Recent Legislation Regarding Construction By Clay Keller, Esq. The recently concluded 123rd Ohio General Assembly enacted several new laws affecting the construction industry. Everyone involved in construction projects in Ohio should be aware of the following changes in Ohio law. House Bill 122 will make it more difficult for an employee to receive workers'''' compensation benefits if there is evidence that the employee was intoxicated or under the influence of a controlled substance at the time of the accident. If the injured employee tests positive for alcohol or a controlled substance within various time periods specified by the law, a rebuttable presumption arises that (i) the employee was intoxicated or under the influence of a controlled substance at the time of the accident and (ii) the influence of the alcohol or controlled substance was the proximate cause of the injury. The presumption will also arise if the employee refuses to submit to the requested test. The effective date of House Bill 122 is April 10, 2001. House Bill 401 facilitates the enforcement of arbitration agreements in commercial construction disputes. Under current law, if a contract contains an arbitration agreement, either party can ask the court to stay the trial of the case by notifying it of the arbitration clause. The court''''s denying or granting arbitration is a final appealable order. House Bill 401 changes this law as it applies to a commercial construction contract. Under the new law, only an order denying arbitration is a final appealable order. Therefore, the party opposing arbitration will no longer be able to immediately appeal the court''''s order and prevent the arbitration process from going forward. The impact of this change is to make it easier to proceed with arbitration. House Bill 401 also makes one other significant change. Under current Ohio law, when the parties dispute whether they agreed to arbitrate, either party can demand a jury trial to decide the issue. House Bill 401 eliminates a party''''s right to demand a jury trial when a commercial construction contract is involved, and it directs the court to hear and determine the issue. The effective date of House Bill 401 is March 15, 2001. House Bill 434 establishes a statewide license for contractors specializing in electrical, HVAC, plumbing, hydronics and refrigeration. These specialty contractors will no longer have to maintain a separate license for each local jurisdiction in which the contractor works. The law allows local registration but prohibits local authorities from requiring any of these specialty contractors to undergo examinations or demonstrate technical skills. The state license created by House Bill 434 is mandatory, and no person can claim to be an electrical, HVAC, plumbing, hydronics, or refrigeration contractor without the license. In order to maintain the license, the bill requires the person holding the license to meet continuing education requirements. Current holders of a OCIEB certificate can obtain the license by paying a fee and presenting proof of insurance that meets or exceeds minimum coverage requirements. Persons not holding a current OCIEB certificate may obtain the license by meeting various requirements, which include applying for the license within seven months of the effective date of the bill, paying a fee and showing that they have worked as a specialty contractor in Ohio for no less than the past three years. Others who want a license must pass a test and meet other specified requirements. The effective date of House Bill 434 is March 22, 2001. House Bill 490 requires any subcontractor or supplier seeking payment on a public project''''s bond to make its claim within 90 days from the date of completion by the general contractor and acceptance of the public improvement by the authorized board or officer. The new law is intended to clarify the time within which bond claims must be made. The clarification was necessary in view of a recent Cuyahoga County Court of Appeals decision in which the court reached a different conclusion on the time for making such claims than most in Ohio had previously understood. Subcontractors should also be aware that under certain circumstances additional requirements must be met before a claim against the project''''s bond can be made. Specifically, if a subcontractor is not in privity of contract with the principal contractor and is claiming payment of more than $30,000, the subcontractor must have served a notice of furnishing as required by Ohio Revised Code § 1311.261. The effective date of House Bill 490 is February 12, 2001. House Bill 491 requires that construction contracts to be performed on real estate in Ohio be governed by Ohio law and voids any provision in an Ohio construction contract that subjects the contractor to the law of another state. The bill also voids any Ohio construction contract provision that requires a contract dispute to be resolved in another state. The effective date of House Bill 491 is March 22, 2001. Clay Keller, Esq. is a member of the Real Estate & Construction Law Practice Group. He can be reached at ckeller@bdblaw.com or at 614.227.4287. The material appearing in this article is meant to provide general information only and not as a substitute for legal advice. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. This article may not be reprinted without the express permission of Buckingham, Doolittle & Burroughs, LLP.
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