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Construction Law

Florida’s Pot Laws and Broward’s Construction Industry

How Do New Regulations Affect Construction Workers in Fort Lauderdale & Hollywood?

Florida's recent move to approve a more comprehensive public medical marijuana program will have a considerable impact on employers in the 2018. In November 2016, Florida, along with Arkansas, North Dakota, and Montana, voted to join the 25 other states that had previously approved public medical marijuana programs. Florida law provides little guidance for construction companies that are wondering exactly how to handle issues that may arise under the new law. Nevertheless, an examination of laws in other states by our Fort Lauderdale construction lawyers could offer reliable insight.

Medical marijuana and construction jobs

Construction is a generally hazardous occupation. The Occupational Safety and Health Administration Act requires employers to maintain a work environment that is "free from recognized hazards." Therefore any degree of marijuana-induced impairment may compromise workplace safety. Therefore, members of the construction industry are unwilling to compromise safety standards on job sites in response to the legalization of medical marijuana in Florida. Employers avoid potential liability by imposing zero tolerance policies for marijuana possession, use, and impairment. On federal construction projects, the law is extremely clear. Because federal law is always supreme over state law, contractors, subcontractors, suppliers, and laborers who are working on a federal project may not use marijuana, regardless whether local state law permits marijuana use.

Marijuana use in Florida

In 2014, Florida Governor Rick Scott signed SB 1030, also referred to as the Charlotte's Webb bill. The law permitted terminally ill patients as well as those suffering from chronic seizures and/or severe muscle spasms to receive a low-THC strain of cannabis for treatment purposes. Because the law called for a small percentage of patients to be permitted to use a low potency strain, medical marijuana advocates criticized the law, calling it inadequate. A more comprehensive medical marijuana program called Amendment 2 appeared on a ballot; however, the program failed to receive the required 60 percent of votes to pass. In 2016, Amendment 2 reappeared on the ballot with more specific terms, including the definition of "debilitating medical condition." The newer, more detailed version of the proposed law received the support of 70 percent of Florida voters, which was enough for the amendment to pass.

Use at the Workplace

While Florida's new medical marijuana law does not provide much in the way of specific guidelines for construction companies, the language of the law does specify that companies are not required to make accommodations to allow construction workers to use medical marijuana onsite at the workplace. A similar exemption also exists in most states that have approved public medical marijuana programs. However, some states' medical marijuana laws include a clause that prohibits discrimination against workers on the basis of having a medical marijuana card. Because Florida's new law does not include a discrimination clause, local employers may prohibit employees from using marijuana at the workplace.

Medical marijuana and the ADA

Under the Americans with Disabilities Act, Broward County construction companies are required to provide reasonable accommodations to employees who have a disability. Florida's new medical marijuana law may give rise to questions regarding whether an employer must allow employees to use marijuana while at the work site to alleviate a "debilitating medical condition." Currently, employers are not required by the ADA to permit the use of medical marijuana as courts have unanimously held that employers are not required to accommodate the marijuana use, possession, or impairment in construction workers while on the job. The ADA states that people who are currently using an illegal drug are not considered to be "qualified" people with a disability. Therefore, they are not protected by the ADA. Despite being legal for medical use in Florida, marijuana is still illegal under federal law; therefore, it is an illegal drug under ACA.

Drug testing and zero tolerance

In most states, employers who have implemented a zero tolerance drug policy may fire or even refuse to hire employees and prospects who fail a drug test for marijuana even if obtained legally. Current marijuana tests may indicate the presence of cannabis even if weeks have passed since the employee last used the substance. Therefore, an employee's off-duty drug use may lead to job termination. To protect employees who use marijuana for permitted medical uses, some states require employers to provide additional evidence of impairment in addition to a failed drug test. Florida currently does not have an "impairment plus" statute; therefore, construction companies may simply terminate employees based solely on a failed drug test. If Florida adopts an impairment plus policy in the future, employers must then train managers in detecting signs of impairment, taking witness statements, and otherwise taking steps to accurately document cases of marijuana impairment.

Off-the-clock marijuana usage

Fort Lauderdale construction firms may also question whether they will be required to accommodate an employee's medical marijuana use while off duty. While Florida employers are not currently required to accommodate off-duty marijuana use, circumstances may arise in which a court may consider off-duty medical use to be reasonable accommodation. Furthermore, although medical marijuana is not covered under the ADA, an examination of an employee's status as a medical user may reveal the condition for which the worker is being treated. If the underlying condition constitutes a qualifying disability, the employer may be required to discuss reasonable accommodations other than marijuana use with the employee. The Family Medical Leave Act may also be applicable to the employee's circumstances.

As of now, not much has changed for employers in Florida's construction industry regarding making accommodations for medical marijuana. However, employers may be required to engage in the interactive process of discussing alternative reasonable accommodations, apart from medical marijuana use, if an employee's qualifying medical condition is revealed to an employer as a result of his or her participation in the state's medical marijuana program. Always consult with an experienced Hollywood construction attorney for guidance on your unique situation in Fort Lauderdale or Elsewhere in Broward County.

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Construction Law

Florida’s Statutes of Limitations: Construction Cases

If you’re weighing legal action against a contractor, subcontractor, construction company or property owner in Fort Lauderdale or Hollywood, don’t make the mistake of thinking you have forever to file a construction lawsuit. Any such litigation in Broward County is subject to rules set forth at the Florida state level, and once the state-mandated period of time – known as the statute of limitations – has passed, it will be extremely difficult for your construction litigation lawyer to successfully file action on your behalf.

Florida's 2017 statutes can be confusing, and vary depending on the type of construction litigation case. It is imperative to know how your case is likely to be classified, and the best way to know with any degree of certainty is to ask an attorney who specializes in this area of law.

Current Florida statutes

According to Florida Statute 95.11, the following deadlines apply to construction-related lawsuits, and are for "actions other than for recovery of real property:"

Four years: This includes action against contractors or construction companies for "design, planning, or construction of an improvement" resulting from defective materials. If the defects are deemed to be latent, the statute of limitations could be extended to 10 years. Also included in this time period are personal injury claims stemming from accidents that occurred at the construction site.
Two years: This deadline applies to the filing of wrongful death lawsuits caused by catastrophic accidents on the construction site.
One year: This is for cases involving foreclosures or lien filings. If a property owner refuses to pay a contractor or sub-contractor for services rendered per the terms of an agreed-upon and executed contract, a lawyer could file for a mechanic's lien against the property, forcing its sale and potentially distributing the proceeds to those who were not paid as promised in writing.

Statutes of limitation can be tricky, and there might be some overlap, depending on the unique circumstances surrounding your case.

Why you shouldn't file suit right away

There is no set period of time that one must wait before filing action in Broward County court. That said, it might save you time, money and sanity to attempt a few alternatives to litigation before embarking upon the lengthy – and potentially costly – fight in court. For example, one strongly worded demand letter from your Fort Lauderdale construction attorney could be enough to show the other party or parties that you are serious about litigation. We have witnessed – time and time again – how that one document could be all that's needed to light a fire under the other parties get you paid. Why file suit if there's a chance to resolve the matter quickly and without the hassle?

Why you should never wait till the last minute

It's startling how many would-be plaintiffs drag their feet when it comes to filing, only to find out the hard way that they misunderstood and miscategorized their case, and that the statutes of limitations for their true case type have already expired, neutralizing any claim to money they were sure would come someday. Time also tends to shroud evidence, and potential witnesses who could be instrumental to your case could become harder and harder to track down. Construction lawyers in Hollywood and Fort Lauderdale tend to stay busy, and there is no guarantee that counsel will have room on the schedule for a last-minute case, especially if said evidence and witnesses need to be gathered and tracked down.

David S. Tupler, P.A. has proudly represented Hollywood and Fort Lauderdale for more than 25 years. If you're involved in a construction dispute in Broward County, let us work to get you paid. Call today and discover why our law firm is the best fit for your unique case type.

Categories
Construction Law Lien Law

The Miller Act’s Impact on Fort Lauderdale Contractors

What is the Miller Act?

In 1893, the United States government enacted a law known as the Heard Act. This Act stated that any construction company performing work for the U.S. government must carry a performance bond. Later, this Act was changed to include a bond securing payment for all subcontractors performing on the contract. When these changes took place, the law became known as the Miller Act.

The Miller Act was established to protect the government from unexpected costs relating to construction projects due to non-performance or delays caused by the contractor. In addition, the government offered protection to all Florida subcontractors under this law in an effort to keep construction costs low. Subcontractors, under Sovereign Immunity, cannot have their Fort Lauderdale attorney place a lien on a government owned building for labor and material costs. The Miller Act guarantees that these subcontractors are paid for their supplies and services.

Construction contractors must comply

The first thing that every Fort Lauderdale or Hollywood construction company that bids on government jobs must understand is that complying with the Miller Act is mandatory. There are no exceptions. Broward County contractors who are awarded construction projects valued in excess of $100,000 that are meant to construct, alter or repair a Federal building will be required to meet the following obligations:

Performance Bond. The amount of the bond will be determined by the contract officer and will be based on the overall value of the contract and other relevant facts. Part of this bond must include coverage for payroll taxes. This bond must name the contact officer as the recipient of the bond if the terms of the contract are broken.

Payment Bond. A payment bond in the value of the entire contract must be taken out to protect employees, suppliers, and subcontractors from non-payment of monies due. The contractor has the ability to request a lower bond amount, based on actual anticipated costs of materials and labor. However, it is at the discretion of the contract officer to determine the amount of the bond necessary to cover all necessary payments.

Contracts that are values between $30,000 and 100,000 dollars have similar requirements for bonds. However, it is very important for contractors to verify the bond requirements prior to bidding on the job. Once a job has been awarded to a specific company, these bond requirements will go into effect. Failure to comply will cause the contractor to lose the contract and may ban them from future contract opportunities.

It should be noted that the Miller Act applies to Federal construction projects only. Construction contracts concerning state and local government entities will have their own bond requirements for their contracts.

Enforcement of the Act

Under the Miller Act, any party that hasn't received wages for work performed under the contract by the main contractor, or any supplier or subcontractor that has not received payment for their goods or services after 90 days of last providing those goods or services, has the right to sue for payment against the bond.

These lawsuits will name the U.S. government indirectly since it holds the bond. However, it will be the bond itself which is sue and will ultimately pay these outstanding balances. The insurer who issued that bond may seek damages against the contractor once the debts are paid. The U.S. government in no manner will be held accountable for these debts.

Understanding your obligations before You bid

The Miller Act plays a very significant role in any construction or renovation project that is conducted for a federal agency. Understanding how this Act affects your bidding is very important. Contractors seeking government work should become very familiar with this law as well as others that may apply for government contracts.

The federal government will strictly enforce all parts of their contract. It is mandatory that you understand every part of the bidding and acceptance process before submitting your bid. If you are unfamiliar with any part, speaking with a Hollywood or Ft. Lauderdale construction lawyer might be in the best interest of your construction firm.

Government contracts can be very lucrative for your Florida business. Once you have established yourself as a credible contractor, you will be able to bid on larger jobs that will increase your business size and profit. Approaching each of these bids carefully and with full knowledge will allow you to prosper as a government construction contractor.

REFERENCES

U.S. General Services Administration

Categories
Construction Law

Expired contractor license penalties

If a contractor's license lapses and no contracting work is being performed by the unlicensed contractor, there's no problem. However, if a person chooses to act in the capacity of a contractor without being licensed to do so, the penalties may be severe. Those penalties are covered in Florida Statute 489.127.

Acting as a contractor without a license is a first-degree misdemeanor, punishable by a term of imprisonment up to one year, or 12 months of probation and a fine of up to $1,000. If an unlicensed person is convicted of that misdemeanor and he or she continues to act as a contractor in a construction project, it's a third-degree felony, punishable by a term of imprisonment of up to five years and a fine of up to $5,000.

If probable cause indicates that unlicensed contracting work is taking place on a construction project which requires a current, valid certification or registration, a stop-work order may be issued by the Florida Department of Business and Professional Regulation (DBPR) requiring the project to immediately cease. In addition, an administrative penalty of up to $5,000 per incident could be imposed, along with civil penalties of anywhere from $500 to $5,000.

State penalties are not the only penalties that may be assessed. Each county or city also could issue citations against unlicensed contractors and impose penalties of up to $2,000. These penalties can add up, considering that Florida statutes provide that each day a willful, knowing violation continues, a separate offense occurs.

Other consequences of contracting without a license may include:

  • inability to acquire liability or worker's compensation insurance.
  • inability to enforce a contract for work performed without a valid license.
  • inability to enforce lien rights.

The criminal and civil penalties for contracting without a license are severe, but it is important to remember that license requirements are in place to protect the contractor as well as the contractor's customers. A person who has not obtained the required license for his or her profession may not have the requisite education or skill set to safely complete the tasks associated with their profession. Licensing statutes and ordinances make it more likely that aspiring contractors will obtain the education and skills needed to be safe on the job site.

Another consequence of unlicensed contracting is that – although a person may have the skill set to complete a certain contracting project without a license – he or she could be exploited by those who are well aware that an unlicensed contractor will not have any legal way to enforce payment for work performed. Some unlicensed workers toil on projects after normal work hours and on weekends for promises of payment that ultimately do not materialize.

License requirements are designed to protect individuals, and the Fort Lauderdale and Hollywood communities as a whole. If you're cited for contracting without a license, seek immediate representation from a qualified construction attorney. There are defenses and mitigating factors which may assist the you in resolving the matter.