Send your Florida Notice to Owner in 60 Seconds.
- Florida -
Table of Contents
c.... Mobility Fees and Impact Fees
e.... Heat Exposure & Wage Requirements
f.... Building Permits & Private Providers
h... Residential Construction Warranties & Construction Defect
j.... My Safe Florida Home Program
l.... Public Works & Anti-Competitive Measures
m.. Roofing Consumer Protection –During State of Emergency
n... Unsolicited PPP Proposals
o... Sovereign Immunity for Professional Firms on FDOT Projects
In his inaugural address, Thomas Jefferson said that “[a] wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.”
I am pleased to report that from the beginning of my work last year in the trenches on government affairs committees and with lobbyists for this legislative season, through my time in Tallahassee and post session wrap up, Florida state government has stayed true to Jefferson’s enlightened words. Our state government has largely stayed out of private industry’s way and prevented local government, perhaps not so enlightened, from taking our bread. Having spent the last twelve months working in preparation for this year’s two-month session now concluded, I can honestly say that it never gets old. As a Patriot I find joy in being a voice to our representative government – a government that listens. As an Advocate I feel privileged to represent the will of the very people who build America. I hope this legislative briefing will enlighten you as I remain humbly at your service.
Sincerely,
Justin R. Zinzow
Admitted to Practice Florida & Texas
AV Preeminent® Rated Attorney
Fla. Board Certified in Construction Law
Governor Ron DeSantis and our esteemed Florida Legislature continue to deliver wins for the construction and development industry by listening to We the People. Below is a summary of key legislation, some of which is now law or likely to become law, which affects the construction and development industry.
This year's legislative session adjourned sine die on March 8, a date which has significant bearing on when bills can become a law. When both the House and Senate chambers have passed an identical bill, the bill becomes "enrolled" for transmittal to the Governor. The Governor can sign that enrolled bill, in which case it becomes a law, can veto the bill, in which case it will not become a law unless the legislature votes to override the veto, or the Governor can simply take no action for the requisite period of time, in which case the bill later becomes a law. This requisite period of time is sixty days from the date the legislature adjourned sine die, or in this case, May 8, 2024. The bills described herein have either been signed by the Governor, are highly probable to be signed, or are highly probable to become law through this passage of time.
Despite the construction industry seeking change to last year’s immigration law, no changes have been made. However, as we have earlier reported, the law contains exceptions and loopholes which savvy legal counsel, business owners, and executives can apply in the near term as they work on a mid-range and long-range plan. The Florida immigration law experts at Zinzow Law stand ready to counsel and assist those seeking creative solutions.
The limited power given to government by We the People is often abused in many ways, and sadly, one of them is through local government’s improper imposition of additional tax disguised as fees, and through unfairly applying state law. Local government is required by law to plan for future development by adoption of a comprehensive plan which must include a transportation element. Local government is allowed to charge certain fees for new development, or redevelopment, but often fails to properly apply those fees, or has endeavored to double-dip by charging fees. Among other things, this bill:
· Requires local government to ensure that new development or redevelopment is not charged twice for the same transportation capacity impact.
· Requires local government to have a plan-based methodology for determining permissible fees to be charged.
· Provides that if a county or city failed to execute interlocal agreements by October 1, 2025, the fees charged for new development or redevelopment must be based solely on transportation capacity impacts apportioned between the county and city as identified in the developers’ impact study or the mobility plan adopted by local government, subject to a 10% reduction for the total amount owed by the developer.
· Prohibits the local government entity issuing the building permit from holding the fees for a prolonged period; they must be distributed to the county or municipality within 60 days of the developer's payment.
· Requires local government collecting impact fees to base the fees on studies using the most recent and localized data available within four years of the impact fee update, unless the impact fee is to be increased, in which case the new study must be adopted by local government within 12 months of initiation.
· Requires local government to credit against the impact fee any contribution identified in the development order.
· Confirms that holders of transportation or road impact fees granted under sections 163.3180 or 380.06, Florida Statutes, which existed before adoption of the alternative transportation system, are entitled to the full benefit of those prepaid credit balances.
The availability of an eager workforce has challenged the construction and development industry for many years but has become particularly acute since 2020. This bill aims to relieve some of these challenges for the construction industry. Among other things, it does the following:
· Authorizes minors, age 16 or 17, to work on any residential building construction if the minor has completed an OSHA 10 certification, does not violate any OSHA rule or other federal laws regarding minors in the workplace, is under the direct supervision of someone 21 years of age or older who has at least two years of related work experience, and has also completed an OSHA 10 certification.
· Allows the minor to work only on residential building construction and in any trade, or for the prime contractor, except that the minor may not work on scaffolding, roof, superstructure, or ladder above 6 feet.
· Removes the authorization for local governments to issue journey worker licenses and charge registration fees for reciprocity in the plumbing, pipefitting, mechanical, HVAC, electrical, and alarm system trades, and instead, requires local government to recognize these individuals if they meet specified exam and training requirements.
· Requires the department of education to meet no later than December 1, 2024, to study best practices in career and technical education pathways from middle school to high school and identify three pathways.
· The bill establishes a career and technical education task force to study this form of education in each school district, to compile a detailed list of available courses, assess funding disparities, explore additional funding sources, evaluate advertising strategies, and otherwise build plans to expand this form of education.
· In order to achieve a career or technical certificate of completion, students were previously required to demonstrate certain basic skills, and only students that possessed a college degree or who demonstrated readiness for college were exempt from these requirements. This bill eliminates discrimination in favor of college students, and exempts students who possess a high school diploma from a private school or a home education program.
Contractors have suffered for years under the heavy hand of duplicative laws and regulations. Over the last several years, various groups have attempted to advance another overly burdensome duplicative regulation, which would have allowed local governments to impose worksite heat exposure safety requirements which are already addressed by OSHA, or even which conflict with OSHA requirements. Many local governments have also tried to impose wage requirements as a condition of working with local government. This bill stops these efforts in their tracks and does the following:
· Prohibits local government from imposing heat exposure requirements not already required under state or federal law.
· Prohibits local government from giving a preference to one contractor over another in a competitive solicitation based upon a contractor's heat exposure requirements and from seeking information relating to the contractor's heat exposure requirements.
· Prohibits local government from attempting to impose certain wage or employment benefit requirements on contractors attempting to do business with local government, whether such imposition is through the form of evaluation factors, qualification of bidders, preference points, or otherwise. This new prohibition, however, is not intended to impair any contract entered into before September 30, 2026.
Florida’s building code empowers local government to enforce its provisions, requirements, and restrictions. Additional laws allow local government to collect permit fees, allow owner developers to use a private provider in lieu of a government building official for permit review and inspections, and restrict permit fees which can be charged. As the famous saying goes, however, absolute power corrupts absolutely. Many local governments have misapplied these laws, or even abused them. By way of example, local government has substantially delayed review and response times, audited private providers without justification or uniform fairness, and even discriminated against the use of private providers directly and openly or indirectly. This bill aims to rectify these historical problems by, among other things:
· Requiring local government to approve, approve with conditions, or deny a permit application on a speedy basis and consistent with the following timelines:
o 30 business days when using local government review for certain structures less than 7500 square feet; the prior timeframe was 120 days.
o 60 days when using local government review for certain structures more than 7500 square feet, signs, nonresidential buildings less than 25,000 square feet, multi-family residential not exceeding 50 units, site plan approvals and subdivision plats not requiring public hearing or notice, and lot grading and site alteration; the prior timeframe was 120 days.
o 12 business days for applicants under an already approved master plan permit, or 30 days for single-family residential dwellings.
o 10 business days for applicants for a single-family residential dwelling for a property owner who participates in a community development block grant-disaster recovery program; the prior timeframe was 15 days.
o 10 business days for applicants using a private provider, instead of a local government reviewer; the prior timeframe was 120 days.
· Requiring local government to determine if a building permit application is complete within 5 business days after receiving the application; the prior timeframe was 10 days.
· Requiring local government to create auditing standards for private providers before actually performing an audit of a private provider.
· Provides that completing an internship program for a residential building inspector is a pathway for licensure as a residential building inspector.
This session no changes were made to lien or bond law statutes for private or public projects. However, efforts were made to create a new construction fraud law. One version of that bill would have required contractors with less than a specified number of experience years to procure bonds for each project. Though these efforts were defeated, we anticipate this issue will come up again next year.
Contractors and the associated insurance industry have suffered considerably at the hands of frivolous and other extensive litigation. While many of these claims arise after a performance guarantee, also known as a warranty, has expired, the standards of performance, or lack thereof, in the contractual warranty are often highly relevant to, and may even govern whether a contractor is liable for construction defect. Unfortunately, the super majority of construction contracts contain no performance standards, and worse yet, the warranty is written, essentially, as a guarantee of perfection (i.e. guaranteed to be free from all defects . . .). All but the last version of the enrolled bill was terrible for the construction industry. Among other dangerous provisions, the bill versions imposed new and expansive guarantee requirements under the guise of ensuring that all warranties were transferable to subsequent property owners, made warranty denial a presumptive violation of the Florida Deceptive and Unfair Trade Practices Act, granted attorney's fees to property owners, and much more. Through significant effort, these once terrible bills were transformed into a bill which now creates a significant opportunity for contractors to reduce their construction defect exposure if, and only if, the performance standards and/or warranty provisions in their construction contracts are properly rewritten to take advantage of this bill's provisions. Among other things, this bill:
· Requires that all warranties be transferable to a subsequent property owner provided the warranty term has not yet expired.
· Provides favorable clarity that a contractual warranty need only provide a one-year warranty on equipment, material, and workmanship, but only against the defects being a material violation of the Florida Building Code. In other words, trivial defects or trivial violations of the Florida Building Code cannot give rise to defect claims, but only if the warranty language of the contract is rewritten to conform to this new bill.
· Provides that the warranty does not have to cover normal wear and tear, normal house settling within generally acceptable trade practices, or any object or part of a home that contains a defect caused, in part, by any modifications or repairs performed by others. In other words, the property owner can lose its warranty if the owner attempts to repair or modify the construction, or uses others to do so, but only if the warranty language of the contract is rewritten to conform to this new bill.
· Provides that the warranty is not obligated for any acts of God, but only if the warranty language of the contract is rewritten to conform to this new bill.
· Allows for longer or more comprehensive warranties but does not require them. In other words, if contractors do not rewrite their existing warranty provisions, those more expansive warranty and defect provisions will be enforced.
Florida's Consultant's Competitive Negotiation Act requires state and local government agencies to obtain competitive bids for certain construction services, but allows for continuing contracts, meaning that a competitive bidder can provide services across multiple projects without having to rebid, provided the estimated per project construction cost does not exceed a certain threshold. Before this bill that threshold was $4 million; it will now be $7.5 million with an annual increase based upon the Consumer Price Index.
This program, since its inception in 2006, has created opportunities for remodelers and hurricane impact mitigation contractors. The program provides single family residential property owners with the ability to obtain mitigation inspections and mitigation recommendations as well as grants to cover the cost for needed mitigation renovations. This bill, among other things, makes it easier for property owners to apply and submit corrected applications which were denied due to error. The bill does not require the Department of Financial Services to maintain a list of contractors, so licensed contractors will have to directly market the program and its benefits. $100 million for the 2024-2025 fiscal year has been appropriated for mitigation grants, all of which benefit contractors who may wish to engage in this work.
This bill:
· Clarifies that licensed Class A & B air conditioning contractors, as well as mechanical contractors, can replace, disconnect, or reconnect power wiring on the line or load side of the dedicated existing electrical disconnect switch on single phase electrical systems only; and repair or replace power wiring, disconnects, breakers, or fuses for dedicated HVAC circuits with proper use of a circuit breaker lock. An electrical license is not required for these activities.
· Changes manufacture warranty eligibility by eliminating registration requirements, and by eliminating the required proof that the HVAC contractor provided the manufacturer with the date a certificate of occupancy was issued. Manufacturer's warranties of HVAC systems can no longer be conditioned upon registration.
Many cities and counties around the state which have received state funding for local public works projects had for years imposed anti-competitive bid or scoring criteria, such as favoring contractors who were headquartered within a certain geography. Government playing favorites is anti-competitive and anti-American. As such, the Florida Legislature previously enacted section 255.0992, Florida Statutes which prohibited this kind of activity. Local government, however, exploited a loophole in this law. Where projects were funded, even in small part, by local funds, even when supplemented with state funds, municipalities resumed imposing these anti-competitive measures. This bill closes that loophole by indicating that local government can never impose these types of requirements, or deploy these types of anti-competitive favors, unless 100% of the public works project is funded solely by the county or municipality.
Contractors who enter into a contract to replace or repair a roof on residential property during a declared state of emergency by the Governor must include new specific disclosure language set forth in the statute, which language, among other things, allows the property owner to cancel the contract by the earlier of 10 days following execution of the contract or the official start date, as defined in the statute. The bill also describes how the contractor must be notified of the cancellation. The contractor's failure to include these new disclosure requirements, or failure to honor a legally tendered cancellation, can subject the contractor to serious discipline and fines.
Public-private partnerships have been a very effective means of financing large projects that benefit both contractors and developers, and the government together with its citizenry. While both solicited and unsolicited proposals were previously authorized by section 255.065, Florida Statutes, this bill clarifies that a public entity may proceed with an unsolicited proposal without engaging in a public bidding process provided:
· The public entity holds a duly noticed public meeting at which the proposal is presented, and comment is received.
· A second public meeting is held at which the government body determines that the project is in the public's best interest after considering all of the following factors:
o Benefits to the public.
o The financial structure and economic efficiencies achieved by the proposal.
o Qualifications and experience of the private entity submitting the proposal and its ability to perform.
o The project’s compatibility with regional infrastructure plans.
o Public comment provided at the meeting.
Section 768.28, Florida Statutes provides sovereign immunity to government in civil actions against it for tort liability where damages are caused by a professional firm that provides monitoring and inspection services on state roadway, bridge, or other transportation facility construction projects. This bill extends that same sovereign immunity protection to the professional firms.
DISCLAIMER:
The forgoing is intended for general education purposes only, and is not intended as legal or other advice or given for the purpose of seeking legal employment.
It is recommended that you consult with a bord-certified construction attorney about your particular situation.