Florida Senate - 2021 SB 1146
By Senator Brodeur
9-00990-21 20211146__
1 A bill to be entitled
2 An act relating to the Florida Building Code; amending
3 s. 514.0115, F.S.; prohibiting the Department of
4 Health from requiring that pools serving assisted
5 living facilities be compliant with rules relating to
6 swimming pool lifeguards; amending s. 553.73, F.S.;
7 authorizing a substantially affected person to file a
8 petition with the Florida Building Commission to
9 review certain local government regulations, laws,
10 ordinances, policies, amendments, or land use or
11 zoning provisions; defining the term “local
12 government”; providing requirements for the petition
13 and commission; requiring the commission to issue a
14 nonbinding advisory opinion within a specified
15 timeframe; authorizing the commission to issue errata
16 to the code; defining the term “errata to the code”;
17 making technical changes; amending s. 553.77, F.S.;
18 conforming a cross-reference; amending s. 553.79,
19 F.S.; prohibiting a local government from requiring
20 certain contracts for the application for or issuance
21 of a building permit; amending s. 553.842, F.S.;
22 requiring evaluation entities that meet certain
23 criteria to comply with certain standards; amending
24 ss. 125.01 and 125.56, F.S.; conforming cross
25 references; making technical changes; providing an
26 effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Present subsections (3) through (8) of section
31 514.0115, Florida Statutes, are redesignated as subsections (4)
32 through (9), respectively, and a new subsection (3) is added to
33 that section, to read:
34 514.0115 Exemptions from supervision or regulation;
35 variances.—
36 (3) The department may not require compliance with rules
37 relating to swimming pool lifeguard standards for pools serving
38 assisted living facilities.
39 Section 2. Subsections (4) and (8) of section 553.73,
40 Florida Statutes, are amended to read:
41 553.73 Florida Building Code.—
42 (4)(a) All entities authorized to enforce the Florida
43 Building Code under pursuant to s. 553.80 shall comply with
44 applicable standards for issuance of mandatory certificates of
45 occupancy, minimum types of inspections, and procedures for
46 plans review and inspections as established by the commission by
47 rule. Local governments may adopt amendments to the
48 administrative provisions of the Florida Building Code, subject
49 to the limitations in of this subsection paragraph. Local
50 amendments must shall be more stringent than the minimum
51 standards described in this section herein and must shall be
52 transmitted to the commission within 30 days after enactment.
53 The local government shall make such amendments available to the
54 general public in a usable format. The State Fire Marshal is
55 responsible for establishing the standards and procedures
56 required in this subsection paragraph for governmental entities
57 with respect to applying the Florida Fire Prevention Code and
58 the Life Safety Code.
59 (b) Local governments may, subject to the limitations in of
60 this section and not more than once every 6 months, adopt
61 amendments to the technical provisions of the Florida Building
62 Code that which apply solely within the jurisdiction of such
63 government and that which provide for more stringent
64 requirements than those specified in the Florida Building Code,
65 not more than once every 6 months. A local government may adopt
66 technical amendments that address local needs if:
67 1. The local governing body determines, following a public
68 hearing which has been advertised in a newspaper of general
69 circulation at least 10 days before the hearing, that there is a
70 need to strengthen the requirements of the Florida Building
71 Code. The determination must be based upon a review of local
72 conditions by the local governing body, which review
73 demonstrates by evidence or data that the geographical
74 jurisdiction governed by the local governing body exhibits a
75 local need to strengthen the Florida Building Code beyond the
76 needs or regional variation addressed by the Florida Building
77 Code, that the local need is addressed by the proposed local
78 amendment, and that the amendment is no more stringent than
79 necessary to address the local need.
80 2. Such additional requirements are not discriminatory
81 against materials, products, or construction techniques of
82 demonstrated capabilities.
83 3. Such additional requirements may not introduce a new
84 subject not addressed in the Florida Building Code.
85 (c)4. The enforcing agency shall make readily available, in
86 a usable format, all amendments adopted under pursuant to this
87 section.
88 (d)5. Any amendment to the Florida Building Code shall be
89 transmitted within 30 days after adoption by the adopting local
90 government to the commission. The commission shall maintain
91 copies of all such amendments in a format that is usable and
92 obtainable by the public. Local technical amendments are shall
93 not become effective until 30 days after the amendment has been
94 received and published by the commission.
95 (e)6. An Any amendment to the Florida Building Code adopted
96 by a local government under pursuant to this subsection is
97 paragraph shall be effective only until the adoption by the
98 commission of the new edition of the Florida Building Code by
99 the commission every third year. At such time, the commission
100 shall review such amendment for consistency with the criteria in
101 paragraph (9)(a) and adopt such amendment as part of the Florida
102 Building Code or rescind the amendment. The commission shall
103 immediately notify the respective local government of the
104 rescission of any amendment. After receiving such notice, the
105 respective local government may readopt the rescinded amendment
106 under pursuant to the provisions of this subsection paragraph.
107 (f)7. Each county and municipality desiring to make local
108 technical amendments to the Florida Building Code shall by
109 interlocal agreement establish by interlocal agreement a
110 countywide compliance review board to review any amendment to
111 the Florida Building Code that is, adopted by a local government
112 within the county under pursuant to this subsection and
113 paragraph, that is challenged by a any substantially affected
114 party for purposes of determining the amendment’s compliance
115 with this subsection paragraph. If challenged, the local
116 technical amendments are shall not become effective until the
117 time for filing an appeal under paragraph (g) pursuant to
118 subparagraph 8. has expired or, if there is an appeal, until the
119 commission issues its final order determining if the adopted
120 amendment is in compliance with this subsection.
121 (g)8. If the compliance review board determines such
122 amendment is not in compliance with this subsection paragraph,
123 the compliance review board shall notify such local government
124 of the noncompliance and that the amendment is invalid and
125 unenforceable until the local government corrects the amendment
126 to bring it into compliance. The local government may appeal the
127 decision of the compliance review board to the commission. If
128 the compliance review board determines that such amendment is to
129 be in compliance with this subsection paragraph, any
130 substantially affected party may appeal such determination to
131 the commission. Any such appeal must shall be filed with the
132 commission within 14 days after of the board’s written
133 determination. The commission shall promptly refer the appeal to
134 the Division of Administrative Hearings by electronic means
135 through the division’s website for the assignment of an
136 administrative law judge. The administrative law judge shall
137 conduct the required hearing within 30 days after being assigned
138 to the appeal, and shall enter a recommended order within 30
139 days after of the conclusion of such hearing. The commission
140 shall enter a final order within 30 days after an order is
141 rendered thereafter. The provisions of Chapter 120 and the
142 uniform rules of procedure shall apply to such proceedings. The
143 local government adopting the amendment that is subject to
144 challenge has the burden of proving that the amendment complies
145 with this subsection paragraph in proceedings before the
146 compliance review board and the commission, as applicable.
147 Actions of the commission are subject to judicial review under
148 pursuant to s. 120.68. The compliance review board shall
149 determine whether its decisions apply to a respective local
150 jurisdiction or apply countywide.
151 (h)9. An amendment adopted under this subsection paragraph
152 must shall include a fiscal impact statement that which
153 documents the costs and benefits of the proposed amendment.
154 Criteria for the fiscal impact statement shall include the
155 impact to local government relative to enforcement and, the
156 impact to property and building owners and, as well as to
157 industry, relative to the cost of compliance. The fiscal impact
158 statement may not be used as a basis for challenging the
159 amendment for compliance.
160 (i)10. In addition to paragraphs (f) and (g) subparagraphs
161 7. and 9., the commission may review any amendments adopted
162 under pursuant to this subsection and make nonbinding
163 recommendations related to compliance of such amendments with
164 this subsection.
165 (j)(c) Any amendment adopted by a local enforcing agency
166 under pursuant to this subsection may shall not apply to state
167 or school district owned buildings, manufactured buildings or
168 factory-built school buildings approved by the commission, or
169 prototype buildings approved under pursuant to s. 553.77(3). The
170 respective responsible entities shall consider the physical
171 performance parameters substantiating such amendments when
172 designing, specifying, and constructing such exempt buildings.
173 (k)(d) A technical amendment to the Florida Building Code
174 related to water conservation practices or design criteria
175 adopted by a local government under pursuant to this subsection
176 is not rendered void when the code is updated if the technical
177 amendment is necessary to protect or provide for more efficient
178 use of water resources as provided in s. 373.621. However, any
179 such technical amendment carried forward into the next edition
180 of the code under pursuant to this paragraph is subject to
181 review or modification as provided in this part.
182 (l) If a local government adopts a regulation, law,
183 ordinance, policy, amendment, or land use or zoning provision
184 without using the process established in this subsection, and a
185 substantially affected person considers such regulation, law,
186 ordinance, policy, amendment, or land use or zoning provision to
187 be a technical amendment to the Florida Building Code, then the
188 substantially affected person may submit a petition to the
189 commission for a nonbinding advisory opinion. If a substantially
190 affected person submits a request in accordance with this
191 paragraph, the commission shall issue a nonbinding advisory
192 opinion stating whether or not the commission interprets the
193 regulation, law, ordinance, policy, amendment, or land use or
194 zoning provision as a technical amendment to the Florida
195 Building Code. As used in this paragraph, the term “local
196 government” means a county, municipality, special district, or
197 political subdivision of the state.
198 1. Requests to review a local government regulation, law,
199 ordinance, policy, amendment, or land use or zoning provision
200 may be initiated by any substantially affected person. A
201 substantially affected person includes an owner or builder
202 subject to the regulation, law, ordinance, policy, amendment, or
203 land use or zoning provision, or an association of owners or
204 builders having members who are subject to the regulation, law,
205 ordinance, policy, amendment, or land use or zoning provision.
206 2. In order to initiate a review, a substantially affected
207 person must file a petition with the commission. The commission
208 shall adopt a form for the petition and directions for filing,
209 which shall be published on the Building Code Information
210 System. The form shall, at a minimum, require the following:
211 a. The name of the local government that enacted the
212 regulation, law, ordinance, policy, amendment, or land use or
213 zoning provision.
214 b. The name and address of the local government’s general
215 counsel or administrator.
216 c. The name, address, and telephone number of the
217 petitioner; the name, address, and telephone number of the
218 petitioner’s representative, if any; and an explanation of how
219 the petitioner’s substantial interests are being affected by the
220 regulation, law, ordinance, policy, amendment, or land use or
221 zoning provision.
222 d. A statement explaining why the regulation, law,
223 ordinance, policy, amendment, or land use or zoning provision is
224 a technical amendment to the Florida Building Code, and which
225 provisions of the Florida Building Code, if any, are being
226 amended by the regulation, law, ordinance, policy, amendment, or
227 land use or zoning provision.
228 3. The petitioner shall serve the petition on the local
229 government’s general counsel or administrator by certified mail,
230 return receipt requested, and send a copy of the petition to the
231 commission, in accordance with the commission’s published
232 directions. The local government shall respond to the petition
233 in accordance with the form by certified mail, return receipt
234 requested, and send a copy of its response to the commission,
235 within 14 days after receipt of the petition, including
236 Saturdays, Sundays, and legal holidays.
237 4. Upon receipt of a petition that meets the requirements
238 of this paragraph, the commission shall publish the petition,
239 including any response submitted by the local government, on the
240 Building Code Information System in a manner that allows
241 interested persons to address the issues by posting comments.
242 5. Before issuing an advisory opinion, the commission shall
243 consider the petition, the response, and any comments posted on
244 the Building Code Information System. The commission may also
245 provide the petition, the response, and any comments posted on
246 the Building Code Information System to a technical advisory
247 committee, and may consider any recommendation provided by the
248 technical advisory committee. The commission shall issue an
249 advisory opinion stating whether the regulation, law, ordinance,
250 policy, amendment, or land use or zoning provision is a
251 technical amendment to the Florida Building Code within 30 days
252 after the filing of the petition, including Saturdays, Sundays,
253 and legal holidays. The commission shall publish its advisory
254 opinion on the Building Code Information System and in the
255 Florida Administrative Register. The commission’s advisory
256 opinion is nonbinding and is not a declaratory statement under
257 s. 120.565.
258 (8) Notwithstanding subsection (3) or subsection (7), the
259 commission may address issues identified in this subsection by
260 amending the code under pursuant to the rule adoption procedures
261 in chapter 120. Updates to the Florida Building Code, including
262 provisions contained in referenced standards and criteria which
263 relate to wind resistance or the prevention of water intrusion,
264 may not be amended under pursuant to this subsection to diminish
265 those standards; however, the commission may amend the Florida
266 Building Code to enhance such standards. Following the approval
267 of any amendments to the Florida Building Code by the commission
268 and publication of the amendments on the commission’s website,
269 authorities having jurisdiction to enforce the Florida Building
270 Code may enforce the amendments.
271 (a) The commission may approve amendments that are needed
272 to address:
273 1.(a) Conflicts within the updated code;
274 2.(b) Conflicts between the updated code and the Florida
275 Fire Prevention Code adopted under pursuant to chapter 633;
276 3.(c) Unintended results from the integration of previously
277 adopted amendments with the model code;
278 4.(d) Equivalency of standards;
279 5.(e) Changes to or inconsistencies with federal or state
280 law; or
281 6.(f) Adoption of an updated edition of the National
282 Electrical Code if the commission finds that delay of
283 implementing the updated edition causes undue hardship to
284 stakeholders or otherwise threatens the public health, safety,
285 and welfare.
286 (b) The commission may issue errata to the code to correct
287 demonstrated errors in provisions contained within the Florida
288 Building Code. The determination of such errors and the issuance
289 of errata to the code must be approved by a 75 percent
290 supermajority vote of the commission. For purposes of this
291 paragraph, “errata to the code” means a list of errors in
292 current and previous editions of the Florida Building Code.
293 Section 3. Subsection (7) of section 553.77, Florida
294 Statutes, is amended to read:
295 553.77 Specific powers of the commission.—
296 (7) Building officials shall recognize and enforce variance
297 orders issued by the Department of Health under s. 514.0115(9)
298 pursuant to s. 514.0115(8), including any conditions attached to
299 the granting of the variance.
300 Section 4. Paragraph (d) is added to subsection (1) of
301 section 553.79, Florida Statutes, to read:
302 553.79 Permits; applications; issuance; inspections.—
303 (1)
304 (d) A local government may not require a contract between a
305 builder and an owner for the issuance of a building permit or as
306 a requirement for the submission of a building permit
307 application.
308 Section 5. Paragraph (a) of subsection (8) of section
309 553.842, Florida Statutes, is amended to read:
310 553.842 Product evaluation and approval.—
311 (8) The commission may adopt rules to approve the following
312 types of entities that produce information on which product
313 approvals are based. All of the following entities, including
314 engineers and architects, must comply with a nationally
315 recognized standard demonstrating independence or no conflict of
316 interest:
317 (a) Evaluation entities approved under pursuant to this
318 paragraph or that meet the criteria for approval adopted by the
319 commission by rule. The commission shall specifically approve
320 the National Evaluation Service, the International Association
321 of Plumbing and Mechanical Officials Evaluation Service, the
322 International Code Council Evaluation Services, Underwriters
323 Laboratories, LLC, Intertek Testing Services NA, Inc., and the
324 Miami-Dade County Building Code Compliance Office Product
325 Control Division. Architects and engineers licensed in this
326 state are also approved to conduct product evaluations as
327 provided in subsection (5).
328 Section 6. Paragraph (bb) of subsection (1) of section
329 125.01, Florida Statutes, is amended to read:
330 125.01 Powers and duties.—
331 (1) The legislative and governing body of a county shall
332 have the power to carry on county government. To the extent not
333 inconsistent with general or special law, this power includes,
334 but is not restricted to, the power to:
335 (bb) Enforce the Florida Building Code, as provided in s.
336 553.80, and adopt and enforce local technical amendments to the
337 Florida Building Code as provided in s. 553.73(4), pursuant to
338 s. 553.73(4)(b) and (c).
339 Section 7. Subsection (1) of section 125.56, Florida
340 Statutes, is amended to read:
341 125.56 Enforcement and amendment of the Florida Building
342 Code and the Florida Fire Prevention Code; inspection fees;
343 inspectors; etc.—
344 (1) The board of county commissioners of each of the
345 several counties of the state may enforce the Florida Building
346 Code and the Florida Fire Prevention Code, as provided in ss.
347 553.80, 633.206, and 633.208, and, at its discretion, adopt
348 local technical amendments to the Florida Building Code as
349 provided in s. 553.73(4), pursuant to s. 553.73(4)(b) and (c)
350 and local technical amendments to the Florida Fire Prevention
351 Code as provided in, pursuant to s. 633.202, to provide for the
352 safe construction, erection, alteration, repair, securing, and
353 demolition of any building within its territory outside the
354 corporate limits of any municipality. Upon a determination to
355 consider amending the Florida Building Code or the Florida Fire
356 Prevention Code by a majority of the members of the board of
357 county commissioners of such county, the board shall call a
358 public hearing and comply with the public notice requirements of
359 s. 125.66(2). The board shall hear all interested parties at the
360 public hearing and may then amend the building code or the fire
361 code consistent with the terms and purposes of this act. Upon
362 adoption, an amendment to the code shall be in full force and
363 effect throughout the unincorporated area of such county until
364 otherwise notified by the Florida Building Commission under
365 pursuant to s. 553.73 or the State Fire Marshal under pursuant
366 to s. 633.202. This subsection does not Nothing herein contained
367 shall be construed to prevent the board of county commissioners
368 from repealing such amendment to the building code or the fire
369 code at any regular meeting of such board.
370 Section 8. This act shall take effect July 1, 2021.