and commercial. What follows is a specific breakdown of Governor Desantis’ order and how it describes the segments of construction that are allowed to continue. A copy of the full order can also be accessed by clicking here. If you have any questions, please do not hesitate to contact me at, and stay safe out there!

Under the order, Essential Services are listed in three separate places: (1) the US Dep’t of Homeland Security’s guidance on critical infrastructure workforce, (2) the businesses and activities listed in Executive Order 20-89, and (3) other essential services approved by the State Coordinating Officer and the State Health Officer.

First, construction is most clearly allowed under item #2 above – the list in Executive Order 20-89, which allows the following construction related activities:

- Contractors and other tradesmen, appliance repair personnel, exterminators, and other service providers who provider services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures;

- Landscape and pool care businesses, including residential landscape and pool care services;

- Open construction sites, irrespective of the type of building;

- Architectural, engineering, or land surveying services.

Second, construction is also allowed under item #1 above. Most of that list can be found at www.cisa.gov, but it can be vague. Many specific types of construction are allowed, for example telecommunications towers. But, under the public works and infrastructure support services, the following are specifically allowed, which should encompass most construction:

- Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions

- Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.

- Workers in hardware and building material stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors.

- Workers performing housing construction related activities

- Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services, etc..

- Workers who support sawmills and the distribution of fiber and forest products, including, but not limited to, timber, paper, and other wood fiber products.

- Workers engaged in energy sector construction

- Workers in the electricity industry (electricians, and many more)

- Workers in natural and liquid propane pipeline construction

- Infrastructure construction

- Workers performing road and line clearing related to transportation, energy, and communications

- Workers ensuring the effective removal, storage, and disposal of residential and commercial solid waste

- Installation, maintenance, and repair of communications and information technology services and hardware

- Workers to ensure the continuity of building functions, including, but not limited to, security, environmental controls (e.g. HVAC), and the permits and inspections for construction supporting these items.

- Workers distributing, servicing, repairing, and installing residential and commercial HVAC systems.

 

Third, the State Coordinator’s list will be available at www.floridadisaster.org and www.floridahealth.gov. Nothing new is listed on either website yet, but you should check there for updates.

As always, feel free to reach out to me at 727-743-1037 or jason.lambert@hwhlaw.com with any questions you have and stay safe out there!

Hillsborough County Issues Safer At Home Order; Most Construction Activities Still Deemed Essential

Earlier today, the Hillsborough County Board of Commissioners voted to issue a “safer-at-home” order requiring people to remain at home, absent certain exceptions. The City of Tampa has posted a great summary of the order, along with many frequently asked questions. You can access that by clicking here.

While the order impacts many businesses, I want to zero in on the impact on construction. First, the order restricts businesses, unless they are engaged in providing Essential Services or conducting Necessary Activities. As an initial matter, the following construction-related professions/businesses are listed as Essential Services:

- Hardware and building supply stores and nurseries

- Pool supply stores

- Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, landscapers, gardeners, pool maintenance, property managers, private security personnel and other service providers who provide services to maintain the safety, sanitation, and essential operation to properties and other essential activities.

Further, the construction and infrastructure are expressly addressed as Essential Services in another section of the City of Tampa’s explanation of the order as follows:

Infrastructure and construction falls within the 1st and 2nd categories of Essential Services, therefore, individuals may travel as necessary to perform work in one of the listed critical infrastructure sectors. For example,

- Construction of new, and renovation/repair of existing, public works projects and private commercial, institutional, retail, and residential buildings and housing

- Airport operations, food supply, concessions, and construction

- Port operations and construction

- Water, wastewater, gas, electrical, oil extraction and refining

- Roads, highways, public transportation and rail

- Solid waste collection and removal

- Flood control and watershed protection

- Internet and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services)

- Manufacturing and distribution companies deemed essential to the supply chains of the above industries

Once a full copy of the order becomes available, I suggest printing and keeping a copy of it with you, so you can show it to anyone who asks if you are engaged in providing Essential Services.

Pinellas County Issues Stay At Home Order, But Finds Constuction to be Essential

In case you hadn’t heard, about an hour ago, the Pinellas County Board of County Commissioners entered a stay-at-home order that closed non-essential businesses. You can view the final version of the order that was voted on by clicking here. The order goes into effect tomorrow. Thankfully, the construction industry was considered an essential industry, and the following businesses are still allowed to operate:

- Hardware, gardening, and building material stores

- Contractors and other tradesmen, building and apartment management and maintenance (including janitorial companies servicing commercial businesses), home security firms, fire and water damage restoration appliance repair personnel, exterminators, and other service providers (such as landscape and pool maintenance service providers) who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures

Most construction work, particularly that being done on an incomplete project, will fit into the category of performing safety, sanitation, or essential operation of residences or other structures. If you are asked about why you are out, you should be able to answer that you are a contractor (or working for one) and that this is the type of work you are doing. Even if your business is not located in Pinellas County, you need to be aware of this if you have any projects in Pinellas County.

Despite this, please take appropriate measures to keep you and your co-workers/employees safe during these times.

Contract Provisions That Help Manage Risk on Long-Term Projects →

Few things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction. 

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Construction Lien Waiver Provisions Contractors Should Be Using

It is common in construction for a subcontractor or material supplier of any tier to be required to provide a lien waiver when receiving payment. But not all lien waivers are created equal. While at a minimum, a lien waiver, by definition, needs to include a release of liens, it can also include many other terms that can tie up loose ends or resolve potential problems before they begin

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Techniques For Resolving Construction Disputes

With most construction projects involving dozens, if not hundreds, of companies and individuals, it is no surprise that conflicts arise that are not always able to be resolved on the jobsite. But these conflicts need not always reach the court room or cost thousands (or much more) to resolve. With some planning, contractors can build faster and less expensive dispute resolution options into their project so they can spend more time keeping the project moving and less time arguing over who is right. 

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