Articles Posted in Construction Generally

Virginia Governor Terry McAuliffe, 2014 Women in Construction Week (Mar. 2, 2014) — “NOW, THEREFORE, I, Terence R. McAuliffe, do hereby recognize March 2-9, 2014, as WOMEN IN CONSTRUCTION WEEK in the COMMONWEALTH OF VIRGINIA, and I call this observance to the attention of all our citizens.”

Today, Pillsbury attorneys Lawrence L. Hoenig, Craig A. Becker, Richard E. Nielsen, Dianne L. Sweeney, Matthew F. Burke and Breann Robowski posted their advisory titled 70 Days and Counting: Clock Is Ticking to Claim Embedded Software Tax Exemption. The advisory encourages companies to review California’s embedded software exemption, an established (but underutilized) exemption that may enable companies to enjoy substantial property tax savings in this and future tax years on their personal property assets. Most businesses have until May 7, 2014 to file their annual Business Property Tax Statements (Forms 571-L) with California counties. The advisory recommends that companies act now so they that may claim the benefit of such exemption in preparing these filings, and thereby seek to reduce the amount of their property taxes due this tax year.

Recently I’ve come across a number of articles reporting on what I will refer to as the “bliss” factor for employees, measuring, for example, happiness with their current career path, with the city in which they work, etc. CareerBliss has published a number of bliss lists, evaluating what it considers to be the “key factors” which affect work happiness, including, for example: “one’s relationship with their boss and co-workers, their work environment, job resources, compensation, growth opportunities, company culture, company reputation, their daily tasks, and job control over the work that they do on a daily basis” to come up with an overall “bliss rating” or “bliss score.” A number of you with careers in the construction industry have reported that you are blissfully happy.

Recently, CareerBliss posted its list of Top 20 Happiest Jobs for 2014:

• Research/Teaching Assistant
• QA Analyst
• Realtor
• Loan Officer
• Sales Representative
• Controller
• HR Manager
• Software Engineer/Developer
• Intern
• Team Leader
• Construction Manager
• Facilities Manager
• Marketing Consultant
• Contractor
• Designer
• Finance Manager
• Network Engineer
• Property Manager
• IT Consultant
• General Manager (Retail)

CareerBliss also recently posted its list of Top 10 Happiest and Unhappiest Cities to Work in 2014.

Top 10 Happiest Cities to Work in 2014:

• San Jose, California
• Washington D.C.
• San Francisco, California
• Las Vegas, Nevada
• Salt Lake City, Utah
• Houston, Texas
• Boston, Massachusetts
• Philadelphia, Pennsylvania
• San Diego, California
• Charlotte, North Carolina

Top 10 Unhappiest Cities to Work in 2014:

• Cincinnati, Ohio
• Orlando, Florida
• Indianapolis, Indiana
• Denver, Colorado
• Pittsburgh, Pennsylvania
• Tampa, Florida
• Columbus, Ohio
• Sacramento, California
• Miami, Florida
• Arlington, Virginia

Additional Sources: CareerBliss, Top 10 Happiest and Unhappiest Cities to Work in 2014; CareerBliss, Top 20 Happiest Jobs in America for 2014 (Feb. 5, 2014); Forbes, The Happiest And Unhappiest Industries In 2014 (Feb. 24, 2014); CareerCast, The Least Stressful Jobs of 2014; CareerCast, The Most Stressful Jobs 2014; CareerCast, Jobs Rated 2013: Ranking 200 Jobs From Best to Worst; Pillsbury, Surprisingly, California Didn’t Make The Top Out-Bound Or In-Bound States Lists … But, You Might Be Surprised By Which Did
Photo: Charles Henry, Aug. 23, 2011 – Creative Commons

UPDATE: Chief Executive Magazine, Best & Worst States for Business (May 2014) — In the 10th annual survey of CEOs, over 500 CEOs across the U.S. graded states with which they were familiar on a variety of measures, including the tax and regulatory regime, the quality of the workforce and the quality of the living environment. Texas continues its 10-year historical position as the best state overall.

Where is everyone going and why? In its recently-published article titled The States People Are Fleeing in 2014, Forbes discusses United Van Lines’ — the big St. Louis-based moving company — 37th Annual Migration Study of where Americans are moving. United Van Lines analyzed “a total of 125,000 moves across the 48 continental states and the District of Columbia in 2013 and came up with a picture of migration patterns across the U.S.”

Forbes’ article explains that, “[a]ccording to Professor Michael Stoll, chair of the Department of Public Policy at the University of California, Los Angeles, and a consultant to United Van Lines who studies American migration, the moves reflect long-term shifts in the U.S. economy and the hit to employment in many states resulting from the slow recovery.” Another explanation given is Americans’ desire to leave the frigid states in the north for warmer climates. Reportedly, “[o]ver the last 20-30 years there has been a general shift of the population from the Midwest and Northeast to the South and West, which we think of as a move from the frost belt to the sun belt.” Not surprisingly, another reason given is the high cost of living, for example, in New York. Americans apparently are being drawn to other states by “[b]usiness incentives, industrial growth, and relatively lower costs of living,” according to Professor Stoll.

According to the Study, the top out-bound states are New Jersey, Illinois, New York, West Virginia, Connecticut, Utah, Kentucky, Massachusetts, and New Mexico, and the top in-bound states are Oregon, South Carolina, North Carolina, District of Columbia, South Dakota, Nevada, Texas, and Colorado.

Additional Resources: Forbes; United Van Lines; Atlanta Construction on the Rise

You can never be 100% sure of what you will find below the surface when you begin excavating on a construction project. But I’m willing to bet construction workers in Seattle, Washington never anticipated finding a very rare 10,000 year old mammoth tusk.

An employee of a plumbing subcontractor uncovered the tusk with a shovel and immediately stopped digging to contact the general contractor. The amateur archeologist’s boss said “it was more exciting than the time they found a jar of money someone had buried in a backyard.”

The careful excavation of the mammoth tusk will no doubt delay construction of the residential building being developed by AMLI Residential. Nevertheless, AMLI Residential Senior Vice President, Scott Koppelman, said “the scientific and educational benefits of this discovery clearly outweigh the costs and delay. This is an exciting discovery for our local Northwest history.”

Find the whole story, with photos, here.

Today, Pillsbury attorneys William M. Sullivan, Jr., and Benjamin J. Cote published their advisory titled Feds’ Reliance on Environmental Activism Underscores Need for Lacey Act Compliance. This advisory discusses the search warrant recently executed by U.S. Customs and Fish and Wildlife Service agents on a Virginia-based flooring wholesaler premised on allegations that the company had illegally imported wood in violation of the Lacey Act, 16 USC § 3371 et seq. This development bolsters three significant trends in Lacey Act enforcement that companies engaged in the purchase, manufacture or sale of wood products should take note of.

Privacy has and continues to be a hot topic in California and across the nation. On February 13, 2014, the California Office of the Attorney General confirmed that the “[c]ontinuous videotaping surveillance of truck drivers during their on-the-job driving does not constitute a misdemeanor under [California] Labor Code section 1051

Brewer Corporation v. Point Center Financial, Inc.
Fourth Appellate District, Division 1 (San Diego County)
January 31, 2014
Direct contractors who fail to serve a preliminary 20-day stop payment notice on the project’s construction lender do so at their own peril. The California Court of Appeal (hereinafter, the “Court”) recently decided whether a direct contractor, who is not also a general or prime contractor, must serve a preliminary 20-day notice as a prerequisite to enforcing its stop notice claim against a construction lender. In Brewer Corporation v. Point Center Financial, Inc., Fourth Appellate District Division 1 (San Diego County), January 31, 2014, the Court held that the trial court erred as a matter of law when it concluded that respondent, direct contractor (“Direct Contractor”), was not required to serve the appellant, the project’s construction lender (“Lender”), with a preliminary notice for its stop notice claim. Full write up, after the jump.

In coming to this conclusion, the Court interpreted California Civil Code section 3097 (Former Civ. Code, §§ 3082-3267; Civ. Code, §§ 8000-9566, effective July 1, 2012 (Stats. 2010, ch. 697, § 16)), which required a preliminary notice be given under the following circumstances:

“(a) Except one under direct contract with the owner … every person who furnishes labor, service, equipment, or material [to a work of improvement] shall, as a necessary prerequisite to the validity of any … notice to withhold, cause to be given to the owner or reputed owner, to the original contractor, or reputed contractor, and to the construction lender, if any, or to the reputed construction lender, if any, a written preliminary notice as prescribed by this section.

(b) Except the contractor… all persons who have a direct contract with the owner and who furnish labor, service, equipment, or material [to a work of improvement] shall, as a necessary prerequisite to the validity … of a notice to withhold, cause to be given to the construction lender, if any, or to the reputed construction lender, if any, a written preliminary notice as prescribed by this section.”

(Italics added in Brewer).

The parties did not dispute that the Direct Contractor failed to provide preliminary notice to the Lender. Because section 3097(a) plainly stated that one under direct contract with the owner is exempt from the preliminary notice requirement, the Court turned to section 3097(b) as the only source which could potentially require the Direct Contractor to give written notice to the Lender. Reading the plain language of the statute, the Court observed that a direct contractor must give notice to the lender unless it qualified as “the contractor.”

The Court noted that the term “original contractor” as used in section 3097(a) was defined but the term “the contractor” as used in section 3097(b) had no express definition. Section 3095 defined the term “original contractor” as “any contractor who has a direct contractual relationship with the owner.” Without its own definition, the Court concluded that “the contractor” must have a different meaning than “original contractor.”

The Court relied on precedent to aid in its interpretation of the term “the contractor.” The Court looked to Korherr v. Bumb (9th Cir., 1958) 262 F.2d 157, 161 which observed that the term “the contractor” referred to “the general or prime contractor” in its interpretation of the predecessor to section 3097. The Court also looked to Shady Tree Farms v. Omni Financial (2012) 206 Cal.App.4th 131, 138 which stated the use of “the” indicated a single person, i.e., the general or prime contractor. As such, section 3097(b)’s carve out for “the contractor” meant that only the general or prime contractor was exempt from the section’s requirements.

Not satisfied, the Court also relied on the amendments to the mechanic’s lien laws to support its conclusion that “the contractor” could only mean the general or prime contractor. In deciding to amend the mechanic’s lien law in 2010, the Legislature sought to “modernize and clarify existing law.” The Legislature specifically noted that section 3097(b) was ambiguous as to whether a general contractor was required to give preliminary notice to a construction lender on a private work. The Legislature amended section 3097 to clarify that a “claimant with a direct contractual relationship with an owner or reputed owner is required to give preliminary notice only to the construction lender or reputed construction lender, if any.” (Current, Civ. Code § 8200, subd. (e)). This amendment resolved the ambiguity recognized by the Legislature by requiring any direct contractor to serve a preliminary notice on the lender.

Relying on previous interpretations of the predecessor to section 3097, and the recent amendments to the mechanic’s lien laws, the Court concluded that the exception to providing notice to the lender for “the contractor” in section 3097(b) only applied to general or prime contractors. Thus a direct contractor, who is also not the general or prime contractor, must comply with the 20-day preliminary notice provisions when seeking to enforce a stop payment notice claim against a construction lender.

New Jersey’s State Board of Examiners of Heating, Ventilating, Air Conditioning and Refrigeration (HVACR) Contractors (Board) has extended the operative date of its regulations, N.J.A.C. 13:32A, implementing the “State Heating, Ventilating, Air Conditioning, and Refrigeration Contracting License Law”, N.J.S.A. 45:16A-1 et seq. (Act), to March 1, 2014. The Board will not accept applications or regulate the practice of HVACR contractors until then. Due to this change, the Board has confirmed that it will be accepting applications for current practitioners (“grandfathering” applications) until September 1, 2014.

On March 1, 2014, the Board will begin accepting applications for licensure. Its regulations prescribe the application procedure. Section 45:16A-26 of the Act also authorizes the Board to issue a Master HVACR license for 6 months following the effective date of the Act without examination to (a) any licensed master plumber who has been engaged in the HVACR business for at least 2 years prior to the date of his/her application for a Master HVACR license or (b) any person who has been engaged as a HVACR contractor for at least 2 years prior to his/her date of application for a Master HVACR license (collectively a “grandfathering” application”). An individual who does not submit a grandfathering application by September 1, 2014, or who does not qualify for grandfathering, will be required to apply through the Board’s regular licensing process and show that he/she has completed the requisite education and must pass the Board’s licensing examination.

Also note that New Jersey Assembly Bill 2456, introduced on February 6, 2014, proposes to exempt from the Act’s licensing requirement a person who performs service, repair or maintenance work necessary for the continued normal performance of HVACR systems if that person is working for an employer as an employee and that work is being performed in any of the following locations that are owned or operated by the employer: (1) a general hospital licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); (2) a building that contains a steam boiler, pressure vessel or refrigeration plant, which is subject to test and inspection pursuant to R.S.34:7-1 et seq.; and (3) a casino-hotel facility operated under the provisions of the “Casino Control Act,” P.L.1977, c.110 (C.5:12-1 et seq.), which includes any building containing HVACR systems operated by one or more casino-hotel facilities as part of an agreement or arrangement to share systems. The Act would also clarify the definition of heating, ventilating, air conditioning, and refrigeration.

Additional Resources: N.J. Volume 45, Issue 20 (Oct. 21, 2013); N.J. Volume 45, Issue 13 (Jul. 1, 2013); N.J. Volume 45, Issue 10 (May 20, 2013); N.J. Volume 45, Issue 8 (Apr. 15, 2013); N.J. A.B. 2456