Acts of the 1997 Louisiana Legislature Affecting the Construction Industry
By Thomas F. Gardner, Esq.
The 1997 Louisiana Legislative Session changed many of the statutes that bear on Louisiana construction law. The following outline is a summary of the significant 1997 Acts that will affect the construction industry. For your convenience, Gardner & Kewley has organized the 1997 Acts into seven tables, each with a unique bookmark. Should you have any questions, please contact Gardner & Kewley.
TABLE 1: ARCHITECTS & ENGINEERS
TABLE 5: ZONING & REGULATORY MATTERS
TABLE 1: ARCHITECTS & ENGINEERS
| TITLE | ACT NO. | COMMENTS | NOTES |
| Construction contracts, public buildings and facilities, closed specifications of products | 678 | Can use a closed specification to expand an existing system | Bean Pot #1
Feeding Frenzy |
| Commercial building energy conservation | 1120 | 1. ASHRAE model energy
code - National Energy
Policy Act (1992)
2. Enforced by state fire marshal 3. All plans reviewed for conformance |
Bean Pot #2
Dessert |
| Buildings, renovation, safety requirements | 961 | 1. Code requirements for
renovation of entire floor
2. Can bend the rules when safety is not jeopardized 3. Renovation shall conform to codes for new construction to the extent practically feasible |
No Exit Rule |
| Building codes, existing buildings | 343 | Fire marshal may require fire protection measures in existing buildings, even if the building met code at the time it was built | Break the Landlord Act |
| Fire Marshall powers and duties | 954 | Can delegate to local fire prevention bureaus | Barney Fife Rule |
| Hotels and motels, fire detection and alarm systems, deaf and hearing impaired persons, installation requirements | 894 | 1. New or renovated motel or
hotel room
2. ADA compliant fire alarm and detection equipment |
|
| Emergencies, architects, engineers, and land surveyors | 1062 | 1. Free services immunity
during state of emergencies
2. Liable if grossly negligent or intentional misconduct |
Compare Duty & Definition |
| Architects and architecture, specified violations, fines and penalties, specified violations | 363 | 1. $500/person/violation
2. $1500/non-person/violation |
Discrimentory Fines |
| Crimes and offenses, felony convictions, effect on occupational and professional licensing | 364 | Felony - forfeiture of license to practice engineer, architecture or law | Felon-Branch Dissolution |
| Engineers and Engineering generally | 1096 | Until 12/31/98. 4 years unaccredited plus work experience and pass the exam = intern | |
| Engineers, certification and registration | 361 | Interns
1. 4 years - accredited engineer 2. 4 years - unaccredited engineer and masters degree at approved 3. In 1999 - 4 years unaccredited plus 4 years work experience |
|
| Architects, licenses and permits, Engineers, licenses and permits, Continuing education, licenses and permits | 365 | CEU 15 hours 1 year may become a regulation | Back to School |
| Corporations, certificates of incorporation, use of architectural designation in corporate name | 362 | Give written notice to Arch. Board to use architect in corporate name | |
| Interior Designers Generally | 877 | Enforcability in question | Meaningless |
| State contracts, consulting or social service contracts, advertising requirements | 676 | $150k - DOTD must advertise and mail to firms that are known to be in a position to furnish services | |
| State professional, personal, consulting, social services and other contracts, | 1424 | Annual report with a cost benefit analysis an itemization of problems encountered on each contract | Dirt Act #1 |
| TITLE | ACT NO. | COMMENTS | NOTES |
| Licenses and permits - contractors | 148 | 1. Financial statement with net worth $10k
2. Legal proceedings may be a bar 3. Termination of qualifying party requires notice to Board within 30 days |
Impediment to existing civil right to sue |
| Revocation, suspension and renewal of contractor license | 773 | Disqualification or debarment (approximately) by any more than once in 12 months | Due process problems |
| Contractor operating without license | 380 | Civil fine 3% of the value of the contract | |
| Contractor Licensing | 146 | Furnishing labor together with material is now regulated | Start up (Schweitzer Rule) |
| Contractors, violations | 772 | Board pays reasonable attorney fees | Schweitzer Rule #2 |
| Licenses and permits - contractor | 770 | 1. LLC now recognized
2. Public entity building with employees is now regulated |
|
| Contractors, licenses and permits, ineligibility, cheating on examination | 769 | Deceptive practices - ineligible to serve as a qualifying party for one year. | No Cheating Rule |
| Appointments, fields of mechanical and electrical construction | 771 | Mechanical contractors association of Louisiana submits 3 names for 1 spot | |
| Contractor Licensing powers and duties, delegation | 147 | Board may delegate duties to staff by resolution | |
| Prison work programs, construction and maintenance projects, prohibited in mate assignments, specified criminal violations | 640 | Inmates may now construct public works unless they are convicted of murder, rape, arson, armed robbery, etc. | Felon Right to Work Act |
| Misapplication of payments | 861 | LA. R.S. 9:4814 - extends lien coverage requires Agents to Pay protected claimants | Bankruptcy Trustee (Trust Fund)? Banks, Assignees? |
| Contractors, bonds | 119 | Surety bonds 50% of contract amount | |
| State contracts, highway construction and improvements | 1329 | 3 year material and workmanship warranty | 1, 3, 5 & 10 Year Warranties |
| Residential construction, warranties | 987 | 1. Certified notice and cure
2. Builder must give owner notice of this law at the closing |
Residential Warranty Notice |
| Residential building contractors, licensor, examination waivers | 925 | Licensing waivers terminate on 01/01/98 | |
| Contractors, bid procedure violations, fines and penalties | 1299 | Private awarding authority may be fined for intentional violation | |
| Violations, historical preservation or landmarks | 1146 | 5 year prescriptive period | |
| Transportation and development, department of, contracts | 1112 | 1. Little public works act
2. Mandamus to get paid and attorney fees - misuse of mandamus |
|
| Capital improvement projects | 479 | Recite list of projects |
| TITLE | ACT NO. | COMMENTS | NOTES |
| Contract limit increase | 1290 | 1. $100k
2. Admin. overhead 15% |
Pork Act and OH&P |
| Contracts, public works contracts, bids and bidding, award or rejection of bids time | 1031 | 45 days to award | Rosenbush Rule |
| Cost estimates, Public contracts | 120 | 1. A/E estimate establishes
advertising requirements 25
or 30 days
2. Bid signed by officer listed on annual report or in enclosed resolution of authority |
|
| Public contracts generally | 118 | 1. Public utilities are now
regulated by Public Bid Law
2. Public utilities cannot use their own employees to construct buildings |
|
| Public contracts, change order thresholds (Title 39) | 924 | Change order $50k must be approved by committee on the budget | Different Strokes |
| Purchases, materials or supplies, bid limits, advertisement | 1257 | $7.5k exemption to advertisement - 3 telephone solicitations | |
| Public bid law study
commission
S.C. Res. 31, Pamph, No. 7, p. A-1 |
Sixth annual renewal of commission to study the Public Bid Law | Six Year Rule | |
| Contract limits, division of administration | 1258 | If cost is less than the contract limit, public entity may undertake the work with its own forces. | Public Employees Right to Work |
| Public contract services procurement | 998 | 1. Cost benefit analysis
2. Appropriateness of services |
Dirt Act #2 |
| TITLE | ACT NO. | COMMENTS | |
| Workers' compensation, independent contractor employees, liability of principal contractor | 315 | 1. Special employer and
actual employer are liable to
pay benefits - in solido
2. Horseplay recovery 3. Principal employer - pro rata benefits - statutory employer |
Worker's Comp |
| Protection from employer reprisal | 1104 | 1. Whistle blower immunity
2. Reinstatement with back pay and attorney fees |
Tattle Tail |
| Discharge or resignation of employee - vacation pay | 56 | Look to stated policy to determine if benefits are due and earned | Policy Manual |
| Employment discrimination, actions for damages and other specified relief | 1123 | 1. Attorney fees
2. EEOC suspension of prescription for 18 months |
Old Age Right to Work
Attorney Fees |
TABLE 5: ZONING & REGULATORY MATTERS
| TITLE | ACT NO. | COMMENTS | NOTES |
| Expropriation, blighted property | 101 | 1. Administrative hearing
2. Authority can acquire property |
Tear Downs |
| Property tax sales, no minimum bid, proposed constitutional amendment | 1495 | House can be sold in Orleans to satisfy tax lien without any minimum bid requirement (second sale) | N.O. Auction |
| Dangerous structures, demolition and removal | 703 | National Guard may be used to demolish buildings (not in Orleans or Jefferson) | National Guard |
| Environmental regulation enforcement, writ of mandamus | 116 | Mandamus DEQ and Attorney Fees | |
| Zoning and planning | 491 | Prescribes 5 years after the first act that constituted a violation | Fence Rule |
| Burning ordinances, yard waste | 276 | Special exemption from DEQ for yard waste (except in Orleans) | |
| Yard waste, burning by property owners, certain parishes | 1275 | Cannot prevent burning yard waste in a parish with a population of 90k or less unless it creates a work hazard or pollutes the air of an adjacent city or town |
| TITLE | ACT NO. | COMMENTS | NOTES |
| Highways and roads, public contracts, toll collection | 855 | Greater New Orleans Expressway Commission can collect tolls on behalf of adjacent parishes for improvements to roads other than the Causeway | Northshore Tax |
| Shoot the car jacker law | 1378 | Justifiable homicide | Right to Drive |
| Selection, grand or petit jury duty, sources of selection, voter registration lists, vehicle license and registration records, etc. | 886 | 1. Vote
2. Vehicle registration 3. Utility customers |
Jury Duty |
| Estate transfer taxes | 271 | 1. 1 ½%/mo. after 9 months
2. Owed by heirs |
Money |
| Political campaign finance violations, prescription | 286 | 1. 3 years from date report
was due
2. 1 year after report filed |
Morial Rule |
| Economically disadvantaged persons, defined | 224 | 1. LA resident for 1 year
2. Impaired historically due to diminished capital and credit opportunities 3. Historic or likely prejudice that suggest diminished opportunities |
DBE 1 |
| Economically disadvantaged business program | 1306 | Surety bonding assistance program | DBE 2 |
| Economic development corporations | 1179 | 1. Public/private partnerships
2. Not subject to laws governing public bodies 3. Limited open meeting requirements if $10k of public funds invested |
DBE 3
Jail Time Inevitable |
| Fire marshal, authority, fines and penalties | 789 | Civil fine $1k/day | Reverse Lottery |
| Sewers and sewer systems, unclaimed credit balances and deposits | 456 | Must claim your deposit within 18 months or forfeit | Water Torture |
| Commercial co-venturers generally | 228 | 1. Association with a charity
2. Must disclose % of revenue that will go to charity |
Bingo Law |
| Parking and parking lots, liability | 1406 | Unattended sign = minimal responsibility/liability | Please Steal My Car Act |
| Seizure, criminal act committed by spouse, reimbursement of other spouse | 499 | Spouse can recover ½ value of community property seized as a result of a criminal act by the other spouse - unless the community benefitted from the criminal act | |
| Dissolution of marriage, family residence or community moveables or immovables, possession and use | 614 | Court may award use of house to a spouse as part of alimony or child support | |
| Statues as private detectives or private investigators | 784 | CPAs are not PI | |
| Citations, additional fine - bridges | 775 | $5.00 increase in fine | |
| Tollway authorities generally | 1017 | Little public works act (roads) | |
| High occupancy toll lanes | 1462 | Reduced toll 3 or more occupants | |
| Greater New Orleans Mississippi River bridges, transit lanes and tolls | 748 | HOV transit lanes with lower tolls | |
| Greater New Orleans Mississippi River bridges tolls | 1414 | Tolls fixed at $.25/axle up to 06/30/99 | |
| Certified public accounts | 747 | Review panel for CPA claims |
| TITLE | ACT NO. | COMMENTS | NOTES |
| Summary Judgment generally | 483 | Show an absence of factual support of an element essential to opponents claim | Anti-Bean Pot |
| Judgment, offer of compromise and settlement | 354 | 25% rule - pay costs incurred after the offer is made | No Teeth |
| Judicial interest rate | 275 | 7.9% 1997 | Let It Ride |
| Depositions instructing deponent not to answer | 1056 | 1. Preserve a privilege
2. Enforce a court order 3. Prevent harassment or repetition 4. Not calculated to lead to admissible evidence |
Increase Litigation Costs |
| Alternative dispute resolution, mediation act | 1451 | You get to pay mediators fee | mediocre |
| Actions and proceedings, suits against, involuntary dismissal, failure to request service of citation | 518 | 1. Must serve petition within
90 days of filing
2. Dismissal and no interruption (at least as to state entity) |
|
| Court reporters, transcripts, appeals, failure to file with clerks of court | 409 | Contempt of court for failing to file transcript | |
| Parties, failure to appear, involuntary dismissal | 1058 | 1. Dismiss with or without
prejudice
2. Reinstate within 60 days if no show due to settlement |
|
| Facsimile transmission-Pleadings | 249 | If no answer or appearance required - fax | |
| Abandonment | 1221 | 1. Applies to all suits
(effective 07/01/98)
2. Abandoned if parties fail to take any steps in 3 years |
|
| Interrogatories, additional written interrogatories | 1315 | 1. Up to 70 with ex parte
order
2. Contradictory hearing for >70 |
|
| Evidence, instructions and charges, civil cases | 668 | 1. Jury can take notes
2. Jury gets written instructions as to the law |
|
| Corporations, directors and officers limitation of actions, directors and officers | 1101 | 1. One year negligence
2. Three years fraud, intentional misconduct |
|
| Privileges and immunities, liability for damages | 487 | No officer liable for carrying out a court order. Extends to insurers and sureties | |
| Limited liability companies | 717 | Have LLC with one member | |
| Professional law corporations, licenses and permits, title insurance agencies | 610 | 1. Law corporation may only
practice law
2. Law corporation may also hold a title insurance agency license |