Florida Senate - 2021                             CS for SB 1146
       By the Committee on Community Affairs; and Senator Brodeur
       578-03609-21                                          20211146c1
    1                        A bill to be entitled                      
    2         An act relating to the Florida Building Code; amending
    3         s. 381.0065, F.S.; authorizing fee owners or fee
    4         owners’ contractors to select private providers to
    5         provide inspection services for onsite sewage
    6         treatment and disposal systems if certain requirements
    7         are met; providing legislative intent; requiring the
    8         Department of Health to reduce certain permit fees;
    9         prohibiting the department from charging inspection
   10         fees if the fee owner or contractor hires a private
   11         provider to perform an inspection; providing
   12         requirements for private providers or duly authorized
   13         representatives of private providers performing such
   14         inspections; requiring fee owners or contractors to
   15         provide specified notice to the department when using
   16         a private provider for such inspections; providing
   17         requirements for the contents of such notice;
   18         prohibiting the department from charging a fee for
   19         changing the duly authorized representative named in a
   20         permit application; authorizing the department to
   21         audit the performance of private providers; providing
   22         requirements relating to work on a building, a
   23         structure, or an onsite sewage treatment and disposal
   24         system relating to such audits; amending s. 514.0115,
   25         F.S.; prohibiting the Department of Health from
   26         requiring that pools serving assisted living
   27         facilities be compliant with rules relating to
   28         swimming pool lifeguards; amending s. 553.73, F.S.;
   29         authorizing a substantially affected person to file a
   30         petition with the Florida Building Commission to
   31         review certain local government regulations, laws,
   32         ordinances, policies, amendments, or land use or
   33         zoning provisions; defining the term “local
   34         government”; providing requirements for the petition
   35         and commission; requiring the commission to issue a
   36         nonbinding advisory opinion within a specified
   37         timeframe; authorizing the commission to issue errata
   38         to the code; defining the term “errata to the code”;
   39         making technical changes; amending s. 553.77, F.S.;
   40         conforming a cross-reference; amending s. 553.79,
   41         F.S.; prohibiting a local government from requiring
   42         certain contracts for the application for or issuance
   43         of a building permit; amending s. 553.791, F.S.;
   44         authorizing a county, a municipality, a school
   45         district, or an independent special district to use a
   46         private provider to provide building code inspection
   47         services for certain purposes; amending s. 553.842,
   48         F.S.; requiring evaluation entities that meet certain
   49         criteria to comply with certain standards; amending
   50         ss. 125.01 and 125.56, F.S.; conforming cross
   51         references; making technical changes; providing an
   52         effective date.
   54  Be It Enacted by the Legislature of the State of Florida:
   56         Section 1. Subsection (8) is added to section 381.0065,
   57  Florida Statutes, to read:
   58         381.0065 Onsite sewage treatment and disposal systems;
   59  regulation.—
   61         (a)Notwithstanding any other law, ordinance, or policy,
   62  the fee owner of an onsite sewage treatment and disposal system,
   63  or the fee owner’s contractor upon written authorization from
   64  the fee owner, may select a private provider to provide
   65  inspection services for onsite sewage treatment and disposal
   66  systems and may pay the private provider directly for such
   67  services if such services are the subject of a written contract
   68  between the private provider, or the private provider’s firm,
   69  and the fee owner or the fee owner’s contractor, upon written
   70  authorization of the fee owner.
   71         (b)It is the intent of the Legislature that owners and
   72  contractors pay reduced fees related to onsite sewage treatment
   73  disposal system inspections when selecting a private provider to
   74  provide such inspections. The department must calculate the cost
   75  savings to the department based on a fee owner or contractor
   76  hiring a private provider to perform inspections in lieu of the
   77  department and reduce permit fees accordingly. The department
   78  may not charge fees for an inspection if the fee owner or
   79  contractor hires a private provider to perform the inspection.
   80         (c)Onsite sewage treatment and disposal system inspection
   81  services may be performed only by a private provider or a duly
   82  authorized representative of a private provider within the
   83  disciplines covered under such person’s licensure or if the
   84  person is certified under s. 381.0101, is a master septic
   85  contractor licensed pursuant to chapter 489, is a professional
   86  engineer who has passed all three parts of the OSTDS Accelerated
   87  Certification Training, or is a person working as staff under
   88  the supervision of a licensed professional engineer and has
   89  passed all three parts of the OSTDS Accelerated Certification
   90  Training.
   91         (d)1.A fee owner or the fee owner’s contractor using a
   92  private provider for onsite sewage treatment and disposal system
   93  inspection services must provide notice to the department at the
   94  time of permit application, or by 2 p.m. local time, 2 business
   95  days before the first scheduled inspection by the department.
   96  The notice must include the following information:
   97         a.The name, firm, address, telephone number, and e-mail
   98  address of each private provider who is performing or will
   99  perform such services, the private provider’s professional
  100  license or certification number, and qualification statements or
  101  resumes for each private provider; and
  102         b.An acknowledgment from the fee owner in substantially
  103  the following form:
  105         I have elected to use one or more private providers to
  106         provide onsite sewage treatment and disposal system
  107         inspection services that are the subject of the
  108         enclosed permit application. I understand that the
  109         department may not perform the required onsite sewage
  110         treatment and disposal system inspections to determine
  111         compliance with the applicable codes, except to the
  112         extent authorized by law. Instead, inspections will be
  113         performed by the licensed or certified personnel
  114         identified in the application. By executing this form,
  115         I acknowledge that I have made inquiry regarding the
  116         competence of the licensed or certified personnel and
  117         am satisfied that my interests are adequately
  118         protected. I agree to indemnify, defend, and hold
  119         harmless the department from any and all claims
  120         arising from my use of these licensed or certified
  121         personnel to perform onsite sewage treatment and
  122         disposable system inspections with respect to the
  123         onsite sewage treatment and disposable system that are
  124         the subject of the enclosed permit application.
  126         2.If the fee owner or the fee owner’s contractor makes any
  127  changes to the listed private providers or the services to be
  128  provided by the private providers, the fee owner or the fee
  129  owner’s contractor must update the notice to reflect the change
  130  within 1 business day after the change. A change of a duly
  131  authorized representative named in the permit application does
  132  not require a revision of the permit and the department may not
  133  charge a fee for making such change.
  134         (e)The department may audit the performance of onsite
  135  sewage treatment and disposal system inspection services by
  136  private providers. However, the same private provider may not be
  137  audited more than four times in a month unless the department
  138  determines that an onsite sewage treatment and disposal system
  139  inspected by the private provider should not have passed
  140  inspection. Work on a building, a structure, or an onsite sewage
  141  treatment and disposal system may proceed after inspection and
  142  approval by a private provider if the fee owner or fee owner’s
  143  contractor has given notice of the inspection pursuant to
  144  subsection (4) and, subsequent to such inspection and approval,
  145  may not be delayed for completion of an inspection audit by the
  146  department.
  147         Section 2. Present subsections (3) through (8) of section
  148  514.0115, Florida Statutes, are redesignated as subsections (4)
  149  through (9), respectively, and a new subsection (3) is added to
  150  that section, to read:
  151         514.0115 Exemptions from supervision or regulation;
  152  variances.—
  153         (3)The department may not require compliance with rules
  154  relating to swimming pool lifeguard standards for pools serving
  155  assisted living facilities.
  156         Section 3. Subsections (4) and (8) of section 553.73,
  157  Florida Statutes, are amended to read:
  158         553.73 Florida Building Code.—
  159         (4)(a) All entities authorized to enforce the Florida
  160  Building Code under pursuant to s. 553.80 shall comply with
  161  applicable standards for issuance of mandatory certificates of
  162  occupancy, minimum types of inspections, and procedures for
  163  plans review and inspections as established by the commission by
  164  rule. Local governments may adopt amendments to the
  165  administrative provisions of the Florida Building Code, subject
  166  to the limitations in of this subsection paragraph. Local
  167  amendments must shall be more stringent than the minimum
  168  standards described in this section herein and must shall be
  169  transmitted to the commission within 30 days after enactment.
  170  The local government shall make such amendments available to the
  171  general public in a usable format. The State Fire Marshal is
  172  responsible for establishing the standards and procedures
  173  required in this subsection paragraph for governmental entities
  174  with respect to applying the Florida Fire Prevention Code and
  175  the Life Safety Code.
  176         (b) Local governments may, subject to the limitations in of
  177  this section and not more than once every 6 months, adopt
  178  amendments to the technical provisions of the Florida Building
  179  Code that which apply solely within the jurisdiction of such
  180  government and that which provide for more stringent
  181  requirements than those specified in the Florida Building Code,
  182  not more than once every 6 months. A local government may adopt
  183  technical amendments that address local needs if:
  184         1. The local governing body determines, following a public
  185  hearing which has been advertised in a newspaper of general
  186  circulation at least 10 days before the hearing, that there is a
  187  need to strengthen the requirements of the Florida Building
  188  Code. The determination must be based upon a review of local
  189  conditions by the local governing body, which review
  190  demonstrates by evidence or data that the geographical
  191  jurisdiction governed by the local governing body exhibits a
  192  local need to strengthen the Florida Building Code beyond the
  193  needs or regional variation addressed by the Florida Building
  194  Code, that the local need is addressed by the proposed local
  195  amendment, and that the amendment is no more stringent than
  196  necessary to address the local need.
  197         2. Such additional requirements are not discriminatory
  198  against materials, products, or construction techniques of
  199  demonstrated capabilities.
  200         3. Such additional requirements may not introduce a new
  201  subject not addressed in the Florida Building Code.
  202         (c)4. The enforcing agency shall make readily available, in
  203  a usable format, all amendments adopted under pursuant to this
  204  section.
  205         (d)5. Any amendment to the Florida Building Code shall be
  206  transmitted within 30 days after adoption by the adopting local
  207  government to the commission. The commission shall maintain
  208  copies of all such amendments in a format that is usable and
  209  obtainable by the public. Local technical amendments are shall
  210  not become effective until 30 days after the amendment has been
  211  received and published by the commission.
  212         (e)6.An Any amendment to the Florida Building Code adopted
  213  by a local government under pursuant to this subsection is
  214  paragraph shall be effective only until the adoption by the
  215  commission of the new edition of the Florida Building Code by
  216  the commission every third year. At such time, the commission
  217  shall review such amendment for consistency with the criteria in
  218  paragraph (9)(a) and adopt such amendment as part of the Florida
  219  Building Code or rescind the amendment. The commission shall
  220  immediately notify the respective local government of the
  221  rescission of any amendment. After receiving such notice, the
  222  respective local government may readopt the rescinded amendment
  223  under pursuant to the provisions of this subsection paragraph.
  224         (f)7. Each county and municipality desiring to make local
  225  technical amendments to the Florida Building Code shall by
  226  interlocal agreement establish by interlocal agreement a
  227  countywide compliance review board to review any amendment to
  228  the Florida Building Code that is, adopted by a local government
  229  within the county under pursuant to this subsection and
  230  paragraph, that is challenged by a any substantially affected
  231  party for purposes of determining the amendment’s compliance
  232  with this subsection paragraph. If challenged, the local
  233  technical amendments are shall not become effective until the
  234  time for filing an appeal under paragraph (g) pursuant to
  235  subparagraph 8. has expired or, if there is an appeal, until the
  236  commission issues its final order determining if the adopted
  237  amendment is in compliance with this subsection.
  238         (g)8. If the compliance review board determines such
  239  amendment is not in compliance with this subsection paragraph,
  240  the compliance review board shall notify such local government
  241  of the noncompliance and that the amendment is invalid and
  242  unenforceable until the local government corrects the amendment
  243  to bring it into compliance. The local government may appeal the
  244  decision of the compliance review board to the commission. If
  245  the compliance review board determines that such amendment is to
  246  be in compliance with this subsection paragraph, any
  247  substantially affected party may appeal such determination to
  248  the commission. Any such appeal must shall be filed with the
  249  commission within 14 days after of the board’s written
  250  determination. The commission shall promptly refer the appeal to
  251  the Division of Administrative Hearings by electronic means
  252  through the division’s website for the assignment of an
  253  administrative law judge. The administrative law judge shall
  254  conduct the required hearing within 30 days after being assigned
  255  to the appeal, and shall enter a recommended order within 30
  256  days after of the conclusion of such hearing. The commission
  257  shall enter a final order within 30 days after an order is
  258  rendered thereafter. The provisions of Chapter 120 and the
  259  uniform rules of procedure shall apply to such proceedings. The
  260  local government adopting the amendment that is subject to
  261  challenge has the burden of proving that the amendment complies
  262  with this subsection paragraph in proceedings before the
  263  compliance review board and the commission, as applicable.
  264  Actions of the commission are subject to judicial review under
  265  pursuant to s. 120.68. The compliance review board shall
  266  determine whether its decisions apply to a respective local
  267  jurisdiction or apply countywide.
  268         (h)9. An amendment adopted under this subsection paragraph
  269  must shall include a fiscal impact statement that which
  270  documents the costs and benefits of the proposed amendment.
  271  Criteria for the fiscal impact statement shall include the
  272  impact to local government relative to enforcement and, the
  273  impact to property and building owners and, as well as to
  274  industry, relative to the cost of compliance. The fiscal impact
  275  statement may not be used as a basis for challenging the
  276  amendment for compliance.
  277         (i)10. In addition to paragraphs (f) and (g) subparagraphs
  278  7. and 9., the commission may review any amendments adopted
  279  under pursuant to this subsection and make nonbinding
  280  recommendations related to compliance of such amendments with
  281  this subsection.
  282         (j)(c) Any amendment adopted by a local enforcing agency
  283  under pursuant to this subsection may shall not apply to state
  284  or school district owned buildings, manufactured buildings or
  285  factory-built school buildings approved by the commission, or
  286  prototype buildings approved under pursuant to s. 553.77(3). The
  287  respective responsible entities shall consider the physical
  288  performance parameters substantiating such amendments when
  289  designing, specifying, and constructing such exempt buildings.
  290         (k)(d) A technical amendment to the Florida Building Code
  291  related to water conservation practices or design criteria
  292  adopted by a local government under pursuant to this subsection
  293  is not rendered void when the code is updated if the technical
  294  amendment is necessary to protect or provide for more efficient
  295  use of water resources as provided in s. 373.621. However, any
  296  such technical amendment carried forward into the next edition
  297  of the code under pursuant to this paragraph is subject to
  298  review or modification as provided in this part.
  299         (l)If a local government adopts a regulation, law,
  300  ordinance, policy, amendment, or land use or zoning provision
  301  without using the process established in this subsection, and a
  302  substantially affected person considers such regulation, law,
  303  ordinance, policy, amendment, or land use or zoning provision to
  304  be a technical amendment to the Florida Building Code, then the
  305  substantially affected person may submit a petition to the
  306  commission for a nonbinding advisory opinion. If a substantially
  307  affected person submits a request in accordance with this
  308  paragraph, the commission shall issue a nonbinding advisory
  309  opinion stating whether or not the commission interprets the
  310  regulation, law, ordinance, policy, amendment, or land use or
  311  zoning provision as a technical amendment to the Florida
  312  Building Code. As used in this paragraph, the term “local
  313  government” means a county, municipality, special district, or
  314  political subdivision of the state.
  315         1.Requests to review a local government regulation, law,
  316  ordinance, policy, amendment, or land use or zoning provision
  317  may be initiated by any substantially affected person. A
  318  substantially affected person includes an owner or builder
  319  subject to the regulation, law, ordinance, policy, amendment, or
  320  land use or zoning provision, or an association of owners or
  321  builders having members who are subject to the regulation, law,
  322  ordinance, policy, amendment, or land use or zoning provision.
  323         2.In order to initiate a review, a substantially affected
  324  person must file a petition with the commission. The commission
  325  shall adopt a form for the petition and directions for filing,
  326  which shall be published on the Building Code Information
  327  System. The form shall, at a minimum, require the following:
  328         a.The name of the local government that enacted the
  329  regulation, law, ordinance, policy, amendment, or land use or
  330  zoning provision.
  331         b.The name and address of the local government’s general
  332  counsel or administrator.
  333         c.The name, address, and telephone number of the
  334  petitioner; the name, address, and telephone number of the
  335  petitioner’s representative, if any; and an explanation of how
  336  the petitioner’s substantial interests are being affected by the
  337  regulation, law, ordinance, policy, amendment, or land use or
  338  zoning provision.
  339         d.A statement explaining why the regulation, law,
  340  ordinance, policy, amendment, or land use or zoning provision is
  341  a technical amendment to the Florida Building Code, and which
  342  provisions of the Florida Building Code, if any, are being
  343  amended by the regulation, law, ordinance, policy, amendment, or
  344  land use or zoning provision.
  345         3.The petitioner shall serve the petition on the local
  346  government’s general counsel or administrator by certified mail,
  347  return receipt requested, and send a copy of the petition to the
  348  commission, in accordance with the commission’s published
  349  directions. The local government shall respond to the petition
  350  in accordance with the form by certified mail, return receipt
  351  requested, and send a copy of its response to the commission,
  352  within 14 days after receipt of the petition, including
  353  Saturdays, Sundays, and legal holidays.
  354         4.Upon receipt of a petition that meets the requirements
  355  of this paragraph, the commission shall publish the petition,
  356  including any response submitted by the local government, on the
  357  Building Code Information System in a manner that allows
  358  interested persons to address the issues by posting comments.
  359         5.Before issuing an advisory opinion, the commission shall
  360  consider the petition, the response, and any comments posted on
  361  the Building Code Information System. The commission may also
  362  provide the petition, the response, and any comments posted on
  363  the Building Code Information System to a technical advisory
  364  committee, and may consider any recommendation provided by the
  365  technical advisory committee. The commission shall issue an
  366  advisory opinion stating whether the regulation, law, ordinance,
  367  policy, amendment, or land use or zoning provision is a
  368  technical amendment to the Florida Building Code within 30 days
  369  after the filing of the petition, including Saturdays, Sundays,
  370  and legal holidays. The commission shall publish its advisory
  371  opinion on the Building Code Information System and in the
  372  Florida Administrative Register. The commission’s advisory
  373  opinion is nonbinding and is not a declaratory statement under
  374  s. 120.565.
  375         (8) Notwithstanding subsection (3) or subsection (7), the
  376  commission may address issues identified in this subsection by
  377  amending the code under pursuant to the rule adoption procedures
  378  in chapter 120. Updates to the Florida Building Code, including
  379  provisions contained in referenced standards and criteria which
  380  relate to wind resistance or the prevention of water intrusion,
  381  may not be amended under pursuant to this subsection to diminish
  382  those standards; however, the commission may amend the Florida
  383  Building Code to enhance such standards. Following the approval
  384  of any amendments to the Florida Building Code by the commission
  385  and publication of the amendments on the commission’s website,
  386  authorities having jurisdiction to enforce the Florida Building
  387  Code may enforce the amendments.
  388         (a) The commission may approve amendments that are needed
  389  to address:
  390         1.(a) Conflicts within the updated code;
  391         2.(b) Conflicts between the updated code and the Florida
  392  Fire Prevention Code adopted under pursuant to chapter 633;
  393         3.(c) Unintended results from the integration of previously
  394  adopted amendments with the model code;
  395         4.(d) Equivalency of standards;
  396         5.(e) Changes to or inconsistencies with federal or state
  397  law; or
  398         6.(f) Adoption of an updated edition of the National
  399  Electrical Code if the commission finds that delay of
  400  implementing the updated edition causes undue hardship to
  401  stakeholders or otherwise threatens the public health, safety,
  402  and welfare.
  403         (b)The commission may issue errata to the code to correct
  404  demonstrated errors in provisions contained within the Florida
  405  Building Code. The determination of such errors and the issuance
  406  of errata to the code must be approved by a 75 percent
  407  supermajority vote of the commission. For purposes of this
  408  paragraph, “errata to the code” means a list of errors in
  409  current and previous editions of the Florida Building Code.
  410         Section 4. Subsection (7) of section 553.77, Florida
  411  Statutes, is amended to read:
  412         553.77 Specific powers of the commission.—
  413         (7) Building officials shall recognize and enforce variance
  414  orders issued by the Department of Health under s. 514.0115(9)
  415  pursuant to s. 514.0115(8), including any conditions attached to
  416  the granting of the variance.
  417         Section 5. Paragraph (d) is added to subsection (1) of
  418  section 553.79, Florida Statutes, to read:
  419         553.79 Permits; applications; issuance; inspections.—
  420         (1)
  421         (d)A local government may not require a contract between a
  422  builder and an owner for the issuance of a building permit or as
  423  a requirement for the submission of a building permit
  424  application.
  425         Section 6. Subsection (20) is added to section 553.791,
  426  Florida Statutes, to read:
  427         553.791 Alternative plans review and inspection.—
  428         (20) Notwithstanding any other law, a county, a
  429  municipality, a school district, or an independent special
  430  district may use a private provider to provide building code
  431  inspection services for a public works project, an improvement,
  432  a building, or any other structure pursuant to this section.
  433         Section 7. Paragraph (a) of subsection (8) of section
  434  553.842, Florida Statutes, is amended to read:
  435         553.842 Product evaluation and approval.—
  436         (8) The commission may adopt rules to approve the following
  437  types of entities that produce information on which product
  438  approvals are based. All of the following entities, including
  439  engineers and architects, must comply with a nationally
  440  recognized standard demonstrating independence or no conflict of
  441  interest:
  442         (a) Evaluation entities approved under pursuant to this
  443  paragraph or that meet the criteria for approval adopted by the
  444  commission by rule. The commission shall specifically approve
  445  the National Evaluation Service, the International Association
  446  of Plumbing and Mechanical Officials Evaluation Service, the
  447  International Code Council Evaluation Services, Underwriters
  448  Laboratories, LLC, Intertek Testing Services NA, Inc., and the
  449  Miami-Dade County Building Code Compliance Office Product
  450  Control Division. Architects and engineers licensed in this
  451  state are also approved to conduct product evaluations as
  452  provided in subsection (5).
  453         Section 8. Paragraph (bb) of subsection (1) of section
  454  125.01, Florida Statutes, is amended to read:
  455         125.01 Powers and duties.—
  456         (1) The legislative and governing body of a county shall
  457  have the power to carry on county government. To the extent not
  458  inconsistent with general or special law, this power includes,
  459  but is not restricted to, the power to:
  460         (bb) Enforce the Florida Building Code, as provided in s.
  461  553.80, and adopt and enforce local technical amendments to the
  462  Florida Building Code as provided in s. 553.73(4), pursuant to
  463  s. 553.73(4)(b) and (c).
  464         Section 9. Subsection (1) of section 125.56, Florida
  465  Statutes, is amended to read:
  466         125.56 Enforcement and amendment of the Florida Building
  467  Code and the Florida Fire Prevention Code; inspection fees;
  468  inspectors; etc.—
  469         (1) The board of county commissioners of each of the
  470  several counties of the state may enforce the Florida Building
  471  Code and the Florida Fire Prevention Code, as provided in ss.
  472  553.80, 633.206, and 633.208, and, at its discretion, adopt
  473  local technical amendments to the Florida Building Code as
  474  provided in s. 553.73(4), pursuant to s. 553.73(4)(b) and (c)
  475  and local technical amendments to the Florida Fire Prevention
  476  Code as provided in, pursuant to s. 633.202, to provide for the
  477  safe construction, erection, alteration, repair, securing, and
  478  demolition of any building within its territory outside the
  479  corporate limits of any municipality. Upon a determination to
  480  consider amending the Florida Building Code or the Florida Fire
  481  Prevention Code by a majority of the members of the board of
  482  county commissioners of such county, the board shall call a
  483  public hearing and comply with the public notice requirements of
  484  s. 125.66(2). The board shall hear all interested parties at the
  485  public hearing and may then amend the building code or the fire
  486  code consistent with the terms and purposes of this act. Upon
  487  adoption, an amendment to the code shall be in full force and
  488  effect throughout the unincorporated area of such county until
  489  otherwise notified by the Florida Building Commission under
  490  pursuant to s. 553.73 or the State Fire Marshal under pursuant
  491  to s. 633.202. This subsection does not Nothing herein contained
  492  shall be construed to prevent the board of county commissioners
  493  from repealing such amendment to the building code or the fire
  494  code at any regular meeting of such board.
  495         Section 10. This act shall take effect July 1, 2021.