Vote NO for Amendment 4!

Amendment 4 will be on the Florida 2010 ballot. This Amendment requires voters to approve all local comprehensive land use plan changes. With this Amendment, the citizens of Florida, not the representatives they elected, will be expected to decide 400 to 500 intricate land-use planning amendments every year. To the average person, the Amendment sounds like a great idea. However, this Amendment will paralyze any chance this state has of emerging out of the current depresive economic environment. It will be virtually impossible for construction to exist in this state should this Amendment be passed.

If the Amendment is passed, Cities and counties will be required to hold elections for each proposed comprehensive plan change whether it be major or minor. In the last four years alone, this amendment would have required an average of over 10,599 additional local votes per year in Florida. In fact, had Amendment 4 been in place in 2006, the voters of Carrabelle - a small Franklin County town - would have seen 617 separate questions in a single ballot!

Further, the cost will be astronomical. Every city and county in Florida will be burdened with the time and cost of holding additional elections to vote on proposed changes to comprehensive land use plans.

"Floridians for Smarter Growth" is an organization that has been established by our State's business and community leaders to combat this dangerous Amendment. Feel free to visit their website at www.florida2010.org

No more impression seals for engineers!

Chapter 471.025(1) of the Florida Statutes requires that all engineers obtain a seal in a form approved by the Florida Board of Professional Engineers. Until recently, that meant an impression type seal. Effective November 16, 2009, rubber stamps will also be allowed. Pursuant to 61G15-23.001 of the Florida Administrative Code, "Any seal capable of leaving a permanent ink representation or other form of opaque and permanent impression which contains the information described herein is acceptable to the Board".

Beware insurance companies...

Insurance companies recently dodged a major bullet. A very important issue is lingering with severe implications for insurance companies. The issue is: Whether an insurer in Florida is responsible for paying the expense of bringing a building into compliance with the Florida Building Code after a hurricane damaged it?
There was a very interesting article in today's Daily Business Review. QBE, an Australian insurance company, settled a lawsuit before a federal judge could rule on the above issue. In the case, QBE contends they are responsible for damages actually caused by the storm. Whereas, the plaintiff condo association claimed that QBE was responsible to bring the entire building up to code. This difference would have amounted to $4 million. In the case, the condo association had to replace all the sliding glass windows and doors in the 600 unit building in order to bring it into compliance with the current Florida Building Code. QBE countered that they were only responsible for a couple of windows that were blown out. I believe the Courts should defer to whatever the Florida Building Code requires. If the Building Code requires that the damaged building be brought up to code because the majority of the building was damaged, then insurance companies should be responsible for this.

Construction: "General Contractor Proper Payment Procedure"

When dealing with private funding for a construction project, it is extremely important that you follow the lien law procedures prior to releasing any money to the general contractor or subcontractors. Failure to do so may result in you having to pay more than the agreed to contract price. Prior to receiving any payment, the general contractor should submit to the architect a payment application with a schedule of values. The architect should then conduct a thorough inspection of the items identified in the payment application and schedule of values. The architect must then report to the owner whether the work has been properly completed and what amount should be released to the general contractor. The general contractor must provide the owner with releases through the date of payment from the general contractor and all the subcontractors and material suppliers that have been involved in the project. Only then will payments made be considered proper payments and the owner is protected from paying more than the contract price.

Florida Statute 553 vs. The Economic Loss Rule

Florida Statute 553.84 created a civil cause of action against a person who commits a building code violation. The Supreme Court of Florida held in Comptech International, Inc. v. Milam Commerce Park, LTD that the economic loss rule does not bar a claim under 553.84. Typically, the economic loss rule prevents a Plaintiff from bringing a tort action when the loss arises out of a contract and there is no personal injury nor property damage. However, the Florida Supreme Court held that the economic loss rule does not apply to a statutory claim such as Florida Statute 553.84.

The Impact of Trytek on Construction Lien Attorney's Fees

In Florida, attorney’s fees may be awarded in only two circumstances. First, there is a statute that provides for attorney’s fees or second, it is based on a prior agreement between the parties (in a contract). The Florida Lien Law provides attorney’s fees for the prevailing party in an action to enforce a construction lien. Last month, in Trytek v. Gale Industries, the Florida Supreme Court ruled that in an action to enforce a construction lien, the court must apply the “significant issues” test to determine which party is entitled to reasonable attorney’s fees under the lien law, even when the lienor obtains a judgment on the lien. This means that the court should look to see which issues were before it and which party prevailed on those particular issues. In other words, which party achieved the benefit it sought in the suit. Just because a claimant receives a judgment does not mean that he is the prevailor in the suit. For example, in the above case, the issue was the amount of setoff the owners were entitled to on a lien filed by a contractor. Since the issue was the amount of the set off and the owners obtained almost the entire amount of the setoff they sought in suit, the court determined they were the prevailing party. The court went even further and stated that this was a flexible and equitable rule and that a court has the discretion to determine that neither party prevailed on the significant issues and that neither party is entitled to attorney’s fees. Thoughts???