[RPPTL-constructionlaw] CLC Legislative Subcommittee

Mon Apr 8 08:39:13 PDT 2013

Hey gang! Hopefully you are listening-in to the CLC conference call that
is being held at this very moment.  See below and attached as part of
the meeting.  Arnie.

From: Pence, Scott [mailto:spence at carltonfields.com] 
Sent: Monday, April 08, 2013 10:30 AM
To: Arnold D. Tritt, Jr.
Subject: FW: CLC Conference call in 90 minutes

Arnie,

I won't be able to make the call today.  Following is my report from
last month. The only addition to the summary below is HB909 (dealing
with non-assignment of a homeowner's insurance policy) which we are
monitoring.

Thanks,

Scott

Scott Pence
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780 
Direct:  813.229.4322 | Fax:  813.229.4133

From: constructionlaw-bounces at lists.flabarrpptl.org [
mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Pence, Scott
Sent: Monday, March 11, 2013 10:53 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] CLC Conference call in 90 minutes

Folks,

Following is an updated summary for March of the Bills which the
Legislative Subcommittee has been asked to review and provide comments.

Proposed Bill

CLC Proposed Action

SB 530 (Revised Arbitration Code)

In order to address the potential argument that the court no longer has
authority to stay an arbitration proceeding where it finds no agreement
to arbitrate exists, the CLC recommended adding the words "and the court
may stay any arbitration proceeding that has been initiated or
threatened" to the end of new Section 682.03 (3) on page 13 of 38.

SB 286 (Limitation of Design Professional's Liability)

For the same reasons the CLC opposed the 2012 version of this Bill, the
CLC opposes this Bill.

SB 112 (Fraudulent Liens)

As worded, 713.31 would only apply to a "person who fraudulently records
a claim of lien."  First, it was unclear to us what this requires (e.g.
does it require an adjudication that someone fraudulently recorded a
lien?).  Second, it is unclear how someone fraudulently records a lien
to begin with (e.g. by telling someone you aren't recording one, but
then doing so anyway?)  

We felt the issue is whether the lien is fraudulent, as opposed to
whether the lien was fraudulently recorded.  Therefore, the CLC proposed
modifying the exception language to read as follows: "Claims for
fraudulent liens filed pursuant to part I of chapter 713 shall be
governed by s. 713.31 and are excluded from this section."

HB 285 (Judgment Liens)

No need for the CLC to take any position on this Bill.

SB 1166 (Adverse Possession)*

No need for the CLC to take any position on this Bill.  However, we made
a few minor comments and noted what appeared to be an inconsistency in
the use of terms. 

HB 889 (Lien Law)*

As currently proposed, the CLC opposes this Bill for the following
reasons: 

1.       The change regarding the timing for serving a notice to owner
(NTO): This change alters the timing of serving an NTO so it is based on
the payment terms of a vendor. A potential lienor can create its own
timing requirements simply by establishment of its payment terms, which
anyone outside the transaction will have no way of knowing.  This
removes the more certain standard (i.e. no later than 45 days after
commencing work, but in any event before the owner's final payment) that
has been part of the lien law for a generation, is well-defined in the
case law and well understood in the industry.  This unnecessarily
creates uncertainty and will likely create a tremendous amount of new
litigation.  

2.       The change requiring the contractor to give a notarized list:
This change would require contractors to provide owners with addresses
and phone numbers of each person owed money for a payment application
along with written releases that are currently required. Under 713.06,
the owner already has the right to request an affidavit from the
contractor in connection with any progress payment. Requiring a
notarized list with every application for payment appears to be
overkill, and may give the owner more information than he/she wants or
needs.  It could also be self-defeating for owners, such as the case
where a sub voluntarily releases lien rights by giving a lien waiver to
the GC, even though the GC has not yet paid, with the expectation of
receiving payment from the GC later.  In this case, the GC could not
truthfully swear that the sub was paid, and would have to list the sub
in the verified statement.  In this situation, the owner might rather
not have that information, because the owner otherwise could have relied
in good faith on the unconditional lien release (having no knowledge of
the non-payment).  In short, this requirement appears to be a "one size
fits all" approach that is too inflexible.  

3.       Elimination of improper payments after a notice of commencement
(NOC) expires:  By removing the penalty for the owner failing to keep an
effective NOC in place, the owner no longer has any incentive to do so.
This requirement keep an effective NOC in place is very important in
part because it protects laborers and small business men and women who
rely upon prompt payment to pay their bills and make payroll.  By
eliminating the proper payments defense, it becomes easier for owners to
ignore the risk of liens and leave unpaid these hardworking men and
women who employ thousands (if not millions) of Floridians.  Therefore,
it is better that the owner have some downside risk from not keeping the
NOC current. 

However, we suggested we might be able to work with the Bill's sponsor
if we had a better understanding of the reasons behind the proposed
changes.

* proposed Bills new to this month's report

Copies of the two proposed Bills that were added to this month's report
are attached for your reference. We will continue to monitor the
progress of these Bills and weigh in as appropriate.

Regards,

Scott Pence

4221 W. Boy Scout Blvd., Ste. 1000

Tampa, Florida  33607-5780 

Direct:  813.229.4322 | Fax:  813.229.4133

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org [
mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Arnold D. Tritt, Jr.
Sent: Monday, March 11, 2013 10:04 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] CLC Conference call in 90 minutes

Gang:  As promised, see attached the agenda for today's CLC conference
call which includes the call-in information. Also attached are Christi's
bio and a checklist which is part of Christi's and LRL's presentation.
Talk to you in an hour. Arnie.

Arnold D. Tritt, Jr.

Board Certified Construction Attorney 

707 Peninsular Place

Jacksonville, Florida 32204

Phone (904) 354-5200

Facsimile (904) 354-5256

Arnold.Tritt at atritt.com 

www.atritt.com

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