Recently in Construction Generally Category

Just Say "No" To Others Using Your Contractor's License Number

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In a recent press release, California Contractors State License Board Registrar Steve Sands reminds contractors that "[c]ontractor licenses are not transferrable between anyone: associates, friends - family members included." In California, all home improvement jobs valued at $500 or more, which includes both labor, material costs and other item costs combined, are required to be performed by a person or entity that is properly licensed by the CSLB. The licensee is responsible for the work performed under its contractor's license number being done in all material respects in accordance with accepted trade standards for good and workmanlike construction. If it is not, it is exposed to disciplinary action by the CSLB, which could include a civil penalty and/or citation, among other things. It is also responsible for maintaining the appropriate bond (Cal. Bus. & Prof. Code § 7071.6) and workers' compensation insurance (Cal. Bus. & Prof. Code § 7071.6).

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MD Federal Court Holds State Ground Water Permit Excludes RCRA Liability

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On July 16, 2014, the U.S. District Court of the District of Maryland issued an important Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA), ruling in the case of Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956. The City of Baltimore has taken steps to revive and remediate a waterfront property that was the site of a former chemical manufacturing plant. It is conceded that spills and releases of hazardous substances and hazardous wastes have contaminated the site, but the City has entered into an agreement with a casino operator to construct a casino on the property. The matter has been very controversial, causing the plaintiffs in this lawsuit to file a citizen suit under Section 6972 of the RCRA alleging that contaminants are migrating off the property and polluting adjacent properties.

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TX Amends Admin Code To Update Air Conditioning And Refrigeration Contractor Codes & Modifies Continuing Education Requirements

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The Texas Commission of Licensing and Regulation's (Commission) recently amended the existing rules governing air conditioning and refrigeration contractor applicable codes, 16 Tex. Admin. Code, Chapter 75, § 75.110. Revised Section 75.110 states:

"(a) The commission adopts the following as the applicable codes as referenced in the Act and this chapter: (1) 2009 edition of the Uniform Mechanical Code; and (2) 2009 editions of the International Mechanical Code, the International Residential Code, and other applicable codes.
(b) The 2009 codes will be in effect through December 31, 2014. All air conditioning and refrigeration work permitted or started prior to January 1, 2015, may be completed in accordance with the 2009 code editions.
(c) The commission adopts the following as the applicable codes as referenced in the Act and this chapter: (1) 2012 edition of the Uniform Mechanical Code; and (2) 2012 editions of the International Mechanical Code, the International Residential Code, and other applicable codes.
(d) The 2012 codes will be effective January 1, 2015." (Emphases added).

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Arbitration Clause: Consider enforcement implications before signing

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By Pillsbury Winthrop Shaw Pittman

The practice of including an arbitration provision in all types of contracts has become quite common. Including such a provision in a contract should, however, always be a considered choice, based on sound advice, to avoid any misunderstandings about the breadth, scope and consequences of including such a provision. Yesterday, Pillsbury attorney Ray Sweigart published his client advisory titled About that English Law and Arbitration Clause: Consider enforcement implications before signing. In the Advisory, he discusses the practice, in international commercial contracts, parties with no operations or other relationship to England or the United Kingdom specifying English law as controlling, with a clause providing for arbitration of disputes in London. In Cruz City v Unitech & Ors, [2014] EWHC 3131 (Comm), the English High Court was faced with a dispute over enforcement of an arbitral award between a Mauritian claimant and an Indian defendant. Noting the English law policy that judgments of the English court and English arbitration awards should be complied with, and under the principles set out in Masri v Consolidated Contractors International (UK) Ltd (No 2), [2008] EWCA Civ 303, the court held that it was appropriate to enforce an arbitral award by the appointment of receivers over the foreign defendant's assets.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Ray Sweigart, the author of this blog.

NH: Most Common Electrical Installation Deficiencies (2014 NEC)

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The Joint Board of Licensure and Certification, State of New Hampshire compiled a list of the most common electrical installation deficiencies in the State of New Hampshire in 2014, formatted to the 2014 edition of the National Electrical Code (NFPA 70-2014) as follows:

  • Use of electrical equipment without following the manufacturer's instructions, including installation and securing of expansion fittings in runs of Rigid Polyvinyl Chloride (PVC) Conduit and improper tightening of electrical connections

  • Inadequate clearances: working space, clear spaces, headroom and dedicated equipment space

  • Improper sealing of underground raceways

  • Improper grounding of electrode system

  • Bonding of metal water piping in the vicinity of separately derived systems

  • Wireways and consideration of 310.15(B)(3)(a)

  • Improper use of NM cable in other structures permitted to be Types III, IV or V construction

  • Improper installation of exposed vertical risers from fixed equipment

  • Improper use of Flexible Cords and Cables, Article 400

  • Failure to use weather-resistant outdoor receptacles

  • Inadequate mounting height of switches

  • Failure to use proper methods for circuit directories and circuit Identification

  • Improper connection of septic pumps

  • Failure to comply with signage requirements

  • Lack of separation of Emergency System Conductors from other conductors

  • Misunderstanding of the requirements for the installation of branch circuits supplying emergency lighting
Additional Source: Electrical Licensing Concerns And Commonly Found Installation Deficiencies in the State of New Hampshire 2014

CA CSLB Welcomes New Board Member ~ Susan Granzella

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On October 13, 2004, California Governor Edmund G. Brown Jr. appointed Susan Granzella of Sacramento as a new (public) member of the California Contractors State License Board. Prior to the appointment, according to the Governor, Granzella "held several positions at Visa Inc. from 1996 to 2014, including senior director and vice president for technical documentation and audit and compliance coordination for global development." The CSLB further noted that, in the latter role, Granzella "oversaw Visa's technical writing and publishing efforts, distributing content internationally to banks and processors, and managed staff in both the United States and India." Registrar of Contractors Steve Sands swore in Ganzella on October 21, 2014, and her term continues through June 1, 2016. With Granzella's appointment, there remains only one vacancy on the 15-member Board. Congratulations and welcome!

Additional Information: CSLB, Industry Bulletin # 14-16 (Oct. 22, 2014).

NH Electricians: 2014 NEC Continuing Education Deadline -- Jan. 1, 2015

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The New Hampshire Electrician's Board has confirmed that the 2014 National Electrical Code (NEC) will become effective January 1, 2015 and, moreover, that all exams will be on the 2014 NEC starting on October 1, 2014. All New Hampshire licensed master and journeyman electricians will also be required to complete an "approved" 15-hour course on the 2014 NEC between January 1, 2014 and December 31, 2014 regardless of the licensee's renewal date. See R.S.A. § 319-C:6-c. Each master and journeyman license without verification of the required 2014 NEC continuing education by January 1, 2015 will be invalid until proof of the course is received, and invalid licenses will be treated the same as a lapsed license and subject to the applicable laws for performing electrical installations without being licensed. See id.

Additional Source: State of New Hampshire Electricians' Board; ECC, Adoption of 2014 edition of National Electrical Code®

NV Licensing Board to Discuss Proposed Amendments to NAC 624.170 Concerning Remodel of High Rise Buildings

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The Nevada State Contractors Board, at its meeting scheduled for October 23, 2014, at 8:45 a.m. by video conference at two of the Board's offices, is expected to discuss, in its Executive Session, proposed amendments to Nevada Administrative Code § 624.170 concerning remodel of high rise buildings for possible action.

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11th Cir. Narrowly Interprets Revised NC Statute of Repose in Wake of CTS Corp. v. Waldburger

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A few months ago, the U.S. Supreme Court decided the case of CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), and held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767, as amended, 42 U.S.C. §§ 9601 et seq. (CERCLA), the federal Superfund statute, does not preempt state statutes of repose such as the North Carolina 10 year statute of repose. For example, North Carolina's "statute prevents subjecting a defendant to a tort suit brought more than 10 years after the last culpable act of the defendant. N.C. Gen. Stat. Ann. § 1-52(16) (Lexis 2013) ('[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action'); Robinson v. Wadford, ___ N.C.App. ___, ___, 731 S.E.2d 539, 541 (2012) (referring to the provision as a "statute of repose")." The Waldburger decision imperiled toxic tort lawsuits that were filed against the United States on behalf of many plaintiffs who alleged that the drinking water at Camp Lejeune, North Carolina was contaminated.

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Alaska: Construction Contractor Bonding Requirements Increase In 2015

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Effective January 1, 2015, Senate Bill 193, signed into law on July 11, 2014 by Alaska Governor Sean Parnell, increases the required construction contractor bonding amounts as follows:

"...(1) general contractor shall be $25,000;
(2) general contractor with a residential contractor endorsement under AS 08.18.025 who performs exclusively residential work shall be $20,000;
(3) mechanical or specialty contractor or home inspector shall be $10,000; or
(4) contractor whose work on one project with an aggregate contract price of $10,000 or less, including all labor, materials, and other items, when the work is not part of a larger or major operation or otherwise divided into contracts of less than $10,000 to evade a higher bonding requirement, shall be $5,000."
Under the amended law, in lieu of a surety bond, the license applicant may file with the Commissioner a cash deposit or other negotiable security acceptable to the Commissioner in the amount of the required bond.

Additional Source: Alaska Department of Commerce, Community, and Economic Development, New Legislation Affecting Licensure in Alaska

Tax Implications Of Legal Entity Ownership Changes

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Matthew Burke, Craig Becker and Kerne Matsubara published their client advisory titled Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership. The Advisory discusses the 2nd District Court of Appeal decision in 926 North Ardmore Avenue, LLC v. County of Los Angeles. The Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as "realty sold," resulting in the imposition of realty transfer taxes under the California Documentary Transfer Tax Act in cases even where no real property interests are transferred at all.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matthew Burke, Craig Becker , or Kerne Matsubara, the authors of this blog.

"Price Gouging" Not Permitted

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Governor Edmund G. Brown Jr. declared the drought in California a state of emergency on January 1, 2014 and directed state officials to take all necessary actions to prepare for these drought conditions. In response, the California Contractors State License Board (CSLB), is doing its part, began expediting applications for C-57 Well Drilling Contractors and encouraging Class "A" General Engineering Contractors that are authorized to perform water supply projects (but not well drilling unless they possess a C-57 Well Drilling classification) to add the C-57 classification to their license. More recently, the CSLB voiced its concern that there may be "price gouging" "occurring in some California counties where the drought has taken a serious toll on individual residential water wells," identifying by name Tulare and Kern counties. It reminds all contractors and, in particular, C-57 Well Drilling and C-61/D-21 Machinery and Pumps contractors to make sure the prices they are charging are within legal guidelines following the declaration of a state of emergency.

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Independent Contractor Versus Employee Debate Continues

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Recently, a California federal district court, in Taylor v. Shippers Transport Express, Inc., found that a class of current and former truck drivers had been misclassified as independent contractors and not employees by Shippers Transport Express, Inc. (STE). In granting the drivers' motion for partial summary judgment, the court found that, notwithstanding that the drivers and STE's agreement contemplated that the drivers were independent contractors, the drivers were STE employees premised, in part, on its findings that STE not only retained the right to exercise control over the manner and means of the truckers' accomplishing the desired results, but it also exercised this control. The order was issued in Taylor v. Shippers Transport Express, Inc., CV 13-02092 BRO (PLAx) (C.D. Cal. September 30, 2014).

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Indianapolis DCE Offers Electronic Submittal Option for Contractor License Renewals

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The Indianapolis Department of Code Enforcement (DCE), which is responsible for licensing persons and business organizations engaged in construction activity in the Consolidated City of Indianapolis, Marion County, is offering a new electronic submittal option for contractors' license renewal applications.

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11th Cir. Discusses Pleading Standards for Toxic Tort Claims

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On October 6, 2014, the U.S. Court of Appeals for the Eleventh Circuit issued its ruling in the case of Adinolfe, et. at. v. United Technologies Corporation. The Court of Appeals reversed the decision of the lower court to dismiss, with prejudice, two toxic tort cases, involving hundreds of homeowners, at the pleading stage. United Technologies Corporation (UTC) is responsible for the operations of Pratt & Whitney, which operated an aircraft and rocket engine manufacturing plant that the plaintiffs allege released large quantities of toxic materials that migrated through groundwater to the properties of the plaintiffs, damaging their properties and even causing personal injuries.

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