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In Gongloff Contracting, L.L.C. v. L. Robert Kimball & Associates, Architects & Engineers, Inc., 2015 Pa. Super 149 (Pa. Super. Ct. July 8, 2015), the Superior Court of Pennsylvania reversed the trial court’s decision and held that a claim for negligent misrepresentation could be based on faulty design documents under Section 552 of the Restatement (Second) of Torts.  The case was brought by a structural steel subcontractor (Gongloff) against the architect-engineer (Kimball) for a university convocation center.  Kimball provided Gongloff and others with the design of the steel structure and repeatedly denied allegations of errors in the design.  But Gongloff alleged that the “never-before-utilized” design was in fact defective, and that Gongloff experienced various problems and significantly increased costs as a result of changes made to correct the design. Continue Reading ›

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UPDATE: CSLB Taking Steps to Implement New, Simplified Home Improvement Salespersons Registration Process (posted November 12, 2015)

On September 8, 2015, California Governor Edmund G. Brown Jr. signed into law Senate Bill 561 (Monning), a bill that simplifies the home improvement salespersons (HIS) registration process to a single registration even if the HIS represents multiple employers. Section 7153 of California’s Business & Professions Code requires anyone who solicits, sells, negotiates, or executes home improvement contracts for a licensed contractor outside of the contractor’s normal place of business to be registered with the California Contractors State License Board (CSLB) as an HIS. In addition to the single registration provision, S.B. 561 will: (1) require a contractor to notify the CSLB in writing prior to employing a registered HIS, and when employment ceases; (2) allow the CSLB to accept an electronic application and signature from an HIS applicant, (3) require an HIS to have a current and valid registration with CSLB before making sales calls and transactions on behalf of a contractor, and (4) provide that registrations will be valid for 2 years from the month of issue. The new law takes effect on January 1, 2016.

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The effective date of certain sections of the Florida Building Code (5th Edition) have been delayed by the Florida Legislature until June 30, 2016.  The sections are:

(a)  Mandatory blower door testing for residential buildings or dwelling  units as contained in Section R402.4.1.2 of the Florida Building Code, 5th Edition (2014) Energy Conservation Volume;

(b)  A second fire service access elevator as contained in Section 403.6.1 of  the Florida Building Code, 5th Edition (2014) Building Volume; and

(c)  Mechanical ventilation for residential buildings or dwelling units as  contained in Section R303.4 of the Florida Building Code, 5th Edition (2014)  Residential Volume.

Additional Source:  Florida Senate Bill 2502-A; Florida Department of Business & Professional Regulation

 

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On September 8, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a ruling interpreting the Information Quality Act (IQA) and its implementation by two federal agencies—the Office of Management and Budget (OMB) and the Department of Justice (DOJ).  The case is W. Scott Harkonen, M.D., v. U.S. Department of Justice; U.S. Office of Management and Budget.  The question before the Court of Appeals was whether the Administrative Procedure Act and the IQA “confer the right to judicial review of a federal agency’s refusal to correct allegedly false or misleading information published by the agency in a press release”.  Affirming the district court, the Court of Appeals held that Dr. Harkonen could not obtain judicial review of an allegedly erroneous press release.  According to the Ninth Circuit, the IQA does not establish any standard to measure the accuracy of, for example, statements made in a press release.  The decision is significant because there have been so few decisions interpreting the IQA and, moreover, because  government agencies make extensive use of press releases in their day-to-day operations.

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On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an important ruling concerning the scope of the Migratory Bird Treaty Act of 1918, 16 U.S.C. § 703 (MBTA), and the federal government’s use  of an EPA rule regulating the operation of petroleum refinery wastewater treatment systems in a criminal prosecution.  The case is U.S. v. CITGO Petroleum Corporation; CITGO Refining and Chemical Company, L. P.  The Court of Appeals , in a unanimous opinion, reversed not only the jury’s determination that CITGO was guilty of violating the Clean Air Act (CAA), but also the trial court’s determination that CITGO was  guilty of violating the MBTA.  As a result, a $2 million criminal fine levied against CITGO, and separate $15,000 fines against CITGO for violating the MBTA, were set aside.

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California Governor Edmond G. (Jerry) Brown Jr. recently signed into law Senate Bill 633 (Hill), a bill that modernizes California’s “Made in U.S.A.” labeling standard to reflect the real-world market in which companies make products using components from around the globe. Continue Reading ›

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Starting January 1, 2016, New Hampshire will require persons who perform residential “mold assessment” services for remuneration to possess a valid national “third party certification” for mold assessment. Under the new law, any professional hired by a homeowner, in which the primary work contracted for is not mold assessment, will be exempt from the certification requirement.
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On September 1, 2015, the U.S. District Court for the Western District of Texas issued a ruling which vacates the April 2014 listing of the Lesser Prairie Chicken (LPC) as a threatened species pursuant to the Endangered Species Act.  The case is Permian Basin Petroleum Association, et al. v. Department of the Interior, et al. The lawsuit challenging the listing was filed on June 9, 2014.  The plaintiffs argued, and the District Court agreed, that the U.S. Fish and Wildlife Service was obliged to evaluate the LPC rangewide plan in accordance with the agency’s 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions, and it failed to do so.  Accordingly, the listing of the LPC was arbitrary and capricious, and must be vacated.

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On August 30, 2015, U.S. District Court Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas issued an opinion dismissing the Government’s lawsuit asserting that Thomas Lipar, a real estate developer, violated the Clean Water Act by discharging fill material into jurisdictional wetlands without a permit. According to Judge Hughes, the Government failed to establish that the wetlands in issue were jurisdictional waters.  In addition, Judge Hughes determined that EPA acted in bad faith, and throughout the 10 years these sites have been under investigation or in litigation, it has been “intractable, uncooperative and defiant”; indeed, its behavior has been “reprehensible”.  Consequently,  Judge Hughes has sanctioned the Government, requiring the United States to pay the defendant and the other defendant’s the reasonable attorney’s fees they incurred in defending this lawsuit.  The case is U.S. v. Lipar, et al.

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On July 29, 2015, Illinois Governor Bruce Rauner signed into law House Bill 2635 to amend Illinois’ Mechanic’s Lien Act (Act) to permit the substitution of an “eligible surety bond,” as defined, for a mechanic’s lien.  The new law expressly contemplates that a person may file a petition to substitute a bond for the lien on a property with the court of the county in which the property is located, and if there is a pending mechanic’s lien foreclosure action, the application may be filed at any time prior to 5 months after the filing of the mechanic’s lien foreclosure action complaint or counterclaim by a mechanic’s lien claimant.  If the court finds that an eligible surety bond has been posted, it is required to issue an order (1) substituting the bond for the property securing the lien claim; and (2) substituting the lien claimant’s right to recover on the bond for the lien claimant’s causes of action that could be asserted under Section 9, 27, or 28 of this Act. The new laws is effective January 1, 2016.