Zinzow Law

Changes Are Coming to Construction Defect Laws

Proposed Legislative Changes to 558 & the Statute of Repose

America’s Founders in 1776 desired change – change in their government and the laws affecting them and their businesses. They used the power of the pen to craft a representative government where positive change could be made by those willing to serve at the forefront of issues facing their community.

 

Construction is our community, and we have always served at the forefront of positive change, particularly legislative change. Our legal professionals serve on and participate in legislative committees of the Florida Bar and the major construction trade associations, such as Florida Homebuilders Association and Associated Builders and Contractors.

We are a part of the bill drafting process and speak with legislators and their staff about important issues affecting the construction industry. We do not sit on the sidelines, complain about the process, and wait for a response; we go on the offensive to take action.

Desperate for Change | Senate Bill SB 736

On November 2, 2021, Senator Hutson from District 7 filed a Senate bill known as SB 736. This bill can bring much needed change to the Construction industry as follows:

Amends 95.11

  • Amends § 95.11(3)(c) Fla. Stat. to eliminate the extended (or tolling) statute of limitations for actions founded on the design, planning, or construction of an improvement to real property based upon latent defects and eliminates the 10-year statute of repose.
  • Under the current statute, when the action involves a latent construction defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. 
  • The current statute includes a 10-year statute of repose such that the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
  • This proposed revision eliminates the 10-year period, effectively reducing the deadline to file a claim to 4 years.

AMENDS 558.004

Amends the Florida Construction Defects Statute, specifically § 558.004 Fla. Stat., by adding the following provisions:

  • Requires a claimant who rejects a settlement offer to include the reasons for rejecting the offer within the notice rejecting the offer. The claimant must identify any items that were omitted from the offer and state in detail all known reasons why the claimant believes the settlement offer is unreasonable.

  • Allows the person served with a notice of rejection of a settlement offer 15 days to make a supplemental offer and requires the claimant to serve a notice of rejection of this supplemental offer, including reasons for the rejection.

  • Extends the court’s stay of any action until the supplemental process is concluded.
  • Limits claimant’s right to recover attorney’s fees unless the claimant proves by a preponderance of the evidence that, at the time of the offer, additional repairs beyond those offered were necessary to remedy the defect. Also, the attorney’s fee limitation does not apply to any claim for attorney’s fees based on a contract between the claimant and the offeror.
  •  If a claimant accepts an offer or supplemental offer, the claimant must, within 90 days after the acceptance, enter into a contract with one or more appropriately licensed contractors to correct the construction defect(s). The offeror or insurer shall pay the contractor directly for said repairs and the repairs must be completed within 12 months after claimant enters into the contract with the contractor, unless the offeror or insurer and claimant mutually agree otherwise.
  • Creates a new § 558.0045 Fla. Stat., which requires the court, in construction defect litigation, to appoint an expert (e.g. engineer, contractor, etc.) to examine the alleged defect.  The court may not appoint an expert if all the parties object or if the court finds that the cost of the expert outweighs any potential benefits to resolution of the action.  Within 15 days after conducting the examination, or otherwise determined by the court, the expert shall submit a written report with detailed findings to the court and to the parties.  The parties shall compensate the expert, but the prevailing party is entitled to reimbursement from the non-prevailing party.  The expert may not be employed to do the repairs.
  • The claimant must repair a construction defect if claimant receives full compensation for such a repair.  If a claimant receives full compensation and fails to repair the construction defect, claimant is liable to a purchaser of the property for any damages resulting from the failure to disclose the defect.
  • Requires the claimant to serve a notice of claim for any construction defect, by certified mail, return receipt requested, on a mortgagee or assignee within 30 days after service of the notice of claim upon the contractor, subcontractor, supplier or design professional.  If repairs relating to the defect are completed after notice to a mortgagee or assignee is provided, or if any settlement, partial settlement, arbitration award, or judgment is obtained by the claimant, the claimant must provide an additional notice to the mortgagee or assignee, by certified mail, return receipt requested, within 60 days after completion of the repairs or any settlement, partial settlement, arbitration award, or judgment, whichever is later.

What Happens if it passes?

If passed by the legislature, it is important to note these amendments are effective for any action commenced on or after July 1, 2022. However, with respect to any action that would not have been barred under § 95.11(3)(c) Fla. Stat., which is the discovery rule statute of limitations for latent construction defects or 10-year statute of repose, such an action must begin on or before July 1, 2023.

We are encouraged at Team Z, as we see the potential for positive change for our clients. SB 736 is a piece of that potential change, despite being only in its earliest form of a pre-filed bill.  Every year, there are competing, and complimentary bills filed. This bill has to make it through the legislative process, as bills advance, modify, negotiate, or die in committee, on its journey to make it to the governor’s desk to be signed into law. Team Z will do all we can to stand for our clients and for their pursuit of happiness.

If you would like more information about the pending legislation, or what you can do to protect your construction company from construction defect claims, Zinzow Law is here to help.  We protect those who Build America.

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Urgent Legal Bulletin | OSHA Vaccine Mandate



How to Beat an Overreaching Government

What Every Construction Company with More than 100 Employees Must Know Now

You have no doubt heard about the vaccine mandate, about Governors, including Governor Ron Desantis, who intend to challenge it, and may have even heard, in passing, about a court halting the vaccine mandate.  This legal bulletin separates the fact from the fiction and provides you with important information you must know to protect your liberty and your livelihood.  

Crafted by the Framers at the Constitutional Convention of 1787, the preamble of the Constitution begins with “We the People,” a phrase that has transcended American history. A noble phrase, combined with deep emotion and patriotism, breathes life into the fabric of our nation’s fundamental values that the people have the popular sovereignty over the government.

On September 9, 2021, President Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 to the American people, which broke our nation’s centuries long value that We the People decide what is best and not the government. Through the Occupational Health and Safety Act (OSHA), the President is mandating that businesses with over 100 employees must be fully vaccinated against COVID-19 or be subject to weekly COVID-19 testing, while wearing a mask during work hours. Additionally, the Federal government is initiating a rarely-used emergency temporary order (ETS) to streamline this executive overreach onto the American people.

Temporary Stay

On November 6, 2021, the Fifth Circuit Court of Appeals temporarily blocked the OSHA mandate from depriving freedom from hard-working Americans. A three-judge panel issued an emergency stay to prevent the enforcement of the new rule to allow for full briefing and arguments on the merits of the case. 

Regardless, companies with over 100 employees need to be prepared for a legal fight, as the administration will attempt to unconstitutionally justify its means to reach its end, and this stay is temporary only. 

OSHA Covid Ruling

False Justification of Using OSHA

OSHA’s purpose is to ensure workplace and jobsite safety, yet this executive order is political in-nature and does not specifically relate to either. OSHA is being used as a catalyst to further enhance the administration’s agenda to mandate vaccines and to further enhance the Federal government’s grip on American daily life.

While OSHA, a bureaucratic agency, typically takes seven years to create a rule for the workplace, the President’s executive order has been fast-tracked to be fully implemented in just four months. The emergency temporary order has only been issued nine times since it was established in 1971. Of the nine issuances, six were challenged in court and only one order survived the legal system. Each of these challenged orders governed the healthcare facility setting where protecting against medical dangers is a more compelling interest. This remarkable shift in rule-making expands this regulatory overreach to every business with over 100 employees in every sector of our economy.

The agency’s justification to use the ETS is to address a “grave danger,” but this legal standard cannot be upheld. This ETS order affects all employees at any age, whereas the country has been informed from the initial COVID-19 lockdowns in March 2020 through present day, that mostly the elderly were at risk of the disease. Even in the agency’s own conclusions, OSHA reaffirmed that not all workplaces face this grave danger. This grave danger notion is another illegal justification to directly interfere in the lives of everyday Americans.

Right to Privacy

It has been established through the Federal judiciary and legislature that the role of government in the lives of private citizens is to be limited. The right to privacy was established by the Supreme Court of the United States in Griswold vs Connecticut (1965), which has been used as case precedent expanding to other areas of private life. Additionally, Congress has taken the issue of privacy in the healthcare sphere to a vote, as it did in 1996 with the Health Insurance Portability and Accountability Act (HIPPA). HIPPA created national standards that protected patient information from being disclosed without the patient’s consent or knowledge.

The OSHA executive order immediately puts an individual’s choice on display to others. The employee can either comply with the order to obtain the vaccine, which automatically lets the individual enjoy normal life in the workplace, or the individual can subject him or herself to weekly testing and mask adherence. Regardless of the choice, colleagues in the workplace know the individual choice of the employee. This forced disclosure of health information by display breaks the legal standard our nation’s legislature and judiciary has already decided.

Be Ready to Defend Your Company

The OSHA mandate will be enforced through OSHA’s Compliance Safety and Health Officers.   OSHA will issue a Citation but is historically required to give the contractor a reasonable time within which to cure (abate) the violation, though that will not eliminate the penalty if one is assessed.   The abatement period specified by OSHA is often unreasonable, but contractors may petition for modification of the abatement date.  The petition must include a number of details, such as steps taken to abate the issue by that point, the additional time needed, interim steps implemented to safeguard employees during the abatement period, and a certification that the petition for modification has been posted in a manner visible to the contractor’s employees.   This petition must be timely filed or the contractor will have waived its right to seek modification.

The contractor may also wish to contest the Citation in whole or in part.  This may be necessary and prudent because an uncontested Citation may lead to more frequent OSHA inspections and increased fines in the event of future violations.  A Citation may be contested in only two ways: (1) an informal conference and (2) a formal notice of contest.   A formal notice of contest must be initiated with the Assistant Regional Director within fifteen business days of the Citation.  The informal conference does not have any impact on that deadline, so if an informal resolution is to be reached, the contractor must initiate the informal conference quickly.  The contractor has the right to and should be represented by counsel during both an informal conference and the formal contest proceeding. 

The contest proceeding is a formal legal process before the OSHA Review Commission, with a presiding Administrative Law Judge.  OSHA will be represented by legal counsel throughout the proceeding.  These proceedings are governed by complex rules of procedure and standards.   At conclusion of that proceeding, the Administrative Law Judge will prepare a written decision which may be appealed to the appropriate federal circuit court.  

Conclusion

Our country’s founding in 1776 occurred because our colonial past prevented the free expression of choice; the British crown dictated life by government mandates that were not consented to by the governed. Our Founders sacrificed their lives, fortunes, and sacred honor so we, as Americans, could live in a country full of peace, joy, and liberty. The Framers of the Constitution wrote a perpetual reminder to succeeding generations that “We the People” represent the people’s values. And those three words established what our Constitutional Republic was to embody. We the People can choose our leaders. We the People can choose our careers. We the People can choose our own health decisions. It is not the role of the government to dictate how Americans make individual choices; it’s the people’s.

Thankfully our Constitution affords the construction industry relief from the terrible cost a universal vaccine mandate will place on an already strained labor force.  

If you would like more information about the OSHA mandate, the temporary stay, or what you can do to protect your construction company from an OSHA citation, Zinzow Law is here to help.  We protect those who Build America.

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Real Justice is Time Sensitive and We are Failing Those We are Supposed to Serve

We love our esteemed judiciary in Florida, but we love real justice more and therefore must offer observations which may be hard for some to hear.  The Honorable Chief Justice Canady astutely observed at his annual state of the judiciary that a strong and independent judicial system is necessary to preserve our great nation.  His Honor continued that the judiciary has served this function well through the era of COVID-19.  This advocate could not disagree more, but perhaps more important than an advocate’s opinion, is the opinion of the very people the system exists to serve.  It has been long said that justice delayed is justice denied.  As the Chief Justice acknowledged, “many cases will not be resolved until there is the imminent prospect of a trial.”  Our state is open for business.  We can walk into a grocery store, a hardware store, a restaurant, or a theme park, but we cannot walk into a courthouse to conduct a hearing or try a case.  The citizens of our state have real hurts, real harms, and real needs that can be resolved only by the courts, and they must be resolved now.  These very citizens are railing against and have lost faith in their judiciary.  Legal professionals all around this country are, in droves, counseling their clients to move away from the courts and toward arbitration because real justice is time sensitive.  The courts do not need resources from the legislature to tackle the mounting backlog; they need to re-open the doors of justice now.

‘Tis the Season of Miracles that Let Freedom Ring

Never Letting the “Thanks” be Taken from Thanksgiving

Saved from Darkness, Today We Give Heartfelt Thanks

We Will NEVER Forget

September 11th, a day that America will always remember. Team Z would like to ask you to take a moment of silence with us to honor all the innocent people who lost their lives on this tragic day in American history.

 

We will never forget. – Team Z

Florida’s Future Coastal Construction … or Lack Thereof?

Florida is one of the most tourist driven destinations in the United States. The economy thrives on the distinctive attractions this state has to offer and, of course, the patrons who invest in them. The Sunshine State attracts visitors far and wide for its beautiful beaches, shady palms, and abundant state parks. Not to mention all the snowbirds who flock here and make this their migratory home for part of the year. Needless to say, Florida’s beauty is captivating which makes it a wonderful spot to call home, the perfect place for a family vacation, or a much-needed getaway. However, being almost completely surrounded by water has made this peninsula a concern for potential sea-level rise for many years. Not to worry though, all Floridians are required to own life jackets, scuba gear, and a snorkel in case of emergency. In all seriousness, the Florida government has concerns for Florida’s future and whether this future may be underwater, at least in some places. Of course, if the government is concerned, it begs the question: should Floridians also begin to worry? To address these concerns, a new law has passed that will require consideration for possible rising sea levels and flooding prior to beginning public coastal construction projects. This law is formally known as “Senate Bill 178 – Public Financing of Construction Projects”, which passed unanimously by 153 Florida legislators and will take effect in July 2021. With the passing of Senate Bill 178, Florida’s coast will likely have a very different look in the coming years. Could this mean no more beachfront condominiums, skyrises or parking garages? While little information is known at this time how this law will directly affect Florida’s construction industry, speculation can be made that it will certainly make an impact.

As it stands, Florida’s governing body is apprehensive about the climate related changes we may see here in Florida. Much of these concerns derive from the impending financial problems and property damage caused by flooding. In addition to those looming financial issues, the state is also preparing to spend at least $4 billion to determine sea level rise solutions which would include “protecting sewage systems, raising roads, stormwater improvements and (creating) seawalls”3. While understanding and preparing for potentially devastating impacts to Florida’s ecosystem is understandably important, Senate Bill 178 is actually the “first major piece of climate-related legislation in a decade” . This legislation was implemented with the hopes of limiting damage to Florida’s structures lining the coastal regions if sea level rise were to continue. These worries are heightened as a result of the studies conducted by the various entities who observe and predict sea-level rise. These predictions, although they drastically differ in number, all seem to indicate that Florida will see higher sea levels at some point in time. That time frame, of course, also varies significantly. For instance, the Southeast Florida Regional Climate Change Compact Sea Level Rise Work Group has estimated that the rise in southeast Florida “could be as much as 6.75 ft by 2100” . Whereas the Tampa Bay Climate Science Advisory Panel “anticipates a rise of 8.5 ft by the end of the century”2. This uncertainty as to how far and for how long Florida’s land boundaries may stretch is why lawmakers are proceeding with caution for future developments along Florida’s coast. The current measurements depict that Florida’s sea level has risen 8 inches since 1950 and the velocity of this rise is only increasing as the years continue . Surprisingly, scientists measure the sea level every six minutes to have an indication as to the rate these changes are actually happening3. Limiting the coastal development may prevent the need for the state step in later and fix any future damages attributed to rising sea levels. As part of the analysis conducted by the Florida Senate related to Senate Bill 178, they determined that Florida could see a property value loss as high as $300 billion by 21002. Hence, their need and desire to take these somewhat preventative measures now.

As for the requirements imposed by Senate Bill 178, these will consist of tests, scientific research, and assessment to determine how a particular construction project may be impacted by a rising sea level. These tests are called “Sea Level Impact Projections”, also known as “SLIP” studies. These studies are supposed to assess the “flooding, inundation, and wave action damage risks relating to the coastal structure over its expected life or 50 years, whichever is less” . In addition to that, the assessment must also ascertain the “potential public safety and environmental impacts resulting from damage to the coastal structure, including, but not limited to, leakage of pollutants, electrocution and explosion hazards, and hazards resulting from floating or flying structural debris”4. As of now, there is not a lot of information on the exact standards of these SLIP studies and how they may impact construction projects. However, it is known is that the Florida Department of Environmental Protection (FDEP) is responsible for developing those standards and establishing the requirements that state-financed constructors will need to abide by prior to commencing work on a project. With that being said, the FDEP will also have the power to enforce civil action against any state-financed constructor who violates these requirements, including injunctive relief and the ability to retain repayment of all the state funds that were spent on the project. However, it is worth noting that this piece of legislation does at least limit the government from seeking damages if civil action is brought forth. Rather than take any unnecessary risk, it is important for constructors who are performing work on state funded coastal construction projects to ensure they are in compliance with this new legislation. Otherwise, they may be liable for paying back thousands, or even millions, of dollars for not adhering to this new mandate.

While change can be a good thing, it is something most people have a considerably difficult time adapting to. Unfortunately, when it comes to following the law, there is not usually a grace period allotted for these new adjustments. Senate Bill 178 will likely cause visual changes here in Florida. We can expect to see a decline in coastal construction and development, as well as changes that are not as easy to see. The changes that will be much more difficult to notice are the ones where the majority of the population are unaffected. With the passing of this legislation, it may cause significant delays, cancellations, and limitations on construction projects. From that, could come profit loss, economic decline and job reduction. Most importantly, and what has not been addressed enough, would be how this legislation could diminish the Florida construction industry as a whole. While this is currently only impacting publicly funded construction projects, a previous version of this bill applied these requirements to private construction as well. While it may be too soon to tell, it would not be a surprise to see implementation of this bill to all coastal construction projects in the future.

Tifffani Sprague, a Paralegal working with the construction industry attorneys at Zinzow Law, LLC.  For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

Courage Required-Courage Inspired

Thomas Hobbes, the author of “Leviathan,” written centuries ago, conveyed his thoughts to the world about a properly functioning and safe society. Hobbes wrote about inherent liberty, but also about our duties to one another through both good and challenging times. Hobbes advocated that we each give away to a government a small piece of our innate liberty; that we empower an executive government to protect us from each other and from our worse human characteristics: greed, power, irrationality, fear, and unkindness.

Our government today — and indeed democracies throughout the world — were modeled, in significant part, on these principals. Yet, as Hobbes recognized, government is of the people, by the people, and in principal, for the people. Being of and by the people, it is susceptible to the same human characteristics as society itself: greed, irrationality, power, fear, and unkindness. Accordingly, Hobbes logically advocated that there also be a check on government. We are those protectors. We are judges, lawyers, paralegals, clerks, assistants, administrators, executives, bailiffs, and all those who support the justice system.

This system has always been grounded in justice and the protection of the weak from the strong. Yet, the law and its deployment or restraint has always been imperfect. This is why, since time immemorial, those members of society who have been privileged enough to serve the law have also had as their charge the duty to protect it. We are the greatest threat to those who act with greed, power, irrationality, fear, and unkindness.

Sadly, when our profession is needed most, it has vanished. Trials have been postponed indefinitely. Law firms lay quiet. Judicial progress has been reduced to a crawl. William E. Gladstone is oft cited as the source of that centuries’ old truism: “Justice delayed is justice denied.”

The order of society depends upon our system of justice. We are privileged to serve the third co-equal branch of government, and with great privilege comes great responsibility. We must live, speak, and act with courage and get the wheels of justice moving again.

 

All members of Team Zinzow Law

Trinity, Florida

Have Faith in One Another

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