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Construction Defect Pre-Suit Notice Now Considered an Action

The Florida Supreme Court recently handed down a decision in Gindel v. Centex that impacts Florida’s statute of repose and its relationship with construction defect claims. The statute of repose requires a claimant to commence an action within a specific time period or be barred from bringing the claim. The statute of repose is ten years from the date of possession of the property by the owner, issuance of certificate of occupancy, date of abandonment of work, or the date of completion or termination of the contract between the engineer, architect, or licensed contractor and the employer, whichever is last to occur.

Prior to the Supreme Court’s decision, commencement of an action typically was understood as the filing of a complaint. This meant that a homeowner wishing to pursue a claim for construction defect must file a complaint within the 10-year statute of repose period. Today, a homeowner who files the mandatory Chapter 558 pre-suit notice of defect is considered to have commenced an action for statute of repose purposes.

Chapter 558’s pre-suit notice requires the claimant to provide the notice 60 days before filing any action. The Supreme Court’s determination that pre-suit notice is an action gives claimants an additional 60 days to seek relief for construction defects. Contractors will need to take this decision into account when determining whether a construction defect claim has been filed before the statute of repose period ended.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.

Orlando, Florida, September 20, 2018 – Attorney Roscoe Green of Cotney Construction Law was recently named General Counsel of the National Association of Minority Contractors (NAMC) Central Florida Chapter. As General Counsel, Roscoe will provide a number of pro bono legal services to the association’s board of directors with regard to the organizational structure, governance policies, operations, and bylaws.

Roscoe Green practices in all areas of construction law, including construction litigation, contract disputes, construction defects, bid protests, payment disputes, delay claims, and lien & bond claims. Roscoe is a certified general contractor in the State of Florida and holds a bachelor’s degree in construction engineering. As a minority contractor himself, Roscoe understands the need for a group like NAMC to help create relationships and address industry concerns of minority contractors.

“NAMC is a great resource for contractors of all races and ethnic backgrounds. It provides education, support, and advocacy for its members,” said Roscoe Green. “I am grateful to have the opportunity to work with NAMC’s leadership and members and provide the necessary legal guidance for this group.”

About The National Association of Minority Contractors
The National Association of Minority Contractors (NAMC) is a nonprofit trade association that was established in 1969 to address the needs and concerns of minority contractors. While membership is open to people of all races and ethnic backgrounds, the organization’s mandate, “Building Bridges – Crossing Barriers,” focuses on construction industry concerns common to African Americans, Asian Americans, Hispanic Americans, and Native Americans.

About Cotney Construction Law
Cotney Construction Law is a national construction law firm that advocates for the roofing industry.  The firm serves as General Counsel to Western States Roofing Contractors Association (WSRCA), Florida Roofing and Sheet Metal Association (FRSA), Tennessee Association of Roofing Contractors (TARC), Roofing Technology Think Tank (RT3), National Women in Roofing (NWIR), Tile Roofing Institute (TRI) and a number of local construction associations. Cotney Construction Law’s practice areas include construction law, litigation, arbitration, contract review & drafting, immigration, employment, OSHA defense, licensing defense, bid protests, lien law, bond law and alternative dispute resolution.  The firm has offices throughout Florida, as well as locations in Charlotte, Denver, Grand Rapids, Houston, Mobile, and Nashville.  For more information, visit www.cotneycl.com.

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For Immediate Release
For More Information: Anita Lum
813.579.3278
alum@cotneycl.com

In Guy Roofing, Inc. v. Angel Enterprises, LLC, the plaintiff, a roofing contractor, contracted with the owner of a shopping center to replace the roof. Shortly after beginning work on the project, the original owner sold the shopping center to a subsequent owner. The contract contained an arbitration clause requiring disputes between contractor and owner to be arbitrated. The roofing contractor was not paid for its work and filed suit to recover payment. When the roofing contractor moved to compel arbitration, the subsequent owner opposed its motion arguing lack of privity between the two parties.

The Court found two exceptions to the general rule against compelling arbitration: (1) where the non-signatory party assumes the rights and obligations of the contract; and (2) where the non-signatory party should be forced to arbitrate based on a theory of equitable estoppel. The contract between the roofing contractor and original owner contained a provision preventing assignment of rights and obligations under the contract to someone else without the roofing contractor’s consent. Despite the no-assignment clause, the Court found the subsequent owner was assigned warranty rights under the roofing contract and therefore was bound by the arbitration provision.

The Court further found that the roofing contractor had not waived its right to arbitration by filing suit. The roofing contractor included a demand for arbitration in its complaint and did not learn of the agreements between original and subsequent owner until discovery.

The holding should give roofing contractors a breath of fresh air knowing their arbitration rights are further cemented.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.

Prior to 2015, OSHA’s Field Operations Manual states that an employer may be cited for a repeat violation if “the citation is issued within 3 years of the final order date of the previous citation or within 3 years of the final abatement date, whichever is later.” In simple language this meant that OSHA may look back no further than three years for citations to cite an employer for a repeat violation. This time period was increased to five years in 2015.

Earlier this year, the United State Court of Appeals for the Second Circuit found that OSHA is not bound by its five year look back policy as stated in the Field Operations Manual. The Court stated that neither Occupational Safety and Health Act nor any regulations contained within the Act contain temporal restrictions on the amount of time OSHA may look back for repeat violations.

Employers will now be vulnerable to repeat violations based on prior citations given at any time in the past. This decision will have huge impacts on employer’s decisions to contest citations as they may become the basis for a repeat citation in the future. As OSHA continues to broaden their enforcement authority, employers need to be sure they have proper policies in place to handle issues regarding repeat violations moving forward.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.

                                    

San Francisco, CA, September 12, 2018 – Trent Cotney, CEO of Cotney Construction Law, was recently named General Counsel of the Western States Roofing Contractors Association (WSRCA). As General Counsel, Cotney will provide a variety of pro bono services to the association, including guidance on corporate structure, bylaws, and regulatory compliance. In addition, Cotney Construction Law will also provide free 15-minute legal consultations and legal resources in the form of articles and seminars to WSRCA members.

“WSRCA is an awesome group that is always supporting and promoting the roofing industry,” said Trent Cotney. “I am excited to have an opportunity to work with them to help further their commitment to enhancing the industry as a whole. Working with WSRCA helps further cement our mission to fight for the roofing industry nationwide. ”

Since 1999, Trent Cotney has dedicated himself to serving the roofing industry. Trent is a Florida Bar Board Certified Construction Lawyer who is also licensed to practice in Illinois, Tennessee, and Texas. He specializes in roofing litigation and arbitration. Trent is a One Voice Member of the National Roofing Contractors Association (NRCA), a Roofing Industry Alliance for Progress Member, and serves as General Counsel for a number of roofing associations.

About Western States Roofing Contractors Association
WSRCA was formed in 1974 to preserve and promote the roofing industry in the western region. WSRCA’s purpose is to provide assistance to enable its members to operate successfully and competitively. WSRCA is dedicated to promoting professionalism by providing leadership for the benefit of its members. The association’s close and frequent contact with members and its programs and services are vital to the successful operation of its member companies.

About Cotney Construction Law
Cotney Construction Law is a national law firm that advocates for the roofing industry.  The firm serves as General Counsel to Western States Roofing Contractors Association (WSRCA), Florida Roofing and Sheet Metal Association (FRSA), Tennessee Association of Roofing Contractors (TARC), Roofing Technology Think Tank (RT3), National Women in Roofing (NWIR), Tile Roofing Institute (TRI) and a number of local roofing associations. Cotney Construction Law’s practice areas include construction law, litigation, arbitration, contract review & drafting, immigration, employment, OSHA defense, licensing defense, bid protests, lien law, bond law and alternative dispute resolution.  The firm has offices throughout Florida, as well as locations in Charlotte, Denver, Grand Rapids, Houston, Mobile, and Nashville.  For more information, visit www.cotneycl.com.

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For Immediate Release
For More Information: Anita Lum
813.579.3278
alum@cotneycl.com

In part one of this two-part article series, our Denver contractor lawyers caught you up to speed on Denver’s Green Roof Ordinance. This green roofing initiative went into effect in the Mile-High City on January 1, 2018, and mandates that buildings over 25,000 square feet must meet certifications set forth by the Leadership in Energy and Environmental Design (LEED) program. This includes dedicating a significant portion of the building’s rooftop to vegetation or solar panels. In this section, our Denver contractor attorneys will discuss more important details about the law and how contractors can qualify to work on vegetated roofing projects.

Green Roofing Task Force

As government officials debate potential adjustments to the voter-approved Green Roof Ordinance, the Denver Department of Public Health and Environment (DDPHE) has established a Green Roofs Review Task Force to create recommendations and enhancements to ensure that the project is effective while staying true to the intentions of voters. For more information on this proposal, please visit the official website.

Exceptions for Existing Structures

Along with potential modifications to the green initiative, there will be exceptions to existing structures that require major structural alterations and some options for owners to invest in green space offsite or pay a fee instead of rooftop installation. Some potential exemptions include the following:

  • Existing structures may qualify if a site development plan review (“SDP”) application was submitted by December 27, 2017
  • Residential buildings that have less than four stories and a maximum height of 50 feet can qualify.
  • Structures that are non-permanent, open air, or classified as “roof recovery” projects also qualify.

Permitting and Contractor Requirements

Any roofing project in Denver (green or exemption request) will require submission of the Green Declaration Form. Roofing contractors will also need to obtain several licenses to qualify for Green Ordinance Projects including credentials in both landscape architecture and green roofing installation. The green initiative is intended to not only install renewable resources on rooftops, but to also make certain that the right type of vegetation for Denver’s climate is selected to ensure that the green space is appropriately cultivated and maintained well after the project is completed.

Although Denver is not the only city in North America that has a green roofing initiative, it is the first city to mandate the installation of vegetation on existing buildings. Local contractors are presented with both an exclusive opportunity and a unique challenge to work on green roofing installation projects.

If you are interested in learning more about the qualifications to work on green roofing projects in Denver or are interested in recruiting a qualified licensed contractor, contact Cotney Construction Law.

If you are interested in speaking with one of our Denver contractor lawyers, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

After voter approval by Denver residents, on January 1, 2018, the hotly contested Green Roof Ordinance was greenlit in the Mile-High City. In this two-part article, our Denver construction attorneys will discuss vegetated roofing and how contractors can become eligible to work on green roofing projects in Denver.

Why Roofs Are Going Green

Denver experiences as high a level of urban heat island effect as any city in America. With climate change and urbanization, the downtown district faces a warmer climate than surrounding areas in Colorado. Vegetated roofs effectively minimize the urban heat island effect, reduce greenhouse gases, provide insulation that lowers HVAC costs, absorbs rainwater reducing the chance of urban flooding, and improves the aesthetic quality, property value, and marketability of the city.

What is the Green Roof Ordinance?

With the newly passed green roofing initiative, Denver joins other cities like San Francisco that have already mandated eco-friendly rooftops, but the Mile-High City is the first to require either solar installation or vegetation on existing roofs. Buildings, new or existing, must meet the Leadership in Energy and Environmental Design (LEED) certification standard to be in compliance. Here are some important compliance guidelines for the green roofing initiative in Denver:

For new buildings:

  • Denver’s new “green roof” rule stipulates that buildings over 25,000 square feet must allocate a portion of the roof area to vegetation.
  • At least 10 percent of the rooftop must be covered by green space. The maximum coverage limit is up to 60 percent of the roof area.
  • For every floor the structure has, the amount of green space increases by an additional 10 percent. In other words, if a building is five stories, 50 percent of the building’s rooftop must be occupied by vegetation.

For existing buildings:

  • If a building exceeds 50,000 square feet, the ordinance requires two percent of the rooftop to be covered in green space.
  • Including additional stories, the maximum coverage area has a cap limit of 18 percent.
  • There are other options besides vegetated roofing. For example, older buildings can have 70 percent solar installation on the roofing area or combine vegetation with cool roof supplies. Cool roofs have reflective features that reduce the impact of solar heat.

For more information on green roofs in Denver, please read the second part of our series.

If you are interested in speaking with a Denver construction lawyer, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

As we discussed in the first part of this two-part article, neither the State of Florida nor the federal government require employers to provide meal breaks for their employees that are over the age of 17. Of course, most employers allow their employees to have these breaks to ensure their workplace remains positive and productive.

There are many ways that employers can manipulate these laws in their favor without employers even knowing. In some cases, this means that instead of receiving overtime pay, you are not compensated for time worked because it was counted as part of your “meal period.” If you are interested in discussing wage and hour laws with a legal expert, contact an unpaid overtime lawyer in Tampa today.

Other Break Time Scenarios

Although meal breaks are the most common type of break, there are many other times that an employee may or may not be compensated while on a break depending on the scenario. For example, paramedics and firefighters may be on-site “working” during hours they are asleep in the station. Many sales positions require a lot of traveling. Some jobs, like limousine drivers, include a lot of time waiting for a client.

Here are some more specifics for each one of these gray areas:

  • Sleeping: Sleeping time while “working” depends largely on how many consecutive hours you are on call and whether or not there is a designated sleeping area provided for you. For less than 24 hours, sleeping time should be compensated. If you work over 24 straight hours, no more than eight hours should be deducted from a day. Further, you must be provided with sleeping quarters and allowed at least five consecutive hours of uninterrupted rest time for pay to be deducted.
  • Traveling: Traveling before and after work is not considered paid time. However, if your job requires you to travel during your shift to perform your work, this time should be compensated.
  • Waiting: Waiting time is a gray area of the law that generally comes down to whether or not the employee has the freedom to leave or is required to be waiting in order to perform their tasks.

Exempt Employees

Employees that are exempt from overtime should be compensated for all their breaks. Because the employee’s paycheck is consistent every week, they should be paid the exact same every pay period. Of course, if the employee is taking excessively long lunches or is often out of the office, their paid time off may be docked. However, in many cases, an employee is misclassified as exempt from overtime when they shouldn’t be.

If you are interested in speaking with one of our unpaid overtime lawyers in Tampa, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Every worker needs a meal break, but most employees are not aware of their legal rights when it comes to that important midday or evening mealtime. In this two-part article, we will explain everything you need to know about breaks and the wage and hour laws associated with them. Remember, if you are an employee with any wage and hour concerns, a Tampa wage and hour attorney is here to assist you.

Florida Law for Meal Breaks

In Florida, there are no state laws related to meal or rest breaks for workers over the age of 18. However, minors must be provided with an uninterrupted 30-minute meal or rest break for every four consecutive hours worked. Most employers follow this same policy for their employees that are 18 and older; however, this isn’t required by law.

Federal Law for Meal Breaks

Similarly, there is no federal legislation for meal breaks; however, federal laws establish when an employee should be compensated during breaks. For breaks 20 minutes or less, this is considered time worked. For breaks that are at least 30 minutes or longer, this is time that should not be compensated. To qualify as unpaid time, the employee cannot be required to perform any work. Some businesses ignore this by requiring employees to eat at their desk or perform light tasks like answering the phone while on lunch. Other similar tasks include: checking emails in the office, greeting clients at the front desk, running work errands while away from the office, or cleaning up around your workstation.

Taco Bell’s Unique Case

In California, Taco Bell employees recently filed a class action lawsuit against the fast food company related to meal breaks. The employees claimed that they were forced to eat their lunch in the restaurant and believed they should be compensated for these meal breaks at work. Taco Bell countered that employees were allowed to leave for lunch breaks as long as they were not purchasing discounted food from their restaurant. The 9th Circuit Court sided with the employer stating that the company “exercised no control over their activities.” In other words, the employees were not required to stay at the restaurant unless they ordered the discounted food. However, the employees were “free to leave” otherwise and were not required to perform work-related tasks during meal breaks.

Although Taco Bell’s case was a win for the employer, many employers do require their employees to remain in their workplace and perform work-related tasks during their breaks. In the second part of this article, we will discuss some more nuances of wage and hour laws related to break time.

If you are interested in speaking with one of our Tampa wage and hour attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

In this two-part article, we are discussing how employers can implement procedures to help prevent fraudulent workers’ compensation claims. In the first section, we discussed how to create a positive work culture, perform background checks of applicants, and establish a zero tolerance policy for fraudulent claims. In this section, we will discuss other actions employers should take if they suspect a worker is filing a fraudulent claim. Remember, if your business needs legal counsel related to workers’ compensation law, contact a workers’ compensation defense attorney in Florida.

Employees Reporting Incidents

It’s critical that employers have a system in place for reporting injuries. If an accident transpires at your workplace, workers need to immediately report the incident to receive treatment. Similarly, workers need to be made aware that they can report fraud anonymously to a supervisor. Because employees in a workforce often have a “pack mentality,” employees need to feel safe when notifying the company of misconduct.

If an employee does report a false claim and you determine this to be accurate, you may want to reward that employee for “doing the right thing.” Although you don’t want to promote these types of rewards too much, as this can raise suspicion in the workplace, this can be done on a case-by-case basis discreetly.

Employers Reporting Fraud

You should never assume that an employee is filing a fraudulent claim; however, if you see the warning signs and determine that an employee did in fact file a fraudulent claim, this needs to be reported to your insurance company immediately. In some cases, law enforcement may also need to be notified. Of course, as this is a serious allegation, employers need to do their due diligence and provide the insurance company with as much information as they can. The insurance company will then begin an investigation into the incident.

Fraud Can Lead to a Criminal Conviction

Employers and their employees both need to understand that committing workers’ compensation fraud is a serious crime that can result in criminal charges, jail time, costly fines, and even losing your business. If convicted, an employee will have a stain on their criminal record for future job applications. If an employer is convicted, the reputation of their business could be ruined. If you are an employer and you detect fraud in your workplace, or you want to implement procedures to help prevent fraudulent claims, consult with a workers’ compensation defense attorney in Florida. We can provide you with the right guidance to ensure your business is protected from false claims.

If you would like to speak with a Florida workers’ compensation defense lawyer, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.