Bill Summary – FastDemocracy

The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                             Prepared By: The Professional Staff of the Committee on Rules
BILL:           CS/CS/CS/SB 1146
INTRODUCER:     Rules Committee; Appropriations Committee; Community Affairs Committee; and
                Senator Brodeur and others
SUBJECT:        Florida Building Code
DATE:           April 21, 2021                  REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Hackett                          Ryon                                  CA              Fav/CS
2. Davis                            Sadberry                              AP              Fav/CS
3. Hackett                          Phelps                                RC              Fav/CS
                     Please see Section IX. for Additional Information:
                                   COMMITTEE SUBSTITUTE - Substantial Changes
  I.    Summary:
        CS/CS/CS/SB 1146 amends the Florida Building Codes Act adding several new provisions.
        Specifically, the bill:
         Allows a substantially affected person to petition the Florida Building Commission
           (commission) for a non-binding advisory opinion on whether a local government regulation
           is an improper amendment to the Florida Building Code (building code), and establishes a
           process for such.
         Allows the commission to issue an “errata to the code” to correct demonstrated errors in
           provisions contained within the building code.
         Requires the commission to adopt rules for approving product evaluation entities in addition
           to the ones already listed and approved in current law.
         Prohibits a local government from requiring a contract between a builder and an owner as a
           condition to apply for or obtain a building permit.
         Prohibits a local government from restricting the ability of a property owner to obtain a
           building permit to demolish and replace any single-family residential dwelling located in a
           coastal high hazard area, moderate flood zone, or special flood hazard area under certain
           circumstances.
         Expressly authorizes local governments and school districts to use a private provider to
           provide building code inspection services for public works projects and improvements to any
           building or structure.
BILL:     CS/CS/CS/SB 1146                                                                               Page 2
              Provides that a local government may use excess funds generated by building code
               enforcement for the construction of a building or structure that houses the local government’s
               building department or provides training programs for building officials, inspectors, or plans
               examiners.
              Provides that a municipality, county, or special district may not use preliminary maps issued
               by the Federal Emergency Management Agency for any law, ordinance, rule, or other
               measure that has the effect of imposing land use changes.
           The bill makes several changes to current law pertaining to private building inspectors, known as
           “private providers” by:
            Expressly authorizing private providers to conduct virtual building inspections.
            Allowing private provides to submit various inspection forms, records, and reports
               electronically to local building departments and utilize electronic signatures.
            Allowing private providers to conduct “single-trade inspections,” as defined in the bill.
            Creating a “qualified private provider” registration process and providing that a qualified
               private provider, as defined in the bill, does not need to include information other than the
               services to be performed in their written notice to the local building official that a private
               provider has been contracted to perform inspections.
            Authorizing a private provider to conduct emergency inspection services without first
               notifying the local building official.
           The bill amends the Community Planning Act to prohibit local governments from regulating
           specific “building design elements” for single-family or two-family residential dwellings, with
           certain exceptions.
           The bill also allows the owner of an onsite sewage treatment and disposal system, or the owner’s
           contractor, to select a private provider to provide certain inspection services of such systems in
           lieu of the Department of Health.
           Finally, the bill prohibits the Department of Health from requiring assisted living facilities to
           comply with rules relating to swimming pool lifeguards.
           The bill may have an indeterminate negative fiscal impact. See Part V, Fiscal Impact Statement.
           The bill takes effect July 1, 2021.
    II.    Present Situation:
           The Community Planning Act
           Adopted in 1985, the Local Government Comprehensive Planning and Land Development
           Regulation Act, also known as Florida’s Growth Management Act, was significantly revised in
           2011, becoming the Community Planning Act.1 The Community Planning Act governs how local
           governments create and adopt their local comprehensive plans.
1
    Ch. 2011-139, Laws of Fla.
BILL:   CS/CS/CS/SB 1146                                                                                         Page 3
         It is the intent of the Community Planning Act that local governments manage growth through
         comprehensive land use plans that preserve, promote, protect, and improve the public health,
         safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and
         general welfare.2
         Local comprehensive plans must include “principles, guidelines, standards, and strategies for the
         orderly and balanced future economic, social, physical, environmental, and fiscal development of
         the area that reflects community commitments to implement the plan and its elements.”3 Plans
         also are required to identify procedures for monitoring, evaluating, and appraising
         implementation of the plan.4 Plans may include optional elements,5 but must include the
         following nine elements:
          Capital improvements;6
          Future land use plan;7
          Intergovernmental coordination;8
          Conservation;9
          Transportation;10
          Sanitary sewer, solid waste, drainage, potable water and aquifer recharge;11
          Recreation and open space;12
          Housing;13 and
          Coastal management (for coastal local governments).14
         All local government land development regulations must be consistent with the local
         comprehensive plan.15 Additionally, all public and private development, including special district
         projects, must be consistent with the local comprehensive plan.16 However, plans cannot require
         any special district to undertake a public facility project which would impair the district’s bond
         covenants or agreements.17
         Land Development Regulations
         The comprehensive plan is implemented through enactment by local government of land
         development regulations. Land development regulations are ordinances that regulate any aspect
2
  Section 163.3161(4), F.S.
3
  Section 163.3177(1), F.S.
4
  Section 163.3177(1)(d), F.S.
5
  Section 163.3177(1)(a), F.S.
6
  Section 163.3177(3)(a), F.S. The capital improvements element must be reviewed by local governments annually. See
s. 163.3177(3)(b), F.S.
7
  Section 163.3177(6)(a), F.S.
8
  Section 163.3177(6)(h), F.S.
9
  Section 163.3177(6)(d), F.S.
10
   Section 163.3177(6)(b), F.S.
11
   Section 163.3177(6)(c), F.S.
12
   Section 163.3177(6)(e), F.S.
13
   Section 163.3177(6)(f), F.S.
14
   Section 163.3177(6)(g), F.S.
15
   Section 163.3194(1)(b), F.S.
16
   See ss. 163.3161(6) and 163.3194(1)(a), F.S.
17
   Section 189.081(1)(b), F.S.
BILL:   CS/CS/CS/SB 1146                                                                                             Page 4
         of development including any local government zoning, rezoning, subdivision, building
         construction, sign regulations, or any regulation that controls the development of land.18
         Counties and municipalities are required to adopt or amend land development regulations within
         one year after submitting its comprehensive or revised comprehensive plan for review.19 Section
         163.3202(2), F.S., outlines the minimum provisions that counties and municipalities must
         include in their local government land development regulations. These provisions include:
          Regulating the subdivision of land;
          Regulating the use of land and water;
          Providing for protection of potable water wellfields;
          Regulating areas subject to seasonal and periodic flooding and provide for drainage and
             stormwater management;
          Ensuring the protection of environmentally sensitive lands designated in the comprehensive
             plan;
          Regulating signage;
          Addressing concurrency;
          Ensuring safe and convenient onsite traffic flow; and
          Maintaining the existing density of residential properties or recreational vehicle parks.
         Some local governments in Florida have adopted land development regulations that place
         restrictions on the design of new single- and two- family buildings such as the:
          External paint color;20
          Architectural style of:
             o Windows;
             o Doors, including garage doors;
             o Front porches; and
             o Roofs.21
          Exterior building material;22 and
          Location of windows and garage doors.23
18
   Sections 163.3164(26) & 163.3202(1), F.S.
19
   Section 163.3202(1), F.S.
20
   Osceola County Land Development Code, Ch. 3, Art. 3.2.2, available at
https://library.municode.com/fl/osceola_county/codes/land_development_code?nodeId=LAND_DEVELOPMENT_CODE_
CH3PESIST_ART3.2DIDEST(last visited Mar. 18, 2021); Code of the City of Orlando, Ch. 58, Part 3, s. 58.517; Orange
County Code, Ch. 38, Art. VIII, Division 8, available at Mini TOC: Chapter 58 - ZONING DISTRICTS AND USES | Code
of Ordinances | Orlando, FL | Municode Library (last visited Mar. 18, 2021).
21
   Osceola County Land Development Code, s. Ch. 3, Article 3.2.2., supra n. 20; Code of the City of Orlando, Ch. 58, Part 3,
Section 58.517, supra n. 20; City of Winter Park Code of Ordinances, s. Ch. 58, Art. 3, s. 58-67, available at ARTICLE III. -
ZONING | Code of Ordinances | Winter Park, FL | Municode Library; Orange County Code, Ch. 38, Art. VIII, Division 8,
available at Mini TOC: ARTICLE VIII. - P-D PLANNED DEVELOPMENT DISTRICT | Code of Ordinances | Orange
County, FL | Municode Library (all last visited Mar. 18, 2021).
22
   Orange County Code, Ch. 38, Art. VIII, Division 8, supra n. 20; City of Winter Park Code of Ordinances, Ch. 58, Art. 3,
s. 58-67, supra n. 21 (both last visited Mar. 18, 2021).
23
   Code of the City of Orlando, Ch. 58, Part 3, s. 58.517, supra n. 20 (last visited Mar. 18, 2021).
BILL:   CS/CS/CS/SB 1146                                                                                         Page 5
         Regulation of Building Design Elements – Other States
         Some states now prohibit local governments from adopting regulations that require specific
         building design elements for single-family and two-family dwellings unless certain conditions
         exist. For example, a North Carolina law prohibits cities and counties from adopting regulations
         that require building design elements or a minimum square footage for single-family and two-
         family dwellings.24 The North Carolina law defines “building design elements” as exterior
         building color, type or style of exterior cladding material; style or materials of roof structures or
         porches; exterior nonstructural architectural ornamentation; location or architectural styling of
         windows and doors, including garage doors; number and types of rooms; and interior layout of
         rooms. The phrase does not include a single and two-family dwelling’s height, bulk, orientation,
         and location of a structure.25
         The Florida Building Code and Florida Building Commission
         In 1974, Florida adopted legislation requiring all local governments to adopt and enforce a
         minimum building code that would ensure that Florida’s minimum standards were met. Local
         governments could choose from four separate model codes. The state’s role was limited to
         adopting all or relevant parts of new editions of the four model codes. Local governments could
         amend and enforce their local codes, as they desired.26
         In 1992, Hurricane Andrew demonstrated that Florida’s system of local codes did not work.
         Hurricane Andrew easily destroyed those structures that were allegedly built according to the
         strongest code. The Governor eventually appointed a study commission to review the system of
         local codes and make recommendations for modernizing the system. The 1998 Legislature
         adopted the study commission’s recommendations for a single state building code and enhanced
         the oversight role of the state over local code enforcement. The 2000 Legislature authorized
         implementation of the Florida Building Code (building code), and that first edition replaced all
         local codes on March 1, 2002.27 The current edition of the building code is the seventh edition,
         which is referred to as the 2020 Building Code.28
         Part IV of ch. 553, F.S., is known as the “Florida Building Codes Act” (act). The purpose and
         intent of the act is to provide a mechanism for the uniform adoption, updating, interpretation, and
         enforcement of a single, unified state building code. The building code must be applied,
         administered, and enforced uniformly and consistently from jurisdiction to jurisdiction. 29
24
   See General Assembly of North Carolina, Session Law 2015-86 Senate Bill 25, June 9, 2015, available at
https://www.ncleg.gov/Sessions/2015/Bills/Senate/PDF/S25v3.pdf and R. Erika Churchill, Staff Attorney for the North
Carolina General Assembly, Analysis of S.L. 2015-86 (last updated 10/12/2015), available at
https://www.ncleg.gov/Legislation/Bills/Summaries/2015/S25 (both last visited Mar. 18, 2021).
25
   Id.
26
   Florida Building Commission Report to the 2006 Legislature, Florida Department of Community Affairs, p. 4,
http://www.floridabuilding.org/fbc/publications/2006_Legislature_Rpt_rev2.pdf (last visited Feb. 15, 2021).
27
   Id.; Department of Business and Professional Regulation (DBPR), Building Code Information System,
https://floridabuilding.org/c/default.aspx# (last visited Feb. 15, 2021).
28
   Florida Building Commission Homepage, https://floridabuilding.org/c/default.aspx (last visited Feb. 26, 2021).
29
   See s. 553.72(1), F.S.
BILL:   CS/CS/CS/SB 1146                                                                                          Page 6
         The main purpose of the building code is to regulate new construction or proposed modifications
         to existing structures in order to give the occupants the highest level of safety and the least
         amount of defects.30
         The Florida Building Commission
         The Florida Building Commission (commission) was statutorily created to implement the
         building code. The commission, which is housed within the Department of Business and
         Professional Regulation (DBPR), is a 19-member technical body made up of design
         professionals, contractors, and government experts in various disciplines covered by the building
         code.31
         The commission reviews several International Codes published by the International Code
         Council, the National Electric Code (NEC), and other nationally adopted model codes to
         determine if the building code needs to be updated and adopts an updated building code every
         three years.32
         The commission has 11 Technical Advisory Committees (TAC) ranging from the building
         structural TAC to the swimming pool TAC.33 TACs are made up of commission members and
         other parties who advise the commission on declaratory statements, proposed amendments, and
         any other areas of interest of the commission.34
         Local Enforcement of the Florida Building Code
         The Legislature has provided local governments with the power to inspect all buildings,
         structures, and facilities within their jurisdiction to protect the public’s health, safety, and
         welfare.35
         Every local government must enforce the building code and issue building permits.36 It is
         unlawful for a person, firm, or corporation to construct, erect, alter, repair, secure, or demolish
         any building without first obtaining a permit from the local government enforcing agency or
         from such persons that may, by resolution or regulation, be directed to issue such permit, upon
         the payment of reasonable fees as set forth in a schedule of fees adopted by the enforcing
         agency.37
         A building permit is an official document or certificate issued by the local building official that
         authorizes performance of a specific activity.38 A building official is a local government
         employee or a person contracted by a local government who supervises building code activitie