Gravel2Gavel Construction & Real Estate Law Blog

UPDATE: Forbes, The Recession Generation: How Millennials Are Changing Money Management Forever

Apparently everyone is battling to win the millennials’ spending power. If you aren’t, maybe you should be.

Who are the “millennials?” In his Times Magazine article Millennials: The Next Greatest Generation?, Joel Stein explains that they are the “80 million Americans born roughly between 1980 and 2000.” (Another article reported that they are 90 million strong.) They are also commonly referred to as the Millennial Generation, Generation Y, Generation We, Global Generation, Generation Next and the Next Generation, and Echo Boomers. This translates into the oldest millennials being about 35 years old.

Now who are they really? In his article, Joel noted that “[t]he National Institutes of Health found that for people in their 20s, Narcissistic Personality Disorder is three times as high than the generation that’s 65 or older… Millennials received so many participation trophies growing up that 40 percent of them think they should be promoted every two years – regardless of performance.” However, he argues that “rather than being inherently self-centered or overconfident, millennials are just adapting quickly to a world undergoing rapid technological change. They’re optimistic, they’re confident and they’re pragmatic at a time when it can be difficult just to get by.”

Recognizing that there are distinct differences between millennials and prior generations, the Sacramento Business Journal recently published an article titled Top 5 millennial trends of 2014. Because “millennials have more purchasing power than ever before,” — one article reported that millennials are “expected to spend more than $200 billion annually starting in 2017 and $10 trillion in their lifetimes” — marketing to them needs to be strategic and innovative.

The Sacramento Business Journal identified the top five millennial trends as follows:

1. Social media paradigm shift — “… Instead of being afraid to share information, users are now focusing on what benefits come from sharing personal information online.”
2. Social ads are replacing banner ads — “…Traditional online banner ads are mostly ignored by social media users and are only clicked 0.2 percent of the time they are seen. Social ads are smaller and more suited for smartphones than traditional banner ads, and they are preferred by Generation Y.”
3. Pictures speak louder than words — “…millennials value brands that allow them to express themselves in unique ways. Photo sharing is a way millennials can connect with others through creative expression.”
4. Say goodbye to luxury branding — “…These millennials do not seek out products that show off their high status. Instead they are driven by experiences and opportunities to create memories that they can share with friends…Brands like Nike and Honda are now considered luxury brands, and are generally favored by the majority of millennials.”
5. More mobile — “…two out every five millennials say they would feel anxious without their smartphones. It is imperative that every platform be optimized for mobile use.”

How will you win the battle for their spending power?

Additional Sources: CNN Money, How young tech millionaires invest (Feb 27, 2014); Governance Studies at Brookings, How Millennials Could Upend Wall Street and Corporate America, Morley Winograd and Dr. Michael Hais (May 2014); Sacramento Business Journal, 4 ways Millennials will change business and politics (May 28, 2014); The Growing Home-buying Power of Millennials (Apr. 21, 2014); Trends 2014: Buying Power Shifts To Millennials And Female Home Owners (Aug. 27, 2013); Millennials: The Next Greatest Generation? (May 13, 2013); Sacramento Business Journal, Top 5 millennial trends of 2014 (Apr. 7, 2014) and Who will win the battle for the millennial grocery shopper? (Apr. 14, 2014); U.S. Chamber of Commerce Foundation, The Millennial Generation (Nov. 14, 2012)

The 2013 State of Women-Owned Businesses Report commissioned by American Express Open is a summary of important trends from 1997 through 2013. It provides insight into opportunities for women-owned business enterprises (WBEs) in 2014. The Report reinforces trends seen in earlier reports and in other research — the number of WBEs “continues to rise at rates exceeding the national average, yet they remain smaller than the average firm.” According to the Report, “[a]s of 2013, it is estimated that there are over 8.6 million women-owned businesses in the United States, generating over $1.3 trillion in revenues and employing nearly 7.8 million people.” And, WBEs “have added an estimated 175,000 jobs to the U.S. economy since 2007.” The Report also found that, nationally, the number of WBEs “has increased by 59% since 1997.”

The Report’s important findings include:

• “The number and economic contributions of women-owned firms continue to grow. The rate of growth in the number of women-owned enterprises over the past 16 years remains higher than the national average. Between 1997 and 2013, the number of women-owned firms is growing at 1½ times the national average.
• Over the past six years, since the depth of the U.S. recession, the only businesses that have provided a net increase in employment are large, publicly traded corporations… and privately held majority women-owned firms…
• Since 1997, the growth in the number and economic contributions of firms owned by women of color is nothing short of remarkable. Comprising just 17% of women-owned firms 16 years ago, firms owned by women of color now account for one in three women-owned firms in the U.S.
• Comparing trends in the number and revenue accomplishments of women-owned and all firms by industries finds that women-owned firms are exceeding overall sector growth in eight of the 13 most populous industries, and in two of those industries (construction and transportation) women business owners are standing toe-to-toe with their competitors in terms of revenue accomplishments.
• The states with the fastest growth in the number, employment and revenues of women-owned firms are the District of Columbia, North Dakota, Nevada, Wyoming and Georgia. The fastest growing metropolitan areas for women-owned firms are San Antonio TX, Portland OR, Houston TX, Riverside CA, and Washington DC/MD/VA.” (Emphasis added).

WBEs “are standing toe-to-toe with their industry peers — meaning that an equal share of women-owned firms in the sector are generating in excess of half a million dollars in revenues annually — in two industries: construction, where 13% of women-owned firms and 11% of all construction firms are pulling in $500,000+ per year; and in transportation and warehousing, where 6% of each are generating $500,000 or more in revenues.” Nonetheless, WBEs in construction at 7% are still below average. The construction industry, as a whole, however, has seen a decline both in the number of WBEs and all firms since 2002.

However, according to the Report, the industries with the highest concentration of WBEs are:

• Health care and social assistance — 53%
• Educational services — 45%
• Other Services — 41%
• Administrative Support and Waste Management Services — 44%
• Construction — 7%
• Transportation and Warehousing — 11%
• Finance and Insurance — 20%

Between 1997 and 2013, the states with the fastest growth in the number of WBEs are:

• Georgia — up 112%
• Texas — 93%
• North Carolina — 91%
• Louisiana — 94%
• Nevada — 84%

In contrast, during this same period of time, the states with the lowest growth in the number of WBEs are:

• Alaska — 12%
• West Virginia — 23%
• Iowa — 23%
• Ohio — 27%
• Kansas — 27%

As of 2013, in top 25 most populous metropolitan areas, the greatest number of WBEs are located in:

• New York, NY/NJ– 663,200
• Los Angeles, CA — 432,300
• Chicago, IL — 308,000
• Miami, FL — 229,800
• Washington DC/MD/VA — 209,700

The Report is certainly an interesting read and encourages optimism and growth in 2014 for WBEs.

Additional Source: Woman-Owned, Minority-Owned Construction Company Marks 108 Years and Counting (Apr. 25, 2014); 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.”; PRWeb, Turner Construction Company Awards More Than $1 Billion to Minority and Women-Owned Subcontractors in 2013 (Jan. 27, 2014); Turner Construction Company, Promoting A Positive Business Environment

This week the Wall Street Journal published Exposing the EPA, an editorial that was very critical of EPA’s consideration of a “pre-emptive” veto of the Pebble Mine Project, a proposal to develop America’s largest copper and gold mine in Southwest Alaska. The Journal writes that EPA has been planning for several years to exercise its authority under the Clean Water Act (CWA) even before a permit has been filed with the US Amy Corps of Engineers (Corps of Engineers). This controversy highlights the problems inherent in the CWA’s division of authority between the Corps of Engineers and EPA with respect to the administration of CWA Section 404’s dredge and fill permitting authority. Under the CWA, the discharge of a pollutant into navigable waters is regulated by EPA under CWA Section 402 with regard to most point source discharges while the CWA Section 404 authorizes the Secretary of the Army, acting through the Corps of Engineers, to issue permits for the discharge of dredged and fill material into navigable waters. However, CWA Section 404(c) also authorizes EPA to veto the Corps of Engineers’ specification of a disposal site specified in the permit.

The decisions in the recent Mingo Logan Coal Company case illustrate the EPA’s complex authority to veto a CWA Section 404 permit specification “whenever” the EPA Administrator determines that the disposal of dredged and fill materials into a specified area will have an adverse environmental impact. In Mingo Logan, the Corps of Engineers issued a CWA Section 404 permit in 2007, but EPA then vetoed the specified disposal area in 2010. A lower court held that EPA had no authority to veto a permit after it was issued. The US Court of Appeals for the DC Circuit reversed the lower court, and the Supreme Court denied Mingo Logan’s appeal. The Court of Appeals emphasized the fact that the text of the CWA did not place any temporal limits on EPA’s ability to exercise its oversight of the Corps of Engineers. See 714 F 3d 608 (DC Cir 2013). However, it should be noted that the Court of Appeals stated that EPA’s veto authority can only be issued “post-permit”, after the Corps of Engineers has reviewed the permit application and designated the approved disposal area. Apparently, EPA believes that its powers are not so constricted by the law.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Additional Source: The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants

Those are words no one ever wants to hear. Hearing them is no doubt worse when, in fact, you don’t have one. In the last two months, two construction projects were brought to a halt when an unlicensed subcontractor was discovered. On April 11, the California Contractors State License Board (CSLB) issued a press release confirming that work on the drywall portion of the $150 million, 45-story Pinnacle Towers construction project in downtown San Diego has stopped after the CSLB determined the drywall sub-contractor is not properly licensed as a contractor in California. Yesterday, it announced (CSLB #14-15) that it has ordered Nova Drywall Systems Inc., based in Vancouver, British Columbia, to halt work on a $100 million apartment and retail center that is being constructed by Onni Group, a Canadian developer, in downtown Los Angeles after finding that Nova Drywall is not properly licensed in California; the drywall subcontract is reportedly worth $5.5 million. Nova Drywall applied for a CSLB license last January, but it has not yet completed the licensing process.

Acting on a tip, on May 7, the CSLB and California Department of Industrial Relations/Division of Labor Standards Enforcement (DLSE) investigators made an unannounced visit to the 32-story tower being constructed at 888 South Olive Street. An inspection revealed that Nova Drywall does not have a contractor license for the drywall work being performed by its 28 employees on the project since January. Onni Contracting California has a valid California contractor license.

California law defines “contractor” broadly to include “any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, parking facility, railroad, excavation or other structure, project, development or improvement, or to do any part thereof … ” (emphasis added). “Contractor” also includes subcontractors and specialty contractors.

The DLSE cited Nova Drywall for performing services without a contractor’s license, including a $180,400 fine based on when it started work and the number of its employees on the project. The CSLB levied a $15,000 civil penalty, its maximum, against Nova Drywall for acting in the capacity of a contractor without a license, as permitted by Bus. & Prof. Code § 7028.7. In turn, DLSE fined Onni Contracting California $10,800 for contracting with an unlicensed contractor, as permitted by Bus. & Prof. §7118. The CSLB warned that Onni Contracting California may also face CSLB administrative action and a fine for contracting with a non-licensee.

Steve Sands, the CSLB Registrar of Contractors, warned: “To perform contracting work in California, a company must be licensed by CSLB,” and “This company should not have been working until its license was in place.” In turn, Julie A. Su, the California Labor Commissioner, further warned: “Those who hire contractors are obligated to make sure they are dealing with contractors who play by the rules. If they do not, we will work with CSLB and other law enforcement to level the playing field.”

Additional Source: CSLB Breaking News: Part of $150 Million San Diego Construction Project Stopped After Discovery Of Unlicensed Subcontractor; A + B + C (40 + 30) = California Contractor License Classifications (and Subcategories); California CSLB Registrar of Contractors Announces Departure; R-E-C-I-P-R-O-C-I-T-Y ~ Find Out What It Means To You

The California Contractors State License Board posed this question in its California Licensed Contractor Newsletter, Fall 2013 edition Quick Quiz:

“Can I do anything to have my application processed right away so I can start bidding and working on new jobs?
a. Yes, but only if you send enough money to pay CSLB employees for their overtime wages.
b. Maybe, depending on the detail in your expedite request letter that describes why the rush is needed, and if the cause/situation is justifiable.
c. No, CSLB won’t consider expedites.”

Many of you may not know that the answer is “b.”

If you are an unlicensed contractor in California and you would like to bid on and to perform work that requires a California contractor’s license, if you can articulate why the CSLB should rush your application, consider submitting your license application with a letter requesting that it be expedited. There is no harm in asking. The same does not hold true if you bid for or perform work requiring a license without a license.

Additional Source: I’m gonna need to see your license…; CSLB Breaking News: Part of $150 Million San Diego Construction Project Stopped After Discovery Of Unlicensed Subcontractor; A + B + C (40 + 30) = California Contractor License Classifications (and Subcategories); R-E-C-I-P-R-O-C-I-T-Y ~ Find Out What It Means To You

The U.S. Chamber of Commerce Foundation recently published its Enterprising Cities Regulatory Climate Index 2014 (Index), assessing 5 areas of regulation across 10 cities in the United States: (1) Dallas, Texas, (2) St. Louis, Missouri, (3) Raleigh, North Carolina, (4) Boston, Massachusetts, (5) Atlanta, Georgia, (6) Detroit, Michigan, (7) Chicago, Illinois, (8) Los Angeles, California, (9) San Francisco, California, and (10) New York, New York.

The Index’s 5 areas of regulation represent the life cycle of a business: (1) starting a business (see Table 5), (2) dealing with construction permits (see Table 6), (3) registering property (see Table 7), (4) paying taxes (see Table 8), and (5) enforcing contracts (see Table 9). To measure the regulatory burden, it looked at (A) the number of procedures, (B) time to comply with the requirement, and (C) the costs and fees paid to the government or service providers that are required by the local laws. The Index’s scores and ranks are the simple average of ranking of all 5 areas of business regulation in each of the 10 cities; each of the 5 areas of business regulation is again the simple average of the normalized values of procedures, time, and costs; and each component in an area of business regulation is ranked relative to the other 9 cities.

The Index concludes that “[a]mong these 10 cities, Dallas and St. Louis impose the lightest regulatory burden on small businesses. Raleigh, Boston, Atlanta, and Detroit have moderate overall scores. New York City, San Francisco, Los Angeles, and Chicago, on the other hand, are marked by high regulatory requirements to open and operate small businesses (Table 3).” The overall scores of the 5 areas of regulation for the 10 cities indexed (see Table 4) are:

1. Dallas — 89.5
2. St. Louis — 85.2
3. Raleigh — 73.7
4. Boston — 73.3
5. Atlanta — 72.7
6. Detroit — 64.9
7. Chicago — 52.9
8. Los Angeles — 47.9
9. San Francisco — 41.3
10. New York — 34.7

With regard to the second are of regulation — dealing with construction permits — the Index recognizes that obtaining construction permits varies substantially across the nation, including the cost, time and required procedures depending on the zoning approval process, environmental reviews and building permit reviews. It reported that the regulatory costs average 1% of the construction costs and 3 months of processing to complete a set of 15 standard procedures for both pre- and post-construction phases for small commercial buildings.

It also reported that the costs of construction permits varies substantially across the nation — Dallas, Raleigh, and St. Louis have the lowest fees for administrative compliance, ranging from 0.3% to 0.7% of the total cost of construction; Atlanta, Boston, Chicago, Detroit, and New York City have moderate costs of permits, ranging from 0.8% to 1.3% of total construction costs; and Los Angeles and San Francisco have the highest costs of permits at more than 3.0% of total construction costs. It estimated that the costs to obtain construction permits in San Francisco and Los Angeles are about 10 times the permit costs in Dallas and Raleigh, and the waiting times for permits are as low as two months in Raleigh, Dallas, and St. Louis, but at least twice that in Chicago, Los Angeles, and San Francisco. It concluded that these costs are largely driven by the additional procedures required by those cities (e.g., San Francisco requires builders to submit a city environmental quality review that would cost an extra $50,000 in fees (the equivalent of 1.6% of the construction costs) and it takes (at least) an extra 66 days to review; Los Angeles has a similar procedure, but with a lower cost). In contrast, Atlanta, Dallas, and Raleigh offer expedited and streamlined services for construction firms when applying for permits and provide express services for inspection.

Additional Source: The U.S. Chamber of Commerce Foundation, Enterprising Cities Regulatory Climate Index 2014 (May 11, 2014); The Business Journals, Hey business owner – you want easy? Try Dallas. Want hard? Try New York (May 12, 2014)

Yesterday, Pillsbury attorneys Peter Wyckoff, Mike Barr, Jeff Knight, Anthony Cavender, and Matt Morrison published their advisory titled The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants. The Advisory discusses the U.S. Supreme Court’s April 24, 6-2 decision, in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the federal Clean Air Act to control those electric power plant emissions of sulfur dioxide (S02) and nitrogen oxides (NOx) that contribute to interstate formation of fine particle and ozone (smog) pollution.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Peter Wyckoff, Mike Barr, Jeff Knight, Anthony Cavender, or Matt Morrison, the authors of this blog.

Biz2Credit identifies the top 25 cities for small business in 2014 and 5 of them are in California, 4 are in Florida, and 3 are in Texas. For its analysis, Biz2Credit defined “small businesses” as “companies having fewer than 250 employees or less than $10 million in annual revenues.” Cities are rated based on “a weighted average that includes annual revenue, credit score, age of business (in months), cash flow, debt-to-income ratio, incorporation (C-Corp or LLC vs. sole proprietorship), and business owners’ personal credit scores.” Biz2Credit reports that it analyzed 12,000 businesses with less than 250 employees and less than $10 million in annual revenues from across the country that have been in operation for more than 1 year.

Its top 25 cities for small business in 2014 are:

1. San Jose-Sunnyvale-Santa Clara, CA
2. Detroit-Dearborn, MI 3. Denver, CO 4. Los Angeles-Long Beach-Anaheim, CA
5. San Francisco-Oakland, CA
6. Las Vegas, NV 7. New York metro area 8. Atlanta, GA 9. Washington, DC metro area 10. Miami-Fort Lauderdale-West Palm Beach, FL 11. Riverside-San Bernardino, CA
12. Tampa-St. Petersburg, FL 13. Sacramento, CA
14. Indianapolis, IN 15. Houston, TX 16. Chicago, IL 17. Portland, OR 18. Dallas-Fort Worth, TX 19. Phoenix-Scottsdale, AZ 20. Charlotte, NC 21. San Antonio, TX 22. Seattle-Tacoma, WA 23. Jacksonville, FL 24. Philadelphia, PA 25. Orlando-Kissimmee, FL

Additional Sources: Biz2Credit Identifies 2014’s Best Small Business Cities in America; Surprisingly, California Didn’t Make The Top Out-Bound Or In-Bound States Lists … But, You Might Be Surprised By Which Did

UPDATE: Washington Department of Labor & Industries, Electrical Safety Standards, Administration and Installation WAC Rule 296-46B (F500-039-222) effective on July 1, 2014
The Washington State Department of Labor & Industries is considering amendments to the electrical rules based upon new safety code requirements from the 2014 edition of the National Electrical Code (NEC). The 2014 NEC was adopted by the Department on March 1, 2013 to replace the current 2008 NEC standards and will become effective on July 1, 2014. The proposed changes would amend all sections of Chapter 296-46B of the Washington Administrative Code (WAC), excluding the Scope of Work requirements in WAC 296-46B-920.

From October 1 through October 31, 2013, the Department accepted rule proposals from external stakeholders and internal department proposals. On March 4, 2014 a Notice of Proposed Rulemaking (CR-102) was filed, and the Proposed Rules published for public comment. On April 10, 2014, the Department held a public hearing on the Proposed Rules. The tentative adoption date for the Proposed Rules is May 20, 2014 and the tentative effective date is July 1, 2014.

Additional Sources: Washington Department of Labor & Industries, Electrical Safety Standards, Administration and Installation WAC Rule 296-46B (F500-039-222); Washington State Department of Labor & Industries, Rules Under Development: Electrical safety standards, administration, and installation

UPDATED: On July 8, Hawaii’s Governor signed into law H.B. 1814 and it is effective immediately. Among other things, it authorizes employers to pay wages to an employee using a pay card if certain requirements are met.

Employers’ use of payroll cards to pay employee wages and other benefits is tremendously popular, for among other reasons, the convenience that the cards provide for both employers and employees. If you pay your employees by payroll card in Hawaii, keep an on eye on House Bill 1814. On April 3, 2014, the Hawaii Department of Labor and Industrial Relations issued an Amended Notice Re: Department of Labor and Industrial Relations Guidelines on the Use of Payroll Debit Cards, warning that, effective September 1, 2014, it is suspending its April 13, 2006 Declaratory Ruling, which administratively allows the use of payroll, pay, or debit cards for the payment of wages to employees. (A copy of the April 13, 2006 Declaratory Ruling is appended to the Amended Notice.) Unless the pending legislation permits it, employers will no longer be permitted to use payroll cards starting on September 1, 2014. The Department acknowledged that legislation on point, specifically H.B. 1814 (2014 Reg. Sess.) relating to payment of wages currently is being deliberated. H.B. 1814 was introduced on January 17, 2014, passed by the House on March 4, 2014 and the Senate on April 8, 2014, and transmitted to the Governor on May 5, 2014.

Additional Sources: Consumer Financial Protection Bureau Bulletin 2013-10; Comptroller of the Currency, Payroll Cards: An Innovative Product for Reaching the Unbanked and Underbanked (June 2005); Construction Executive, To Pay, Or Not To Pay, By Payroll Debit Card (Oct. 28, 2013)