Many construction companies, especially those involved in disaster recovery or mitigation use assignments of benefits (AOB) to ensure payment by the homeowner’s insurance company. While there are many court decisions interpreting AOBs, and a new AOB statute to evaluate, two recent court decisions recognize that AOBs do not violate certain provisions of the Florida Constitution.
Read moreCourt Affirms Ruling That Neighbor Did Not Have Claims Against Fence Contractor
Fence contractors literally walk the line as part of their jobs. Sometimes the property owners on either side of that line are happy that the fence contractor is there. But where only one homeowner hires a fence contractor, what happens when that homeowners neighbor seeks to hold the fence contractor liable for damage to the neighbor’s property?
Read moreCourt Rules Tile Subcontractor Cannot Litigate Dispute Over Puerto Rican Pool Tile in Florida
With improvements in technology and material transport, it is becoming more and more common for contractors in Florida to work on projects outside of the state and outside of the country. This is particularly true of contractors in specialty trades that possess skills and expertise that may not always be available in other areas. But if problems arise, working outside of Florida may also mean that you have to resolve any disputes where the work was performed.
Read moreBe Careful How You Try to Get Paid from Homeowners
Payment disputes between contractors and homeowners are not uncommon. But in Florida, how you attempt to collect payment from a homeowner could be subject to Florida’s Consumer Collection Practices Act, which can turn a simple attempt to get paid into a nightmare.
Read moreCourt Confirms Where to Send Construction Liens for Valid Service
Under Florida’s construction lien law, a claim of lien must be served on the property owner either before recording or within 15 days of recording. Failure to do so makes the claim of lien voidable to the extent the failure to serve or any delays in service prejudice the property owner. To make this process more nerve-wracking, Florida’s construction lien law also specifies the ways to properly serve a lien and where it can be sent. And a recent court decision confirms whether service is valid when the homeowner refuses to pick up the lien.
Read moreElectrician Loses Lien For Failing to Comply with Chapter 713, Florida Statutes
Florida’s Construction Lien laws are a complex web of requirements to establish and maintain a lien on property to secure payment for work you’ve done. Successfully check all the boxes, and you have a powerful tool to ensure you are paid. But make a misstep early in the process—or fail to keep up with the requirements—and your lien can vanish! Recently, an electrician lost its lien for failing to follow through on the lien law requirements through the end.
Read moreFrom the Ground Up: Six Must-Haves for Starting a New Construction Company →
In construction a good foundation is critical for success, and this is just as important in the formation of a company as it is bringing a building out of the ground. Most companies start with a combination of opportunity, hard work and a little luck. But those ingredients can evaporate quickly if the company is not started on solid footing.
Read moreBe Careful: How to Sign Construction Liens to Avoid Personal Liability
Find out how a contractor’s failure to fill out and sign a construction lien properly nearly cost him $75,000.00, plus a lot of time and attorneys’ fees.
Read moreNew Florida Statute Makes it Easier for Engineers in Other States to be Licensed in Florida
Earlier this week, I posted about changes to Florida’s construction licensing scheme brought about by the new Florida Occupational Freedom and Opportunity Act. In addition to impacting building and trade contractors throughout Florida, the act has also altered the reciprocity requirements for engineering licensing, making it easier for engineers in other states to become licensed in Florida.
Read moreFlorida Enacts Changes to Contractor Licensing Requirements
On July 1, 2020, the Occupational Freedom and Opportunity Act became law in the state of the Florida. The Act modifies many existing licensing requirements within the state, across a broad range of professions, from architects to veterinarians. The purpose for the act was to “remove unneccessary barriers for individuals pursuing their professional aspirations.” The biggest practical impact on Florida’s contractors will be new reciprocity provisions within the statute and reduce continuing education requirements for electrical contractors.
Read moreHillsborough, Pinellas, and Pasco Impose County-Wide Mask-Wearing Requirements
Over the last 24 hours, Hillsborough County, Pinellas County, and Pasco County have all passed emergency orders requiring masks to be worn when indoors in businesses. Links to actual copies of the orders are below, but what follows is a short breakdown of the highlights from each order. Please feel free to reach out if you have any questions:
Copies of Orders
Click Here for the Hillsborough County Order
Click Here for the Pinellas County Order
Click Here for the Pasco County Order
Hillsborough County Order Requirements
All business operators of an indoor location of a business that is open to the public in Hillsborough County shall require all persons within the location to wear a face covering when not maintaining social distancing from other person(s), excluding family members or others residing in their home and subject to the exceptions listed below.
Business operators are required to ensure compliance and to deny entry to people who fail to comply with the order and to remove people who fail to comply with the order. Only business operators—not individuals—can be charged with a violation of the order. Businesses are also strongly encouraged, though not required, to develop and implement a health and safety plan in line with CDC guidelines and to conspicuously post the plan where persons within the business can see its requirements.
A business is defined in the order as any commercial or for-profit entity that provides goods or services directly to the public. It does not include religious organizations, private clubs, nonprofit organizations, or public schools. Business operators are individuals that control the operation of an indoor location of a business, regardless of formal title or role.
Exceptions:
People under 2 years old
People observing social distancing guidelines
People for whom a face covering would cause impairment due to an existing health condition
Persons working in a business or profession who do not have interactions with other persons
Persons working in a business or profession who maintain social distancing from another person
Persons working in a business or profession where use of a face covering would prevent them from performing the duties of the business or professions
Persons exercising, while maintaining social distancing
Persons eating or drinking
Public safety, fire, and other life safety and health care personnel, provided they are complying with the personal protective equipment guidelines of their respective agencies
Someone hearing-impaired who needs to see the mouth of a person wearing a face covering in order to communicate
Face coverings are not required if it would conflict with the Americans with Disabilities Act
The Hillsborough County Order goes into effect at 5:00pm on June 24, 2020. Failure to comply with it is a second degree misdemeanor, subject to fines and imprisonment.
Pinellas County Order Requirements
All persons must wear a face covering while in any Indoor Public Place within Pinellas County. All persons who own, manage, or are employed by any Restaurant or Bar within Pinellas County must wear a face covering at all times while on-duty and directly or indirectly preparing food or beverage, serving food or beverage, or having customer contract, regardless of where the food is prepared or if it is served indoors or outdoors. The owner, operator, manager, and employees or a bar, restaurant, or indoor public place must ensure that every individual in their establishment complies with this ordinance. Employers cannot prohibit employees from wearing face coverings, but may provide specific face coverings if they are at least as protective as the employee supplied face covering.
Exceptions:
Any person under 2 years old
Anyone dining or consuming beverages while seated at a table or bar in a bar or restaurant as long as they are social distancing
Persons strictly adhering to and maintaining social distancing
Government entities such as schools, courthouses, city halls, fire stations, state offices, etc….
Hospitals and health care facilities
Persons exercising while maintaining social distancing
Public safety, fire, and other life safety and health care personnel, provided they are complying with the personal protective equipment guidelines of their respective agencies
Business owners, managers, and employees who are in an area of a business establishment that is not open to customers, patrons, or the public, provided 6 feet is between all employees. This does not apply to employees present in a kitchen or other food and beverage preparation area of a restaurant or food establishment.
Patrons or customers in any indoor public place that have no contact with an employee of the business except as protected by a solid barrier that substantially prohibits incidental infection, provided that 6 feet of distance exists between people not at all times protected by the barrier.
Where a hearing-impaired person requires someone to remove their mask to communicate
Persons who have trouble breathing or while a person is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance
The requirements do not apply if it would be detrimental to health, safety, or security
These requirements may not be applied in a manner that would conflict with the American’s with Disabilities Act
These requirements do not apply within a workplace area not otherwise open to the public while a person is complying with engineering, administrative, and work practice controls developed in accordance with OSHA guidelines
Failure to comply with the order can result in a non-criminal citation of $100 for the first violation, $250 for the second, and $500 for the third. Repeat violations may also result in a misdemeanor arrest. Owners, operators, managers, and employees, can avoid liability for customers if they ask the customer to leave the premises for failing to comply.
An indoor public place is any location to which the public has or may obtain legally permissible access, whether publicly or privately owned, that is under a roof or is enclosed by two or more walls, doors, or other means of waterproof material, including fabric such as that used for a tent.
An operator means any individual or entity that owns a business or that controls the operation of a business location, regardless of formal title or role.
This order is effective June 23, 2020.
Pasco County Order Requirements
All persons within any indoor location of a business or government operation that is open to the public in Pasco County shall be required to wear a face covering when not maintaining social distancing from other person(s), excluding family members or others residing in their home. All business shall be required to ensure compliance with and enforce the provisions of the order. This includes denying entry to people who fail to comply with the order’s requirements and removing individuals who fail to comply with the order’s requirements.
Exceptions:
Persons under 2 years old
Persons observing social distancing guidelines in accordance with the CDC
Persons for whom a face covering would cause impairment due to an existing health condition
Persons working in a business or profession who do not have interactions with other persons
Persons working in a business or profession who maintain social distancing from another person
Persons working in a business or profession where use of a face covering would prevent them from performing the duties of the business or profession
Persons exercising, while maintaining social distancing
Persons engaging in indoor sporting activities so long as the facility has its own health and safety plan consistent with this order
Persons eating or drinking
Public safety, fire, and other life safety and health care personnel, provided they are complying with the personal protective equipment guidelines of their respective agencies
Someone who is hearing impaired who needs to see the mouth of someone to communicate
This order shall not apply in any manner that conflicts with the Americans with Disabilities Act
Failure to comply with the order can result in a $250.00 fine. The order is effective June 23, 2020, except that the penalty provisions shall not be effective until 5:00pm on June 25, 2020.
Recent Trial Court Decision Confirms Narrow Application of Florida's Private Undisputed Payment Statute
Earlier this year in Bartlett Fiber Inc. v. Optical Telecommunications, Inc, a trial court in Miami-Dade County granted summary judgment in favor of an integrated low-voltage contractor based on a Florida statute requiring certain undisputed amounts to be paid to subcontractors once paid for. The decision confirms the narrow application of section 713.346, Florida Statutes.
Read moreCity of Tampa Requires Masks Indoors
Following closely on the heels of the City of St. Petersburg, the City of Tampa today published its own executive order requiring face coverings be worn to prevent the spread of COVID-19 under certain circumstances. Unlike the City of St. Petersburg, the City of Tampa is not requiring businesses to have a written COVID-19 mitigation plan, but it is applying the face covering policy to a broader group. You can view a copy of the actual order by clicking here.
Important Terms
Face Covering is a uniform piece of materials that securely covers a person’s nose and mouth and does not require hands to hold it in place. These can be home made or store bought.
Social Distancing is keeping at least 6 feet between yourself and others.
Who Does the Order Apply To?
The City of Tampa order applies broadly as follows:
Every person working, living, visiting, or doing business in the City of Tampa is required to wear a face covering in any indoor location, other than their home or residence, when not maintaining social distancing from other persons, excluding family members or companions
People are not required or allowed to wear face masks to conceal their identity in violation of Florida’s Crimes Against Public Order statute. Further, Medical and surgical face masks, or N95 masks, should be reserved for health care personnel and first responders.
Exceptions
The order does not apply to the following people:
Persons younger than 2
Persons observing social distancing in accordance with CDC guidelines
Persons for whom a face covering would cause an impairment due to an existing health condition
Persons working in a business or profession who do not have interactions with other persons,
Persons working in a business or profession who maintain social distancing from another person
Persons working in a business or profession where use of a face covering would prevent them from performing the duties of the business or profession,
Persons exercising, while maintaining social distancing,
Persons eating or drinking
Public safety, fire, and other life safety and health care personnel, as their personal protective equipment requirements are governed by their respective agencies
Persons who are hearing impaired who need to see the mouth of someone wearing a face covering in order to communicate
Violations of this order shall be a noncriminal civil infraction, punishable with up to a $500.00 fine.
Key Takeaways
First, the order is limited to those working in indoor locations other than their home or residence. If you are working outside, the order does not apply to you. Arguably, if you are working in someone else’s home, then you would need to wear a mask, or be able to maintain social distancing.
Second, like the St. Petersburg order, this violations can carry a $500.00 fine, and I would not be surprised if code enforcement or other City officers are enforcing this order in the near future.
Keep yourself safe and don’t hesitate to reach out if you have any questions.
City of St. Pete Requires Employees to Wear Masks; Businesses to have COVID-19 Plan
On June 17, 2020, St. Petersburg’s Mayor, Rick Kriseman, issued an executive order that requires businesses within the city to “implement COVID-19 mitigation and contingency planning” and require “employees of a business in the City [to] wear a face covering while in areas of the business open to the public. You can click here to view a full copy of this order. As usual, the devil is in the details, which are outlined below.
Relevant Definitions
Business is defined in the order to mean any business entitiy that is allowed to operate within the City under any applicable State Order or County Order. By using the word “operate” it does not seem that the City is just restricting its order to businesses with a physical location in the City, so if you are doing work in the City, even though your office may be outside the City, the order likely applies to you.
Employees include actual employees, agents, contractors, volunteers, or any other person engaged in the day-to-day operation of a business.
Face cover means personal protective equipment the covers the mouth and noes, a cloth face covering that cover the mouth and nose as described by the CDC, or any equivalent face covering.
COVID-19 Mitigation and Contingency Plan
Effective 5pm on June 19, 2020, a business must ensure that it meets or exceeds the following requirements for COVID-19 mitigation and contingency planning
The business must develop and update a written plan for COVID-19 mitigation and contingency planning that addresses the topics in the CDC Planning Guidance or OSHA planning guidance. Plans can be based on the CDC, OSHA, or both. The plan must reflet any industry specific guidance provided by the CDC or OSHA (e.g. best practices for gyms, restaurants, etc…) In the event of a conclift, the specific industry industry guidance controls. The business is responsible for updatingthe plan as guidance is changed.
The plan must be made available to all employees. Employees must receive training on the plan and the business must ensure they comply with the plan.
The plan must be available to patrons of the business and aspects of the plan that apply to patrons (such as social distancing or face coverings) are clearly communicated through signage or other means.
Business must ensure the plan is available to the public so that a member of the business can make informed decisions about patronizing the business.
Face Coverings
Effective June 19, 2020 at 5:00pm, emploees of a business in the City will be required to wear a face covering in certain areas of the business under the following rules:
Business owners and their employees must wear face coverings while in an area of the business open to the public
The face covering must cover the face and nose
A person is not required to wear a face covering under the following circumstances:
Wearing a face covering is fundamentally incompatible with a job task performed by a person
When eating or drinking
While exercising or using exercise equipment
While communicating with someone who is hearing-impaired
If the person has trouble breathing or is unconscious or incapacitated
If the mask yould be detrimental to health, safety, or security
When necessary to obtain governmental or medical services
If wearing a mask conflicts with the Americans with Disabilities Act or HIPAA
Penalties
Violations of this executive order are considered a violation of City Code, and can be punished by fines of up to $500 and/or imprisonment of up to 60 days.
Practical Takeaways
First, if you have a physical location or office in the City of St. Petersburg, and a portion of that office is open to the public, even if it’s just a reception area, you need to comply with this order. It would not surprise me if City employees or officers performed checks on businesses to ensure compliance given the health concerns at issue.
Second, if you are working on a jobsite in the City of St. Petersburg, I also would attempt to be compliant with the order. The term business is not limited to physical locations, but rather, applies to operations within the City. Maybe this was unintentional, but until it is clear how the order is being enforced, you run the risk of receiving a fine if you are not compliant.
Third, have a written COVID-19 plan. The CDC has provided a checklist that you can view by visiting https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/checklist.html . OSHA also has guidelines you can view by clicking here. These plans to not have to be lengthy, but they do need to be in writing. If you need help putting together a plan, please feel free to reach out to me, or contact your own attorney or HR/compliance professional.
Fourth, put up signs in the areas of your business open to the public. The signs should require them to wear an appropriate face covering. Put a sign on the entrance to the public areas of your business notifying customers of the same. And add a pop up or something similar on your website advising the public of the same. Have hand sanitizer available in the public spaces of your office and indicate this on the signs as well. If you’re on a jobsite, wear a mask and carry hand sanitizer with you. And ensure that your customers are comfortable with you performing work there.
If you have any questions, please don’t hesitate to reach out.
New Court Decision Confirms That Contractors' Liens Are (Generally) Valid Even if the Notice of Commencement is Defective
Yesterday, Florida’s Second District Court of Appeal confirmed the important of notices of commencement in a decision that clarified the impact of a defective notice of commencement on a contractor’s lien.
Read moreThis Job Would Be Great if it Wasn’t for. . . →
Managing Owners and Their Expectations With Specific Contract Provisions
Read moreNTO Too Late: How to Lose a Lien in 45 days →
If you are part of the construction industry in Florida, no doubt you have at least heard of a Notice to Owner. You probably also know that you have a time limit to serve them and that they impact your ability to record a lien. While this general knowledge is a start, it is no substitute for knowing the actual requirements for an NTO and the consequences for failing to follow them.
Read moreAre 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?
Read moreWhat 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.
Read more