The Fish and Wildlife Service Lists the Lesser Prairie-Chicken as a Threatened Species Under the Endangered Species Act

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys Brad Raffle, Tom Campbell, Anthony Cavender and Nicholas Krohn published their advisory titled The Fish and Wildlife Service Lists the Lesser Prairie-Chicken as a Threatened Species Under the Endangered Species Act. The Advisory discusses the United States Fish and Wildlife Service's March 21, 2014 final rule which lists the Lesser Prairie-Chicken (LPC) as a "threatened" species under the Endangered Species Act. One implication of the listing is that the LPC's new status as a threatened species must now be considered in federal permitting matters.

Are you a C-57?

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In California, a C-57 specialty contractor is a well drilling contractor that "installs and repairs water wells and pumps by boring, drilling, excavating, casing, cementing and cleaning to provide a supply of uncontaminated water." Cal. Code of Regs., Tit. 16, Div. 8, Art. 3. In its Industry Bulletin 14-04, the California Contractors State License Board (CSLB) reminds C-57 licensees that certain portable engines to power well drilling equipment require registration.

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Improvements Proposed to Regulations Governing Petitions to the California State Water Resources Control Board

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Amy Gaylord published her advisory titled Improvements Proposed to Regulations Governing Petitions to the California State Water Resources Control Board. The Advisory discusses the Regional Water Quality Control Board's recent proposal to amend to Sections 2050, 2050.5, and 2051 of Title 23 of the California Code of Regulations to render petitions on which the Board has not taken action within 90 days of receipt, dismissed by operation of law. The proposed revisions should improve the petition process, but may result in an increase in the number of court challenges to Board decisions.

President Takes Action Meant to Increase Pay Equity for Employees of Federal Contractors

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Julia Judish and Keith Hudolin published their advisory titled President Takes Action Meant to Increase Pay Equity for Employees of Federal Contractors. The Advisory discusses the April 8, 2014 Executive Order and Presidential Memorandum issued by President Obama aimed at "closing the persistent pay gap for women and minorities," at least for employees of federal contractors and subcontractors. These two executive actions direct the Department of Labor to issue new regulations that will (i) prohibit government contractors from retaliating against employees and applicants for asking about, disclosing, or discussing their compensation with other workers, and (ii) require contractors to report summary compensation data for their employees, by sex and race, to the Department of Labor. By limiting the reach of these measures only to employers that are government contractors, President Obama was able to act on his own executive authority, without needing the cooperation of Congress. Because government contractors comprise approximately a quarter of the U.S. workforce, these new regulations will directly affect a significant portion of employers, and may also have a ripple effect that extends even to wholly private-sector employers.

Roll Up Your Sleeves and Get a Little Virtual Dirty to Celebrate "National Safe Digging Month"

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Call 811, a nationwide safety service, is observing "National Safe Digging Month." As part of the celebration, on April 1, Call 811 kicked off a month-long promotion offering users the chance to "dig" for prizes every day with a virtual shovel. Call 811 will be awarding lucky diggers the chance to win an iPad Mini, Kindle Fire HDX, Apple TV, Jawbone JAMBOX, Samsung Chromebook, Sony Cybershot X50 Camera, $250, $500, Call 811 Shirts, Call 811 Mugs and gift cards from VISA, iTunes, Amazon and Starbucks. Promotion ends April 30.

Sign up and you to can visit Call 811's website to click 1 of 24 virtual "dirt piles" in hopes of finding a prize notification underneath. 1 dig per day - but look for bonus questions to earn an additional dig. Dig in the wrong area and you could hit a water, gas, power, phone or sewer line, resulting in no prize for that particular day.

Additional Source: Hot Diggity - Licensing Board Is Digging Into Excavation Mishaps

Forget Printing Construction Documents, Let's Print Buildings!

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We have all heard about 3D-printing by now. The technology of printing something in three dimensions is not new. But how exactly does it work? And more importantly, how could 3D-printing affect the construction industry?

How Does 3D-Printing Work?

Traditional machining techniques are "subtractive." In other words, take a piece of material and cut or drill excess material to get your desired shape. To the contrary, 3D-printing is "additive." Basically, the machine prints layers of material, one on top of another, until the desired shape is achieved. The process is somewhat akin to brick-laying, but with much less effort.

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CSLB Breaking News: Part of $150 Million San Diego Construction Project Stopped After Discovery Of Unlicensed Subcontractor

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On Friday, April 11, 2014, the California Contractors State License Board issued a News Release confirming that drywall work on the "$150 million, 45-story Pinnacle Towers construction project in downtown San Diego has stopped after the [CSLB] determined the sub-contractor hired for the work, Clayton Wall & Ceiling Systems Inc. (Clayton), is not properly licensed in the state of California." The News Release further confirmed that "[o]n April 4, 2014, investigators with CSLB, California Department of Industrial Relations (DIR), and the San Diego District Attorney's Office, responded to an industry lead and performed an unannounced inspection of the construction site." They "determined that drywall work began in January 2014, even though the company has not yet completed the licensing process." The CSLB issued an administrative citation to Clayton for acting in the capacity of a contractor without a license and assessed a civil penalty of $15,000, as permitted by Cal. Bus. & Prof. Code ยง 7028.7. DIR's Division of Labor Standards Enforcement (DLSE), also known as the Labor Commissioner's Office, also cited Clayton for performing services without a valid state contractor license and assessed a $64,000 fine.

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Virginia Revokes 24 Contractor's Licenses

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Although not all states regulate contractors by requiring either licensure or registration, Virginia, like California, is one that does. In late March, at the Virginia Board for Contractors (Board) meeting, the Board issued 24 license revocations. Copies of the file orders are available online using the Board's website's License Lookup tool, a tool that permits users to look up disciplinary actions occurring on or after April 1, 2002 by searching using key terms. For additional information about contractors' licenses that have been revoked and other actions by the Board, visit the Board's Press Release Archives.

The Board is responsible for licensing businesses engaged in the construction, removal, repair, or improvement of facilities on property owned by others. Virginia contractor licenses consist of two parts: (1) the class of license (A, B, or C), which determines the monetary value of contracts/projects that may be performed, and (2) the classification/specialty, which determines what type of work is allowed. The Board also licenses individuals and firms engaged in residential building energy analysis, which involves evaluation of energy consumption and recommendations to improve energy efficiency. It also regulates individual tradesmen who engage in the trades of electrical; plumbing; heating, ventilation, and air conditioning (HVAC); gas fitting; water well construction; elevator mechanics; backflow prevention; and building energy analysis.

Virginia also has reciprocal licensing/examination agreements with other jurisdictions. For more information, check out its website.

Additional Sources: North Dakota Joins California in Cracking Down on Unlicensed Contractors; CSLB Zaps More than 120 Unlicensed Contractors In Simultaneous Undercover Stings; Fall California Licensing Blitz Stings 75; R-E-C-I-P-R-O-C-I-T-Y ~ Find Out What It Means To You


Contractor To Pay $2.4 Million Fine for DBE Fraud

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For any contractors who have ever considered manipulating disadvantaged business enterprise (DBE) requirements as a way to obtain work, this recent FBI press release provides a cautionary tale.

According to the press release, in 2007 a Connecticut contractor was awarded a highway project, funded by state and federal sources, based on its low bid of $39.6 million. In its bid documents, the contractor had represented that a certain DBE subcontractor would perform about $3.1 million of the work, furnishing all supervision, labor, and materials. Instead, the government claims the contractor used the DBE subcontractor as a shell to pass through payment to other subcontractors that the contractor negotiated with and supervised in actual performance of the work.

Under the non-prosecution and civil settlement agreement reached between the government and the contractor, the contractor agreed to a number of reforms, such as establishing an Ethics and Compliance Officer and removing the personnel directly involved in the scheme, in addition to paying a $2.4 million fine. The non-prosecution agreement only addressed the contractor's corporate criminal liability--the government's investigation of individuals continues.

Sunday Morning Contractor's Licensing Quiz

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By Amy L. Pierce

In its Newsletters, the California Contractors State License Board (CSLB) includes a short licensing quiz at the end. Below are the questions in its Spring 2014 Newsletter. How many questions can you answer correctly?

"1. True or False: An applicant can get a new 'B' license without testing if he or she is already acting as an 'A' class qualifier on an existing license.

2. True or False: If an applicant doesn't meet the experience requirements, CSLB will refund the application fee.

3. If education or apprenticeship time is granted to an applicant, what is the minimum amount of hands-on journey-level work experience that must be verifiable? a. 1 year b. 2 years c. 4 years

4. A licensee has ______ days to comply with an outstanding liability entered on a license? a. 90 days b. 60 days c. 30 days

5. True or False: You are forbidden by law (B&P Code section 7071.13) from listing in your 'advertising, soliciting, etc.,' that you are bonded.

6. May a home improvement salesperson[] work for more than one contractor?
a. Yes b. No"

For the answers, Spring 2014 Newsletter.
For additional licensing quiz questions, CSLB Newsletter Archives.

Additional Resources: A + B + C (40 + 30) = California Contractor License Classifications (and Subcategories); CSLB Laws and Regulations

Whoop, Whoop! California CSLB Nearing 1 Million Contractors License Milestone

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In its Spring 2014 newsletter, the California Contractors State License Board announced that "[w]ithin the next year, CSLB will have issued one million licenses since its creation in 1929. That means someone who is obtaining, renewing or changing a license status with CSLB during this time will be license recipient No. 1000000." As of the date it published its Newsletter, the CSLB had issued "nearly 992,000 licenses." It projected that, "[a]t its present rate, the one millionth license likely will be issued around Jan. 1, 2015." Will you be the one to end up with the bragging rights that your California contractor's license number is 1,000,000? The CSLB confirmed that "[w]hoever is the 'lucky' one millionth license holder will get a mention and picture in a future newsletter."

Additional Source: CSLB, One Million Licenses: CSLB Nears Milestone Mark (Apr. 3, 2014)

California CSLB Legislative Meeting - Apr. 16, 2014

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The California Contractor State License Board (CSLB) recently issued notice of its upcoming Legislative Committee Meeting. The agenda for the meeting indicates that a legislative update will include review of pending Assembly Bills 1702, 2165 and 2396, and Senate Bill 1467. The meeting will be held at the CSLB's headquarters located at 9821 Business Park Drive, Sacramento, CA 95827, in the John C. Hall Hearing Room. The teleconference location for the meeting will be at 265 Hegenberger Rd., Suite 200 Oakland, CA 94621. (The meeting may be canceled without notice. For verification of the meeting, call (916) 255-4000 or visit the CSLB's website. Webcasts of the CSLB's earlier Legislative Committee Meetings are available on its website.]

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Common-Law or Statutory Payment Bond: Do You Know What Type of Bond Your Contract Requires?

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Hard Hat Workforce Solutions, LLC v. Mech. HVAC Servs., Inc., 406 S.C. 294, 750 S.E.2d 921, 922 (2013).

How confident are you that the payment bond your subcontract required you to obtain falls within your state's payment bond statutory scheme? Bonds.jpg In Hard Hat Workforce Solutions, LLC v. Mech. HVAC Servs., Inc., 406 S.C. 294, 296, 750 S.E.2d 921, 922 (2013), the Supreme Court of South Carolina reversed the Special Circuit Courts decision granting summary judgment relief for a surety defendant on the theory that the plaintiff, a fourth-tier subcontractor, need not provide notice as required by statute because the bond at issue was a common-law, not statutory, bond. (Full write up, after the jump.)

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Executive Order Issued on Minimum Wage for Federal Contractors and Subcontractors

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On February 12, 2014, President Obama issued an Executive Order to raise the minimum wage for Federal contractors and subcontractors under certain contracts, as he had foreshadowed in this year's State of the Union. The Executive Order sets forth the new wage rate, when it may take effect, and what contracts will be affected by this minimum wage increase.

Click here for a link to the full alert, which I co-authored with my colleague Meghan Doherty.

North Dakota Joins California in Cracking Down on Unlicensed Contractors

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California is not the only state that actively cracks down on unlicensed contractor activities. As recent as March 18, North Dakota Attorney General Wayne Stenehjem announced that Cease and Desist Orders had been issued against 7 unlicensed contractors for violations of North Dakota's consumer fraud laws, banning them from doing any business in North Dakota. The Attorney General's Consumer Protection Division investigates consumer complaints about unlicensed contractor activities. The recent investigation was initiated in connection with consumers reports that, not withstanding that they had been paid in advance for work, the contractors' failed to properly complete the work and, in some cases, to even commence work.

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