Month Day, Year

WELCOME

Chairman Browdy welcomed the Commission, staff and the public to St. Pete and the January 2012 plenary session of the Florida Building Commission. He explained the primary focus of the January meeting is, in addition to deciding on regular procedural issues including product and entity approvals, applications for accreditor and course approvals, petitions for declaratory statements, accessibility waivers, and recommendations from our various committees, to conduct a Florida Accessibility Code Certification Hearing.

Chairman Browdy stated if anyone wished to address the Commission on any issues before the Commission they should sign-in on the appropriate sheet(s). He then stated the Commission would provide an opportunity for public comment on each of the Commission’s substantive discussion topics. He further stated if one wanted to comment on a specific substantive Commission agenda item, to please come to the speaker’s table at the appropriate time. He concluded by stating public input was welcome and should be offered before there was a formal motion on the floor.

Chairman Browdy then conducted a roll call of the Commission members.

REVIEW AND APPROVE AGENDA

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

Commissioner Carson moved approval of the meeting agenda as posted/presented. Commissioner Nicholson entered a second to the motion. Vote to approve the motion as presented was unanimous. Motion carried.

REVIEW AND APPROVE DECEMBER 6, 2011 COMMISSION MEETING MINUTES AND FACILITATOR’S REPORT AND JANUARY 17, 2012 CONFERENCE CALL MEETING REPORTS

Chairman Browdy called for approval of the minutes and Facilitator’s Report from the December 6, 2011 Commission meeting and the minutes from the January 17, 2012 conference call meeting.

Commissioner Nicholson moved approval of the minutes and Facilitator’s Report from the December 6, 2011 Commission meeting and the minutes from the January 17, 2012 conference call meeting. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CHAIR’S DISCUSSION ISSUES AND RECOMMENDATIONS

Appointments to TACs and Workgroups

Chairman Browdy made no TAC or Workgroup appointments at the January 31, 2011 meeting.

Florida Building Commission

Chairman Browdy stated there were currently 16 commission positions requiring either reappointment or vacancy appointment action by the Governor. He then stated during his last contact with the Appointment’s office he was informed the Commission would see reappointments and vacancy appointments prior to the April 2012 meeting. He further stated once the reappointment and vacancy appointments have been finalized, he would make needed TAC and POC Committee and Chairmanship appointments.

Building Code System Uniform Implementation Evaluation Workshop

Chairman Browdy stated the Commission’s statutory authority is currently limited to Code issues, updates, code administration, interpretations, energy efficiency, accessibility, product approval and building code education. He then stated through an expertly managed consensus building process, the Commission has created an exemplary work product that is to be applied uniformly throughout the State; however, the uniform application of the Commission’s work product has yet to be achieved. He continued by stating there were significant disparities within the State in code enforcement, permitting requirements, and associated fees that are detrimental to the aims and objectives articulated in the 1996 Building Study Commission report and Governor Scott’s objectives to encourage the creation of construction in these most difficult economic times. He further stated with the Commission’s move to DBPR the Commission has an opportunity to initiate a discussion regarding the uniformity of the implementation of our statewide code.

Chairman Browdy stated a good first step would be to convene a stakeholder workgroup to identify and evaluate key issues and possible agency solutions, as well as possible strategies for implementing a more uniform interpretation and administration of the Code. He then stated the initial scope of the Building Code System Uniform Implementation Evaluation Workgroup would be to evaluate how well the Commission's efforts to create a unified building code have been implemented throughout the State. He further stated his preference before appointing a workgroup on the issue was to determine whether the Commission concurs with the proposed strategy and supports convening a workgroup to evaluate the uniformity of the implementation of the Florida Building Code. He continued by stating for those individuals who had been fortunate enough to build in different jurisdictions it was very apparent there was a disparity within the state. He stated he believed it was important for the Commission to make an evaluation because its’ goal and mission is to have a uniform building code to evaluate the implementation throughout the state. He then stated unless there was discussion he called for a motion to appoint a Building Code System Uniform Implementation Evaluation Workgroup.

Commission Nicholson moved approval of the appointment of a Building Code System Uniform Implementation Evaluation Workgroup Commissioner Scherer entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Teleconference Meeting Schedule for Legislative Session

Chairman Browdy stated during the Legislative Session the Commission has scheduled weekly teleconference meetings to discuss and provide guidance regarding Commission perspectives on relevant legislative actions. He further stated unless cancelled, the schedule for the remaining teleconference Commission meetings is as follows:

February 6, 2012, February 13, 2012, February 20, 2012, February 27, 2012, March 5, 2012, and March 12, 2012.

Chairman Browdy stated the calls would start at 10:00 AM and Commissioners would be notified prior to each teleconference meeting. He then stated if there was no reason or legislative action that would require input from the members of the Commission, a notice of meeting cancellation would be given in a timely manner. He further stated the teleconference meetings were scheduled and noticed far in advance to allow the public opportunity for input on Legislative issues related to the work of the Commission.

IBHS Report

Chairman Browdy stated the Insurance Institute for Business & Home Safety (IBHS) conducted an analysis, evaluation, and comparison of regulations and processes governing residential building construction in the 18 states most vulnerable to catastrophic hurricanes along the Atlantic Coast and Gulf of Mexico. He then stated the report was titled: “Rating the States: An Assessment of Residential Building Code and Enforcement Systems for Life Safety and Property Protection in Hurricane-Prone Regions.” He further stated Florida received the highest ranking with a score of 95 out of 100. He continued by stating the report noted the high ranking was due to a combination of strong statewide residential building codes and comprehensive regulatory processes for the building code officials, contractors, and subcontractors who translate building code requirements into actual homes. He stated this was another verification of how successful the Florida Building Code was in ensuring Florida has the best and safest built environment in the country. He then stated the report is linked to the BCIS for those who would like to review it and encouraged the commissioners to read the report.

RESOLUTION AND APPRECIATION FOR CHAIRMAN RAUL RODRIGUEZ

Chairman Browdy stated at the December meeting the Commission unanimously adopted a resolution commending Chairman Raul L. Rodriguez, AIA, in recognition of his outstanding leadership and guidance to the Commission while maintaining a commitment to consensus building and collaboration. He further stated Raul Rodriguez served from June 8, 1999 through October 14, 2011. Chairman Browdy, on behalf of the Commission, presented Raul Rodriguez with the Commission’s unanimously adopted resolution as approved at the December meeting.

Raul Rodriguez

Past-Chairman Rodriguez thanked the Commission.

RESOLUTION AND APPRECIATION FOR RICK DIXON

Chairman Browdy, in recognition of the outstanding direction of the Commission by Rick Dixon, who has served the Commission from its beginning and the citizens of Florida for over 38 years, read the following proposed Resolution of Appreciation from the Commission. He further stated Rick Dixon provided outstanding direction and guidance to the Commission while maintaining a commitment to consensus building and collaboration.

WHEREAS, the Florida Building Commission was constituted by the Florida Legislature with members appointed by the Governor to develop, implement and maintain the Florida Building Code System; and

WHEREAS, Richard W. Dixon has served as the Commission’s Executive Director since inception and served the citizens of Florida for over 38 years; and

WHEREAS, the Florida Building Commission is responsible for the development, implementation and maintenance of the Florida Building Code System through a participatory consensus-building process under the direction of the Commission’s Executive Director, Richard W. Dixon; and

WHEREAS, the Florida Building Commission recognizes the critical role Richard W. Dixon has played in the Commission’s development of important State policy decisions by working collaboratively with Building Code System stakeholders in a participatory process to build consensus on public policy; and

WHEREAS, Richard W. Dixon has always represented the Commission’s commitment to fairness and working collaboratively to build consensus on public policy in a highly visible and professional manner; and

WHEREAS, Richard W. Dixon has always demonstrated his personal commitment to integrity, working collaboratively, and treated all who interacted with the Commission’s processes with professionalism and respect; now

THEREFORE, BE IT RESOLVED, that the Florida Building Commission at its public meeting held in St. Pete Beach, Florida, January 31, 2012, voted unanimously to express their appreciation and respect for the outstanding vision, leadership, dedication, public service, integrity and commitment to working collaboratively demonstrated by Richard W. Dixon, as Executive Director of the Florida Building Commission.

Commissioner Carson moved approval of the proposed resolution. Commissioner Greiner entered a second to the motion. Vote to approve the motion. Motion was carried.

Raul L. Rodriguez, AIA, Immediate Past Chair, presented the framed resolution to Rick Dixon expressing appreciation for Rick’s work with the Commission and honorable nature as a person.

Chairman Rodriguez stated many know how good of an engineer Mr. Dixon is, how faithful a public servant and how great of a friend he is. He further stated he had a tremendous privilege in serving next to Rick Dixon because he is the most decent human being he had ever met.

Mr. Dixon stated he believed it was not about him, and more about the Commission. He then stated he had been privileged in his career to be a part of many different teams, and many were excellent teams. He further stated when he first came from the University of Florida, some 20 plus years ago, his commitment was to try to impart to the programs he was responsible for and bring a sense of excellence to the public of Florida. He continued by stating his father, who was a federal government employee for a time, had told him that he was the last of his four sons who he expected to go into the service of government. He stated he was rebellious, sacrilegious, and totally disdaining of government and its operation. He then stated it turned out he found himself, by the quirks of nature, in a position he never expected to be in. He continued by stating what he tried to bring, what the Commission has imparted in its processes, what the commissioners would carry forward was a commitment to standards and codes based on good, sound science, and a commitment to fairness in government. He stated he cannot believe in a government that was not fair and he does not think people should put up with a government that was not fair. He further stated the Commission was committed to fair treatment of people, hearing the opinion of all sides, and coming to agreements all parties could live with. He continued by stating it was not always that way. He stated he saw the value of how the process had evolved under Chairman Rodriguez’ leadership, the individual commissioners and Mr. Blair’s participation. He then stated there were too many people to list individually, but all have been part of a great group who were very committed. He further stated he believed it was a testament to all of those individuals’ work. He continued by stating he and the staff were just a part of that, providing support and guidance when necessary in the intricacies of government to keep the Commission in line within its limits. He thanked all for the great opportunity and ultimately the satisfaction and reward he has had in working with each individual and to be a part of developing a real institution, which going forward, will be a great benefit to the people of the state Florida and he wished all well in the endeavor.

EFFECTIVENESS ASSESSMENT SURVEY RESULTS DISCUSSION

Chairman Browdy stated each year the Commission conducts an Effectiveness Assessment Survey to gauge the Commission’s perspective on a variety of issues. He then stated over the years the survey input had been the basis for many enhancements to the Commission’s procedures.

Mr. Blair conducted a review of the Effectiveness Assessment Survey Results. (See FBC Effectiveness Assessment Survey Results—Annual Compilation 2000-2012, from January 31, 2012 Facilitator’s Report.)

Commissioner Carson stated the relationship with DBPR was clearly somewhat lacking. He asked if there was a strategy in moving forward to raise the issue.

Chairman Browdy stated he believed what was currently happening with the process was it was coming into its organizational structure. He then stated, from his experience since October 14, 2011, had been very collegial. He further stated that DBPR believed the Commission to have been doing a good job. He continued by stating the DBPR also seemed to have more on its plate than it ever thought it would with the consolidation of the other agencies in government. He stated, with respect to the operations of the Commission at the secretary level, DBPR could not be more cooperative at present. He then stated the Department was in the process of a search to replace Rick Dixon and staff had been going through the DBPR process and interviews were currently being conducted. He further stated he was not engaged in those interviews, but Ila Jones and other members of the DBPR were part of an interview committee. He continued by stating throughout the interview process DBPR staff had been very considerate. He stated the experiences the commissioners have had as regulated contractors with DBPR and running through the other aspects of the DBPR program do not seem to be affecting the relationship the Commission has with the DBPR at present.

Commissioner Carson thanked Chairman Browdy for his assessment. He stated he felt better hearing the chairman’s assessment to be as high as it is. He then stated he thought the timing of the report and the changeover may have been reflected in the numbers.

WORKPLAN PRIORITIZATION EXERCISE RESULTS DISCUSSION

Mr. Blair reviewed the results from the 2012 Workplan Prioritization Exercise and answered member’s questions. He stated the commissioners were asked to rank each of the ten (10) key Workplan Tasks on a five-point continuum/scale where a 5 equals the highest level priority and a 1 equals the lowest level priority. He further stated members were asked to rank the priority of each task independently and not in relation to the other tasks. He then stated each of the Workplan Task’s rankings were tallied and arranged in order of highest priority (1) to lowest priority (10). The ranking results ranged from a high of 4.53 to a low of 2.80 out of 5.

UPDATE OF THE COMMISSION WORKPLAN

Mr. Dixon conducted a review of the updated Commission workplan. (See Updated Commission Work Plan January 31, 2012). He stated he would highlight only those areas with a proposed change to the schedule, however when the Commission approves the changes it was also approving the items already approved. He then stated there were three main areas:

Report to the 2013 Legislature

Mr. Dixon stated the item was more administrative in nature and was done annually. He then stated it reflects the revised schedule for the next year’s report since the Commission has already delivered its report from the previous year.

DOJ Certification

Mr. Dixon stated the first major step in the process to seek certification was the public hearing scheduled during the January plenary session. He then stated the item was workplan priority number one. He further stated the adjusted schedule outlines the steps for the implementation of meeting the DOJ requirements for certification.

Termination of the Equivalency of 2010 Energy in Commercial Buildings to the US Department of Energy Designated Standards and Certification to the Department of Energy

Mr. Dixon stated the schedule for the task culminates with any proposed changes for equivalency being done by July 1, 2012. He then stated the task also reflected its approximate completion using a linear metric of 5%.

Commissioner Greiner moved approval of the updated workplan. Commissioner Palacios entered a second to the motion. Vote to approve the workplan was unanimous. Motion carried.

FLORIDA ACCESSIBILITY CODE CERTIFICATION HEARING

Chairman Browdy stated at the December 6, 2011 meeting the Commission voted to initiate the process of seeking certification of the 2010 Florida Accessibility Code for Building Construction (FACBC) by the Department of Justice (DOJ). He further stated the January 2012 hearing was the next step in the certification process and would provide the public an opportunity to provide feedback regarding certification of the FACBC. He continued by stating the purpose for seeking certification of the FACBC was to provide verification that Florida’s Code complies with the Federal requirements. He stated with the adoption of the 2012 Florida Accessibility Code for Building Construction (FACBC) the Commission integrated Florida statutory accessibility requirements with the new Department of Justice (DOJ) Standards for Accessible Design (SAD) based on the Final DOJ Rules 28 CFR 35 and 28 CFR 36 as published in the September 15, 2010 Federal Register. He further stated it was important to understand the hearing was limited to the Commission seeking certification and not specific to any issues within the Code. He continued by stating comments should be limited only to the certification process and whether or not the Commission should seek certification of its Code. He then opened the Certification Hearing noting there would be a court reporter preparing a transcript of the hearing which would be part of the certification package.

Hearing:

Larry Schneider, AIA of Florida

Mr. Schneider stated the architects of Florida were very appreciative of the certification of the Code. He then stated he hoped it would be expedited as quickly as possible. He continued by stating having been involved in the first certification process of the Florida Accessibility Code with the Department of Justice, he hoped the time frame could be cut in half from what the original one took.

Commissioner Carson asked what the schedule was or was it out of the Commission’s hands.

Mr. Dixon stated the schedule was workplan task #11 – priority one. He then stated the discussions with the DOJ would occur, the package would be submitted to the DOJ around March, there would be discussions throughout the year, any revisions necessary to resolve any possible issues the DOJ feels the code was not equivalent to its requirements would be reviewed, discussed and any rule changes necessary would be made throughout 2013 and sometime probably toward the end of 2013, if not sooner, there was an agreement to prioritize the codes that had already been certified.

Mr. Dixon stated a package had to be put together to send to the DOJ. He then stated the first step was the hearing and transcripts of the hearing would be included in the package. He further stated the Accessibility Code would not be printed and available until March, therefore the goal was to have the package prepared when the Code was printed and include a copy in the package. He continued by stating after that it was in the hands of the DOJ to review and determine possible non-equivalencies. He stated the first time it took a couple of years, but DOJ has reviewed Florida’s Law. He further stated the Florida Accessibility Code only deviates from the Federal ADA Standards for Accessible Design. He continued by stating the requirements were actually written into Florida law and there were no modifications by administrative rule. He stated during the 2011 Legislative session some of those requirements were eliminated and then recognized some of the exemptions for vertical accessibility, accessible routes and other terminology already in the ADA standards. He then stated from staff’s perspective there should be no non-equivalencies as most should have been reviewed Florida specific requirements. He further stated staff had been told, off the main channel, the review of the code would be expedited. He continued by stating the problem becomes timing. He explained that changes to the Accessibility Code to address any non-equivalencies require changes to Florida Law. He stated proposals to make changes submitted to the Legislature could add an additional year. He then stated the target was to try to get the response, dialogue and discussions completed by 2012 so it could be addressed in the 2013 Building Code.

The Chair stated since there were no further comments, the hearing was closed and the transcript of the hearing will be included as part of the submittal package to DOJ.

CONSIDER ACCESSIBILITY WAIVER APPLICATIONS

Chairman Browdy directed the Commission to Jack Humburg, along with Leslie Anderson-Adams, the Commission’s legal council, for consideration of the Accessibility Waiver Applications.

Mr. Humburg stated the Council met and there were 7 applications for accessibility waivers. He then stated Ms. Adams had prepared a summary of the waiver requests. He asked her to present the waiver applicants as he did not expect to be at the Commission and was not prepared.

Ms. Adams presented the waiver applications as they appeared in each Commissioner’s files.

Recommended for Approval:

#2 Alan Wasserstein

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the applicant requested deferral to the next Council meeting in March.

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

#3 CHJ Ventures LLC

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the Council recommended deferral until the March Council meeting to allow the applicant to provide the cost of unpermitted construction, and documentation of who did the work and when it occurred.

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

#5 7144 Byron LLC/Ayuda

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the Council unanimously recommended approval based on the demonstration of disproportionate cost.

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

#6 Ransom Everglades School Pool Replacement

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the Council unanimously recommended for approval provided signage is provided indicating the location of the accessible and companion seats.

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

#1 Loews Miami Beach Hotel

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated, by a 3-1 vote, the Council recommended denial.

Steve Bugay, DEMA Architects, Ft. Lauderdale, Representing Loews Hotel, Miami

Mr. Bugay stated each building was approximately 800 square feet. He then stated the buildings were divided into 4 private cabanas. He further stated each of the cabanas was granted an equal amount of space on their roof deck. He continued by stating there was plenty of sunspace, as indicated on the drawing. He stated on the ground level there were multiple levels that are accessible in and around the pool area and in the front area around the sun deck space. He then stated the roof deck was divided into 4 equal spaces for the persons renting the coordinating cabana below; resulting in approximately 183 square feet additional space per each cabana, which could be used as a roof sun deck. He further stated an elevator or lift to a 183 square foot of use was unreasonable, when 25 feet away there was another building that was also private sun deck space, which could be considered a better space because that deck space has restroom facilities, which were not part of the cabana rooftop experience. He continued by stating the cabanas are air-conditioned, have their own walk-in showers, private bathroom, TV area and the private space in front of the cabana. He stated the hotel was planning to invite anyone who rents a cabana to also use the existing rooftop sundeck, which was approximately 8000 square feet and has bathroom facilities.

Chairman Browdy asked for comments from Mr. Humburg regarding the Council’s recommendation.

Mr. Humburg stated the Council was split on its decision relative to the application with 2 in favor of approval and 2 for denial. He then stated he believed the 2 who were in favor of denial felt the 1.5 million dollar project of new construction, and the intent of Florida Law indicating was the level should be accessible. He continued by stating a sundeck across the way was not the same as being able to rent a private cabana with access to all the amenities inside the cabana as well as the rooftop sundeck an able-bodied person would have access to.

Commissioner Franco asked for clarification if he rented one of the cabanas he would also be given access to a shaded area on the roof of the cabana.

Mr. Humberg stated he believed that was correct.

Mr. Bugay offered clarification stating in the rendering there were a couple of U-shaped items that were removed. He stated the roof deck was now just a flat roof; there was no longer shading on the roof deck areas.

Commissioner Franco asked if he rented the bottom level he would also have access to the top level.

Mr. Bugay stated that was correct. He then stated there was 183 square feet above the unit on the roof; included with the unit and the space would be shared with four other individuals.

Commissioner Franco stated he was kind of confused as to why the applicant thought having an elevator in a beach area and the maintenance would present some sort of hardship when the applicant owned that amount of real estate and it would obviously be a part of the maintenance of the entire facility.

Commissioner Scherer stated the applicant referenced an equivalent facility with a similar type sundeck. He asked how old the equivalent facility was or if it was part of the new construction.

Mr. Bugay answered stating it was the older facility. He then stated the only new part of the facility was the one-story cabanas, roof level, about 12 feet above grade.

Commissioner Carson stated he had heard one of the reasons for the request was due to the maintenance of the equipment. He asked for clarification whether that was true. He then stated he had been on the Commission for some time and had not previously heard of that as a reason, nor did he believe it was a valid reason to grant any kind of waiver.

Mr. Bugay stated that was not one of the reasons listed on the application. He then stated the first reason was for equivalent facilitation, which were unnecessary and unreasonable. He continued by stating the 2^nd issue was based on the FBC11-4.1.3, 5, exception 1, which states “elevator does not have to be provided if a building has less than three stories or less than 3,000 square feet per floor.” He then stated for part of the application the Miami Beach Building Department had provided a recommendation to the Council the waiver be granted based on that particular code item.

Commissioner Gregory asked if there were any other private cabanas that can be utilized other than the proposed eight.

Mr. Bugay responded stating there were ten structured cabanas on the opposite side of the property. He stated the drawings submitted show the accessible sun deck area, along with roof and terrace areas on the backside of the hotel, total approximately 50,000 square feet. He then stated the cabanas themselves were around 1600 square feet. He further stated there was a pair of cabanas on the backside of the hotel that were new. He stated there were cabanas like those on the southern side, but they were being replaced with the new ones.

Commissioner Gregory asked what the reason was for the private sunbathing on the roofs of the cabanas. He stated the pictures show the occupant would have to share that space. He asked what the difference was in laying on the deck level as opposed going 9 feet up to sunbathe.

Mr. Bugay responded stating there was not any other than actually going up to do so. He stated during the wintertime they need as much sun deck as possible. He then stated instead of just putting pointy roofs on top of the buildings, they were given the option of additional sun deck area.

Commissioner Gregory asked if someone were trying to get to the second level they would be disadvantaged because they would be crowded into the lower level.

Mr. Bugay responded stating the whole area was private just for them.

Commissioner Gross stated the 3,000 feet exemption did not apply in this instance because the Florida statute states all levels shall be accessible. He further stated the exemption supersedes the 3,000 feet, which was carried over from the Federal Requirement.

Commissioner Nicholson stated he agreed with Commissioner Carson. He then stated he did not see any reason the applicant couldn’t provide accessibility for the cabanas. He further stated there was no evidence of financial hardship.

Mr. Bugay stated the argument was not financial hardship.

Chairman Browdy told Mr. Bugay he appreciated his comments. He then stated the Commission had heard the reasons for requesting the waiver: 1) the square footage and 2) equivalent facilitation.

Commissioner Scherer asked if the motion was denied would all of the structures have to be accessible or just a certain percentage for the second floor decks.

Chairman Browdy responded stating if the motion was denied all structures would have to be accessible.

Commissioner Nicholson moved approval to deny the waiver. Commissioner Gregory entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Bugay stated as an architect he was confused about the Building Code, which reflects the ADAAG as well as the Florida Architectural Removal Compliance Manual. He then stated all indicate under new construction vertical accessibility shall be required to all levels, with the exceptions and then the exceptions are listed.

Chairman Browdy stated Mr. Bugay might want to meet with Commissioner Gross who can be specific to those exceptions that may apply but were not cited in the application for the waiver. He then stated from the Commission’s perspective the issue had been handled. He further stated he did not know if there were any appeal processes available to the Commission.

Ms. Adams stated a final order reflecting the Commission’s decision would be entered within the next few weeks and both the applicant and local building official would receive a copy of the order. She then stated, attached to the order, there would be a notice appeal rights that would explain how to appeal the decision if the applicant disagreed with the decision.

Mr. Bugay stated there would be no appeal. He then stated as an architect the Building Code was used to facilitate what was designed and how it was designed. He further stated when it was confusing, as it was, even having had the Miami Building Department use the same code the application cited, and approved it based on that Code. He continued by stating the building code official wanted the applicant to come before the Commission. He reiterated he believed there was confusion in the Code for people like himself who had to use it. He stated that was the only grievance he had of going through the process. He then stated if it was clear such as “with the exception of” listed there.

Chairman Browdy stated the Commission plenary session was not the forum to argue that part of the Code. He then stated it was prior to discussion and decision of the Commission. He restated the applicant could speak to Commissioner Gross or staff, Mr. Madani specifically, to answer his questions regarding the Code, what aspects were confusing and the various remedies available under Florida law to take issues for interpretation and to better understand the aspects of designing in accordance with Florida law. He thanked the applicant and stated he appreciated his appearing before the Commission.

#4 Trinity Catholic High School

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the Council recommended denial based on the size of the facility.

Mr. Humburg stated those Council members who recommended denial felt because it was new construction of a pressbox, roughly 900 square feet. He then stated the Council also looked, because it was a pressbox, the current code does not specifically address the issue, but the new code does. He further stated the new code will become effective in March 2012 and after March 15, the applicant would not be able to get a waiver of this because the new code will state the applicant has to provide accessibility if the area was over 500 square feet to a pressbox. He stated the pressbox in discussion was almost twice that size.

Ms. Adams stated she forgot to mention the hardship presented was based on the cost.

Commissioner Nicholson moved approval to deny the waiver. Commissioner Greiner entered a second to the motion.

Commissioner Gregory asked if a permit had been applied for and approved or if it was still in the permitting process.

Ms. Adams responded stating on the application it indicates “under design”.

Commissioner Palacios stated if the applicant has applied for a permit it was unfair to look forward to what the future code would say and try to deny an application because of the future code. He then stated before new codes were issued everyone hurries up to get things applied for and built under the old code.

Commissioner Schock stated he believed even under the current code it would not qualify for the waiver because it is open to ten people. He then stated although the applicant stated it was not open to the public, unless those were the same ten people every time and there has to be less then 5 people because that would be the only way it would qualify.

Mr. Madani stated if it has to deal with an application that has been submitted currently, the recommendation should be based on the existing code.

Vote to approve the motion was unanimous. Motion carried.

AIA Burrito Works

Ms. Adams explained the petitioner’s request for waiver as it was described in each Commissioner’s files. She stated the Council recommended deferral until the Council meeting in March for further action after the applicant obtains additional information at the request of the Council, which included photos, height of the deck, and a description of what other accessible accommodations are provided for disabled patrons.

Nicolas Kimball, Owner, AIA Burrito Works

Mr. Kimball stated through a comedy of errors there was a teleconference meeting with no call in numbers provided to interested parties. He then stated all of his communication with Mary Katherine Smith was sent to a Nicholas Kimball with an “H” and he had no “H” in his name. He further stated when he finally did get the number and linked in the call was ending. He continued by stating the next Council meeting was in 90 days and he was trying to put people back to work. He stated he had submitted all of the information he felt was required for the application. He then stated he had everything the Council had requested from him including the photographs of the existing site, front elevation, and all costs associated with an addition to his building. He further stated his request was for approval and not deferral because an impediment had been created.

Commissioner Nicholson stated staff had requested the information and he appreciated the applicant bringing it to the meeting, but he did not see how staff could review it during the Commission meeting. He then stated he agreed with the Council and there should be a deferral until its next Council meeting.

Mr. Humburg stated he echoed Ms. Adams’ comments. He then stated there was a need for more information and the applicant was not in on the call. He further stated there were some problems with the phone number not being on the actual agenda, but on the website, therefore there were some communication problems.

Commissioner Greiner moved approval of deferral of the application until the March Council meeting. Commissioner Nicholson entered a second to the motion.

Mr. Kimball stated there was a $10,000.00 impedance being created due to inefficiencies in the Accessibility department at the state. He then stated his issue was the creation of additional costs because there was lack of communication on his behalf and he was incurring the costs.

Chairman Browdy stated he understood and he appreciated the applicant’s argument and the issues as it relates to the marketing and the opening of his business. He then stated the recommendation of the Accessibility Waiver Council was to defer, which does not deny, and gives the opportunity to the applicant to return with the needed information; unless there was an amendment to the motion to defer. He further stated such a motion could create an opportunity for an approval prior to the next Council meeting, subject to some confirmation the information requested was suitable.

Ms. Adams stated she thought that could be done, but it does delegate quite a bit of responsibility for evaluating the information to staff that was more within the prevue of the Commission. She then stated she did not believe there was any legal impediment for the Commission if they wish to consider the additional information, evaluate and make a decision during the current plenary session.

Commissioner Schulte asked what additional information had the council requested.

Ms. Adams responded stating the Council was unable to determine the height of the deck, therefore they could not determine if it was feasible to ramp it as opposed to using an elevator. She then stated the Council was not sure if dining would be offered both on the deck and below the deck; and if not below the deck would there be any other outdoor accommodation for people with disabilities to dine outdoors if they wanted to.

Commissioner Carson asked for clarification that the reason the communication did not take place was by no fault of the applicant, but was, by some quirk in the communication system on that day.

Ms. Adams responded stating she believed it was a perfect storm scenario.

Commissioner Carson stated he would tend to be a lot more accommodating if it were on the Council or Commission the applicant did not have the opportunity to provide the information.

Ms. Adams stated it was her understanding the call-in telephone number was available on some of the agendas posted on the website but not others.

Mr. Kimball stated the link that was provided for all of the applicants was not on the agenda he had; in addition, as he previously mentioned, all communication between himself and Ms. Smith was delayed due to spelling error of his last name.

Commissioner Gregory asked if it was possible to take the applicant’s material, review it while the Commission was present, and give the Commission a quick assessment if it was possible to have the waiver approved to help the applicant.

Chairman Browdy stated a decision could be made based on any information, but from a statutory point of view typically the Commission relies on an advisory opinion from the Waiver Council to weigh the decision. He then stated whatever information the Waiver Council had was insufficient to make a decision.

Commissioner Scherer stated he understood some of the issues with conference calls, as he had also been a victim of trying to call in without the correct information. He then asked if the Commission had the knowledge to make the determination without a new recommendation from Council. He stated the Commission had made a determination previously on the agenda when there had been a split decision of the Council. He further stated he believed there should be enough knowledge on the board to take the additional information, 2 questions, and say yes or no.

Chairman Browdy stated legal council has stated the Commission has the right to do so even with no recommendation from the Council. He continued by stating the Commission can make a decision based on the information available now that was not available then if the Commission chooses to do so.

Commissioner Smith asked if the commissioners would be able to review the additional information, to review it and make a decision.

Ms. Adams responded stating yes, she had asked the applicant to make copies and bring them to the meeting.

Commissioner Greiner withdrew his motion to defer.

Chairman Browdy stated there was no motion on the floor and the Commission would now hear the additional information the applicant wished to provide.

Mr. Kimball stated ramping was looked into as an option. He then stated the slope was one inch every foot. He further stated the minimum for ceiling height as reflected in the Florida Building Code is over 8 feet.

Commissioner Greiner asked the chairman and counsel to make sure the applicant understood with the Commission reviewing the information there was a possibility of denial and not deferral.

Mr. Blair stated there were two questions to be answered: whether there was equivalent accommodation and how high the deck was and if it was and whether a ramp or alternative was necessary.

Mr. Humburg stated the Council did not have drawings, pictures or deck height that was why the recommendation had been for deferral. He then stated having given a quick look he was still not certain how high the deck was.

Mr. Blair stated deck was 14 feet high.

Chairman Browdy stated it was a split deck. He asked what was the lowest level of elevation.

Commissioner Franco stated the lowest elevation was 10ft 6in.

Chairman Browdy stated he would suggest a ramp was unreasonable, given the elevation heights.

Mr. Humburg stated with the given the total cost of the project and the estimates given he believed there was a demonstration of disproportionate cost based on the numbers provided.

Commissioner Schock asked if the applicant had a signed contract for the construction to verify the cost.

Mr. Kimball responded stating he did and had submitted a cost estimate. He then stated it was hard to pin someone down, because if the waiver was not approved the plans would change.

Commissioner Schock asked if that were for only the interior renovation.

Mr. Kimball responded no, the estimate was for the whole project. He stated some of the materials he was getting were reclaimed. He then stated the business was in a redevelopment zone.

Commissioner Schock stated his concern was in looking at the construction documents he would feel better if he saw a signed document indicating the project could be done at the cost shown.

Mr. Kimball stated he could provide that when collecting the permit.

Commissioner Franco stated in reviewing the information it appears there would be construction in both levels. He then stated there seemed to be two bars, but he did not see any cost for the bars listed in the application. He further stated it appeared to be more than a deck as there was a roof

Mr. Kimball stated it did have a rafter and pulley system.

Commissioner Franco stated he was going to a guess and assume a real good friend would be doing the renovation because he did not see how the applicant could have the work done for that amount. He then stated regardless of the cost, the fact was there was a lot happening on the second floor than just observation, including a full bar.

Mr. Kimball stated there was a full bar on the lower level as well.

Commissioner Franco stated the people who would like to go upstairs to share time with all of the patrons up there would not be able to because there would be no access and that was not fair.

Mr. Kimball stated it would be impossible, as it would take a 160 foot ramp in order to provide access. He then stated the estimates for the elevators did not include the cost for building a shaft.

Chairman Browdy stated the discussion would now be limited to the Commission and the applicant would be able to answer any questions any commissioner had for him.

Commissioner Carson stated it appears, from the photos, the building had been for some other use prior to the proposal. He asked if there was a second level in the existing building that could be tied into the deck.

Mr. Kimball stated the construction was an addition onto the existing structure.

Commissioner Carson asked if the second and first floors of the building were connected in any way, shape, or form.

Mr. Kimball stated there was no second story to the building as it has 18-foot ceilings. He then stated the building, constructed in the 20’s, had been many things.

Commissioner Schock stated he had concern with the proof of disproportionate cost. He asked, if the waiver was approved due to disproportionate cost, contingent on a signed and executed contract being submitted.

Ms. Adams stated it seemed as though it was a yes or no type of determination that could probably be delegated to staff, but she was not sure if she was failing to see some complications in doing so.

Mr. Dixon stated he believed what was being referred to was the disproportionate cost. He then stated it was mandatory waivers were to be granted if disproportionate cost were proven. He further stated the law generally speaks to unnecessary and unreasonable hardship as the justification for waivers. He continued by stating in the Commission’s determination meeting the Florida specific requirement for vertical accessibility to the deck was an unreasonable hardship that would be the reason for the waiver.

Commissioner Franco stated he had done some more calculations on the project. He then stated the addition was claimed to be 42 x 18, which was about 750 square feet, but the area on the drawing the commissioners were handed to review was actually 1,500 square feet plus the two staircases of approximately 100 square feet each makes the addition approximately 1,700 square feet. He further stated it was two stories therefore the total was approximately 3,400 square feet. He continued by stating if $6,000.00 was the cost of construction for the addition it would be less than $20.00 per square foot. He stated he did not think that was unreasonable for the Commission to accept.

Commissioner Nicholson stated he was in agreement with Commissioners Franco and Schock. He then stated he did not agree with the costs at all and did not believe they were based on what was going to happen. He further stated, after hearing Commissioner Franco’s calculations, based on the drawings, he did not believe they were relevant to what was going on, nor did he believe the elevator cost would be $100,000.00.

Commissioner Nicholson moved approval to deny the waiver, based on the information the applicant has provided. Commissioner Schock entered a second to the motion. Vote to approve the motion resulted in 11 in favor, 6 opposed. (Nicholson, Scherer, Smith, Schock, Franco and, Gross) Motion carried.

CONSIDER APPLICATIONS FOR PRODUCT AND ENTITY APPROVAL

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

Commissioner Carson stated the following 6 entities were recommended for approval by the POC:

QUA9495 - Benchmark Holdings, L.L.C.

TST1685 - Construction Consulting Laboratory International

TST1910 - Architectural Testing, Inc. – Texas

TST2609 - Architectural Testing, Inc. – California

TST4671 - Atlantic & Caribbean Roof Consulting, LLC

TST6485 - ENCON Technology, Inc