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.
   28  Be It Enacted by the Legislature of the State of Florida:
   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.