STATE OF FLORIDA
BUILDING COMMISSION
In the Matter of
PINCH A PENNY, INC., DS 2012-038
Petitioner.
_________________________/
DECLARATORY STATEMENT
The foregoing proceeding came before the Florida Building Commission (Commission) by a Petition from John C. Thomas, President/CEO of Pinch A Penny, Inc. (Petitioner), which was received April 25, 2012, and amended May 4, 2012. Based on the statements in the petition, the material subsequently submitted and the subsequent request by the Petitioner, it is hereby ORDERED:
Findings of Fact
1. The petition is filed pursuant to, and must conform to the requirements of Rule 28-105.002, Florida Administrative Code (F.A.C.).
2. Petitioner, a Florida licensed swimming pool contractor, is President/CEO of Pinch A Penny, Inc., a franchise swimming pool system company.
3. Petitioner has two customers with similar issues. One customer has a one (1) horsepower pump that is not operating due to a broken motor that needs to be replaced (Issue 1). Another customer has a one (1) horsepower pump that is not operating, cannot be repaired and must be replaced entirely (Issue 2).
4. Petitioner seeks clarification of Chapters 2, 3, 4, 5 and 6 of the Florida Building Code, Existing Building (2010) to determine if Issue 1 and Issue 2 are "repairs" or "Level 1 alterations" to determine which chapters should be applied and how to correctly apply them.
5. Petitioner requests answers to the following questions:
(1) Using the Work Area Compliance method, is the replacement of a 1horsepower residential swimming pool motor with a new 1 horsepower motor a "repair" as defined in Chapter 2, or is it a "level 1 Alteration" as outlined in Chapter 4?
(2) Using Work Area Compliance method, as stated in Section 502.2, like materials shall be permitted for repairs and alterations, provided no dangerous or unsafe condition is created. Does the replacement of a swimming pool motor of the same horsepower or lesser horsepower create a dangerous or unsafe condition?
(3) Using the Work Area Compliance method, is the replacement of a 1horsepower pump valued at $2,000 on a residential swimming pool with an assessed value of $10,000 deemed a minor replacement of materials as defined by Section 202? If no, then what numerical percentage should be used when trying to determine if the replacement materials (pump) is minor? Or, is replacing a residential swimming pool pump not deemed a repair of the swimming pool and therefore must be considered a Level 1 Alteration without exception?
(4) Using the Prescriptive Compliance method under Chapter 3, is the replacement of a 1 horsepower motor with a new1 horsepower motor on an existing residential swimming pool a "repair" to the swimming pool or is it an "Alteration" as defined in Chapter 2?
(5) Using the Prescriptive Compliance method under Chapter 3, is the replacement of a 1 horsepower pump with a new1 horsepower pump on an existing residential swimming pool a "repair" to the swimming pool or is it an "Alteration" as defined in Chapter 2?
(6) Using the Prescriptive Compliance method, is the replacement of a pump or pump-motor on an existing residential swimming pool an ordinary repair as defined by Section 304.1exempt from permit in accordance with Section 105.2?
(7) Using the Prescriptive Compliance method, when repairing the swimming pool by replacing a 1 horsepower motor or pump with a new 1 horsepower motor or pump (like for like), and with no other changes or repairs being made, is a "dangerous condition" being created?
6. Questions 1, 2 and 4 apply to Issue 1. Questions 3 and 5 apply to Issue 2. Questions 6
and 7 apply to both Issue 1and 2.
Conclusions of Law
7. The Florida Building Commission has the specific statutory authority to interpret the provisions of the Florida Building Code by entering a declaratory statement.
8. In response to Petitioner’s questions 1, 2, and 4, related to Issue 1, the answers are as follows:
(1) According to Section 402 of the Florida Building Code, Existing Building, (2010) (the Code) the level of work in question falls under classification of work "repair" and level of work as per Chapter 5 of the Code.
(2) According to Section 502.2 of the Code, only like materials are permitted for repair; therefore, for the project in question, only a swimming pool motor of the same horsepower is permitted. Replacement of the motor with a comparable product in accordance with the approved manufacturer installation instructions and the applicable codes would not create a dangerous or unsafe condition as defined in Section 202 of the Code.
(4) According to Section 301.2.2 of the Code, the level of work in
question is permitted under both "repair" and "alteration",
provided no hazard to life, health or property is created.
9. In response to Petitioner’s questions 3 and 5, related to Issue 2, the answers are as follows:
(3) No, it
is not a minor replacement of materials as defined by Section 105.2.2, Florida
Building Code, Building (2010).
According to Section 403.1 of the Code, the classification of work for
the project in question is "Alteration – Level 1," which also falls
within the scope of Section 613.1, Exception #4 of the Code. Additionally, a numerical percentage approach is not addressed within the Code for the
determination of whether replacement of materials (pump) is minor.
(5) According to Section 301.2.2 of the Code, the level of work in
question is permitted under both "repair" and "alteration",
provided no hazard to life, health or property is created.
10. In response to Petitioner’s questions 6 and 7, related to both Issue 1 and Issue 2, the answers are as follows:
(6) According to Section 105.2 of the
Florida Building Code, Building, (2010) ordinary repairs may be made with the
approval of the building official without a permit as long as replacement of
the pump motor does not alter the pump approval or make the pump unsafe. With regard to replacement of the pump, see
answers to the applicable questions as stated above.
(7) Replacement of a one (1) horsepower
motor or pump with comparable products in accordance with the approved
manufacturer installation instructions and the applicable codes would deem said
replacement in compliance with the Code.
DONE AND ORDERED this _____ day of ______________, 2012 in Jacksonville, Duval County, State of Florida.
______________________________
RICHARD S. BROWDY
Chair, Florida Building Commission
NOTICE OF RIGHT TO
APPEAL
Petitioner and all other interested
parties are hereby advised of their right to seek judicial review of this
Order in accordance with Section 120.68(2)(a), Florida Statutes, and Florida
Rules of Appellate Procedure 9.110(a) and 9.030(b)(1)(C). To initiate an appeal, a Notice of Appeal
must be filed with Agency Clerk, Department of Business and Professional
Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-1000 and with
the appropriate District Court of Appeal not later than thirty (30) days after
this Order is filed with the Clerk of the Department of Business and
Professional Regulation. A Notice of
Appeal filed with the District Court of Appeal shall be accompanied by the filing
fee specified by Section 35.22(3), Florida Statutes.
CERTIFICATE OF
FILING AND SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order has been filed with the undersigned and furnished by U.S. mail to the persons listed below this____ day of ____________________, 2012.
___________________________________
Agency Clerk’s Office
Department of Business and Professional Regulation
& Florida Building Commission
1940 North Monroe Street
Tallahassee, Florida 32399‑1000
Via U.S. Mail Via
Inter-Office or Email Delivery
John C. Thomas, President/CEO Mo Madani, C.B.O. Manager
Pinch A Penny, Inc. Codes and Standards Section
6385 150th
Avenue North Department of Business and Professional
Clearwater, Florida 33760 Regulation
1940
North Monroe Street
Tallahassee,
Florida 32399
Brian Moore
Joint Administrative Procedures Committee
Pepper Building, Room 680
Tallahassee, FL 32399-1300