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October 2015 Law Alert

MONTHLY LAW ALERT
 

CONDOMINIUMS - NEW REASONS NOT TO BE SCARED
by Tim Ross

For the last few years there has been a dramatic increase in the number of cranes and vertical construction taking place in all of Texas’ major cities.  Due to the demand for urban living and rising land values, many of the vertical projects being constructed are condominiums.  Until recently, many developers, designers and contractors had shied away from condominium projects due to the increased likelihood of defect litigation.  However, the Texas Legislature recently enacted legislation attempting to address their concerns.

On June 17th, Governor Abbott signed House Bill No. 1455 into law, requiring condominium associations with eight (8) or more units to fulfill certain preconditions prior to initiating a construction defect or design lawsuit.  Beginning September 1, 2015, the new law’s requirements force condominium boards to get meaningful input and approval from a majority of the unit owners before initiating a lawsuit.  Condominium boards are now required to hire a licensed professional engineer to inspect alleged defects and issue a detailed written report to both the unit owners as well as those whose work is alleged to be defective.  More importantly for developers, designers and contractors though, the new law requires that the condominium board give at least 10-days prior notice of any inspections, an opportunity to attend the inspection, and a 90-day period from the report date to repair any defects. 

Developers, designers and contractors need to know their rights and pay close attention to the law’s requirements and deadlines to hopefully stop design and construction defect disputes before they start.  For more information on the new law, please contact Tim Ross via email or at 713.850.4223.


WHAT EXACTLY IS "HERO" AND WHAT DOES IT ACTUALLY SAY?
by Elaine Howard

As we mentioned in our September newsletter, Houston’s Equal Rights Ordinance (HERO) was suspended by the Texas Supreme Court and will only be enacted if it wins majority support at the polls next week.  HERO has received a spectacular amount of news coverage, mostly on the accommodations provision which some contend would “allow predators” to use the opposite sex bathrooms (just Google “bathroom bill”).  Regardless of your stance on whether it’s a good or bad idea, the coverage has rarely discussed any provision other than the accommodations section of the ordinance.

Houston has had a piecemeal network of anti-discrimination ordinances and executive orders since at least the 1970s. Many of the provisions of HERO are already in effect, such as an ordinance that precludes discrimination in city contracts based on race, religion, color, sex, national origin or age (Ordinance 78-1538).  HERO largely compiles this hodgepodge of ordinances and orders into one place, however there are some new provisions.  HERO states that it is the public policy of the city that all residents and persons subject to its jurisdiction shall not be subject to discrimination based on an individual’s sex, race, color, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy.  Under HERO, Houston’s ordinances for the first time prohibit discrimination against these protected classes by private employers with more than 50 employees.  Although federal and Texas law already provide remedies for discrimination against most of these protected classes, the city enforcement mechanism is new, and the protection against discrimination on the basis of sexual orientation and gender identity is evolving quickly and unsettled under federal law.

Similarly, HERO has prohibitions against discrimination in city employment, by city contractors and in housing.  Most of these merely restate prior ordinances and orders, but some of the sexual orientation and gender identity prohibitions are new, and HERO sets out specific enforcement mechanisms.

Finally, there is actually no “bathroom” reference in the current form of the ordinance.  There was a previous reference, but it was removed.  The accommodations provision states “It shall be unlawful for any place of public accommodation or any employee or agent thereof to intentionally discriminate against any person on the basis of any protected characteristic, except as required by federal or state law or court order.”  This accommodations provision is the basis of the “bathroom” concern, and virtually all of the national and international attention has focused on this provision.

If you have further questions on how HERO will impact your company or its employees, please contact Elaine Howard via email or at 713.850.4249.


ANDREWS MYERS WELCOMES NEW ASSOCIATE IN CONSTRUCTION PRACTICE

We are pleased to announce the addition of Kathryn “Katy” Gray as an Associate in the Houston office.  A recent dual J.D. and M.B.A. graduate from the University of Houston,
Katy’s practice focuses on advocating for general contractors, subcontractors, suppliers and owners on a variety of construction related issues including litigation, contract negotiations and alternative dispute resolution.

Prior to joining the firm, Katy served as a legal intern with EMS USA Holdings, a pipeline maintenance, construction, measurement and automation, and integrity services provider.

Katy can be reached via email or at 713.850.4255. Welcome Katy!
 


NEW OPEN CARRY LAW IN TEXAS - A "SIGN" OF THE TIMES
by Tony Stergio

Texas’ new open carry law goes into effect on January 1, 2016.  Any business that wishes to ban the open carry of weapons within their establishment must post a specific sign, in English and Spanish, in at least 1” text, the word for word language of the statute.  If the sign doesn’t comply with the language of the law, then arguably a licensed handgun holder does not receive effective notice.  In order to prohibit open carry on a property, the business must display a sign that says the following:
 

Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly    carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.

Under the new law, a property owner may prohibit open carry of a handgun by properly displaying a Section 30.07 notice while still allowing concealed carry on the property.  If the business elects to prohibit concealed carry, effective January 1, 2016, they will have to display a new sign which must state that:
 
Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun.9
 
Businesses that want to prohibit both concealed and open carry must display both signs in a manner required by Sections 30.06 and 30.07 of the Penal Code.
 
Exceptions for Some?
The above statutory signs are used to give notice to licensed gun owners that entrance onto an owner’s property, with a concealed and/or open carry handgun, is not permitted.  If there are no signs posted on the premises, no notice is given that carrying is prohibited, although owners will still be able to orally tell gun carriers they aren’t welcome. If statutory notice signs are posted, however, a property owner can presumably also verbally consent to a person entering the property while carrying.  This would effectively establish consent and allow the person to enter the property, with either concealed or open carry, notwithstanding the posted sign.

Employees and Parking Lots
While employers can prohibit employees from bringing guns into the workplace they can’t prohibit employees from storing lawfully owned licensed firearms in their vehicles in the employers’ parking lot. 

For more information on the Open Carry law and its impact on Texas businesses, please contact Tony Stergio via email or at 713.850.4214.


Founded in 1990, Andrews Myers is a recognized business law firm in Texas.  The firm focuses on the concentrated disciplines of construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues   including bankruptcy and insolvency, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com.

 
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