FLORIDA BUILDING COMMISSION

WELCOME

Chairman Rodriguez welcomed the Commission and gallery to the January 2008 plenary session of the Florida Building Commission.

REVIEW AND APPROVE AGENDA

Mr. Blair conducted a review of the meeting agenda as presented in each Commissioner’s files.

Commissioner Wiggins moved approval of the meeting agenda. Commissioner Bassett entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

REVIEW AND APPROVE DECEMBER 11 & 12, 2007 MEETING MINUTES AND FACILITATOR’S REPORTS

Chairman Rodriguez called for approval of the minutes and the facilitator’s reports from the December 2007 Commission meeting.

Commissioner D’Andrea moved approval of the August Commission meeting minutes as amended. Commissioner Browdy entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CHAIR’S DISCUSSION ISSUES AND RECOMMENDATIONS

Chairman Rodriguez addressed Commission appointments. He stated Randy Vann would be serving on the Accessibility TAC. He will be replacing Soy Williams. He thanked Commissioner Vann for his agreement to serve and Ms. Williams for her past service. He then stated at the request of FRSA, Bert Logan will be replacing Jim Carducci on the Wind Mitigation Workgroup. He thanked Mr. Carducci for his service and extended a welcome to Mr. Logan. He stated Dick Wilhem has been appointed to the Window Wall Workgroup. He will be replacing John McFee. He welcomed Mr. Wilhelm and thanked Mr. McFee for his service. He further stated there would be additional appointments once the Governor sends those to the Commission.

REVIEW AND UPDATE OF COMMISSION WORKPLAN

Mr. Dixon conducted a review of the updated Commission workplan. (See Updated Commission Workplan January 2008)

Mr. Dixon stated there were no major changes in the workplan, only date changes.

Commissioner Wiggins moved approval of the updated workplan. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CONSIDER ACCESSIBILITY WAIVER APPLICATIONS

Chairman Rodriguez directed the Commission to Neil Kellick for consideration of the Accessibility Waiver Applications.

Mr. Melick presented the waiver applications for consideration. Recommended approvals were presented in consent agenda format with conditional approvals, deferrals and denials being considered individually.

Recommendation for Approval With no Conditions:

#1 Riverview High School

Mr. Melick explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended approval based on provisions of Florida Statute 553.512 as unnecessary.

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#2 FL-TLHO (Embarq) Office Building Remodel

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#4 Towncenter 12

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#7 Yeung’s Chinese Restaurant

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#8 Cobb 14 Theaters @ Daytona “LIVE”

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Approval with Conditions:

#10 Miami River Building

Mr. Melick explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended the waiver be granted based on provisions of Florida Statute 553.512 related to 20% disproportionate cost with the condition the applicable 20% costs are used toward making the second floor restroom and kitchen accessible.

Commissioner Hamrick moved approval of the Council’s recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#5 Epic Theaters Stadium 16 (Theaters 6 & 11), St. Johns County

Mr. Melick stated the Council unanimously recommended amending an action previously taken on this item. He explained at the previous meeting the applicant requested a waiver for vertical accessibility to all rows of seats in a new 8 million dollar theater complex. He stated the Council had made a recommendation and a waiver was granted with the condition the applicant removes 17 seats to reduce the required number of accessible seats from 5 to 4 to meet the 4 companion seats submitted to DCA. He then stated the applicant has since submitted new plans for the theater enabling them to meet the 5 accessible seats with companion seating. He further stated since it was a change to the original order, the council recommended unanimously to amend the action previously taken and recommended approving the waiver based on the same provisions of Florida Statute 553.512 as unnecessary.

Commissioner Browdy moved approval to amend action previously taken. Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner Greiner moved approval of the Council’s recommendation to grant waiver. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

#6 Epic Theaters Stadium 16 (Theaters 6 & 11), Clermont

Mr. Melick stated the item was exactly the same situation as item #5.

Commissioner Browdy moved approval to amend action previously taken. Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Melick explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended the waiver be granted.

Commissioner Greiner moved approval of the Council’s recommendation. Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Deferral:

#9 200 Brickell

Mr. Melick stated this application had been deferred by the applicant to the next meeting.

Recommendation for Denial:

#11 Triple U High School

Mr. Melick explained the petitioner’s request for waiver as described in each Commissioner’s files. He stated the Council recommended the waiver be deferred from the last meeting and has now recommended denial for lack of hardship.

Commissioner Wiggins moved approval of the Council’s recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Withdrawn:

# 3 Target Store T-816

Mr. Melick stated this application had been withdrawn by the applicant.

CONSIDER APPLICATIONS FOR PRODUCT AND ENTITY APPROVAL

Chairman Rodriguez directed the Commission to Commissioner Carson for presentation of entity approvals.

Commissioner Carson presented the POC recommendations for entity approval in the form of a motion as follows:

TST 7110 Architectural Testing, Inc. - Springdale, PA

Commissioner Kim moved approval of the POC recommendation. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 1910 Architectural Testing, Inc. - Texas

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 4310 Architectural Testing, Inc. - Washington

Commissioner D’Andrea moved approval of the POC recommendation.

Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 1795 Architectural Testing, Inc. - Minnesota

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 6485 ENCON Technology Inc

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 2469 IBA Consultants

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 2561 Southwest Research Institute, Fire Technology Department

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

TST 4281 Construction Research Laboratory

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

QUA 6252 Progressive Engineering, Inc.

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

QUA 2563 Southwest Research Institute, Department of Fire Technology

Commissioner D’Andrea moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Certification Method

Recommended for Approval

Product #’s: 784-R3; 998-R2; 1086-R2; 1091-R2; 1092-R2; 1095-R2; 1097-R2; 1101-R2; 1150-R2; 1156-R2; 1259-R2; 1478-R1; 1648-R1; 1665-R1; 1722-R2; 2030-R2; 2494-R2; 2656-R2; 2657-R2; 3169-R2; 3329-R2; 3336-R2; 4103-R2; 4361-R2; 4734-R1; 4765-R1; 4781-R1; 4790-R2; 4805-R2; 4810-R2; 4816-R2; 4821-R2; 4862-R1; 4863-R1; 4877-R1; 5087-R1; 5089-R1; 5090-R1; 5141-R1; 5227-R1; 5240-R1; 5385-R1; 5455-R1; 5728-R1; 5842-R1; 6233-R2; 6289-R2; 6302-R1; 6531-R1; 6838-R1; 6861-R1; 7151-R1; 7392-R1; 7655-R1; 7844-R2; 7851-R1; 7853-R1; 7861-R2; 7864-R2; 8638-R1; 8787-R1; 9421-R1; 9674; 9721-R1; 9722-R1; 10039; 10043; 10044;10045;10046;10047;10049;10053;10057;10060;10068;10077;10085;10087; 10088;10090;10093;10096;10117;10118;10130;10150;10152;10154;10155;10156;10157;10158;10159;10160;10161.

Commissioner D’Andrea moved approval for the consent agenda. Commissioner McCombs entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommended for Conditional Approval

3992-R1 Buffelen Woodworking Co.

Mr. Blair stated this product was recommended for conditional approval stating for Products 3992.1 thru.10, Installation Instructions are not for Model/Number on Application. Installation instructions indicate more than one anchoring method. Independent FL PE to validate anchor analysis.

Commissioner Carson moved approval of the POC recommendation. Commissioner McCombs entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

6642-R1 Lincoln Wood Products, Inc. / Timeline Vinyl Products, Inc.

Mr. Blair stated this product was recommended for conditional approval stating the applicant must remove or provide certification for 6642.11. Deferred from December 2007 meeting. Applicant consented but did not revise and validate conditions of: For Product 6642.11, AAMA Certificate expired Nov.8, 2007. Complied but did not validate with: Under Product 6642.1, Limits of Use, Other, for (F-LC65 37 X 73) and (F-LC50 77 X 77), there is no verifiable evidence of testing for Impact Resistance. Remove. Under Product 6642.2, For (FW-R45 48 X 96), (F-R30 86 X 96), and (F-C50 72 X 72), there is no verifiable evidence of testing for Impact Resistance. Remove. For Products 6642.3 thru 6642.14, make similar corrections as products 6642.1 and .2 above.

Commissioner Carson moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

7091-R1 Masonite International

Mr. Blair stated this product was recommended for conditional approval stating the Independent FL PE to validate anchor analysis.

Commissioner Carson moved approval of the POC recommendation. Commissioner McCombs entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

9683 MFM Building Products Corp.

Mr. Blair stated this product was recommended for conditional approval stating the applicant needs to upload NOA on Installation Instructions or have Miami-Dade verify those installation instructions.

Commissioner Carson moved approval of the POC recommendation. Commissioner McCombs entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

9744 Four Seasons Solar Products LLC

Mr. Blair stated this product was recommended for conditional approval stating the Installation instructions are for a room. Limit the installation instructions to the product (window).

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

10067 Solar Innovations, Inc.

Mr. Blair stated this product was recommended for conditional approval stating the applicant needs to remove lines .1 and .2. All information is on .3. The installation instructions do not indicate attachment to supporting substrate.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommended for Deferral

1258-R3 Rosenlew RKW Finland LTD

Mr. Blair stated the product was recommended for deferral stating the applicant requested deferral to March 2008 meeting to complete renewed certifications. Deferred from December 2007 meeting. Conditions of: For Products FL1258.1 and .2, NOA’s have expired. Provide new certification.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommended for Denial

149-R2 Custom Window Systems, Inc.

Mr. Blair stated the product was recommended for denial stating this was deferred from December 2007 meeting. Applicant consented but did not revise and validate conditions of: Installation instructions indicate pressures larger than certified. Certification agency to indicate tested configurations. Independent FL PE to validate anchor

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

157-R2 Custom Window Systems, Inc.

Mr. Blair stated the product was recommended for denial stating this was deferred from December 2007 meeting. Applicant consented but did not revise and validate conditions of: Installation instructions indicate pressures larger than certified. Installation instructions indicate more than one anchoring method. Certification agency to indicate tested configurations. Independent FL PE to validate anchor analysis.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

6852 Master Machines, Inc.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

9441 Dominion Building Products

Mr. Blair stated the product was recommended for denial stating this was deferred from December 2007 meeting. Did not consent or comply with conditions of: The Certification Agency certificates does not identify the Certification Agency or describe the product. There is no follow-up certificate. The missile level is not indicated. The installation instructions have several details that are from other manufacturers.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Incomplete Applications

2320-R2 The Garland Company, Inc.

4795-R2 Kolbe and Kolbe Millwork

4809-R1 Marvin Windows and Doors

4939-R1 Marvin Windows and Doors

5179-R1 Simonton Windows

6442-R1 Designer Doors Incorporated

Incomplete. No Commission action necessary.

Evaluation by Architect or Engineer

Recommended for Approval

Product #’s: 984;4243-R2;7191-R1; 8134-R1; 8172-R2; 8867-R1; 9225-R2; 9279; 9482-R1; 9568; 9613; 9874; 9898; 9928; 9948; 9949; 9950; 9951; 9984; 10006; 10037;10038; 10052; 10054; 10069; 10070; 10071; 10072; 10073; 10074; 10075; 10079; 10080; 10081; 10082; 10083; 10084; 10089; 10091; 10094; 10097; 10098; 10103; 10111; 10113; 10114; 10115; 10116; 10119; 10121; 10124; 10128; 10131; 10138; 10141; 10143; 10144; 10147; 10151; 10195.

Commissioner Kim requested 10113, 10115 and 10116 be pulled from the consent agenda due to conflict.

Commissioner Browdy moved approval of the consent agenda as revised. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

10113, 10115 and 10116

Commissioner Browdy moved approval of the consent agenda. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous (Commissioner Kim abstained). Motion carried.

Recommended for Conditional Approval

2291-R4 Metals USA Building Products

Mr. Blair stated this product was recommended for conditional approval stating Missing hardcopy of evaluation report signed and sealed by evaluator. ASTM E72 and UBC 26-3 are not adopted standards. Modify evaluation report to indicate use of these standards as per Florida Building Code.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

9875 Special-Lite, Inc.

Mr. Blair stated this product was recommended for conditional approval stating Insulated foam and skin to comply with Chapter 26. Provide calculations of anchors at sill and head.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

10123 Custom Hurricane Products Inc.

Mr. Blair stated this product was recommended for conditional approval stating Deflection table was done with single size test. Use test deflection. Grommets spacing was increased larger than tested. Use grommet spacing. Indicate end reactions. Remove or correct 130 MPH reference.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

10139 Cline Aluminum Doors, Inc.

Mr. Blair stated this product was recommended for conditional approval stating Storm plate and attachment to be permanently attached to door and remain same as tested.

Wendell Haney, RW Building Consultants

Mr. Haney stated his company was the evaluating engineers for this product. He then stated Mr. Gaston brought to their attention the storm plates which were on this product did not meet Section 5.1.1 of the TAS test protocols. He further stated the client had been contacted and it was determined there was a way to meet those test protocols. He then requested the Commission reconsider the condition of approval indicating it as an impact product. He stated the condition of approval would be the storm plate and the attachment bolt would be permanently affixed to the unit. He concluded by stating the condition would be clearly shown in the installation drawing and also in the limitations of use in the evaluation report.

Mr. Blair asked for clarification the request for the Commission to give a conditional approval with the revised conditions that the product be considered an impact product under the condition the storm plate and the bolt be permanently affixed to the unit.

Mr. Haney responded this was correct.

Mr. Blair asked Ted Berman if this was acceptable.

Mr. Berman responded that it was acceptable.

Commissioner Carson asked Mr. Gaston if this condition would take care of his concerns.

Jamie Gaskins, Miami-Dade County

Mr. Gaston stated it would if the materials of that plate and bolt remain the same as tested.

Chairman Rodriguez asked the applicant if those materials would remain the same.

Mr. Haney responded stating the materials would remain the same as tested and could be added to the condition as well.

Commissioner Carson moved approval of the POC recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommended for Deferral

1852-R3 Elite Aluminum Corporation

Mr. Blair stated the product was recommended for deferral as requested by applicant to complete testing.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

8363-R1 Armor Screen Corp.

Mr. Blair stated the product was recommended for deferral as requested by applicant to complete testing and to correlate the pressure on the application with the evaluation.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

10132 Storm Smart Industries

Mr. Blair stated the product was recommended for deferral stating the applicant needs to indicate if for negative pressure deflection when not supported on all edges the opening including porosity is less than 10%. Revise pressures to agree with test reports. Describe buckles. Explain ownership of tests. Revise anchors to agree with test reports. Verify cycling of anchors. Verify mounts are as tested. Verify straps as tested. Verify anchors as per manufacturers’ specifications.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Evaluation by Test Report

Recommended for Approval

Product #’s: 9689; 10024; 10112; 10136; 10204.

Commissioner Carson moved approval of the consent agenda. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommended for Conditional Approval

1004–R1 Gentek Building Products

Mr. Blair stated the product was recommended for conditional approval stating the applicant needs to Indicate Design Pressure with proper factor of safety. On installation instructions indicate attachment in accordance with tested specimens. For the test report method installation instructions have to be as tested.

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

2982-R2 Gentek Building Products

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

9734; 9737; and 9743 Four Seasons Solar Products LLC

Mr. Blair stated these products were recommended for conditional approval stating the Installation instructions are for a room. Limit the installation instructions to the product (window).

Commissioner Carson moved approval of the POC recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Incomplete Applications

10148 Tuff Shed, Inc.

No Commission action necessary.

Evaluation by Evaluation Entity

Product #s: 9774; 9831 and10064

Commissioner Carson moved approval of the consent agenda. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Conditional Approval

9851 Holcim Inc. (US)

Mr. Blair stated the product was recommended for conditional approval stating there is a single product. Remove 9851.2. Remove from testing standards Sect. 1711.1, 2501-2505 and 2510-25134. They are not referenced on the evaluation report. Remove from Limits of Use Other the references to Sect. 2514-2520 of the 2004 FBC. These are not referenced on the evaluation report. On installation instructions indicate only the three systems described on evaluation report.

Commissioner Carson moved approval of the consent agenda. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CONSIDER LEGAL ISSUES AND PETITIONS FOR DECLARATORY STATEMENT: BINDING INTERPRETATIONS: REPORTS ONLY

DECLARATORY STATEMENTS:

Mr. Richmond stated discussion of Legislative Issues would be deferred until the discussion of the Legislative Report. He stated he emailed a table describing the bills that had been filed to date which directly impact the Commission’s interests. He stated the table includes the bill numbers and their current status. He then stated the table could be used throughout session to track those bills.

Binding Interpretations:

Mr. Richmond stated Petition 31 had been rejected by the contractor because it had not been reviewed by the local appeal board, which is a condition of review contained in law.

Declaratory Statements:

DCA08-DEC-001 by Karen Kalman – Appeal of Binding Interpretations

Mr. Richmond stated this declaratory statement was filed on an issue that was first before the Building Official’s Association under contract binding interpretation issue or at least some related issue. He then stated Mr. Fine represented one side and his client has filed a motion to intervene, as well as a motion to dismiss based on jurisdictional grounds. He stated in the past similar cases, which involved many attorneys, were typically referred to the hearing officer. He then stated his recommendation to the Commission at present would be to refer the case to a hearing officer. He noted he believed it could be appropriately done by an attorney in his office at least at the onset. He added if technical advice were needed staff could be consulted for those issues. He continued by stating temporarily granting the motion to intervene to allow the party, as well, to appear before the hearing officer and allow the petitioner to make any arguments he may deem fit. He stated granting the motion would lead to a recommended order which would come back to the Commission through a Technical Advisory Committee for final action.

Chairman Rodriguez asked for clarification concerning whether the motion would be to refer for a hearing.

Mr. Richmond stated it would be referred to a hearing officer from his office and would be preliminarily granting the intervention subject to review by the hearing officer.

Commissioner Wiggins moved approval of the committee recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Second Hearings:

DCA07-DEC-085 by Walter A. Tillett Jr., PE, TilTeco, Inc.

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner McCombs moved approval of the committee recommendation. Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA07-DEC-179 by Alan Fallick, interim City Attorney, City of Hollywood

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Robert S. Fine, Esquire, representing the City of Hollywood, Florida

Mr. Fine stated the project is located in the city of Hollywood on the historic Hollywood boardwalk. He explained it is an area in the CRA working toward enhancing tourism business and nightlife. He stated the area included hotels, public parking garage, retail shops and restaurants and it is an approved component of CRA’s master plan. He added the plan also includes pedestrian oriented, mixed use spaces along the beachfront space in Hollywood. He stated in the current petition the original petition had been amended by withdrawing the first question and replacing that question with two questions which went more to the essence of what his client was seeking. He then stated the first question “Is the petitioner entitled to rely on the past consistent interpretations of the DEP and its predecessor agency, the DNR, regarding the application of the same regulatory language now set forth in 3109 of the Florida Building Code to determine what uses may occupy the enclosed space on the project existing seaward of the Coastal Construction Control line and in between the FEMA National Flood program established base flood elevation and the lowest horizontal structural member as described in Section 3109.3 of the Florida Building Code?” He asked the Commission to keep in mind everything being done in this project is above the FEMA based flood elevation noting that the area is in between the base flood elevation and a calculated hundred year storm height wave. He further stated the condition only occurs in a couple of places in the state where there is enough deviation to actually allow for a structure to be built there which could be occupied by people. He continued by stating the second question “Are the uses set forth below included among those that DEP and its predecessor DNR have interpreted to be allowed to exist in the enclosed space that exists seaward of the CCCL and between the base foot elevation and lowest horizontal structural member as described in 3109.3 of the Florida Building Code?” He then stated the uses being discussed were retail shops, pool and other bars, snack bars, grills with portable cooking equipment, dining areas where the permanent kitchen is located landward of the CCCL or above the lowest horizontal structural member, toilet rooms and bathrooms, cabanas, recreational spaces such as gyms and card rooms and service area facilities.

Mr. Fine stated the basis in support for the declaratory statement and his client’s requested answer is called Administrative Stare Decisis which comes from courts using precedents and relying on the precedent of prior decisions. He explained the Florida courts and Florida law have applied this to administrative proceedings in agencies such as the Commission. He noted a memo was included in the Commissioners’ packets which basically states “Successor agency must follow precedent established by its predecessor agency.” He then stated the Florida Building Commission, with regard to Code sections being discussed, is a successor agency to the Florida Department of Environmental Protection in relation to enforcing the Florida Building Code. He further stated the DEP allowed, in their definition, non-habitable uses under the 100 year storm elevation seaward of the CCCL. He reiterated all of project is above the FEMA based flood elevation. He stated contrary to the TAC discussions there have been no substantive Code revisions issued that would affect the consistent Code application of these provisions. He then stated the DEP interpreted certain uses to fall within the definition of non-habitable as evidenced by its consistent long history of permits issued. He stated the Commissioners’ packets there was also a series of 13 permits which are all final orders. He explained those projects give some examples that show theses uses have been approved under the identical regulatory language.

Mr. Fine stated his client was there for a declaratory statement, not a rule-making process. He continued by explaining declaratory statements are to answer questions, in general, regarding statutory provisions or rules over which the Commission has authority. He further noted particularly in the case of the Florida Building Commission which applies the Building Code to a set of facts that are set forth in the petition. He stated the regulatory language in 3109 did not change when the Coastal provisions were moved to the Florida Building Code, which is documented in Citation 62B-330071-2. He stated the Commission clearly has the authority to change the Coastal rules or substantive interpretation of the rules, but those changes must be made in accordance with Sections 553.73.3, .7 and .8, as well as 120.54 of Florida Statutes. He continued by stating in DEP’s authorizations structures can have both habitable and non-habitable uses. In DEP’s interpretation of non-habitable uses in this zone, coastal permits and final orders included list discussed before lobbies, cabanas, bathrooms, recreational space, commercial space such as retail spas, snack bars, pool bars, grills with portable equipment, dining as long as kitchens are seaward of the CCCL or elevated above the 100 year storm elevation, back of house, utility closets and similar uses. He then stated the authorization of this non-habitable use provision in the zone go back at least to the mid-1908’s when the Governor and the cabinet approved these permits as part of DNR, then DEP and in 2002 the Commission inherited the regulatory language.

Mr. Fine continued by stating some representative permits which DEP issued in support of the petition were:

1) Thai Resort on Miami Beach has a storm elevation of 17.1 feet and the lobby, spa building and a bar at elevations ranging from 8-12 feet in GVD.

2) Il Vilagio has a 100 year storm elevation of 16.1 feet and one of retailer arcade is at 12.3 feet.

3) The Bentley Beach has a 100 year storm elevation of 16.6 feet and all uses (cafes, lobbies, restrooms, gift shop, and business center all at 8.5 feet.

4) The Sagamore Hotel has a 100 year storm elevation of 16.2 feet and the cabana structure as well as the bar structure and restrooms are at 9.5 feet.

Mr. Fine stated this list of uses has been repeated a couple of times. He

further stated the petitioner is asking for these, based on the fact DEP authorizations dating back to the 1980’s. He then stated the quote regarding the Governor and the cabinet was a quote from Gene Schelecky and could be found in the transcripts from the last Commission meeting. He continued by stating the presentation he gave had been presented to the TAC, who then considered the questions before the Commission. He stated the TAC chose to answer Question 1 stating the petitioner is entitled to rely on the past precedent DEP as evidenced by it’s consistent permits and final orders when take in its current context, which is now the Florida Building Code. He further stated the petitioner had no problem with the answer to Question 1. He then stated for Question 2 the TAC answered based on that, only ‘s’ (storage) or ‘u’ (utility) can be used for the project. He continued by stating the question is really ‘what is a habitable structure for the purposes of Section 3109”? He stated in the TAC Mr. Richmond clarified the principle of Administrative Stare decisis is predicated on whether the petitioner was on reasonable notice. He further stated one of the reasons for having this consistency of interpretation of permits is so when someone goes in to start a project they are on reasonable notice of what the government expects of them so they can follow them. He then stated part of the question was if the petitioner was on reasonable notice of any change of contact that would substantively change the rule. He stated the maker of the motion at the TAC stated was on notice because when the language in 62B-33 of the Florida Administrative Code came into the Building Code it would have automatically adopted the Building Code’s definitions in Section 202 and anyone dealing with the Building Code should be aware of that. He further stated, the maker of the motion had also stated for the definitions in 202 for habitable space applies and restricted the use much more than DEP had determined allowable. Mr. Fine stated this was not and could not be correct. He then stated the Building Code does not put anyone on notice of such changes. He explained in moving the Coastal Construction Provisions from the DEP to the Building Code 62B-33 did not change any of the language relevant to this petition because the language in the Building Code is the exact same language contained in 62B-33. He stated from that perspective anyone reading the Florida Building Code could not on any notice anything had changed. He further stated the Building Code Statutes and the Administrative Code made clear the Commission can make changes to those provisions in accordance with 553.73 and 120.54, but there have been no rule-making changes. He then stated the proponents of the proposed interpretation of the TAC misread the Code in order to write their conclusion that the petitioner should have been on notice of a change. He stated the TAC members came to the conclusion when the language in 3109 came into the Building Code it became subject to the defying terms in Section 202, but the term in question does not exist in 202. He explained the term ‘habitable structure’ is from 3109 and the term the TAC adopts from 202 is ‘habitable space’. He stated these terms are not the same first because the words are different and second the definitions of the words are different. He further stated there is a definition of habitable structure in 3109. He then stated definition of a term has to be taken from a section when it exactly matches up, not from another section when that definition is not agreeable. He stated the definition from 202 of habitable space would render the definition from 3109 superfluous. He then stated one of the rules of interpreting statutes and administrative rules, such as the Building Code, is an interpretation that renders some part of it superfluous is not allowable, therefore the definition from 202 cannot be taken and make 3109 meaningless. He continued by stating when the Coastal Provisions came into the Building Code in 2002 the Commission could have changed the definition of habitable structure in 3109.2 or could have eliminated it or modified it in 2002, but it did not. He further stated in 2004 the Commission went through all the provisions and again did not change the definition of eliminate the definition and did neither. He then stated the definition in 3109.2 with the Coastal Provisions and has remained in the Coastal Provisions and the Commission has done nothing to change them. He stated there was no notice of a change for the public to rely on because there has been no change. He then stated the public is on notice of the interpretation from DEP of what a habitable structure is as evidenced in the numerous consistent permits constituted as final orders of which a number are in the record. He stated another way to think of the petitioner’s concern is if looking at the various projects and permits submitted and then consider the coastal development in Miami Beach, Sunny Isles, Broward County and some parts of Collier County. He stated this was a humongous public policy change the TAC is trying to push through where there has been no rulemaking, hearing, or public notice. He further stated it has a huge impact on property rights with no proceedings having come before the Commission. He stated the Commission has the right to make changes at the next amendment cycle, but it has not been done yet. He then stated since it has not been yet what is left is 3109 with the provisions that came from DEP, the definition that came from DEP, which has not been modified and DEP has confirmed everything in the project is consistent with DEP authorizations. He stated there is a Florida Supreme Court case which holds “failure to change a definition is strong evidence that it remains unchanged.” He then stated it sounds like common sense but that is not what the TAC is trying to do. He reiterated the definition had not been changed; DEP is the only one who has historically interpreted as a regulatory authority and DEP supports the petition. He concluded by stating until Commission decides to make a change, the petitioner should be entitled to rely on the past consistent precedent of DEP in the permits and certainly there is no legal authority basis or anything for taking definitions from Section 202 when the word being discussed is not found there nor how it is defined or what it allows.

Commissioner Wiggins asked for clarification if the definition of habitable structure in 3109 was the definition brought in from DEP.

Mr. Fine responded yes.

Commissioner Wiggins asked versus the habitable space in Chapter 2.

Mr. Fine responded that was correct.

Commissioner Wiggins asked for further clarification regarding whether the definition brought in by DEP which is in the Chapter which is more specific to this particular issue should be used in the controlling definition in this case.

Mr. Fine responded that was correct because it is the exact term used in 3109.

Commissioner Bassett stated he was once involved in the project in the early stages and is no longer involved in the project.

Commissioner Browdy asked if insurance from Private Sources Casualty Insurance is available for the proposed habitable space.

Mr. Fine responded his client stated it is available.

Commissioner Browdy asked if it was an insurable space.

Mr. Fine responded that it was insurable.

Commissioner Browdy asked if the principle of Administrative Stare Decisis is a legal principle that says previous actions can be relied on. He then asked if the Commission will find itself in a declaratory statement, which by definition is site specific and issue specific. He asked Mr. Richmond if the principle of Administrative Stare Decisis can be used if the Commission were to grant this so this becomes a repetitive thing. He stated it seems like the Commission would be creating a precedent on a declaratory statement which is not supposed to set precedent. He asked if he was finding himself in an enigmatic situation.

Mr. Richmond stated declaratory statements can serve as precedent even though they are supposed to apply to particular facts and circumstances. He explained declaratory statements are the means by which the Commission determines the applicable code provisions and that should be consistent.

Commissioner Browdy asked if that interpretation would be specific to that particular site and unless the condition happens again on that site under the same conditions it would not be reliable again.

Mr. Richmond stated if the material differentiating facts then that interpretation would not apply, but if the material facts were the same, which in this case are exceptionally general, there would be little reason for the Commission to depart from it. He then stated the Commission could not say it viewed it differently without justifying it by code language.

Commissioner Gross offered comment about the site stating he has lived in Hollywood since 1963. He explained the site is what is considered Johnson Street Beach. He stated there is a boardwalk along the beach and it is one of the most accessible beaches in Florida. He then stated Johnson Street used to be the center of the beach with a saltwater pool at the center which was filled daily and a casino property at the site. He stated the city is trying to redevelop the space as the center of the beach. He further stated if you go 20 blocks each way on the boardwalk you would find retail stores and restaurants, similar to the uses the petitioner intends for the space. He stated the boardwalk was built before any of the FEMA flood requirements, but it is there. He then stated if this property is restricted to just ‘S’ and ‘U’ uses in this two block area which is the central point of the beach it would become a wasteland for a couple of blocks and then all around that space there would be similar activities. He continued by stating he was not sure what the rationale of the ‘S’ and ‘U’ uses were but it appears in the past that DEP and DNR allowed all of the proposed uses. He concluded by stating the petition was consistent with what was already there and what was used in the past and he stated he would be in favor of allowing it.

Commissioner Franco asked for clarification concerning whether the uses the petitioner was requesting were allowed by the Florida Building Code.

Mr. Richmond stated there were a couple of views. He explained the staff’s recommendation was the restaurants would not be eating places and the TAC’s recommendation was if it was not an ‘S’ or ‘U

’ use it would not be allowed. He stated that was the question for the Commission to decide.

Commissioner Franco asked if those uses had been allowed in the past.

Mr. Richmond responded the uses had been allowed in the past by the DEP and its predecessor agencies on individual permits. He clarified this was not a perfect application of the concept of stare decisis or precedent because DEP was making individual determinations as to whether or not to permit particular projects, whereas the Commission interprets the Code generally. He continued by stating he was not sure what rationale was used on each of those permits to say those eating spaces were not restaurants or restaurants were limited to kitchens, but the expressed language moved into the Code was kitchens. He then stated DEP considered numerous things which would not be considered under the Building Code including things such as portable equipment or hot dog carts, things that are not part of the building. He further stated items that can be moved in or out are not typically subject to a building permit. He stated those items could be enforced through land development regulations or things along those lines, which was a change in context. He then stated when this language was rolled into the Code all of a sudden it was subject only to the people who had to enforce the Code in 553 and 468. He stated he shared the concern expressed relative to limitations of ‘S’ and ‘U’ uses. He further explained even if the definition of habitable space were to be limited to ‘S’ and ‘U’, the Commission should come right out and say it is only ‘S’ and ‘U’ or everything but ‘S’ and ‘U’. He stated his concern was that might be a bit over constrictive, but he would leave that for the experts to decide.

Commissioner Franco asked if declaratory statements were applied to just one specific condition like this project or would they be applied as a change to the Code, such as an amendment.

Mr. Richmond responded declaratory statements could not be looked at by virtue of the project. He stated declaratory statements are how the Commission interprets language in the Code. He then stated essentially how the Commission interprets language in the Code should be consistent. He further stated declaratory statements absolutely cannot amend the Code, which would be a wholly improper use and would get crushed at the District Court of Appeals.

Commissioner Franco asked if the Commission were to approve the use for this particular project another petitioner in the future would have to go through the same process before the Commission and present their case as to the specifics of their project such as Commissioner Gross’ explanation of this case.

Mr. Richmond stated there were two potential outcomes actually building officials are obligated to follow the declaratory statements from the Commission as contained in 553, but if acting in good faith and a factor is identified which differentiates a particular project from the project a declaratory statement was written on, the building official could request the applicant to obtain one on those basis’ because it doesn’t cover parameters.

Commissioner Franco stated that could apply to almost anything because the next project would be in a different location, which by itself would require the official to say it was in different place it has to be looked at.

Mr. Richmond stated only if the location presents characteristics that were materially different from those being considered for this petition. He explained when a building department is permitting a home for Code compliance the address at the home does not determine if it complies with the Code; it would be the soils and things along those lines, more objective criteria would be considered to determine whether it should be differentiated. He then stated he knew there were officials out there who would automatically say it was a different place so a declaratory statement would be required, but he believed that to be a misapplication.

Commissioner Carson stated a lot had been heard form one side and asked to hear from the other side.

Commissioner Kim stated he would present the prevailing opinion of the Structural TAC. He stated all members of the TAC know and understand and are not indifferent to the issues the plaintiff has brought forward, including the socioeconomic issues. He continued by stating at the core essence basically new construction cannot be built the way it was 10 or 20 years ago. He stated all of the details presented were discussed at the TAC for over an hour and a half. He stated Jack Glenn brought up the fact because in the current Code there is a new definition of habitable space, which habitable space does basically apply to question one as far as putting the plaintiff on notice of the material change in the definition. He then stated the majority of the Structural TAC members felt the current requirement of the Florida Building Code is that new construction should meet the new requirements in the Building Code and that is the recommendation of the Structural TAC.

Commissioner Kim moved approval of the TAC recommendation. Commissioner Kidwell entered a second to the motion.

Mr. Blair stated the motion was to support the TAC’s recommendations which

was basically to deny what the petitioner has requested more or less.

Commissioner Greiner asked if the TAC recommendation was in Mr. Richmond’s report.

Mr. Blair stated the answer to question 1 was yes.

Mr. Richmond interjected the crux of the matter was the TAC’s recommendations restricts uses of the area to ’S’ and ‘U’ occupancy.

Commissioner Greiner asked if the recommendation was different than the one he was reading.

He stated he understood the confusion, as there was some confusion in the TAC as well. He explained the TAC’s recommendation was the use of the area in question be restricted to ‘S’ and ‘U’ occupancy only.

Commissioner Kidwell reminded Commission the question changed since the first time around and now there is a different question with the same answer

Vote to approve motion resulted in 8 supporting, 14 opposed (Gonzalez, Wiggins, Griffin, Franco, D’Andrea, Browdy, Rodriguez, Carlton, Greiner, Gross, Carson, Hamrick, Bassett) Motion failed. **Note: The audio states the vote resulted in 8 supporting and 14 opposed. Ms. Lammer, minutes attendant, counted 13 in opposition after consulting Commissioner D’Andrea to confirm the names. There were only 21 Commissioners present at meeting; Commissioners Bahadori and Sanidas were not in attendance.

Commissioner Gross moved approval for the answer yes to the 1^st question and to follow the original staff recommendation for the 2^nd question. Commissioner Greiner entered a second to the motion.

Mr. Blair asked for clarification if the original recommendation from staff which states Section 301 does not address or prohibit the uses of such space for commercial purposes with the exception the space may not be used for living, sleeping, eating or cooking.

Mr. Madani clarified 1^st question answer would be yes to the extent the historical applications of the regulation is consistent with the current context of the Florida Building Code. He then stated the answer to the 2^nd question would be no because 3109 does not address or prohibit the use of such space for commercial purposes with the exception the space may not be used for living, sleeping, eating, or cooking, i.e. residences, hotels and restaurants subject to the permit requirements of the Florida Department of Environmental Protection.

Commissioner Bassett asked for clarification the petitioner will be able to do whatever they want to do with space.

Mr. Blair responded this was correct.

Commissioner D’Andrea stated he wanted to make sure the Commissioners understood what the vote was for. He asked if the motion was for one part of this petition or were there two answers. He clarified the two questions he reviewed on the legal report ask the very same question, but the answers were different. He asked for clarification as to whether Commissioner Gross wanted to approve the second answer.

Mr. Blair offered clarification for the motion by stating the first question is the petitioner allowed to rely on the past consistent interpretations of the Florida DEP and the answer was yes as read. He then stated the second question was if the answer to the first question was yes then the answer to that question would be no, Section 3109 does not address or prohibit the use of such space for commercial purposes with the exception the space cannot be used for living, sleeping, eating or cooking such as hotels, restaurants and residences subject to the permit requirements. He stated the answer to Commissioner Bassett’s question was to be determined.

Commissioner Bassett asked if the petitioners were satisfied with the motion.

Mr. Fine responded the answer to the 1^st question does, but the answer to the 2^nd question does not.

Commissioner Kidwell stated in the TAC meeting there were a couple of issues brought forward. He explained one of those was if the application were going to DEP and DEP still controlled it the application would have to be much more in depth relative to what the uses actually were; i.e., no carte blanche to put restaurant, retail, or banquet space, for example. He further stated the petitioner had not clarified what the space would be used for and therefore has asked the Commission to give them a blanket to do whatever they want. He then stated he would vote against it because there was not enough information to allow the declaratory statement. He asked Mr. Richmond if the answer had been determined originally by input from legal which determined occupancy classifications ‘s’ and ‘u’ because the same thing was being stated by listing out all the uses.

Mr. Richmond stated he was not involved in the original TAC review of this process.

Mr. Blair offered clarification stating originally Mr. Richmond had helped frame the question and not necessarily advising in any direction.

Commissioner Browdy stated it was his understanding from the TAC the original application included a set of plans which were specific to the usage or Rusty had inquired what the uses were and the respondent stated plans did accompany the original application to the building department which included specific uses for specific spaces. He stated in essence the documentation of uses listed on those plans would limit the use of space.

Rusty Carroll

Mr. Carroll stated he was speaking as a TAC member, not on the formal basis of the Broward County Board of Rules and Appeals. He explained he was against the TAC’s position because he believed if there was an ‘S’ use with ten Mercedes Benz worth a million dollars it would seem stupid not to have a dress shop with $5,000.00 worth of swimsuits. He stated he did not believe the application should be limited to ‘S’ and ‘U’ uses. He further stated if familiarized with the way DEP reviewed uses, the word use was not used in the same code text as a code official would relative to groups of occupancy. He then stated he believed this caused some of the confusion in the TAC. He continued by stating it was his opinion when submitting a plan to DEP it had to be very specific indicating there was outside seating with no restaurant in those areas. He further stated he did not want to cause the petitioner another month in time frame but his recommendation was there needed to be a detailed plan showing the specific uses such as outside dining with no restaurant. He explained otherwise he supported most of the petitioner’s position.

Commissioner Greiner proposed an amendment to the answer for the 2^nd question to read “no, Section 3109 does not address or prohibit the use of such space for commercial purposes with the exception the space may not be used for residences, hotels or restaurants and the like subject to the permit requirements of Florida Department of Environmental Protection.

Commissioner Gross accepted the amendment to the motion.

Commissioner Kim asked if he could make a friendly amendment changing “may’ to “shall.”

Mr. Richmond stated his only concern was he believed there were no longer permit requirements from DEP.

Mr. Blair stated there were still requirements from DEP

Christy Brush

Ms. Brush stated she had personally worked for DEP for approximately ten years on the application of these particular definitions for habitable structures. She explained the DEP did require detailed plans submittal showing floor plans with designated uses for every part of the structure and on the basis of what the label stated the use would be whether it be a dining room, a retail shop or a lobby every space in the structure had to be defined by the use. She continued by stating the DEP essentially applied the list of uses the petitioner put before the Commission and compared them to a list of habitable uses which would be residential units, hotel units, kitchens in restaurants and kitchens in residential units. She further stated if those uses were shown on the plans it was denied by the DEP below the 100 year storm elevation. She then stated if the use shown below the 100 year elevation was on the list of things DEP consistently approved as being non-habitable the uses were approved. She continued by stating it was evaluated on a case by case basis, but with very consistent definitions and criteria i.e. if there were a meeting room in one building and it was authorized and there was a meeting room proposed in another building there was no site specific differentiation of esoterically why the meeting room should or should not be allowed on a particular site. She stated the definitions were applied consistently. She then stated the application was similar except it was now going to the city with building plans including floor plans showing labeled uses. She explained the uses specifically proposed were presented in a list format, not graphically. She then stated there was a second part to the question if DEP still reviewed the application. She stated DEP does still review the applications under the remaining environmental criteria and coastal engineering criteria in a non-structural sense. She stated they retain jurisdiction under Section 62B-33. She further stated since the Florida Building Code has been in effect she had experienced some situations where the DEP has reviewed the proposed plans and provided advisory comments to the building official in the format of notes in the final order indicating they believe there may be some discrepancy in the uses proposed relative to the previous application of the Code and the transferred application of the Code is now under the building officials’ jurisdiction. She stated she believed those to be generally advisory in nature, but it is indicated there was an expectation of consistency and those things have been communicated to the public in different formats.

Chairman Rodriguez asked for clarification if Commissioner Gross accepted the friendly amendments from Commissioner Greiner and Commissioner Kim.

Commissioner Gross responded yes, he had accepted those amendments. Commissioner Greiner, as the second for the motion, stated he accepted the amendments.

Vote to approve the motion resulted in 13 in favor 8 opposed (Norkunas, Schulte, Vann, McCombs, D’Andrea, Bassett, Kidwell, Carson, Kim, Goodloe, Franco and Wiggins). Motion passed.

Mr. Richmond stated since there was no draft order immediately the petition will be rolled forward in second reading to the next meeting.

DCA07-DEC-182 by Mark S. Speckin of SPX Cooling Technologies

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner Wiggins moved approval of the committee recommendation. Commissioner Greiner entered a second to the motion.

Commissioner Basset stated he would be abstaining from vote due to conflict of interest.

Vote to approve the motion was unanimous. Commissioner Bassett abstained. Motion carried.

DCA07-DEC-183 by Mark S. Speckin of SPX Cooling Technologies

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner Carson moved approval of the committee recommendation. Commissioner Kidwell entered a second to the motion.

Commissioner Basset stated he would be abstaining from vote due to conflict of interest.

Vote to approve the motion was unanimous. Commissioner Bassett abstained. Motion carried.

DCA07-DEC-194 by Gary Swartz, E-Z-Taping Systems, Inc.

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner D’Andrea moved approval of the committee recommendation. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA07-DEC-252 by James DiPietro, Broward County Board of Rules and Appeals

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner McCombs moved approval of the committee recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

First Hearings:

DCA07-DEC-269 by Emil Veksenfeld, P.E.

No additional information was provided. Dismissed.

DCA07-DEC-290 by David Hudson, A1A, Artech Design Group, Inc.

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner McCombs moved approval of the committee recommendation. Commissioner D’Andrea entered a second to the motion.

Mr. Richmond stated to ensure the Commission was acting in full knowledge he wanted to point out this would be a significant retraction of an earlier declaratory statement entered by the Commission as it pertained to a Target retail store in Cape Coral.

Chairman Rodriguez asked Mr. Richmond his recommendation.

Mr. Richmond stated his recommendation would be the Commission should answer the question in consistency with the declaratory statement entered in the previous case DCA07-DEC-218, where the Commission ruled it to be all one building.

Chairman Rodriguez asked if that was the motion.

Mr. Richmond stated the motion was the TAC recommendation which was different than his recommendation.

Chairman Rodriguez asked who made the motion.

Commissioner McCombs stated he made motion.

Commissioner Bassett asked if there was a difference between the two buildings which allowed for the different opinion.

Commissioner Greiner offered clarification 218 had plans which showed a firewall between the buildings even though it was considered all one building under 507.2. Therefore 218 was approved. He then stated 290 had no plans which indicated a firewall so it was brought to the petitioner’s attention. He stated otherwise both petitions were considered essentially the same by the TAC.

Mr. Richmond stated he recalled the rationale which was ultimately adopted by the Commission was it was a single building therefore the additional requirements could not be imposed under the Florida Building Code, although the TAC may have discussed that or the rationale of the individual commissioners. He stated he did not believe it was reflected in the declaratory statement and final order which was ultimately entered in the case, which was very simple and straight forward.

Commissioner Bassett stated his recollection was the previous building had just a four hour firewall between the two. He then stated the recommendation in this petition is the buildings were built like a zero lot line which in essence are going to be two separate walls against each other totally independent so one building could completely burn down and the other one would stay up. He further stated this was the reason he asked what might be different because he thought there might be a slight difference when the zero lot line was mentioned.

Chairman Rodriguez asked Commissioner D’Andrea for his input.

Commissioner D”andrea stated he concurred with Commissioner Greiner’s comments. He stated he looked at the information presented in 218 and the proposal along with what was presented to the committee for review was the petitioner was going to create the separation wall between the anchor store and the tenant spaces in accordance with the provisions for walls constructed on a property line which is in accordance with 602.1. He then stated the recommendation from the committee was based upon that information which basically states it does not prohibit an unlimited area in the building, but along the property line a wall will be constructed in accordance with 602.1, which was what the other applicant did in 218. He further stated the committee was trying to be consistent in not only what the verbiage states, but also with what was shown exactly on the plans. He explained the committee did not see the actual plans which showed what was going to be done, but the applicant stated the walls were being constructed to meet the zero property line. He stated in that regard the committee felt it was basically the same situation under the same conditions which was why the committee voted as it did.

Commissioner Franco asked if there was already a declaratory statement which addresses this case why is it necessary to do a second one?

Chairman Rodriguez explained there was a declaratory statement, but it was not site specific to this application. He stated from what he has heard it indicated there was a fire separation between the two spaces. He then stated from what Commissioners Greiner and D’Andrea have said in this instance they did not have the opportunity to look at the plans, but the applicant testified that he would have the same type of separation.

Commissioner D’Andrea stated Committee voted unanimously based on the information given.

Chairman Rodriguez asked for clarification the committee’s vote was based on the information that the petitioner would comply with the same condition the previous declaratory statement was issued under which was the fire separation.

Commissioner Franco stated he just wanted to make that clear because different petitioners would come back to something which was similar but in a different location.

Chairman Rodriguez stated the building officials here are more knowledgeable than he. He stated declaratory statements are sought when the local building official is not sure of the interpretation of the Code or they have a different interpretation from what the applicant believes to be the correct one so they seek an opinion from the Commission. He further stated if the building official had been so disposed they could’ve referred to the earlier one. He then stated the fact of the matter was he believed it was a good thing the petitioner came to the Commission because the TAC pointed out in order to favorably consider it the same fire separation the previous one had.

Commissioner Bassett stated he was confused because the TAC had voted unanimously one way and the motion was to approve the TAC recommendation, yet Mr. Richmond stated the TAC recommendation goes against the previous declaratory statement.

Chairman Rodriguez stated two of the TAC members have been trying to explain how they viewed the case.

Commissioner Bassett stated Mr. Richmond stated it was still not consistent.

Mr. Richmond stated he only renders advice. He further stated if the Commission’s TAC is recommending there was a difference it was certainly worthy of the Commission’s consideration. He then stated moving the TAC’s recommendation was fine it was just a question of defensibility on the backend. He reiterated he believed if the issue gets challenged the Commission will have a tough justifying the difference the answer between this declaratory statement and the answer in the previous declaratory statement.

Commissioner Bassett stated this was why he wanted to have some verbiage that went along with the declaratory statement so if there were a challenge the Commission could justify what was different.

Commissioner D’Andrea stated the vote from the TAC on DCA07-DEC-218 was 4 for and 4 against so it was not a TAC recommendation to approve 218, but the Commission’s.

Chairman Rodriguez asked Commissioner D’Andrea if he agreed with legal council’s opinion of the inconsistency to an earlier Commission action.

Commissioner D’Andrea responded it was probably not consistent with earlier Commission action. He then stated it was unfortunate all of the Commission was not able to hear what was presented to the TAC and the TAC had a hard time with the decision because it was deadlocked. He further stated he was reading what was decided from 218 and it was not the same answer proposed for this declaratory statement.

Commissioner Greiner stated it was different but the circumstances are virtually the same. He then stated it was the substance of the presentations that were different however the form is different. He addressed Commissioner Bassett’s concern and stated in the declaratory statement it could include “in conjunction with 218” and then the rest of the answer.

Mr. Madani stated the confusion was created because the answer conflicts with itself because on one side the answer was unlimited buildings could be built but in the same answer it states there was not one building, but two buildings that require the fire separation based on the table from 601. He then stated 601 was for two separate buildings not for a tenant separation. He further stated it would be basically rewriting the Code and urged the Commission to stick with the Code as it reads now.

Commissioner D’Andrea stated he wanted to read from 290 so the Commission could understand better how the TAC voted the way it did. He stated the answer was not specifically the same way. He read the answer”The Coral Walk Shopping Center is a single building pursuant to the foregoing provisions of the Florida Building Code. The appropriate authority having jurisdiction has authorized the building lines as provided by law specifically the develop order tended by the intervener and recorded in the official records. The petitioner has not presented any evidence to the contrary and the Code contains no support for the proposition that a property line designates a boundary between one building and another.” He stated there has been nothing conflicting to this point. He continued reading” As a matter of law, the scope of the Florida Building Code authorizes protection from neighboring properties by definition of construction methods and technique, but does not authorize the Code to restrict ownership of real property or prescribe development regulations outside of the specific scope identified by 553 Florida Statutes.” He stated that was a true statement but still there was no conflict with the Commission’s determination there. He then read” The Coral Walk Shopping Center and the Target Super Retail Store have demonstrated compliance with the provisions of 507.2 therefore the area limitations of Table 503 do not apply to the project.” He then stated the Commission had stated the same thing. 503 does not apply to the project, but for the purposes of the property line that was shown in the site plans the requirements for zero property line should be addressed. He stated that was the only statement in the answer which was different from what was mentioned in 218. he further stated 218 had a lot of other verbiage not included in the answer to 290.

Chairman Rodriguez stated 218 had one building that crossed property lines. He asked if this petition had the same thing.

Commissioner D’Andrea stated it has an anchor store and retail spaces. He further stated one owner owns the anchor store and the other owner owns the anchor spaces.

Chairman Rodriguez asked for clarification the one building was across the property and this building was actually across the property line.

Commissioner D’Andrea stated the building was actually a mall with an anchor store.

Chairman Rodriguez asked if it were owned by two different people.

Commissioner D’Andrea responded the buildings were owned by two different people, but it was the same situation as referenced.

Mr. Richmond stated the situation was the same as for Coral Walk Shopping Center where space inside the building is subdivided but under a common roof. He stated the other case was a separate Target retail store (the anchor store) with associated merchant space attached to it in a strip mall, but all a single building. He then stated the attached merchant space was going to be leased by the developer to the smaller merchants but Target was insistent about owning the property underneath its own store space. He further stated he believed the case to be indistinguishable based on that basis wherein there were anchor tenants within the same shopping center as other smaller spaces to remain under the ownership of the developer.

Chairman Rodriguez asked Mr. Richmond what the TAC recommendation would have to be to remain consistent

Mr. Richmond stated the staff recommendation to respond to the petition by citing 218 would be the most ensured way to maintain consistency.

Commissioner McCombs accepted amendment to motion.

Commissioner D’Andrea stated he could not speak for all of the TAC members because all of them were not present. He then stated the TAC voted unanimously to present the Commission with a recommendation and the Commission has the obligation to either support it or deny it.

Chairman Rodriguez asked Commissioner D’Andrea his input.

Commissioner D’Andrea stated he did not particularly agree with the amendment, but if the Commission chose to support that was fine. He stated the bottom line was there was a declaratory statement for a specific project and one similar declaratory statement previously which the TAC made a different determination, the first one being a deadlock and this one a unanimous decision for a recommendation to the Commission. He reiterated it was the Commission’s decision to support that recommendation or not.

Mr. Blair stated the motion was to approve the TAC’s recommendation.

Commissioner Bassett stated he believed the situation was similar to two buildings in downtown Orlando standing side by side with zero distance between them and no setbacks. He then stated relative to the issue of whether the Commission is consistent on it’s consistency to previous declaratory statements the Commission was not consistent. He further stated he knew of one declaratory statement in particular the Commission issued and then the TAC came along during the code revisions cycle and would not put it into the Code. He then stated the declaratory statement stands alone and no one really knows if it applies anymore or not.

Chairman Rodriguez asked Commissioner Bassett if he was in favor of the motion.

Commissioner Bassett stated he was in favor of the motion. He further stated it may be the Commission should state the other was not right, but he was in agreement with the motion.

Mr. Richmond stated the Commission may have bitten off more than it needed to. He then stated the specific petition the building official asked about treating the walls between the anchor store and the remaining tenants as party walls? He explained the definition for party walls in the code specifically refers to walls between adjacent buildings. He further stated he believed the declaratory statement could be answered simply by stating this was a single building, not party walls.

Commissioner Wiggins stated he agreed with Commissioner Bassett 100%, with Commissioner D’Andrea the unanimous recommendation from the TAC, the previous declaratory statement rendered by the Commission was completely in error. He then stated he called the question.

Chairman Rodriguez called the question.

Vote to approve the motion as amended resulted in 19 in favor, 1 opposed (Vann). Motion carried.

DCA07-DEC-002 by Scott Hampton, PE

Deferred to obtain additional information.

DCA07-DEC-004 by Karen Wallen Oliver, Wallen Service Corp

Mr. Richmond explained the issues presented in the petition for declaratory statement and the committee’s recommendations as they appeared in each Commissioner’s files.

Commissioner Greiner moved approval of the committee recommendation. Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner Greiner asked if Petition #31 was a letter sent to someone. He then stated if it did or did not he would request interpretation be spelled correctly at the top.

RECESS

Wednesday January 30, 2008

The meeting of the Florida Building Commission was called to order by Chairman Raul Rodriguez at 8:27 a.m. on Wednesday, January 30, 2008, at the Renassaince Resort, St. Augustine, Florida.

COMMISSIONERS PRESENT:

Raul L. Rodriguez, AIA, Chairman Paul D. Kidwell

Nicholas D’Andrea, Vice Chairman Do Y. Kim

Richard Browdy Jeffrey Gross

Angel Franco Dale Greiner

Gary Griffin Matthew Carlton

James Goodloe Craig Parrino, Adjunct Member

George Wiggins

Herminio Gonzalez COMMISSIONERS ABSENT:

Michael McCombs Christ Sanidas

Randall J. Vann Hamid Bahadori

Chris Schulte Doug Murdock, Adjunct Member

Nanette Dean

William Norkunas OTHERS PRESENT:

Steven C. Bassett Rick Dixon, FBC Executive Director

Jon Hamrick Ila Jones, DCA Prog. Administrator

Joseph “Ed” Carson Jim Richmond, DCA Legal Advisor

Jeff Blair, FCRC

Mo Madani, Technical Svcs. Manager

CONSIDER COMMITTEE REPORTS AND RECOMMENDATIONS:

Chairman Rodriguez discussed item B, Rule Development Workshop on Rule 9B-7, Accessibility Code. He explained the Commission needs to conduct a rule development workshop on the Accessibility Code regarding the Accessible Route width at the March meeting. He stated preferably the next step would be rule adoption without a rule adoption hearing in order to expedite the correction of the issue. He then asked for a motion to conduct a workshop on Rule 9B-7, the Accessibility Code rule at the March 2008 meeting for the purpose of correcting the accessible route width without a rule adoption hearing.

Commissioner Carson moved approval of the motion as stated. Commissioner Kidwell entered a second to the motion.

Mr. Richmond offered a point of clarification stating stated the Commission can conduct a hearing without a workshop if requested for the March meeting, which would be the quickest way to get the correction done.

Chairman Rodriguez stated motion was to conduct a workshop on 9B-7, the Accessibility Code rule at the March 2008 meeting for the purpose of correcting the accessible route width without a rule adoption hearing. He asked if the motion were fair.

Mr. Richmond stated the words workshop and hearing were being crossed. He stated the correct terminology would be to conduct a rule development hearing at the March meeting without a workshop in advance.

Commissioner Carson accepted amendment to the motion. Commissioner Kidwell accepted the amendment of the motion.

Commissioner Wiggins asked what the width in the Code to be corrected was.

Mr. Dixon responded the width would be increased 44 inches. He stated the language written in the statutes is being transferred into the Code. He stated it requires the accessible route from the accessible parking to the accessible entrance of the building has to be 44 inches wide. He asked Commissioner Goodloe what the Fire Standards width was.

Commissioner Goodloe responded clarifying the width was 36 inches.

Mr. Dixon stated the width would be raised from 36 to 44 inches.

Vote to approve the motion was unanimous. Motion carried.

Accessibility TAC

Commissioner Gross presented the report of the Code Administration TAC. (See Accessibility TAC Minutes January 28, 2008).

Commissioner Gross moved approval of action to contact as many advocacy groups such as PVA or Center for Independent Living, as possible to attend the meeting in Tampa because a consensus will be built and brought back to the Commission.

Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner D’Andrea moved approval to accept the report. Commissioner Browdy entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Code Administration TAC

Commissioner Wiggins presented the report of the Code Administration TAC. (See Code Administration TAC Minutes January 29, 2008).

Commissioner Wiggins asked Mr. Blair if there was anything else that needed to be included in the report.

Mr. Blair stated the TAC was evaluating those options that were extracted from the Code Administration Needs Assessment Survey that was completed by the 76 or so building officials who responded. He explained the options were extracted out and the TAC was asked to propose additional options for the next meeting and evaluating those basically to develop a package of recommendations to the Commission on ways the Commission can help local governments regarding the administration and enforcement of the building code.

Commissioner D’Andrea moved approval to accept the report. Commissioner Goodloe entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Energy TAC

Commissioner Greiner presented the report of the Code Administration TAC. (See Energy TAC Minutes January 28, 2008).

Commissioner Wiggins moved approval to accept the report. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Fire TAC

Commissioner D’Andrea presented the report of the Fire TAC. (See Fire TAC Meeting Minutes January 29, 2008).

Commissioner Goodloe moved approval to accept the report. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Structural TAC

Commissioner Kim presented the report of the Structural TAC. (See Structural TAC Meeting Minutes January 29, 2008).

Commissioner D’Andrea moved approval to accept the report. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Education POC

Chairman Browdy presented the report of the Education POC. (See Education POC Meeting Minutes January 29, 2008).

Commissioner Browdy stated a motion was needed to accept the POC’s recommendation that all advanced course must be updated by the effective date of the proposed code version with the codes effective October 2008 for this particular code cycle.

Commissioner D’Andrea moved approval of the committee recommendation. Commissioner Wiggins entered a second to the motion.

Mr. Richmond stated the motion should be deferred until the Rule Development Workshop for Rule 9B-70.

Commissioner Browdy asked Mr. Richmond if it should be left in the report and just approve the report rather than a separate motion.

Mr. Richmond stated that would be fine but when the workshop convenes the motion will need to be made during the workshop. He then stated the motion should be tabled or withdrawn.

Commissioner D’Andrea withdrew motion.

Commissioner Browdy then stated the following two courses were recommended for approval by the POC:

Advanced FBC Voltage Drop, BCIS 264, Accreditor BCIC LLC.

Commissioner D’Andrea moved approval of the committee recommendation. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Home Study: FBC Advanced Course-Residential, BCIS 263, Accreditor BCIC LLC

Commissioner D’Andrea moved approval of the committee recommendation. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner D’Andrea moved approval to accept the report. Commissioner Kidwell entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Product Approval/Prototype Buildings/Manufactured Buildings POC

Commissioner Carson presented the report of the Product Approval/Prototype Buildings/Manufactured Buildings POC. (See Product Approval/Prototype Buildings/Manufactured Buildings POC Meeting Minutes January 28, 2008).

Commissioner D’Andrea moved approval to accept the report. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mitigation Workgroup

Chairman Rodriguez stated at the June 2007 meeting the Commission

conducted a Rule Development Workshop on Wind Mitigation Retrofits in order to implement the 2007 Legislative Direction regarding the mitigation techniques for existing site built residential buildings. He then stated at the request of stakeholders the Commission conducted a facilitated workshop in Tampa on August 8, 2007 allowing the participants to provide recommendations for the Commission’s consideration regarding the Legislative Directive. He continued by stating at the August Commission meeting the Commission conducted a Rule Adoption Hearing and voted to adopt the first edition of prescriptive techniques for required hurricane mitigation in retrofit of homes by roof deck nailing, secondary water barriers installation and roof to wall connections enhancement when a roof is replaced and voluntary gable end bracing in time for the Legislature’s mandated implementation of October 1, 2007. He further stated the Commission also voted to support the Florida Roofing and Sheet Metal Association’s request that the Legislature delay implementation mitigation requirements. He stated the Commission recommended the Florida Legislature delay the implementation date to October 1, 2008 allowing adoption of the rule through Commission glitch amendments to the 2007 Florida Building Code process.

Chairman Rodriguez stated the reasons for the recommended delay included the issues identified by stakeholders during the rule adoption hearing such as licensure issues, permitting issues, liability issues, inspection and enforcement issues, structural efficacy issues regarding the roof to wall requirement and the need to conduct comprehensive review and development of recommendations working with all interested stakeholders. He continued by stating in order to comply with the 2007 Legislature’s Direction for an October 1,2007 implementation date at the August 2007 Commission meeting the Commission adopted Rule 9B-3.0475 Wind Mitigation Retrofits. He then stated during the rule development workshop the public identified numerous concerns with some of the rules and requirements including the roof to wall connection provisions and as a result the Commission acknowledged the current draft needed enhancements and the Commission committed to working with stakeholders during the glitch code process to consider enhancements to the rule. He further stated as a result a Wind Mitigation Workgroup was appointed to develop recommendations to the Commission on the Wind Mitigation Provisions for implementation during the glitch code amendment process.

Chairman Rodriguez stated the Wind Mitigation Workgroup met after the Commission’s December 2007 meeting to develop recommendations regarding resolving the rule challenges. He then stated the recommendations were delivered to the Commission during a telephone meeting held on January 8, 2008 and the Commission reached consensus addressing the challenges to the rule. He continued by stating the Workgroup met again January 28, 2008 for the purpose of evaluating options for enhancing the substantive aspects of the rule summarized previously. He further stated the Workgroup will continue to work with stakeholders to develop recommendations for enhancing the efficacy of the rule.

Mr. Blair stated, as Chairman Rodriguez mentioned, the workgroup was the

primary reason for reviewing the revised rule which incorporated the settlement language and reviewing comments which were made on the revised rule as well as reviewing comments previously made on the rule so the Workgroup could determine whether to recommend to the Commission making changes based on public comment. He further stated there had been a few comments from IBHS, most of which was supported by the Workgroup. He continued by stating the proposals would come forward once the Workgroup has completed its task. He then stated there were two issues the Workgroup had reached full unanimous consensus on and wanted to make those recommendations to the Commission. He explained both of the recommendations require Legislative change. He stated if the Commission supported the recommendations they would be included in the Legislative package. He then stated those recommendation were written in the Legislative Report under the Pending Issues for Consideration.

Mr. Blair continued stating the first of the Workgroup recommendations was the Commission’s recommendation to the Legislature amending Section 553.844 Florida Statute regarding the Mitigation Retrofits to provide the Commission the flexibility to work with stakeholders and to make the rule work for homeowners, contractors, and all of those involved in either receiving the work or doing the work and still be consistent with Legislative intent. He then stated this would be accomplished by recommending the specific requirements or provisions be removed from the law in favor of allowing the Commission to work with the stakeholders to develop the Mitigation techniques in the Building Code.

Chairman Rodriguez asked if a motion was needed.

Mr. Dixon responded a motion was necessary.

Commissioner Schulte moved approval of the committee’s

recommendation. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair stated the second issue was in the course of doing the work required

to implement the Mitigation techniques the issue of what work a roofer can do was discussed and the Workgroup recommended the Commission recommend to the Legislature Chapter 489, the statute governing roofing contractors, be amended to add to the scope of practice for roofers the ability to nail and replace roof sheathing so this work specifically could be done in retrofits.

Commissioner Greiner moved approval of the committee’s recommendation.

Commissioner Carlton entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair stated those were the two primary issues and assuming Legislature follows through with the recommendations the workgroup would have the ability to deliver a very comprehensive package on those. He then stated barring that the Workgroup would continue to work within the confines of the statute to make the rule work better for all who would be affected with regard to implementing Mitigation Retrofits.

Commissioner Browdy moved approval to accept the report. Commissioner D’Andrea entered a second to the motion.

Commissioner D’Andrea asked if the current status of the rule that has been implemented does as it is until after Legislative action.

Mr. Richmond responded stating there was a pending amendment to the rule.

Commissioner D’Andrea asked if enforcement would stay the same as is until the Legislative action.

Mr. Richmond stated enforcement would change among the effective date of the amendment of the rule and then there could be further Legislative changes following.

Commissioner D’Andrea asked if there was any idea when that effective date of the amendment might be.

Mr. Richmond stated the schedule of items would be discussed during the Legislative recommendations.

Vote to approve the motion was unanimous. Motion carried.

Mr. Richmond stated a notice of rule development was published in Florida Administrative Weekly the previous Friday and it appeared to accomplish the amendment. He then stated the next Friday will provide a notice of rule adoption

that provides the opportunity for a hearing if requested on Tuesday, February 26^th at 10:00am by telephone conference meeting. He reiterated it would be a meeting only if requested because the 21^st day, if there were no hearing, would actually be on the 22^nd. He stated he scheduled the following Tuesday because it was a good day for the last meeting and everyone was able to attend.

Chairman Rodriguez asked Mr. Richmond if he stated Tuesday the 26^th was when the Commission should schedule time for a teleconference.

Mr. Richmond stated that was correct.

Chairman Rodriguez then asked for the second date.

Mr. Richmond responded the second date was just the running from 21 days from the date the notice appeared from Friday. He then stated if there were no hearing the Commission could conceivably file the file that date. He continued by stating certain partied had raised issues that unfortunately may require a hearing and a change they are still working through with finality whether the change would be required. He stated he would certainly keep the commissioners updated via email relative to that. He further stated if there were a hearing and a notice of change the Commission would have to publish that and it would be approximately another 21 days. He stated he hoped to know in advance at least the possibility of changes and what those would be so the Commission could conceivably get that to Florida Administrative Weekly by the day following the Commission’s hearing which would be the 27^th in which case it would be published Monday, March 8^thand could be filed 21 days later to take effect 20 days after that. He continued by stating if no changes take place the rule could be filed essentially on the 25^th and it would take affect 20 days after that. He stated this was the quickest it could be done under the administrative procedures the Commission is subject to.

Mr. Blair asked if a motion were needed to hold the hearing.

Mr. Richmond explained the motion was made during the telephonic meeting so the Commission was covered as long as the date was okay, which was still somewhat flexible. He stated since it was a telephone meeting he was hoping to meet that date.

RULE ADOPTION HEARING ON RULE 9B-72, PRODUCT APPROVAL

Chairman Rodriguez stated at the December 2007 meeting the Commission voted to conduct an additional rule adoption hearing on the Commission’s October 2007 adopted revisions to the Product Approval Rule, Rule 9B-72 without conducting a rule development workshop. He explained there had been extensive rule development already and the Commission voted to adopt the final rule on October 2007, however in order to comply with procedural timelines for the rule development the Commission is required to conduct another rule adoption hearing and the hearing would be the final step in the process to implement enhancements to the system which have been well vetted over the past two years. He continued by stating the goal is to adopt a rule as previously approved without change and not to discuss the additional changes at this point. He further stated all aspects of the rule changes were thoroughly evaluated by Commission workgroups and the POC and the Commission needs to implement the revisions to the rule without any additional changes as well as ensuring the related BCIS enhancements which were completed would be up and running in correlation with rule changes as planned.

Mr. Richmond opened hearing. He then emphasized, for purposes of the record, although the goal of the Commission was to entertain no future changes if any comments were made which required a change the Commission should certainly consider those in due course.

Chairman Rodriguez asked if there were any members of the public who wished to speak on the proposed changes to Rule 9B-72, the Product Approval Rule.

No public comment.

Mr. Richmond closed the hearing. He stated since there was no public comment there was no foundation for the Commission to entertain any changes to the rule. He then stated a motion to file the rule would be necessary.

Commissioner Carson moved approval to proceed with Rule Adoption for Rule 9B-72, the Product Approval Rule. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

RULE ADOPTION HEARING ON RULE 9B-70, EDUCATION

Chairman Rodriguez stated at the December 2007 meeting the Commission voted to conduct a rule adoption hearing on Rule 9B-70, the Education Rule at the January 2008 meeting. He then stated the workshop would be to consider discipline and revocation of the accreditors approval and the 120 day time frame for updating courses. He continued by stating the Education POC had recommendations which Commissioner Browdy would read into the record once the hearing was opened.

Mr. Richmond opened the hearing. He then stated the hearing was a further rule development workshop as noticed in Florida Administrative Weekly pertaining to 9B-70.002. He then asked Commissioner Browdy to make the motions.

Commissioner Browdy stated the Education POC based on the workgroup’s input proposed the following motions for the consideration of the Commission.

1) Approval to accept the basis of the language changes made by the workgroup to make the requirement of an updating course date to be the same as the effective date of the new code version which for the current year would be October 1, 2008. He explained effectively stating all advance courses which require accreditation by the Florida Building Commission be updated as of effective date of the Code.

Commissioner Hamrick entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner Browdy stated there was a companion to the last motion. He stated as a result of the Commission’s action on that particular motion currently the accreditors were required to accredit courses based on the current version of the code. He further stated the intent of the Education POC to make sure courses are accredited in advance of code changes. He then stated as a result of that the POC proposed the following motion:

2) Approval to adjust the accreditor review language in 9B-70.002 math the intent to modify the 120 day course update language which would allow the accreditors to accredit courses in advance of the new code version. He explained the accreditors would be accrediting courses not based on the current version of the Code but based on what the Code was going to be prior to adoption and prior to the effective date.

Commissioner Hamrick entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner Browdy stated there was no further action by the POC on the revocation language and as a result of that the POC had no further comments regarding the rule development workshop.

No public comment.

Mr. Richmond closed the hearing. He then stated a motion to move forward with noticing the rule adoption with text.

Chairman Rodriguez stated the motion was to proceed with rule adoption for Rule 9B-70, the Education Rule.

Commissioner D’Andrea moved approval of the motion as stated. Commissioner Wiggins entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA ENERGY CODE RECOMMENDATIONS

Chairman Rodriguez stated the Department of Community Affairs has been working on some of the energy related assignments from the Legislature regarding enhancements to Florida’s various energy policies and practices. He explained Mr. Dixon had been involved in the discussions and would provide the Commission with an overview of the DCA recommendations.

Mr. Dixon stated the Governor issued an executive order which directed the Commission to make changes to the Florida Energy Code that would improve the efficiency of buildings by 15%. He then stated the effective date for that action is to be January 1, 2009. He continued by stating in order to meet the Governor’s directive the Commission had adopted a process which would amend the Florida Energy Code using the Energy Code Statute procedures i.e. Chapter 120 only beginning at the next meeting. He further stated that rule proceeding to amend the Code for the 15% would be completed by May and the changed Florida Energy Code would be submitted in the glitch amendment cycle to be integrated into the 2007 Florida Building Code which goes into effect October 1, 2008 thereby complying with the Governor’s January 1, 2009 directive. He then stated that a part of the Department’s development are recommendations to the Commission for how to achieve the 15%, which is the procedure written into the Energy Code statute, an energy cost analysis of energy conservation measures was conducted to determine the most cost effective way to getting there for both the consumer as well as from societal perspective. He stated he would present first a small portion of the study. He explained it would be fairly complicated for those not already familiar with the economic analysis methods of MBAs and engineering cost estimation. He further stated it would give the Commission a flavor for the overall way the project was conducted, what parameters were used and studied and what the outcome was. He stated it appeared there was much more potential than originally thought for increasing energy conservation requirements through the Building Code. He stated there were guidelines which have been in place for a number of years that the Commission could follow to get 15% for commercial buildings. He further stated according to the analysis on the commercial building side about half of the 30% those guidelines are targeted to achieve have already been implemented through ASHRAE standards adopted into the Code, but the Governor’s 15% could still be achieved.

Mr. Dixon presented an overview of the study and outcome. (Please see DCA Energy Code Recommendations report).

Commissioner Vann asked if a margin for error was built in.

Mr. Dixon stated the way the margin of error was built in was to look at a range of cost assumptions. He then referenced the report to explain the cost assumption ranges shown and the criteria used to determine the assumptions.

Commissioner Schulte asked Mr. Dixon to explain the difference between a tight duct and a standard duct.

Mr. Dixon stated he did not recreate that chart describing the difference. He then stated he believed the language was from a .1.

Commissioner Schulte asked if it were loss of cool air in the attic space.

Mr. Dixon responded that was correct.

Commissioner Schulte asked if a non-vented attic would have an affect on the calculations.

Mr. Dixon stated it would cause a difference, however it would depend if the leak was on the suction or the pressure side. He explained if leaks are on the pressure side it would have less effect, but on the suction side the leakage would be from sucking attic air into the air stream and would have a significant affect. He added ducts in attic space are not a very good idea from an energy conservation standpoint, but this approach assure ducts in attics are tight ducts instead of just moderately loose ducts and duct sealing has a real good rate of return and a low first cost.

Commissioner Bassett stated during the Energy TAC there was some discussion relative to those issues. He then stated representatives from the Solar Energy Center stated the easiest way to meet this would be to now say in doing an energy code calculation instead of reaching the 100 the baseline has, the Commission could simply state a requirement to reach 85. He further stated this way nothing has to be changed and the industry could decide which of the things they change to reach the 85, which in essence would be the 15% reduction. He then moved the approval of the recommendation from the Solar Energy Center.

Mr. Dixon stated the Department had evaluated that option as well. He stated at this point its recommendation is to optimize the baseline, but going the other route in the future would be a viable option. He explained the baseline and cost effective analysis had not been done in 25 years so the Department’s recommendation was to adjust the baseline first. He stated Senator Constantine and the Florida Energy Commission have a recommendation to the Legislature that the Energy Efficiency required by the Florida Energy Code should go from where it currently stands to a 50% improvement over 12 years. He then stated once the baselines were stabilized measuring gains by ratcheting down points to pass would be desirable. He reiterated it was a good approach, but baseline optimization was the step that should be taken and this point in time.

Chairman Rodriguez asked Mr. Dixon if the recommendations as presented were what the department recommends to the Commission.

Mr. Dixon responded that was correct.

Chairman Rodriguez asked Commissioner Bassett if he wanted to withdraw the motion.

Commissioner Bassett stated he did not wish to withdraw the motion.

There was no second to the motion.

Commissioner Greiner moved approval of the Department’s recommendations. Commissioner Carlton entered a second to the motion.

Commissioner Carlton asked how the first costs were derived.

Mr. Dixon stated the efficiency measure first costs were derived in multiple ways including the RS Means Estimating Guide and for certain measures polls of the industry to determine the current costs. He explained the Means guide provides adjustments for different market places. He stated those were crosschecked to make sure they fit the Florida market.

Commissioner Carlton asked for clarification concerning whether individual subcontractors and contractors were polled.

Mr. Dixon stated yes from his understanding there were for many of the measures.

Commissioner Franco asked if it was directed primarily toward equipment efficiency and glass efficiency.

Mr. Dixon stated Florida Law currently establishes that the Florida Energy Code should cover the building envelope (wall and ceiling insulation), and equipment efficiency (air conditioning, heating and water heating equipment). He further stated there would need to be some tweaks to the law to expand the Code to other items that may save a lot of energy, such as lighting for residential.

Commissioner Franco asked what parameters were analyzed for the building envelope.

Mr. Dixon stated the current levels of insulation were considered to be technologically feasible limits and were not altered in the analysis. He then stated for instance the Energy Code currently assumes a R13 wall for the residential building, an R30 for an attic, a white shingle roof which is lower absorbance and higher reflectant than dark shingles, slab on grade floor which because of earth coupling some of the heat gained in the building is dumped into the ground), and an 18% glass to floor ratio with a double paned lightning with solar heat gain coefficient of .40.

Commissioner Franco asked about vented and unvented attics.

Mr. Dixon stated the current Code assumes a vented attic requirement formed the basis of energy use of the baseline.

Commissioner Franco asked if unvented air would still be brought into the building envelope.

Mr. Dixon stated he believe that the updated computer program can model an unvented attic so anyone who can comply with the Building Code requirements for an unvented attic and wants to use that as an energy conservation measure, can actually get credit for it. The baseline energy budget is based on a vented attic. He then stated it gives some incentive because if the unvented attic is used there would be an improvement in energy score which would make it easier to comply.

Commissioner Franco stated that would be one area can be improved on because untreated air is not brought into the buildings, seal attics better and air conditioning ducts do not end up an area that is untreated. He then stated maybe that is an area that could be looked at in the future.

Mr. Dixon stated there was still 35% improvement to go over 12-15 years depending on which time frame is assumed, the Energy Commission’s or the Building Commission’s recommendations.

Commissioner Bassett stated to address the previous question; the 2007 Code does allow the architects and engineers to design unvented attics. He asked for staff recommendations to be reiterated so he was clear on the motion.

Mr. Dixon stated the assumptions for the baseline energy budget would go from standard ducts to tight ducts in an attic, low E to lower E glazing (a .4 Solar e-heat gain coefficient to .3), and glass to floor area ratio from the current 18% to 15%.

Commissioner Greiner stated the beauty of the approach is it allows a number of options to get to various levels.

Vote to approve the motion resulted in 20 in favor, 1 opposed (Bassett). Motion carried.

Mr. Dixon stated the need to present the commercial buildings. He then continued with his presentation. (Please see DCA Energy Code Recommendations report.)

Mr. Dixon then stated the Department recommends for the commercial buildings for which there are not guidelines, the ASHRAE 90.1 2007 efficiency levels be implemented through the code change.

Commissioner Wiggins asked if there were any recommendations relative to lighting in commercial buildings.

Mr. Dixon stated his understanding was much of the improvement in efficiency in the 90.1-2007 edition is due to lighting efficiency changes. He then stated in comment at the TAC meeting Lorraine Alissio Ross, who represents the roofing products manufacturers association, indicated there were significant changes to the attic roof insulation requirements, because those had not been changed in 20 years. He further stated that to get to this level, a large portion had to be lighting because the biggest loads for large commercial buildings are internal loads not building envelope loads and the primary source of those loads are lighting and now office automation equipment.

Commissioner Wiggins asked if it were mostly internal lighting or would it deal with external lighting around the building as well.

Mr. Dixon responded primarily on internal because it has a dual effect, not just energy from the light itself but also the energy to remove the heat created by lamps through the air conditioning system. He stated there are some standards that have been applied to external lighting but it has primarily been internal.

Commissioner Carson asked with respect to the glazing has there been any discussion with respect to insulated units as opposed to the single glaze. He then stated where he was from we are talking about an insulated unit that is impact and has low e glass which was getting crazy cost wise.

Mr. Dixon stated commercial is more difficult to analyze and give numbers for. He stated low e glazing doors did not have to be installed but it is used to set an energy budget for the baseline. He further stated the manufacturers have stated they could add a low e coating for under a dollar a half square foot. He added there would be mark up after that but that was still a fairly low number and it turns out in the analysis for residential windows, there was a pretty high internal rate of return on that investment.

Commissioner Greiner moved approval for department recommendations. Commissioner Wiggins entered a second to the motion. Vote to approve the motion resulted in 20 in favor, 1 opposed (Bassett). Motion carried.

Mr. Dixon stated a motion was needed to move forward with rule adoption. He then stated staff would prepare the documents to be available before the next meeting where the workshop will be held.

Commissioner Greiner moved approval to proceed with rule adoption to amend the Energy Code to implement provisions to comply with the governor’s 15% efficiency increase. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

GREEN BUILDING WORK GROUP RECOMMENDATIONS FOR MODEL LOCAL ORDINANCE AND PUBLIC AWARENESS CAMPAIGN

Chairman Rodriguez stated one of the Commission assignments from the Legislature was to develop recommendations for developing and implementing a public awareness campaign that promotes energy efficiency and the benefits of building green and recommendations for a model efficiency ordinance for residential development. He then stated on October 1, 2007, a forum was conducted and subsequent to that the workgroup has met three times to consider and evaluate a range of options for a model ordinance and a public awareness campaign. He further stated the workgroup has completed its recommendations which will be presented to the Commission for its consideration.

Mr. Blair presented the work group recommendations. (See Green Building Work Group Report and Recommendations to the Florida Building Commission, January 16, 2008.)

Mr. Blair stated in the interest of time he wanted to review two items that required Commission action:

1) The Model Green Building Ordinance

Mr. Blair stated the work group identified the items they would like to see

in the Green Building Ordinance, a template was selected and the items were imported into the template. He then stated the Florida Solar Energy Center was the group that put together the work group’s recommendations into a draft ordinance. He asked, since the Commission has had this in advance, if there were any questions or discussion.

Commissioner Wiggins asked if the ordinance was for residential only or did it include commercial as well.

Mr. Blair stated the primary focus was residential, but it goes beyond residential as there are aspects of the ordinance that are applicable aspects for development.

Commissioner Wiggins stated the part of the report he read stated it was for residential. He stated it showed a commercial building and public street right of way.

Mr. Blair stated all of that was included in the ordinance.

Commissioner Wiggins asked if there was any side by side comparison of the proposed standards in the model ordinance compared to any requirements already in the current Building Code to show what kind of an upgrade would be over the current Building Code.

Mr. Blair stated there was not. He then stated the ordinance was fairly generic in many ways providing a lot of options a local government could select. He further stated it was not prescriptive in any way giving the local governments a lot of flexibility, although there were certain items the work group recommended to be included and adopted. He stated the main focus was a more comprehensive approach that would include energy efficiency, water efficiency, water conservation, development shading and other aspects that would be considered beyond the building itself. He explained from his experience in order to get a consensus from a variety of stakeholders there has to be an allowance for flexibility for local governments to make their own decisions. He continued by stating the actual ordinance after commentary was very brief with the rest being guidance ideas.

Commissioner Wiggins asked if any part will be amending the Florida Building Code or is it totally separate with no administrative rule.

Mr. Blair stated there would be no administrative rule. He explained primarily a model ordinance is a voluntary thing someone could adopt to increase the energy standards. He stated that community decides if they support it and would provide incentives for contractors and others to implement it.

Commissioner Bassett stated, referencing Section 7, Green Building Standards, where it discusses homes and commercial buildings, it states the program participant shall satisfy all the requirements associated with the current LEED for new construction or derived LEED rating system. He asked when it states all the LEED rating system has a bunch of categories that apply for whether you are going for a certified gold or silver or platinum and the problem is saying you comply with all of them is impossible because no building has reached 100% of the points allocated in that rating system. He stated it needed to be further defined to be the prerequisite points or some other of saying that other than “all” the points.

Chairman Rodriguez stated that was a very good point.

Mr. Blair stated the point was discussed in detail and the ordinance does not prescribe that. He then stated whichever program was selected would be the one with whose provisions need to be complied. He reiterated it was purposefully more general and the full commentary should be read to realize it was a list of options to select from.

Commissioner Bassett stated it read “you will comply with all the requirements” and that was his concern. He then stated if it said if applying for a certain rating that would be fine, but the wording was “the home shall meet the requirements of all”.

Chairman Rodriguez stated Commissioner Bassett’s concern was understood.

Commissioner Greiner stated the idea of ordinance was to set up generic ordinance that would allow the local governments to pick and choose with respect to what they wanted to do. He then stated when getting into the lead program Commissioner Bassett was correct because there are different levels to that program, but the local jurisdictions would determine those levels and make the clarification at that point in time. He further stated the clarification cannot be made at the Commission level because it is generic.

Commissioner D’Andrea stated this is why it is a proposed model ordinance, something that has been done by a committee who has great expertise; a model ordinance that can be used to develop the ordinances of individual local jurisdictions

Chairman Rodriguez asked to address Commissioner Bassett’s concern if taking the word all out would be the solution.

Commissioner D’Andrea stated this is a model ordinance and the local governments need to use it how they see necessary to make it work for their jurisdictions. He added if the comments accompanying the ordinance were read those concerns are already addressed.

Commissioner Franco stated he believed taking the word ‘all’ out would be the solution because all means nothing. He then stated if all the requirements of specific programs were met that would take care of it. He then stated it should really read”New residential??? shall satisfy the requirements of either.”

Mr. Blair stated he understood the comment and in a strict context he would entirely agree in terms of striking the word all or whatever but the reason it does not need to be done in this context is because, Commissioner Greiner and Commissioner D’Andrea explained, none of this is required, the whole program is voluntary and once the local jurisdictions decide to do a model ordinance they would then go through and determine which of any of the standards listed they wanted to select and if they chose a LEED one program it would be written and then all requirements of that one they selected. He reiterated there was nothing in the model ordinance that was prescriptive or required. He stated this very issue was discussed thoroughly and was revised as a result of the discussion at the work group.

Commissioner Greiner offered a suggestion to not change anything in the ordinance as the work group worked very diligently to develop this. He stated the local jurisdiction can change anything in the model ordinance. He moved approval to accept the recommendations as presented. Commissioner D’Andrea entered a second to the motion. Vote to approve the motion resulted in 19 in favor, 3 opposed (Bassett, Hamrick, Franco). Motion carried.

2) Public Awareness Campaign Plan

Commissioner D’Andrea moved approval of the model Public Awareness Campaign that can be used by whoever wants to use it as a basis for developing its own public awareness campaign. Commissioner Greiner entered a second to the motion.

Commissioner Carson noted the substantial numbers in the marketing and asked how funding was planned for those items.

Mr. Blair stated that was a good question. He then stated he was going to recommend the motion should be to accept campaign strategies and proposals. He further stated he was not looking for the Commission to approve any budget at all and wanted to make sure it was extracted from the motion.

Mr. Dixon stated the Legislature appropriated $250,000.00 to the Commission for this project to develop and implement a public awareness campaign. He then stated it also appropriated $250,000.00 to the DEP for the public awareness campaign. He explained the plan between the Commission and the DEP was for the Commission to use its$250,000.00 to develop the website and the plan for a public awareness campaign, which DEP participated in developing, and then DEP would use its $250,000.00 for the public awareness. He further stated separate monies have been contracted to Build A Safer Florida and a component of the contract was to develop information brochures targeted contractors and people who interface with the public i.e. documents that can be used to hand out and explain when people ask questions about building green. He then stated there was another twist on green; last year the Commission delved into the potential of indoor humidity control problems with the new higher efficiency equipment done in a cheaper manner. He further stated a recommendation was to develop materials to go to contractors on what to look out for and how to solve those potential problems. He continued by stating feedback from staff to the Legislature suggested the Building Commission is not necessarily the appropriate body to conduct general public awareness campaigns. He stated the industry groups the Commission has a direct input or interface with could be targeted, but other entities should probably take on the larger charge of public awareness campaigns. He reiterated the Commission was not made up of marketing people, but contractors and engineers. He stated the Florida Energy Commission has in its recommendations to the Legislature this year that it should be the focal point for public awareness campaigns and would presume if the Legislature follows through with making that a permanent body, that would be a part of that commission’s mission and the Commission would be interacting with that commission and would not want to imply in any way it would take on the task of trying to do public awareness in a broad sense.

Mr. Blair asked if the motion should be the Commission would recommend and support the strategies and goals of the public awareness campaign.

Mr. Dixon stated yes and reports them to the Legislature.

Commissioner D’Andrea accepted the amendment to the motion.

Vote to approve the motion was unanimous. Motion carried.

DISCUSSION AND DECISIONS ON RECOMMENDATIONS TO THE 2008 LEGISLATURE

Mr. Blair conducted a review of the draft summary of the preliminary decisions on recommendations to the 2008 Legislature. (Please see Recommendations to the 2008 Florida Legislature Report).

Mr. Blair asked Mr. Dixon if it would be appropriate to discuss updating editions of the NEC through the glitch process.

Mr. Dixon responded yes. He stated one of the difficulties encountered is that one of the foundation codes is not the same development cycle as the rest. He explained the National Electrical Code, written by NFPA, is one year ahead of the ICC codes. He then stated the electrical industry and the electrical inspectors have always been very prompt about implementing the newest edition of the NEC. He further stated the Commission finds itself in the position of perhaps being prohibited from keeping the Florida Building Code up to date with the new editions of NEC because the update cycle is based on the I codes changes. He continued by stating it was an issue that should be discussed with the Legislature to determine what changes might be needed to allow updating the NEC without major disruptions of the implementation of the rest Florida Building Code. He explained it was something previously taken care of by annual amendments to the major editions of the Florida Building Code. He stated two years ago a policy was established to limit annual amendments and do glitch amendments only.

Chairman Rodriguez asked if a motion was needed to recommend to the Legislature that it amend Section 553.7.3(7) (f) (s) to add updates of the NEC to the list of already authorized items for the glitch amendment process.

Mr. Dixon suggested the motion be a little more vague and not include the specific section to clarify the authority of the Commission to update the NEC edition.

Commissioner Wiggins moved approval of the motion as stated. Commissioner Carlton entered a second to the motion. Vote to approve the motion resulted in 22 in favor, 1 opposed (McCombs). Motion carried.

Commissioner Greiner asked to hear Commissioner McCombs reason for opposition, because the Commission might want to reconsider.

Commissioner McCombs stated this was the first time this had been mentioned to him other than in passing three months ago when he had a conversation with Mr. Richmond and the TAC had not been notified of any problems. He then stated in the past this may have been a good idea, but the way the economy is right now Florida does not need this. He further stated there was a lot of stuff in the 2008 Code that will put a lot of money into houses and if you are not aware of it for residential for sure it is coming and when this is enacted it will bring a lot of money back into the construction. He stated he felt good about it because at the time the only time it could have been handled in a glitch situation was when there was some kind of conflict with a law or a grant somewhere where the Federal and the State got sideways on. He then stated so far nothing like that has come up. He continued by stating the electrical industry in the past has accepted the fact it would be running 18 months behind everybody else, but it goes over 18 months, too. He then stated the 2008 has so many things in it that will be so costly to individual homebuilders and the people of the state of Florida at this time he would not want this to go through right now, if there was any way possible.

Mr. Richmond stated the change would not actually move 2008 in. He explained it would simply authorize the Commission to address this issue in the future. He then stated the NEC has been a difficulty fitting in with the Commission’s cycles. He stated this would just allow the Commission to do it if it decided to.

Chairman Rodriguez stated he believed this to be an important distinction because it does not move it right in but allows the Commission to move it right in and what the Commission is trying to do is stay on par. He then stated some of what has happened here was by the nature of the Commission processes or legal process, always appearing to be behind such as a code that has one date but published the next year.

Commissioner Wiggins asked if this passes would it allow the Commission to adopt it with modifications that might be of concern to the housing industry or would it have to be adopted whole as is or would there be opportunities to amend it.

Mr. Blair stated if the Commission decided it wanted to consider amending the edition it would be part of the glitch process, it would go to the TAC first for a recommendation to the Commission. He then stated, as Mr. Richmond said, this does not say the Commission will update it just the Commission will have the flexibility to do this if and when it wants to.

Chairman Rodriguez stated he thought when items were moved in through the glitch process it was an attempt to conform to the national codes.

Mr. Richmond stated as it pertains to the glitch process it is unsettled. He then stated it has never been done, updates are not currently authorized through the glitch. He further stated if that would be part of the recommendation in so long as the Commission could make appropriate modifications for the needs of Florida, it could be made a condition of the Legislative change.

Commissioner Wiggins stated he would want the opportunity to amend it should this pass.

Commissioner Griffin stated Mr. Blair had clarified it stating anything that would move forward through the Commission would be as a TAC recommendation.

Commissioner McCombs stated he did not have a problem with this in concept because from the time he came onto the Commission that was his big deal, that we were always trying to get it to be in line with the other code and is what their plan was. He reiterated it was just at this time, if everyone could understand, there were just so many things in the 2008 that haven’t even been worked out with industry that aren’t even working in the Code, this time is needed to get the electrical situated which makes Florida flexible in that where the rest of the states are just dealing with all of the problems caused by the 2008 Electrical Code.

Chairman Rodriguez stated at this point he believed it should go through the TAC.

Mr. Blair stated maybe a motion to reconsider would be necessary and then revise the motion that the Legislature gives the Commission authority to update editions of the NEC through the glitch process with the ability to provide Florida specific amendments as deemed appropriate.

Mr. Dixon stated rather than try to stick to just glitch amendment process, leave it open to try to find a way to meet the parameters being asked for i.e. the ability to amend and the ability to update outside the other update cycle in whatever way works out best so we can leave it up to the people who write the law.

Mr. Blair stated there needed to be a motion to reconsider.

Commissioner Greiner moved approval to reconsider previous motion.

Commissioner D’Andrea entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair stated the new motion would be to assign DCA staff to work with the Legislature to determine the way to clarify the Commission’s ability to update and amend the NEC outside the normal update process including the ability to provide Florida specific amendments as appropriate.

Commissioner Wiggins moved approval of motion as stated. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair continued his review of his report of the recommendations to the Legislature.

Commissioner Browdy stated he proposed in the Legislative report that in order to maintain consistent construction standards and to reduce the cost of residential construction particularly at this time that the Commission seek Legislative authority to govern the sizing of private sewage systems by definition within the Florida Building Code. He then stated over the last two years the Legislature has been asked to grant the Commission this authority and it has not been given the authority yet. He further stated he was not certain if the Commission has been ignored or if the health department has much stronger turf issues on this than the Commission but individual health departments around the state of Florida continue to size septic tank systems based on the health department’s definition of what a room could possibly be rather than the definition that is in the Florida Building Code. He continued by stating as a result of that systems are being found that are incredibly large. He stated for example a custom home in Jacksonville that is 5,000 square feet for only two people, there are three bedrooms and four bathrooms and the health department has deemed it has six bedrooms not three by their definition of any room that could possibly be a bedroom. He further stated as a result of that the system for the home is extraordinarily oversized in addition to which the site which is a small site is being compromised by the site of the drain field. He concluded by stating all he was looking for was a consistent definition of what a bedroom is. He stated the Florida Building Code states a bedroom is a residential room which has an area of 70 square feet or more, a clothes storage closet and most importantly is not a part of the common living area. He stated the health department ignores that and continues to impose these more stringent requirements for sizing systems.

Commissioner Browdy moved approval the Commission insert the request for uniform sizing of private sewage systems into the report to the Legislature and use the Florida Building Code to determine what a bedroom is. Commissioner Wiggins entered a second to the motion.

Mr. Richmond stated Commissioner Browdy had identified the difficulty encountered, but there was more than just the health department but the State Department of Health that has significant turf issues. He further stated if this goes forward the Commission will be accused of trying to contaminate the ground water of the state of Florida. He then stated he believed it to be more of an educational issue or something where the processes available to the Commission could be used to actually try and bring the Department of Health to the table allowing the Commission and the Department of Health to go forward together seeking a change.

Chairman Rodriguez asked Mr. Richmond if the previous motion for the NEC was worded that there might be some contact with some staff and come back. He asked if something like that could be done in this case. He asked if it would be something that could be included in the report.

Mr. Richmond stated he believed it was something that could be included in the report, but rather than seeking outright Legislative change to command health departments, it would be to perhaps convene a work group to get the Department of Health at the table to identify the problems and try to establish a record that justifies the Commission’s opinion, not only for the Legislature, but when dealing with the Department of Health the Commission deals with another executive agency, which serves at the pleasure of the Governor.

Chairman Rodriguez stated he believed Commissioner Browdy’s concern was regarding the definition of a bedroom and if it is in the Building Code maybe the Commission could talk to them about that.

Mr. Richmond stated ultimately it was septic system size.

Chairman Rodriguez stated that was correct but it was allegedly based on bedrooms.

Commissioner Bassett stated he believed a lot of this was an educational problem because he had done septic tank design for the same size house in Broward County and working through the local health department did not have the same problem Commissioner Browdy described. He further stated it seemed to him it was another case of one jurisdiction is more zealous than another. He then stated maybe the secretaries of the two departments getting together and talking about it might help gain a common ground where all the jurisdictions of the health department treat it the same way.

Commissioner Kidwell stated he recently built a house and had the brilliant idea he would put in his own septic system. He stated it was much more work than anticipated, but for the size house he has he ended up digging a hole the size of an Olympic swimming pool. He then stated he wound up filling it back in with the stuff he dug out because it was fine the way it was. He continued by stating by building a similar size house not too long ago the way in which the septic tanks were being sized was almost conjecture. He stated the one he did a few years ago was a quarter of the size per bedroom than the one just done. He stated a small city’s sewage system could be fed into the system he has at his home now. He further stated there was no rhyme or reason. He concluded by stating he believed something needed to be codified or everybody brought together to determine a solution.

Chairman Rodriguez asked Commissioner Browdy if he wished to amend his motion after hearing commentary.

Commissioner Browdy stated it was totally impossible to insult the health department. He stated he had been building for 32 years and have not been successful in insulting them yet. He further stated that did not bother him, but what does bother him was the cost of housing in the state of Florida. He then stated next month the Commission would hear about what was going on with the cost of housing and it was just an unnecessary burden, not just for the people building houses in the upper price ranges. He continued by stating unfortunately there are many areas in the state of Florida with no public sewage and the only way to get a house built was with a private sewage system and there continues to be arrogance regarding this when trying to get the septic system permitted. He stated the bottom line was they do not want to have a septic tank in the state of Florida. He stated Mr. Richmond was right and the Commission would be accused of trying to pollute the ground water of the state of Florida, but that was not the issue. He stated the issue was there is no public sewage available and most health departments were punitive making the cost of the septic system so expensive that homeowners will go to another area and buy another lot with public sewage.

Chairman Rodriguez asked since it had been on the list before and has been ignored or what would be the best course of action this time.

Commissioner Browdy stated it should be put on the recommended list to the Legislature and seek Legislative change and if necessary do whatever it takes to mitigate the situation.

Chairman Rodriguez stated his question was in reporting this to the Legislature would it be better to report it adding what the Commission seeks was to bring these people to the table.

Commissioner Browdy stated he could not answer that. He reiterated he really wanted to see some discussion about the issue and for the past two years it had been totally ignored. He further stated now more than ever the Commission can put in its report that one of the motivating factors was the cost of housing and what has happened, which was a contributing factor to raising the cost of housing.

Mr. Dixon stated he understood Commissioner Browdy’s frustration. He further stated it is the responsibility of the professional staff to advise the Commission as best it can on interagency relations. He then stated a better interim step might be to do what has been done with other issues specific to the Building Code i.e. request the Legislature direct the Department of Health and the Building Commission to study the issue and bring back a report to the 2009 Legislature. He stated it would probably be a more reasonable approach that the Legislature, which is sympathetic to DOH, would accept.

Commissioner Browdy accepted amendment to the motion.

Commissioner Greiner entered a second to the motion.

Commissioner Vann stated a bedroom is a bedroom and a bedroom study will not make it comply with the Code. He then stated he would like to see the Commission consider having some work groups get together with some local health departments to reach some consensus in terms of what a bedroom is in their minds. He further stated he had dealt with inspectors who have decided to circumvent what a builder is doing; i.e., make space into a duplex or an additional room. He stated not only is that not their call, but they are overstepping the boundaries of their jobs and he believed health departments are doing the same thing. He concluded by stating he agreed with everything being said and would encourage some dialogue with the health departments to try to get this worked out preferably peacefully.

Commissioner D’Andrea stated he applauded what Commissioner Vann stated but he did not believe it would give the Commission what it was looking for. He then stated he believed what the Commission was looking for was a global consistency in how the health department’s rules are enforced. He further stated from what he had heard, the amended motion would do that if the Legislature directs the Department of Health to work with the Commission to do this, the end result of that would be a state mandated determination of how private sewage systems would be sized. He concluded by stating at that point there would be something to base action against health departments who do not follow what the law states.

Commissioner Bassett stated the plus side to the giant septic tanks is once the sewage system comes there would be an excellent system for collecting and reusing rain water.

Vote to approve the motion was unanimous. Motion carried.

Commissioner Norkunas referenced the section titled Issues for Consideration at the January 2008 meeting where it speaks about interpretations of the Florida Accessibility Code. He asked if that was going to be removed or not removed.

Mr. Blair responded it was there as a placeholder because at the last meeting it was discussed that the Commission would like to have the issue considered. He stated it was his understanding that a work group of the various interest groups in the accessibility community would be convened to make a recommendation to the Commission on how to accomplish this. He then stated the work group was not scheduled for this meeting and Commissioner Gross was working to get that scheduled for the March meeting. He concluded by stating without the recommendation and support of the community he believed it best to not pursue this until workshop result comes forward and there was a consensus recommendation.

Commissioner Norkunas stated the Commission had voted twice on this issue and requested a language change in 553.775. He then stated he did not know how this was going back to the TAC. He stated he raised the questions yesterday. He further stated it was not a stakeholder interest and there were no people with disabilities who have any opinion on this. He further stated this was for building officials who want to be able to issue binding opinions, which is the crux of the issue. He asked if it was brought back to the TAC at the March meeting could it still be included in the Legislative packet for this year.

Mr. Dixon stated it could.

Commissioner Greiner referenced p.13 pertaining to carbon monoxide detectors. He stated in the middle of the paragraph there is a sentence that read “The rule requires CO detectors in buildings with fossil fuel burning heaters or appliance fireplace or attached garage room used for sleeping purposes…” He asked staff to research and correct that statement.

Mr. Dixon stated there was a combination of two requirements. Attached sleeping rooms applies to hotels and motels and the attached garage applies to residential. He explained the two ‘attached’s’ got mixed up and it would be corrected.

Commissioner Greiner then stated on p.46, appendix E the word energy was misspelled.

Commissioner Carson stated he had some additional editorial corrections and asked if the report would be proofed before it was submitted

Mr. Blair asked for the corrections.

Commissioner Carson stated he would give them to Mr. Blair after the meeting.

Commissioner Wiggins referenced the section under the electrical bonding of pool decks, under the summary of actions and stated he thought it would be helpful to list what the specific item was or a brief synopsis.

Commissioner McCombs stated at the time this was written the exact wording was not available, but it was available now and would be included.

Chairman Rodriguez stated if there were no more comments a motion to adopt the report and recommend to the 2008 Legislature and also charges the chairman to review and approve the final report before the submittal to the Legislature.

Commissioner Browdy moved approval of the motion as stated. Commissioner Wiggins entered a second to the motion.

Commissioner Bassett asked if there could be a friendly amendment since it was already stated it was subject to any changes at the March meeting because Commissioner Norkunas was told he could make the change.

Mr. Dixon stated the report will have already been submitted to the Legislature by that point in time because of the requirements of the law, but staff would make sure it goes into the package of proposed changes to law that were worked out with Senator Constantine’s office.

Commissioner Greiner asked while the report is going to the Legislature is the Commission pursuing from its perspective getting some of those recommendations into bills.

Mr. Richmond asked if the Commission could vote on the issue and then discuss it.

Vote to approve the motion was unanimous. Motion carried.

Mr. Richmond stated there was already in place a shell bill with Senator Constantine who had certainly continued his interest. He then stated he wanted to go over the current pending Legislation in conjunction with the Commission’s recommendations. He further stated he had the opportunity to email a table he developed which listed the particular bills, sponsors, a brief summary and the status at that point. He continued by stating there were essentially two bills HB253 and SB550 that extends the deadline for providing the emergency backup powered elevators. He stated approximately two years ago the requirement to install generators to provide backup power to elevators in the Accessibility Provisions Chapter 553. He then stated the deadline had passed. He further stated his only concern was, from the continual calls the staff gets, the general public believes the Commission or the Department of Community Affairs has some form of enforcement authority over this. He stated he also believed there was some perception that a building official would somehow be able to enforce a building to install a generator because of the location. He continued by stating he intended to meet with Senator Jones, who was one of the primary driving forces behind the legislation to explain to him this was just not the case. He stated he recalled when this went into effect the initial versions had it and the Department of Business and Professional Regulation’s Elevator Enforcement arm, which does have a recording function now in this regard, but has no enforcement authority. He stated this was a statutory command with no one having the power to make somebody do what was required other than an aggrieved tenant filing a civil lawsuit.

Mr. Richmond then stated there were two bills HB269 and SB754 that essentially are carryovers from last year. He then stated the most problematic aspect of those bills or explicit recognition of ASCE7-02 and restriction of the Commission’s ability to adopt any amendment to the Code that does not strengthen wind resistance. He stated anybody wishing to consider a plumbing amendment would be out of luck unless it somehow strengthened the structure. He further stated the issue had already been discussed by both sponsors and that section should be taken out at the first committee stop without any debate whatsoever.

Mr. Richmond stated there was also an extension of the deadline for reporting on the Code Plus Standards until 2009. He stated the extension would give the Commission a year ahead of the curve on that project.

He stated SB558 and SB560 by Senator Constantine are shell bills in which the Commission can put in its recommendations. He then stated SB558 from its scheduling will be the primary vehicle had only been referred to two committees at his point. He then stated SB560 had been referred to four committees, as well SB560 pertains to the energy recommendations specifically. He stated he believed there will be one omnibus energy bill, which was the discussion at the Senate Conservation Committee. He further stated SB558 was put in as a placeholder an explicit recognition of the basis for Chapters 11 and 13 of the Building Code, Accessibility and Energy, who have their own separate statutory existence therefore it is just a clarification and not absolutely necessary, but it does bolster the Commission’s position.

Mr. Richmond stated the repeal of 553.731, which contains direction to building officials to enforce ASCE7-02, was placed in the first special session last year. He then stated a direction of the bill was for the Commission to eliminate the panhandle exemption and accelerate the elimination of the design for internal pressures. He further stated it was not intended to be codified and was done by statutory revision.

Mr. Richmond stated 697 was filed on January 22, 2008 and had not yet been assigned to committees as of press time. He then stated it was file by Representative Albeshan and expands the Commission membership by one member who would represent the swimming pool industry. He further stated the appointments to the Commission would be required to be from essentially rosters provided by certain associations. He stated it additionally requires integration of the International Energy Conservation Code as one of the foundation codes in the Florida Building Code. He stated it elevated technical advisory committees with regard to modifications to base codes in that the Commission would be limited only to corrections of Scrivner’s errors from Technical Advisory Committee recommendations on those modifications. He continued stating before the Commission could reject a Technical Advisory Committee recommendation it would have to refer that recommendation back to the TAC for consideration which would essentially create at least one more week of bliss for the Technical Advisory Committees to re-review anything the Commission did not want to adopt. He concluded by stating that bill as well was in repeal by 553.731. He stated this was obviously problematic adding a second week and another member would have a fiscal impact on the Commission. He stated staff was in discussion with many individuals regarding the provisions of that bill and would oppose it unless told otherwise.

Commissioner Bassett stated at the Energy TAC meeting there were the recommendations of the Energy Code for the Commission, which looked like a number of bills. He asked if those bills had been filed yet.

Mr. Richmond stated he did not believe they had. He then stated there were several different entities working i.e. the Governors Policy Action Team who will have some energy recommendations, the Legislature has been expecting the Commission’s, and the Energy Commission, which as an arm of the Legislature. He stated he believed the idea was everyone was generating their recommendations at this point and will seek to move forward with a single bill containing all pertinent energy recommendations.

Commissioner Bassett asked if Mr. Richmond would let the Commission know when that happens.

Mr. Richmond responded yes.

Mr. Richmond stated there were confirmation hearings in the Senate Ethics and Elections on two Commission appointees who were forwarded without comment to the floor (Carlton, Browdy) and one more anticipated action (Franco) in the very near future and will be monitoring that.

Mr. Richmond stated in furtherance of last year’s practice with conference calls he wanted to get preliminary approval for a schedule to get conference calls noticed to discuss pending Legislation and Legislative actions between meetings. He stated the dates to be considered were February 26^th, March 3^rd, April 7^th, April 21^st and April 28^th.

Chairman Rodriguez asked if there was already a conference call scheduled for the 25^th.

Mr. Richmond stated the 26^th was a special meeting but the two issues could be combined into one call on the 26^th.

Commissioner Carson moved approval for the schedule of conference calls as read by Mr. Richmond. Commissioner Kidwell entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

REVIEW AND DISCUSS 2007 COMMISSION EFFECTIVENESS SURVEY RESULTS

Mr. Blair conducted a review of the survey results. (Please see Florida Building Commission – 2007- Effectiveness Assessment Survey Results, January 2008.)

COMMISSION MEMBER COMMENTS AND ISSUES

Commissioner Kim asked Mr. Dixon if his power point presentation for the DCA Energy Code Recommendations could be made available by website

Mr. Dixon responded it he would make it available as well as the contractor’s summary report.

Commissioner Bassett stated he would like to see an audience survey of the Commission’s efficiency.

Mr. Blair stated he had designed a form and put them out at two meetings, but no one ever filled one out so he stopped putting them out.

Commissioner Bassett stated he never even knew there were surveys available to the audience. He then stated if it were announced the forms were available and requested the audience to fill them out perhaps they would.

Chairman Rodriguez stated he would make sure to announce to the audience at the beginning pf the next meeting those surveys would be available.

Commissioner Griffin stated about one year ago the Commission discussed, relative to the Energy Code and commercial buildings, the need for education on electrical requirements and incorporating the electrical requirements from ASHRAE 90.1 more effectively into the actual building construction. He then stated a new ASHRAE standard for 2007 was adopted by the Commission as well as adopting the design guide in order to meet the governor’s direction. He stated he believed some education was going to be required in order to get the design community up to speed. He further stated the renovations of his offices and there were many aspects of the Code that were not incorporated into the construction which was disappointing, but it was resolved. He stated he knew it had been discussed and he was not sure of all of the challenges, but all of the professional engineers and architects are required to get continuing education, which is enforced by the Department of Professional Regulation. He stated it seemed like there was a great opportunity for education on these issues to be incorporated into the requirements for those professional engineers and architects who design buildings a better chance of meeting the governor’s intent. He further stated the first step was taken by putting it in the Code, but he did not believe it was being enforced particularly on commercial buildings effectively.

Chairman Rodriguez asked Commissioner Browdy if this were something that could be done through education.

Commissioner Browdy stated the only governance in place with respect to the education course are those advanced courses and there have been attempts to require those independent board authorities to determine how many hours of code education they wanted and the architects came back with zero and the engineers came back with the same. He then stated it went to the actual boards and that would be the best support to get enhanced code training into the individual professionally regulated boards.

Commissioner Bassett stated during the summer for the third summer a short technical session on code updates specifically addressing mechanical and electrical issues for 2007 at the Florida Engineering Society Annual Meeting. He stated it does not get a tremendous number of the engineers practicing in the state but it is a beginning.

Commissioner Norkunas stated he had three issues to discuss and as the chairman had stated many times the Commission works toward consensus which was very important to stakeholder groups. He then stated the stakeholder groups he represents here is 17% percent of the population or 2.89 million people. He continued by stating when something adversely impacts the disabled community, although he would like to have them come to the Commission but it is very difficult for that to happen. He stated at one of the Commission meetings there was a swimming pool issue and there were 65 swimming pool representatives in the audience. He then stated the thoughts he expressed here are from the reactions he gets from those people who could not participate in the meeting. He then presented his issues:

1) Commissioner Norkunas stated the waiver issued for the Wendy’s was wrong and he believed the Commission waived a non-specific Florida requirement. He then asked when Mr. Richmond issues an opinion is there any appeal from that opinion. He explained Mr. Richmond were Judge Richmond an appeal could be filed, but if Mr. Richmond issues an opinion to the Florida Building Commission is there any way the Commission could go get another opinion if it did not agree with the one given.

Mr. Richmond stated alternative legal advice could be sought.

Commissioner Norkunas stated in the final order issued for the Wendy’s bathroom it states at the bottom of page 3 “that the petitioner and all other interested parties are hereby advised of their right to seek judicial review of this order in accordance with Section 120.” He then stated he would like to be considered another interested party and when he expressed this to Mr. Richmond, Mr. Richmond stated he had concerns with that because he was a Florida Building Commissioner. He further stated one of the attorneys he sought input from cited to him in a Florida Supreme Court case, Renard versus Dade County, an aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest that is or will be affected by the action of the authority in question, when a party has standing to seek judicial review of a local government decision. He then stated he was reaching out to find out if he could be considered an interested party to seek an appeal of this order.

Mr. Richmond stated there were two separate and distinct issues in terms of whether Commissioner Norkunas was a substantially interested party or actually the threshold in Chapter 120 proceedings before the District Court of Appeal would be an adversely affected party is something only a court can decide. He stated it was a matter of something called standing. He then stated his concerns were a sitting Commissioner appealing a decision of the Commission to the court system and Commissioner Norkunas did inform him he had gotten a case rule pertaining to a Miami Dade County official. He explained state officials are governed under other rules and all he did was express his concerns to Commissioner Norkunas. He further stated those concerns remain and whether they ever come to fruition he would not know, he stated he simply advised Commissioner Norkunas he represented the Commission in full, no individual member, and could not offer legal advice to an individual member who chooses to challenge a decision of the Commission in full because it presents a conflict of interest. He stated he tries to advise the Commissioners collectively on means to avoid any difficulties. He stated more as just a service he advised Commissioner to seek legal advice before he took action. He concluded by stating he stands by his advice; indicating the differentiation between a county official and a state official was one that should be accounted for before the action is taken.

Commissioner Norkunas stated he wanted all his fellow Commissioners to know he was still trying to work through the process. He then stated this was an example of going to the Commission’s counsel and he was informed he could not be given legal advice, so in order to seek legal advice he had to go outside.

2) Commissioner Norkunas stated in the final order it states it was a waiver of Section 4.22.2. He then stated in the application from the building official Clifford Stokes, Mr. Stokes denied this under 11-4.23.2. He asked if it was scribner’s error as eluded to earlier, but the order does not address the specific item the building official denied the waiver on.

3) Commissioner Norkunas stated he had a very big concern for conflicts of

interest as a sitting Commissioner he has returned $21,500.00 in monies offered to him for his ADA advice where he thought it might at some point interfere with his job as a Florida Building Commissioner. He then stated on one occasion he asked Mr. Richmond about this. He stated Mr. Richmond stated he felt it probably would not be a conflict of interest, but then there is the appearance of conflict. He then stated he would side with the side of appearance. He further stated he was concerned and had raised his opinions to staff that members of the Accessibility TAC appearing before the Advisory Council seeking a waiver. He stated his concern is because at least three of the members of the Advisory Waiver Council sit as Accessibility TAC members as well. He then stated it was an appearance if not an absolute conflict of interests. He stated he knew Chairman Rodriguez had heard his concerns regarding this through Mr. Dixon, but there had been a second instance, so he believed something should be done so there is an arm’s length distance between people who are paid to appear before people upon show committee they then sit.

Mr. Richmond stated one of the issues at this point had been resolved by voluntary action of the particular committee member whose position was called into question. He then stated the second issue does not present a direct conflict of interests of any way, shape or form. He further stated the TAC has a certain jurisdiction and the Advisory Council has a certain jurisdiction. He continued stating the two were separate and distinct jurisdictions. He stated the Council does not review actions of the TAC and the TAC does not review actions of the Council. He explained a closer question would be if members of the committee appear before the Commission, but he still did not believe it is a conflict. He then stated an advisory opinion was received form the Commission on Ethics pertaining to Robert Fine and his service on the technical advisory committee. He stated Mr. Fine had provided extremely broad based services to his clientele which included not only waivers for which he is well known before the Commission, but also on lobbying efforts generally, on declaratory statements and basically everything the Commission does even advocating for Code changes on occasion. He stated the Commission on Ethics on that basis found that his service on the technical advisory committee and his continued engagement in those services or with a law firm who provides those services would create a conflict of interest.

Mr. Richmond stated the law was much more narrow. He explained the particular member involved provides services with regard to waivers and that is all, which meant their appearance before the Commission seeking a waiver does not implicate in any way, shape or form their service as a member of the Technical Advisory Committee. He then stated it may be some what of a technical difference and the appearance of impropriety was something that may or may not be there in this case of individual consideration, however one thing the Commission needed to be aware of is the Commission’s rule and its practice of having its technical advisory committees to be made up in accordance with ANSE standards and there will always be interested parties serving on those committees and in the absence of that rule and that practice basically the most uninformed people would be making the technical recommendations to the Commission, which was not why the committees have been set up the way they have been.

Chairman Rodriguez stated Commissioner Browdy has asked to schedule as part of the March meeting a time for information on the current housing market to attend March Commission meeting.

GENERAL PUBLIC COMMENT

Scott Hand, Wayne Dalton Center, Pensacola, Florida

Mr. Hand stated he was a professional engineer in the state of Florida, research and development lead engineer for Wayne Dalton Corporation in Pensacola, Florida. He then stated Wayne Dalton makes a number of code approved products to protect homes form damage and loss stemming from windborne debris and water penetration. He stated he wanted to offer comments related to the Legislature specifically as it relates to the HVAC impact protection of opening requirements of the new 2,500 foot Coastal Plus region. He then stated Wayne Dalton strongly supports the notion that windborne debris mitigation prevents rapid internal pressurization, prevents water damage, and lowers the replacement and repair costs after impact. He continued stating fabric shield products meet the Florida Building Code standards as it pertains to these requirements. He further stated his objective of his public comment was to make the Commission aware of his concerns that exporting offset requirements for non-porous shutter systems from the HVAC to the new 2,500 Coastal Code Plus Zone will have adverse affects. He stated specifically the action would deprive consumers insured by Citizens of a product believed to provide excellent protection and alternatives to other impact protective systems. He stated, for example, the light weight panel solution can be deployed in most cases without assistance from another person i.e. elderly people or single people can deploy and store our solution more easily by themselves. He then stated the system can be deployed very fast. He continued stating Wayne Dalton feels their solutions to be far better to deploy and store than other solutions, which are important attributes known to be valued a great deal by customers. He then stated Wayne Dalton had successfully installed and protected many customers outside the HVAC area since 2001. He further stated while the debate for the need for offset requirements continues exporting the HVAC offset requirements for non-porous shutter systems like fabric shield will mean consumers will lose an important choice. He stated while his company supports the code and requirements to improve structures as they pertain to opening protection, we feel this recommendation to the Legislature is counterproductive to meeting the Hurricane Research and Advisory Committee objectives. He continued stating 11 out of 28 prioritized HRAC recommendations were focused on window and water damage and improved opening protection. He reiterated the products from Wayne Dalton are aimed squarely at meeting those recommendations. He asked the Commission to consider amending its recommendation to the Legislature to eliminate the offset requirements for non-porous shutters in the Coastal Code Plus Zone. He concluded stating he believed their product will mitigate wind and water damage loss and the offset requirements contained in the HVAC are counterproductive to achieving the HRAC’s recommendations.

Chairman Rodriguez thanked Mr. Hand. He then stated for his information if the Commission decided to do that it would have to come from the TACs, but his testimony would be taken into consideration.

Dave Olmstead, PGT Industries

Mr. Olmstead asked when the Legislative report would be available to the public.

Mr. Dixon responded the end of the 2^nd week in February.

Commissioner Norkunas asked if something was going to be sent in February when the issue to be discussed on removing Statutory language would not take place until March.

Mr. Dixon stated, as he had stated earlier, the Commission has requirements to provide the report to the Legislature within certain time frames and that will be prior to the start of Legislative session March 1st. He explained the workshop would be held after the report has to be delivered but recommendations can be sent from the Commission into the Legislative process separately.

ADJOURN

Chairman Rodriguez adjourned the Florida Building Commission meeting at 11:17a.m.