Category Archives: bLAWg

Construction Industry Licensing Board Part II – Proper Methods for Certified General Contractor to Obtain Roofing Experience

By Christopher M. Cobb, Esquire

Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who practice and appear in front of the CILB. For those who chose to appear pro se in front of the 18 member CILB to resolve and discuss licensing issues, the prospect may seem downright daunting. This post will cover some specific information that license holders and his/her attorney should know before they appear in front of the CILB.
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Expert Testimony Admission Standard in Florida: An Analysis of the 2013 Transition from Frye to Daubert

By: Charles B. Jimerson, Esq.
By virtue of HB 7015, signed into law by Governor Rick Scott, effective July 1, 2013, Florida state courts will no longer apply the “Frye standard” (Frye v. United States, 293 F. 2d 1013 (D. C. Cir. 1923)) for determining the admissibility of expert testimony. Instead, Florida now follows Section 90.702, Florida Statutes, which incorporates the “Daubert standard” for expert witness admissibility as reflected in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and its most notable progeny, General Electric Co. v. Joiner, 522 U. S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999). This bLAWg post will examine the “Daubert standard” and discuss how it may impact litigation moving forward. Read Full Post

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Avoiding the Selective Enforcement Defense When Enforcing Condominium Association Rules and Regulations

By Hans C. Wahl, Esq.

One of the most challenging aspects of effectively running and operating a condominium association is the constant turnover in board membership and the inconsistency this creates concerning rules enforcement. Most association board seats are up for reelection at least every two years if not every year. When members decide to run for the board, they often do so because they feel the current board is not properly running the association or enforcing its rules. Yet once a newly elected and motivated board attempts to right the ship and enforce the bylaws and rules and regulations, it finds itself having to respond to selective enforcement defenses due to the prior board’s failure to act. This presents quite the conundrum. Board members have a fiduciary duty to enforce the association’s governing documents but cannot do so effectively. There must be a solution. This bLAWg post will discuss how a board can avoid the selective enforcement defense when enforcing condominium association rules and regulations. Read Full Post

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Anti-Waiver Provisions in Contracts

By: James O. Birr, III and Brandon C. Meadows

Parties in litigation often argue waiver or estoppel in an attempt to counter an adversary’s claims or defenses. A carefully crafted “anti-waiver” provision in a contract, however, can go a long way to avoid these waiver and/or estoppel arguments. Read Full Post

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Qualifying Agent for Licensed Contractors and the Lake Eola Builders Exception

By Austin B Calhoun

Construction is a risky business. One risk is the danger to the public from activities of incompetent contractors. The Florida Legislature has addressed this risk. Chapter 489, Florida Statutes, regulates construction “contracting,” as defined in Section 489.105(6). To protect the public, a business organization that wishes to engage in contracting must be “licensed.” To be licensed, a business organization must have a “qualifying agent” in accordance with Chapter 489 concerning the scope of the work to be performed under the contract. Fla. Stat. 489.128(1)(a) (2014). This requirement raises questions: Who is a qualifying agent? How does a company register a qualifying agent in accordance with Chapter 489? When does a company need to register a qualifying agent? This blawg answers these three questions and addresses the federal Lake Eola Builders case that tries to craft an exception to the strict rules of Chapter 489. Read Full Post

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Venue Selection Clauses in Construction Contracts: Contractors and Subcontractors Beware

By: James O. Birr, III

Most well written construction contracts, or any contract for that matter, have provisions governing venue for litigation of disputes arising out of or related to the contract. These types of provisions are commonly referred to as venue selection clauses. Depending on how the venue clause is worded, a court may require the parties to litigate their claims in a venue that does not jibe with what the parties intended. In the context of construction defect cases, and notwithstanding whether the venue clause is mandatory, parties may still be required to litigate in a forum other than the one they selected. Love’s Window & Door Installation, Inc. v. Acousti Engineering Company. Read Full Post

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Construction Industry Licensing Board

By Christopher M. Cobb, Esquire

Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who practice and appear in front of the CILB. For those who chose to appear pro se in front of the 18 member CILB to resolve and discuss licensing issues, the prospect may seem downright daunting. This post will cover some general information that license holders and his/her attorney should know before they appear in front of the CILB. Read Full Post

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Notice of Contest of Lien for Condominium and HOA Liens

By Christopher M. Cobb, Esquire

The Condominium Act and the Homeowners’ Association Act create separate thresholds for perfecting a claim of lien for delinquent assessments. Both acts require specific notices to the delinquent owner before the association may record a claim of lien. Even with all of these statutory requirements, a savy unit owner may be able to knock out an assessment lien on his property by employing a rarely utilized section of the Condominium Act or Homeowners Act. Read Full Post

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Bankruptcy Asset Sales: How a “Free and Clear” Section 363 Sale Affects the Purchaser’s Liability

By: Brandon C. Meadows

When purchasing assets from a bankruptcy estate, purchasers often rely on the protections of 11 USC 363(f) of the Bankruptcy Code, which allows property to be sold “free and clear of any interest in property” if one of five statutory conditions are met. Those conditions are:
1.Applicable non-bankruptcy law permits a sale free and clear of interests;
2.The interest holder consents to the sale;
3.The interest is a lien and the sale price exceeds the aggregate value of all liens on the property;
4.The interest is in bona fide dispute; or
5.The holder could be compelled in a legal or equitable proceeding to accept money satisfaction of its interest in the property. Read Full Post

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Condo Associations Have Statutory Right to Amend Declaration but Can Only Unilaterally Void A Declaration Provision In Certain Circumstances

By Hans C. Wahl, Esq.

The declaration of condominium is the instrument by which a condominium is created. Fla. Stat. § 718.103(15). Florida courts have often referred to a declaration of condominium as the condominium’s “constitution” because it “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n, Inc. v. Jahren, 806 So.2d 452, 456 (Fla. 2002). Yet what commonly happens is that, over time, unit owners and/or the board of directors of condo associations grow to dislike certain declaration provisions. Those bound by the declaration cannot simply ignore those unwanted provisions; rather, they must take action to amend and/or otherwise change the declaration. Fortunately, Condo Associations have the statutory right to amend their declarations and may even unilaterally void declaration provisions in certain circumstances. This blawg post will discuss this right in more detail. Read Full Post

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