Senate Bill sb2836

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    Florida Senate - 2007                                  SB 2836

    By Senator Constantine





    22-1611B-07

  1                      A bill to be entitled

  2         An act relating to the Florida Building Code;

  3         amending s. 553.73, F.S.; authorizing the

  4         Florida Building Commission to approve certain

  5         amendments to the code; amending s. 553.791,

  6         F.S.; providing definitions; revising and

  7         clarifying provisions related to authorized

  8         representatives of private providers of

  9         building code inspection services; requiring

10         inspection forms to be signed and sealed;

11         amending s. 553.841, F.S.; revising provisions

12         of the Building Code Education and Outreach

13         Program; providing for the program to be

14         administered by the Department of Community

15         Affairs through a private nonprofit corporation

16         selected by and under contract with the

17         department; providing qualifications and

18         criteria for selecting the corporation;

19         providing for funding of the program; providing

20         for the carryforward of unused funds; providing

21         for the adoption of rules by the Florida

22         Building Commission; providing limitations on

23         the program; amending s. 553.842, F.S.;

24         limiting the use of a certification mark in

25         product evaluation and approval; providing for

26         the commission to adopt rules establishing a

27         schedule of penalties to be imposed against

28         certain product validators; providing for the

29         commission to adopt rules identifying standards

30         equivalent to or more stringent than those

31  

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 1         adopted in the code; providing an effective

 2         date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (7) of section 553.73, Florida

 7  Statutes, as amended by section 7 of chapter 2007-1, Laws of

 8  Florida, is amended to read:

 9         553.73  Florida Building Code.--

10         (7)  Upon the conclusion of a triennial update to the

11  Florida Building Code, Notwithstanding the provisions of

12  subsection (3) or subsection (6), the commission may address

13  issues identified in this subsection by amending the code

14  pursuant only to the rule adoption procedures contained in

15  chapter 120. Provisions of the Florida Building Code,

16  including those contained in referenced standards and

17  criteria, relating to wind resistance or the prevention of

18  water intrusion may not be amended pursuant to this subsection

19  to diminish those construction requirements; however, the

20  commission may, subject to conditions in this subsection,

21  amend the provisions to enhance those construction

22  requirements. Following the approval of any amendments to the

23  Florida Building Code by the commission and publication of the

24  amendments on the commission's website, authorities having

25  jurisdiction to enforce the Florida Building Code may enforce

26  the amendments. The commission may approve amendments that are

27  needed to address:

28         (a)  Conflicts within the updated code;

29         (b)  Conflicts between the updated code and the Florida

30  Fire Prevention Code adopted pursuant to chapter 633;

31  

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 1         (c)  The omission of previously adopted

 2  Florida-specific amendments to the updated code if such

 3  omission is not supported by a specific recommendation of a

 4  technical advisory committee or particular action by the

 5  commission; or

 6         (d)  Unintended results from the integration of

 7  previously adopted Florida-specific amendments with the model

 8  code;.

 9         (e)  Changes to federal or state law; or

10         (f)  Interim updates to the foundation codes or

11  reference standards.

12         Section 2.  Subsections (1), (2), (4), (8), (10), (11),

13  (13), and (15) of section 553.791, Florida Statutes, are

14  amended to read:

15         553.791  Alternative plans review and inspection.--

16         (1)  As used in this section, the term:

17         (a)  "Applicable codes" means the Florida Building Code

18  and any local technical amendments to the Florida Building

19  Code but does not include the applicable minimum fire

20  prevention and firesafety codes adopted pursuant to chapter

21  633.

22         (b)  "Audit" means confirmation of the building code

23  inspection services being performed by the private provider

24  with specific attention to assuring that the required

25  affidavit for the plan review has been properly completed and

26  affixed to the permit documents and that the minimum mandatory

27  building-code-required inspections are being performed and

28  properly recorded. "Audit" does not mean that the local

29  building official is required to replicate the plan review or

30  inspection being performed by the private provider.

31  

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 1         (c)(b)  "Building" means any construction, erection,

 2  alteration, demolition, or improvement of, or addition to, any

 3  structure for which permitting by a local enforcement agency

 4  is required.

 5         (d)(c)  "Building code inspection services" means those

 6  services described in s. 468.603(6) and (7) involving the

 7  review of building plans to determine compliance with

 8  applicable codes and those inspections required by law of each

 9  phase of construction for which permitting by a local

10  enforcement agency is required to determine compliance with

11  applicable codes.

12         (e)(d)  "Duly authorized representative" means an agent

13  of the private provider identified in the permit application

14  who reviews plans or performs inspections as provided by this

15  section and who is licensed as an engineer under chapter 471

16  or as an architect under chapter 481 or who holds a standard

17  certificate under part XII of chapter 468.

18         (f)(e)  "Local building official" means the individual

19  within the governing jurisdiction responsible for direct

20  regulatory administration or supervision of plans review,

21  enforcement, and inspection of any construction, erection,

22  alteration, demolition, or substantial improvement of, or

23  addition to, any structure for which permitting is required to

24  indicate compliance with applicable codes and includes any

25  duly authorized designee of such person.

26         (g)(f)  "Permit application" means a properly completed

27  and submitted application for the requested building or

28  construction permit, including:

29         1.  The plans reviewed by the private provider.

30         2.  The affidavit from the private provider required

31  pursuant to subsection (6).

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 1         3.  Any applicable fees.

 2         4.  Any documents required by the local building

 3  official to determine that the fee owner has secured all other

 4  government approvals required by law.

 5         (h)(g)  "Private provider" means a person licensed as

 6  an engineer under chapter 471 or as an architect under chapter

 7  481. For purposes of performing inspections under this section

 8  for additions and alterations that are limited to 1,000 square

 9  feet or less to residential buildings, the term "private

10  provider" also includes a person who holds a standard

11  certificate under part XII of chapter 468.

12         (i)(h)  "Request for certificate of occupancy or

13  certificate of completion" means a properly completed and

14  executed application for:

15         1.  A certificate of occupancy or certificate of

16  completion.

17         2.  A certificate of compliance from the private

18  provider required pursuant to subsection (11).

19         3.  Any applicable fees.

20         4.  Any documents required by the local building

21  official to determine that the fee owner has secured all other

22  government approvals required by law.

23         (j)  "Immediate threat to public safety and welfare"

24  means a hazard that, if allowed to continue, may result in

25  death, serious bodily injury, or significant property damage.

26         (k)  "Stop work order" means the issuance of any

27  written statement, written directive, or written order to stop

28  work on a project.

29         (2)  Notwithstanding any other provision of law or

30  local government ordinance or local policy, the fee owner of a

31  building or structure, or the fee owner's contractor upon

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 1  written authorization from the fee owner, may choose to use a

 2  private provider to provide building code inspection services

 3  with regard to such building or structure and may make payment

 4  directly to the private provider for the provision of such

 5  services. All such services shall be the subject of a written

 6  contract between the private provider, or the private

 7  provider's firm, and the fee owner or the fee owner's

 8  contractor, upon written authorization of the fee owner. The

 9  fee owner may elect to use a private provider to provide plans

10  review or required building inspections, or both. However, if

11  the fee owner or the fee owner's contractor uses a private

12  provider to provide plans review, the local building official,

13  in his or her discretion and pursuant to duly adopted policies

14  of the local enforcement agency, may require the fee owner or

15  the fee owner's contractor to use a private provider to also

16  provide required building inspections.

17         (4)  A fee owner or the fee owner's contractor using a

18  private provider to provide building code inspection services

19  shall notify the local building official at the time of permit

20  application, or no less than 7 business days prior to the

21  first scheduled inspection by the local building official or

22  building code enforcement agency for a private provider

23  performing required inspections of construction under this

24  section, on a form to be adopted by the commission. This

25  notice shall include the following information:

26         (a)  The services to be performed by the private

27  provider.

28         (b)  The name, firm, address, telephone number, and

29  facsimile number of each private provider who is performing or

30  will perform such services, his or her professional license or

31  certification number, qualification statements or resumes,

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 1  and, if required by the local building official, a certificate

 2  of insurance demonstrating that professional liability

 3  insurance coverage is in place for the private provider's

 4  firm, the private provider, and any duly authorized

 5  representative in the amounts required by this section.

 6         (c)  An acknowledgment from the fee owner in

 7  substantially the following form:

 8  

 9         I have elected to use one or more private

10         providers to provide building code plans review

11         and/or inspection services on the building or

12         structure that is the subject of the enclosed

13         permit application, as authorized by s.

14         553.791, Florida Statutes. I understand that

15         the local building official may not review the

16         plans submitted or perform the required

17         building inspections to determine compliance

18         with the applicable codes, except to the extent

19         specified in said law. Instead, plans review

20         and/or required building inspections will be

21         performed by licensed or certified personnel

22         identified in the application. The law requires

23         minimum insurance requirements for such

24         personnel, but I understand that I may require

25         more insurance to protect my interests. By

26         executing this form, I acknowledge that I have

27         made inquiry regarding the competence of the

28         licensed or certified personnel and the level

29         of their insurance and am satisfied that my

30         interests are adequately protected. I agree to

31         indemnify, defend, and hold harmless the local

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 1         government, the local building official, and

 2         their building code enforcement personnel from

 3         any and all claims arising from my use of these

 4         licensed or certified personnel to perform

 5         building code inspection services with respect

 6         to the building or structure that is the

 7         subject of the enclosed permit application.

 8  

 9  If the fee owner or the fee owner's contractor makes any

10  changes to the listed private providers or the services to be

11  provided by those private providers, the fee owner or the fee

12  owner's contractor shall, within 1 business day after any

13  change, update the notice to reflect such changes. A change of

14  authorized representative named in the permit application does

15  not require a revision of the permit, and the building code

16  enforcement agency may not charge a fee for making the change.

17  In addition, the fee owner or the fee owner's contractor shall

18  post at the project site, prior to the commencement of

19  construction and updated within 1 business day after any

20  change, on a form to be adopted by the commission, the name,

21  firm, address, telephone number, and facsimile number of each

22  private provider who is performing or will perform building

23  code inspection services, the type of service being performed,

24  and similar information for the primary contact of the private

25  provider on the project.

26         (8)  A private provider performing required inspections

27  under this section shall inspect each phase of construction as

28  required by the applicable codes. The private provider shall

29  be permitted to send a duly authorized representative to the

30  building site to perform the required inspections, provided

31  all required reports and certifications are prepared by and

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 1  bear the signature of the private provider or the provider's

 2  authorized representative. The duly authorized representative

 3  must be an employee of the private provider entitled to

 4  receive unemployment compensation benefits under chapter 443.

 5  The contractor's contractual or legal obligations are not

 6  relieved by any action of the private provider.

 7         (10)  Upon completing the required inspections at each

 8  applicable phase of construction, the private provider shall

 9  record such inspections on a form acceptable to the local

10  building official. The form shall be signed by the provider or

11  the provider's authorized representative. These inspection

12  records shall reflect those inspections required by the

13  applicable codes of each phase of construction for which

14  permitting by a local enforcement agency is required. The

15  private provider, before leaving the project site, shall post

16  each completed inspection record, indicating pass or fail, at

17  the site and provide the record to the local building official

18  within 2 business days. The local building official may waive

19  the requirement to provide a record of each inspection within

20  2 business days if the record is posted at the project site

21  and all such inspection records are submitted with the

22  certificate of compliance. Records of all required and

23  completed inspections shall be maintained at the building site

24  at all times and made available for review by the local

25  building official. The private provider shall report to the

26  local enforcement agency any condition that poses an immediate

27  threat to public safety and welfare.

28         (11)  Upon completion of all required inspections, the

29  private provider shall prepare a certificate of compliance, on

30  a form acceptable to the local building official, summarizing

31  the inspections performed and including a written

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 1  representation, under oath, that the stated inspections have

 2  been performed and that, to the best of the private provider's

 3  knowledge and belief, the building construction inspected

 4  complies with the approved plans and applicable codes.  The

 5  statement required of the private provider shall be

 6  substantially in the following form and shall be signed and

 7  sealed by a private provider licensed as an engineer under

 8  chapter 471 or an architect under chapter 481:

 9  

10         To the best of my knowledge and belief, the

11         building components and site improvements

12         outlined herein and inspected under my

13         authority have been completed in conformance

14         with the approved plans and the applicable

15         codes.

16  

17         (13)  If the local building official determines that

18  the building construction or plans do not comply with the

19  applicable codes, the official may deny the permit or request

20  for a certificate of occupancy or certificate of completion,

21  as appropriate, or may issue a written stop-work order for the

22  project or any portion thereof, directing all work on the

23  project to stop, as provided by law, if the official

24  determines that such noncompliance poses an immediate a threat

25  to public safety and welfare, subject to the following:

26         (a)  The local building official shall be available to

27  meet with the private provider within 2 business days to

28  resolve any dispute after issuing a stop-work order or

29  providing notice to the applicant denying a permit or request

30  for a certificate of occupancy or certificate of completion.

31  

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 1         (b)  If the local building official and private

 2  provider are unable to resolve the dispute, the matter shall

 3  be referred to the local enforcement agency's board of

 4  appeals, if one exists, which shall consider the matter at its

 5  next scheduled meeting or sooner. Any decisions by the local

 6  enforcement agency's board of appeals, or local building

 7  official if there is no board of appeals, may be appealed to

 8  the commission as provided by this chapter.

 9         (c)  Notwithstanding any provision of this section, any

10  decisions regarding the issuance of a building permit,

11  certificate of occupancy, or certificate of completion may be

12  reviewed by the local enforcement agency's board of appeals,

13  if one exists. Any decision by the local enforcement agency's

14  board of appeals, or local building official if there is no

15  board of appeals, may be appealed to the commission as

16  provided by this chapter, which shall consider the matter at

17  the commission's next scheduled meeting.

18         (15)(a)  No local enforcement agency, local building

19  official, or local government may adopt or enforce any laws,

20  rules, procedures, policies, qualifications, or standards more

21  stringent than those prescribed by this section.

22         (b)  A local enforcement agency, local building

23  official, or local government may establish, for private

24  providers and duly authorized representatives working within

25  that jurisdiction, a system of registration to verify

26  compliance with the licensure requirements of paragraph (1)(g)

27  and the insurance requirements of subsection (16).

28         (c)  Nothing in this section limits the authority of

29  the local building official to issue a stop-work order for a

30  building project or any portion of such project order, as

31  provided by law, if the official determines that a condition

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 1  on the building site constitutes an immediate threat to public

 2  safety and welfare.

 3         Section 3.  Section 553.841, Florida Statutes, is

 4  amended to read:

 5         (Substantial rewording of section. See

 6         s. 553.841, F.S., for present text.)

 7         553.841  Building code education and outreach

 8  program.--

 9         (1)  The Legislature finds that compliance with the

10  Building Code is vital to the public health, safety, and

11  welfare, particularly because of the threat that hurricanes

12  pose to the state. The Legislature further finds that the code

13  can be effective only if all persons in the construction

14  industry and the code-enforcement process have a thorough

15  knowledge of the code and amendments to it. The Legislature

16  finds there is a pressing need for a program to provide

17  ongoing education concerning the building code to such

18  persons.

19         (2)  The Building Code Education and Outreach Program

20  is created, shall be administered by the Department of

21  Community Affairs, and shall develop, coordinate, and maintain

22  education and outreach to persons who are required to comply

23  with the Florida Building Code and to ensure consistent

24  education, training, and communication of the code's

25  requirements.

26         (3)  Services and materials under the program shall be

27  provided through a private, nonprofit corporation under

28  contract with the department. The term of the contract shall

29  be 4 years, with the option of one 4-year renewal at the end

30  of the contract term. The initial contract shall be awarded by

31  January 1, 2008.

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 1         (4)  In selecting a private provider for the program,

 2  the department shall give primary consideration to:

 3         (a)  The provider's experience and ability to develop

 4  and deliver building-code-related education, training, and

 5  outreach services;

 6         (b)  The provider's experience and ability to deliver

 7  education and outreach throughout the state;

 8         (c)  A provider whose membership comprises trade and

 9  professional organizations consisting primarily of persons who

10  are required to comply with the code and who are licensed

11  under part XII of chapter 468, chapter 471, chapter 481, and

12  chapter 489;

13         (d)  The provider's experience and ability to

14  prioritize its education and outreach, based upon input from

15  the commission, licenses regulatory boards, local building

16  departments, and the design and construction industries; and

17         (e)  The provider's experience and ability to promote

18  hurricane-mitigation design and construction techniques and

19  materials via a state-based trade conference that includes

20  participants from the broadest possible range of design and

21  construction trades and professions, including private-sector

22  and public-sector entities having jurisdiction over building

23  codes and design and construction licensure.

24         (5)  Each biennium, upon receipt of funds by the

25  department from the Construction Industry Licensing Board and

26  the Electrical Contractors' Licensing Board provided under ss.

27  489.109(3) and 489.509(3), the department shall determine the

28  amount of funds available for education and outreach projects

29  from the proceeds of contractor licensing fees and shall

30  identify, solicit, and accept funds from other sources for

31  

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 1  education and outreach projects to be provided through the

 2  program.

 3         (6)  If the projects provided through the program in

 4  any state fiscal year do not require the use of all available

 5  funds, the unused funds shall be carried forward and allocated

 6  for the same purpose during the following fiscal year.

 7         (7)  This section does not prohibit or limit the

 8  subject areas or development of continuing education or

 9  training concerning the Florida Building Code by any qualified

10  entity.

11         (8)  The commission shall adopt rules that establish

12  procedures and criteria to approve advanced building code

13  education courses.

14         (9)  This section does not change the continuing

15  education course requirements or authority of any licensing

16  board under part XII of chapter 468, chapter 471, chapter 481,

17  or chapter 489.

18         Section 4.  Subsections (5) and (7) of section 553.842,

19  Florida Statutes, are amended, and subsection (16) is added to

20  that section, to read:

21         553.842  Product evaluation and approval.--

22         (5)  Statewide approval of products, methods, or

23  systems of construction may be achieved by one of the

24  following methods. One of these methods must be used by the

25  commission to approve the following categories of products:

26  panel walls, exterior doors, roofing, skylights, windows,

27  shutters, and structural components as established by the

28  commission by rule.

29         (a)  Products for which the code establishes

30  standardized testing or comparative or rational analysis

31  methods shall be approved by submittal and validation of one

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 1  of the following reports or listings indicating that the

 2  product or method or system of construction was evaluated to

 3  be in compliance with the Florida Building Code and that the

 4  product or method or system of construction is, for the

 5  purpose intended, at least equivalent to that required by the

 6  Florida Building Code:

 7         1.  A certification mark or listing of an approved

 8  certification agency, which may be used only for products for

 9  which the code designates standardized testing;

10         2.  A test report from an approved testing laboratory;

11         3.  A product evaluation report based upon testing or

12  comparative or rational analysis, or a combination thereof,

13  from an approved product evaluation entity; or

14         4.  A product evaluation report based upon testing or

15  comparative or rational analysis, or a combination thereof,

16  developed and signed and sealed by a professional engineer or

17  architect, licensed in this state.

18  

19  A product evaluation report or a certification mark or listing

20  of an approved certification agency which demonstrates that

21  the product or method or system of construction complies with

22  the Florida Building Code for the purpose intended shall be

23  equivalent to a test report and test procedure as referenced

24  in the Florida Building Code.

25         (b)  Products, methods, or systems of construction for

26  which there are no specific standardized testing or

27  comparative or rational analysis methods established in the

28  code may be approved by submittal and validation of one of the

29  following:

30         1.  A product evaluation report based upon testing or

31  comparative or rational analysis, or a combination thereof,

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 1  from an approved product evaluation entity indicating that the

 2  product or method or system of construction was evaluated to

 3  be in compliance with the intent of the Florida Building Code

 4  and that the product or method or system of construction is,

 5  for the purpose intended, at least equivalent to that required

 6  by the Florida Building Code; or

 7         2.  A product evaluation report based upon testing or

 8  comparative or rational analysis, or a combination thereof,

 9  developed and signed and sealed by a professional engineer or

10  architect, licensed in this state, who certifies that the

11  product or method or system of construction is, for the

12  purpose intended, at least equivalent to that required by the

13  Florida Building Code.

14         (7)  For state approvals, validation shall be performed

15  by validation entities approved by the commission. The

16  commission shall adopt by rule criteria for approval of

17  validation entities, which shall be third-party entities

18  independent of the product's manufacturer and which shall

19  certify to the commission the product's compliance with the

20  code. The commission may also adopt by rule a schedule of

21  penalties to be imposed against approved validators who

22  validate product applications in violation of this section or

23  rules adopted under this section. The imposition of such

24  penalties shall be governed by s. 120.60 and the uniform rules

25  of procedure.

26         (16)  The commission may adopt a rule that identifies

27  standards that are equivalent to or more stringent than those

28  specifically adopted within the code, thereby allowing the use

29  of products that comply with the equivalent standard within

30  this state.

31         Section 5.  This act shall take effect July 1, 2007.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises provisions relating to the Florida Building Code
      and the Florida Building Commission. Authorizes the
 4    commission to approve certain amendments to the code.
      Revises provisions that create the Building Commission
 5    Education and Outreach Program to allow it to be operated
      by a private nonprofit corporation selected by the
 6    Department of Community Affairs. Provides selection
      criteria and operating guidelines for the program.
 7    Provides for the adoption of rules. Limits the use of a
      certification mark to certain product evaluations
 8    relating to the code. Revises provisions related to the
      use of private providers to conduct inspection services.
 9    Allows authorized representatives to sign certain forms;
      requiring final forms to be signed and sealed. (See bill
10    for details.)

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