FLORIDA BUILDING COMMISSION

WELCOME

Chairman Rodriguez welcomed the Commission, staff and the public to Tampa for the October 2009 plenary session which would be conducted in a single day meeting. He stated the primary focus of the meeting would be to conduct rule development initiatives on Rule 9B-72.130, Product Approval and to select the foundation codes for the 2010 Florida Building Code Update. He further stated members of the public who wished to speak should sign in on the attendance sheet at the speakers table. He stated there was also a sign in sheet for public comment. He then conducted a roll call of commissioners.

Chairman Rodriguez recognized the following retiring Commissioners: Bill Norkunas, Matt Carlton and Paul Kidwell. He stated Bill Norkunas had served from June 15, 2005 through June 10, 2009 representing persons with disabilities. He then stated Matt Carlton had served as a representative of general contractors from August 30, 2007 until June 10, 2009. He expressed appreciation for both Commissioners’ years of service. He further stated both would receive a plaque by mail recognizing their years of service.

Chairman Rodriguez then presented Paul Kidwell with a plaque recognizing his years of service from February 20, 2002 through June 10, 2009. He stated Commissioner Kidwell was one of the statesmen of the Commission. He further stated he was very instrumental in assisting the Commission in developing consensus on thorny issues such as the interior designers’ being listed in the Code. He thanked Mr. Kidwell for his years of service.

Mr. Kidwell thanked Chairman Rodriguez. He stated he had enjoyed his time with the Commission. He then stated he was a limits kind of guy and when two terms ended he decided it had been enough. He continued by stating each Commissioner represents specific special interest groups. He further stated while it was part of the Commissioners’ job to preserve the interests of his special interest group, at the end of the day the Commission serves the citizens of the state of Florida. He stated when those thorny issues arise and a decision must be made, either in the interest of the citizens or the special interest group, he hoped the Commissioners would consider that and cast their vote the appropriate way.

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. Commissioner Greiner entered a second to the motion.

Commissioner Browdy asked if it would be possible to add a brief discussion relative to the septic tank sizing workgroup and get and an updated report on the project.

Vote to approve the motion as amended was unanimous. Motion carried.

REVIEW AND APPROVE AUGUST 11, 2009 MEETING MINUTES AND FACILITATOR’S REPORT

Chairman Rodriguez called for approval of the minutes from the June meeting minutes and Facilitator’s Report.

Commissioner Stone stated he wanted to note the audio had apparently failed during the meeting and not all of the minutes were recorded.

Mr. Dixon explained staff had been working with the new audio contractor and there would be an updated version of the audio available.

Commissioner Gregory moved approval of the minutes and Facilitator’s Report from the August Commission meeting. Commissioner Vann entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CHAIR’S DISCUSSION ISSUES AND RECOMMENDATIONS

Chairman Rodriguez announced the following appointments to the TACs and workgroups:

AccessibilityTAC

Chris Mazul and J.W. Longman

Code Administration TAC

Commissioner Nicholson

Plumbing TAC

Mike Robbins

Window/Wall Workgroup

Peter Helton was appointed and Dave Olmstead rotated off the Window/Wall Workgroup.

REVIEW AND UPDATE OF COMMISSION WORKPLAN

Mr. Dixon conducted a review of the updated Commission workplan. (See Updated Commission Workplan October 2009).

Mr. Dixon stated there were updates to dates within the workplan. He then stated there would be a discussion later in the meeting relative to the proposed development schedule for the 2010 Florida Building Code. He further stated the schedule would be added into the workplan after the discussion.

Commissioner Vann moved approval of the updated workplan. Commissioner Tolbert 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 Jack Humberg for consideration of the Accessibility Waiver Applications. He introduced the Commission to Marlene Sterno who will be serving as legal counsel for the Commission for the accessibility waiver process.

Mr. Humberg 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:

#4 Italia Villa Hotel

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on the applicant’s demonstration of extreme hardship and the negative impact to the historic character of the building.

#6 Orange Bowl Field at Moore Park

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval due to technical infeasibility.

#8 Miami Mar, Inc.

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on disproportionate cost.

#11 1100 N. Olive Avenue

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on disproportionate cost.

#12 Blossom House Alterations

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on disproportionate cost.

#13 State College of Florida

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on disproportionate cost.

#14 Michelle Hazen

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval to amend action previously taken and grant the waiver based on disproportionate cost.

#15 Dino Laudati Salon

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on disproportionate cost.

#16 Congo River Golf

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on unnecessary and extreme hardship.

#17 University of South Florida

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval provided stairs are built that would accommodate installation of a lift at a later date.

#20 Gallop’s Karate School

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval based on extreme hardship.

Commissioner Greiner moved approval of the Council’s recommendations for approval of the consent agenda for items 4, 6, 8, 11, 12, 13, 14, 15, 16, 17 and 20. Commissioner Tolbert entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Approval with Conditions:

# 1 Urbana Retail

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval of amending the action previously taken and add the following three conditions: 1) Provide an extra parking position in the parking lot, 2) Work with city in developing additional parking spaces on the street, and 3) Installation of an elevator if a medical office was included in the complex.

Commissioner Carson moved approval of the Council’s recommendation. Commissioner Greiner entered a second to the motion.

Mr. Richmond stated to keep proper procedural posture there needed to be motion to amend action previously taken to improve the conditions recited by the chairman of the Council.

Commissioner Greiner moved approval to amend action previously taken. Carson entered a second to the motion.

Larry Schneider, Architect, Accessibility Consultants

Mr. Schneider stated he remembered the issue with the medical facility was not an elevator but additional parking to be provided based on a medical provider moving into the space.

Mr. Humberg stated he had misspoken and Mr. Schneider was correct. He further stated there was a concern for additional parking for a medical office if it met the criteria.

Chairman Rodriguez asked what had been the Council’s recommendation.

Mr. Humberg restated the recommendation of the Council was to add three conditions: 1) Provide an extra parking position in the parking lot, 2) Work with city in developing additional parking spaces on the street, and 3) Meet the parking requirements if a medical office was to be included.

Chairman Rodriguez asked Mr. Schneider if that was correct.

Mr. Schneider responded stating it was correct.

Commissioner Gregory moved approval of Council’s recommendation.

Commissioner Greiner entered a second for discussion

Commissioner Greiner asked Mr. Humberg, since an elevator was mentioned, was there any discussion with respect to an elevator.

Mr. Humberg stated the issue was with vertical accessibility to the second level of the parking structure. He further stated parking at the site was very limited on grade and parking was provided on the second level above the strip center. He stated there had been considerable discussion relative to providing vertical accessibility to the second level for parking. He then stated it did not meet the requirement for an elevator.

Commissioner Greiner asked if both levels of the parking structure had vertical accessibility via the parking structure.

Mr. Schneider stated the building has an L-shape and parking was actually on top of the building. He further stated in reviewing both the Building Code and the Accessibility Code an accessible route was required for accessible elements. He stated a parking lot, by definition, was not an occupiable space. He continued by stating the waiver was for granting vertical accessibility to the parking on top of the building. He further stated a waiver was granted at the last meeting and the conditions were part of the Council’s recommendation but were not mentioned to the Commission. He stated the reason the waiver was before the Commission at this point was to have those conditions be part of what was originally proposed.

Vote to approve the motion was unanimous. Motion carried.

#18 Palm Beach Iceworks

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council unanimously recommended approval with the condition a minimum of two additional accessible seats are provided on the first level.

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

Dismissals

#3 Dick Brown Park

#19 South Walton Montessori Academy

Mr. Humberg stated neither applicant had provided enough information nor was there a representative present at the meeting. He stated Council recommended dismissal without prejudice to allow the applicants to resubmit.

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

#10 US Foodservice

Mr. Humberg stated the application for waiver was dismissed due to lack of jurisdiction. He then stated Council did not feel it had the authority to grant the waiver being requested.

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

Denial

#2 Winter Haven Fire Safety Complex

Mr. Humberg stated at the last meeting there was considerable discussion relative to fire stations and the use of the Uniform Federal Accessibility Standards in providing accessibility to the dormitories on the second floor. He further stated two letters from the Department of Justice which were over a decade old were discussed. He continued by stating the letters were vague in terms of the position of requiring vertical accessibility. He then stated since the last meeting a new letter, dated July 2, 2009, which stated very clearly the Department of Justice felt even with the use of UFAS in a fire station vertical accessibility was required. He concluded by stating the Council recommended denial of the waiver based on the position of the Department of Justice.

Commissioner Greiner moved approval of the Council’s recommendation and he requested the Commission obtain a copy of the letter from the Department of Justice. Commissioner Palacios entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Commissioner Vann asked if the letter from the Department of Justice was from an attorney for the Department of Justice or if there was consensus reached when a letter is written.

Mr. Dixon responded by stating, historically when the Department of Justice sends a policy statement in writing the policy letter was essentially an interpretation that has the force of a rule. He then stated the letter would have a binding effect, not advisory only.

Vote to approve the motion resulted in 23 in favor, 1 opposed (Goodloe). Motion carried.

Denial

#7 Marquis

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended denial based on lack of hardship.

Jennifer Simpson Oliver,

Manny Timana, Architect for project

Commissioner Scherer stated he had a conflict with the application and stated he had to abstain from the vote.

Ms. Oliver stated she wanted to review the timeline of events for the project and distributed a handout of the timeline to each of the commissioners. (Please see handout (Timeline of Events, Marquis, 1100 Biscayne Blvd., Miami, FL 33127, submitted to Florida Building Commission in consideration for ADA Waiver October 13, 2009).

Ms. Oliver stated the plunge pool, also called an ambient pool, provides a cool sensation after a hot sensation, such as a hot sauna or whirlpool. She then stated to their knowledge it was the first of its kind in Miami and possibly in the state of Florida. She stated it was common in spas across the U.S. but not in Florida previously. She continued by stating the design was made on the 12^th floor. She stated it could not be made at ground level due to the post tension area. She further stated because it could be not be made at ground level and because it was a novel concept the plans were specifically described to the plan reviewer for the city of Miami at that time. She stated the plans for reasonable accommodations were also reviewed with the plans reviewer at that time. She continued by stating those accommodations included a pull shower which required pulling a lever to dispense cold water creating the same sensation as a plunge pool. She then stated there was a portable lift accessible or manual assistance could be used for the two plunge pools in the area.

Ms. Oliver stated there was another plunge pool, hot/cold experience, on the 14^th floor which was the pool deck and was completely accessible. She then stated, for the record, the entire project was fully accessible except for this one area, which was potentially issue and was brought up with the plan reviewer at the time in October of 2006. She stated with the reasonable accommodations made the plan reviewer approved the full plan and construction resumed. She continued by stating inspections began in January of 2009 and continued through June when the temporary CO process was begun. She stated at that time the field building inspector reviewed the area, saw what had been built and, for the first time brought up an issue with the accessibility to the plunge pools on the 12^th floor. She further stated although it was described and explained to him that the approval had been given previously he had an issue with it. She continued by stating at that point the Marquis began the process of talking with the Department of Justice and getting on the schedule to appear before the Advisory Council. She then stated there was also a tabbed page in the packet that was part of the application submitted for approval. She stated it was from a building official from the city of Miami who recommended approval of the accommodations of the plans of the building which was now complete. She continued by stating the case was presented to the Advisory Council, which did not agree and did not approve the waiver.

Ms. Oliver further stated due to the reliance on the plan review process and approval the construction resumed and was completed. She restated only when the temporary CO process was begun was it stated the accommodations would not be enough and a waiver was required. She stated the Florida Administrative Code stated the Commission may waive the requirement if it caused any unnecessary, unreasonable or extreme hardship. She then stated the hardship was not a condition that affected other owners, as it was new to the area. She continued by stating there would be a substantial financial cost would be incurred. She also stated there were photos attached, which were not available at the Advisory Council meeting, she stated the photos showed what had been laid out and completed and Mr. Timana would review those with the Commission. She concluded by stating the estimated cost for changing the areas where the plunge pools were could be approximately $200,000 each side for each pool, i.e. $400,000. She stated the owner had made a diligent investigation into not only compliance with the codes and regulations, but also the financial cost as well. She stated now the building was complete and going on the previous approval puts the Marquis between a rock and a hard place, which was why the case was brought to the Commission.

Chairman Rodriguez stated the sheet marked with the green tab by Mariano Fernandez was not dated. He asked when the date was.

Ms. Oliver responded by stating it was here understanding it was signed when the application was submitted in July 2009.

Chairman Rodriguez stated according to the timeline when it was originally submitted it was not approved, which was why it came to Council and then the Commission.

Ms. Oliver stated there was a discrepancy. She explained the field inspector stated he thought it should appear before the Advisory Council and the Commission.

Chairman Rodriguez asked if Mariano Fernandez was the building official who approved the plans in 2006.

Mr. Timana stated it was Tanziger??.

Chairman Rodriguez stated he was not the one on sight who recommended it go before the Advisory Council.

Mr. Timana stated he did perform a site visit and saw the conditions.

Chairman Rodriguez asked for clarification if he was someone else from the city who had been contacted.

Mr. Timana stated he was the building official whose field inspector brought it to his attention. He then stated after it was brought to the official’s attention the applicant began the process of researching the Code and indicated the proper procedures as far as plan reviewing were followed.

Chairman Rodriguez stated it should have been dated as most signed documents were dated. He then asked if Sergio Bakas was the architect of record.

Mr. Timana stated yes.

Chairman Rodriguez asked Mr. Timana if he worked for Mr. Bakas.

Mr. Timana stated he did.

Commissioner Greiner asked Mr. Humberg to discuss the Council’s deliberations.

Mr. Humberg stated the Council considered the accommodations as described i.e. the shower which was not equivalent or the other option of going to another floor for the experience, but had a whole different environment. He further stated one floor had separate men and women areas and the other was more like public pool area where a similar experience could be found. He then stated the dilemma was the particular pool was wedged into a corner thus reducing the area available for any kind of accommodation such as a lift or a transfer bench. He stated it was a dilemma due to the size of the room where the pool was located. He continued by stating the Council did not have the photos or plans shown in the handouts the applicants had distributed to the commissioners. He further stated the plans diagram available during the Council meeting was almost eligible in terms of trying to determine where the pool was even located. He concluded by stating it was difficult for the Council to see new construction with a cost of $185,000,000 which offered this new experience but an individual with physical disabilities would not be able to participate. He stated that was where the Council had come down.

Chairman Rodriguez asked if the pool could be made smaller. He asked how much space was missing.

Mr. Humberg stated part of the issue concerned the health safety code which required 50% of the space around the pool must be unobstructed. He further stated a lift would not be feasible there because the other 50% was taken up by structural walls and the window. He stated there was very little room to work with.

Commissioner Gregory asked if the applicant had applied to the health department and if the plans were approved.

Mr. Timana responded stating the plans went through the process which was normal for a project of its size including the Department of Health. He stated the inspector from the Department of Health inspected all of the pools accordingly and gave the approval.

Commissioner Gregory stated the committee was correct stating a spa pool can have 50% obstruction and a four foot unobstructed area there. He then stated it had been ruled by the Health Department in previous cases these temporary lifts were not a permanent structure. He stated it was a sleeve or deck which goes into the deck and either works with hydraulic water pressure or mechanical. He further stated if someone needed access to the area, staff would attend by putting the lift in place, helping them utilize it. He stated after the use the lift could be easily removed which does not violate the access. He further stated to him it seemed like access with the lift would be adequate.

Chairman Rodriguez stated if they provided the lift it would be adequate. He then stated he believed Mr. Humberg had stated there was no room.

Commissioner Gregory stated Mr. Humberg stated the lift would have to be located in that particular section.

Chairman Rodriguez asked for clarification that it was not a permanent structure.

Commissioner Gregory stated that was correct. He then stated the Health Department had ruled in previous cases the lift would not be an obstruction because it was removable. He further stated it was placed to allow a client to get into the pool and could be easily removed.

Chairman Rodriguez asked Commissioner Gregory if he would be in favor of approval if they provided the lift.

Commissioner Gregory stated he would absolutely be in favor.

Commissioner Palacios stated he had some questions relative to the timeline. He asked if Mariano Fernandez was with the building department at the time of the approval and if he had any involvement with the approval.

Mr. Timana responded stating he believed Mr. Fernandez was made the building official approximately one year after the plans were approved and permitted.

Commissioner Palacios asked for clarification if he was involved with the original approval.

Mr. Timana stated he did not believe he would have been involved initially because he was a building official, not a plans reviewer. He then stated the involvement of the plans reviewer was at the beginning of construction when breaking ground which occurred prior to Mr. Fernandez becoming the building official.

Commissioner Palacios asked if the building inspector who questioned the project worked with Mr. Fernandez.

Mr. Timana responded stating he did work for Mr. Fernandez.

Commissioner Palacios asked if the building inspector questioned it and then Mr. Fernandez approved it.

Mr. Timana responded by stating the inspector brought it to his attention. He stated Mr. Fernandez reviewed the case, made a couple of onsite visits and he thought the experience was an equivalent facilitation to the cold plunge showers. He further stated there was a portable lift available for the area to provide accessibility with the assistance of staff members.

Chairman Rodriguez asked if there was a lift.

Mr. Timana stated there was a lift.

Commissioner Palacios asked Mr. Timana if Mr. Bakas was his supervisor.

Mr. Timana stated he was his supervisor.

Commissioner Palacios asked whe Mr. Bakas was not present.

Mr. Timana responded stating Mr. Bakas had a previous engagement. He then stated he was the architect on the Marquis project.

Commissioner Greiner asked, based on the timeline, if the plans were reviewed and a permit was issued with the understanding that the applicant could proceed with construction except it did not meet the ADA requirements.

Mr. Timana responded stating the plans reviewer’s interpretation was the applicant provides an equivalent facilitation on the pool deck which was completely accessible. He then stated after the plans were reviewed by a third party the same issue was discussed and concluded the pool deck was level 14 was an equivalent facilitation.

Commissioner Greiner asked if it was Mr. Timana’s understanding, as construction continued, that the ADA requirements were being met.

Mr. Timana stated yes.

Chairman Rodriguez asked if the first time the issue came back up was when the field inspector mentioned it. He asked if by that time there was already an appeal to the Commission.

Mr. Timana responded there was not an appeal at that time. He stated construction was continued in good faith.

Chairman Rodriguez asked when the first time an appeal to the Commission was made.

Mr. Timana responded when the field inspector pointed it out.

Chairman Rodriguez then asked if there was an appeal to Mr. Fernandez prior to that time.

Mr. Timana responded stating the chain of command was followed beginning with the field inspector to clarify, contacted the Department of Justice and the Department of Community Affairs for their clarification of what the ADA guidelines specifically indicated.

Chairman Rodriguez stated asked if that was the track being followed.

Mr. Timana stated it was the track being followed by everyone from the plans reviewer and up.

Chairman Rodriguez asked who asked Mr. Fernandez to become involved.

Mr. Timana responded stating once the building inspector pointed it out he had to defer it to his supervisor, the building official, Mr. Fernandez.

Chairman Rodriguez asked if it was then appealed to the Department of Justice.

Mr. Timana stated an appeal was made first to Mr. Fernandez.

Chairman Rodriguez asked if the letter had been received why it was brought to the Commission.

Mr. Timana responded stating the case was pursued because the letter from the Department of Justice required a comment from the Commission.

Commissioner Greiner stated he understood it required the comment. He then stated what he did not understand was proceeding with construction, assuming everything was okay and then some inspector says he did not think it met with ADA. He further stated he thought the logical move would be to go back to the building official who stated it was okay originally.

Mr. Timana stated that was exactly what he had done. He stated when he went back to the building official he still deferred it to the Department of Community Affairs.

Commissioner Greiner asked if then he had to appeal to the Florida Accessibility Council.

Mr. Timana stated that was correct.

Chairman Rodriguez stated that was why the date was important.

Commissioner Greiner stated the building official changed his mind.

Chairman Rodriguez stated it teaches someone to be the last word. If they approve it I approve it.

Commissioner Gregory asked if when he applied and went through the normal submitting process the plans were approved by the permitting authority at that time.

Mr. Timana responded yes.

Commissioner Gregory asked the Chairman if it would be reasonable to assume they would have known the ADA requirements would’ve clearly shown the access at that time.

Chairman Rodriguez stated for life safety issues and other matters, plans can be approved but when it was time for a C.O. something may be determined to not be there by the local jurisdiction.

Commissioner Gregory stated, as a side note, he believed this would be a continuing problem relative to commercial pools because the new Rule 64E lowers the latch requirements on fences leading to commercial pools below 54 inches as required in the Code to allow someone in a wheelchair access. He further stated this has caused a great deal of problems with the industry. He then stated it appeared as the Health Department reviews them for access and they do include the pass for the temporary structures such as the lift. He continued by stating if the Health Department approved it and the building department approved it he did not know why it was before the Commission.

Commissioner Franco asked for clarification that two plunge pools were being discussed, one for the women and one for the men.

Mr. Timana responded yes that was correct.

Commissioner Carson asked to hear the Council’s recommendation again.

Mr. Humberg stated the Council’s recommendation was for denial of the waiver request. He then stated he believed the type of lift Mr. Timana was referring to was not the type of lift mentioned earlier with a sleeve and is permanently installed. He further stated he believed the Council would be happy with a lift that had a permanently installed sleeve and was readily available.

Commissioner Gregory stated the lift was very simple and it would be very easy to drill a hole in the concrete providing the sleeve because the lift does not always have to be there. He stated it could be put in place in a matter of minutes and removed easily as well. He then recommended approval of the waiver.

Chairman Rodriguez asked Commissioner Gregory recommended approval based on the permanent installation of the lift.

Commissioner Gregory responded stating he moved approval based on the installation of the lift. He then asked Mr. Timana if a sleeve mounted lift was what was currently there.

Mr. Timana stated it was a sleeve mounted lift with removable railings

Chairman Rodriguez stated the information needed to be stated clearly in the motion.

Commissioner Gregory moved approval of granting the waiver with the condition the applicant provide a temporary lift to allow accessibility without restricting the required 4 foot walk space around the pool.

Commissioner Vann entered a second to the motion.

Commissioner Sherer stated Commissioner Gregory may want to add the sleeve to the description i.e. a temporary lift with a permanently mounted sleeve.

Commissioner Palacios stated he agreed it should be described as a temporary lift with a permanent sleeve.

Commissioner Gregory accepted amendment to the motion.

Commissioner Schulte asked if it was still possible to install the sleeve with the post tension deck.

Mr. Timana stated the deck was actually elevated above the post tension slab which was poured monolithically to ensure there was no potential for any leaks.

Chairman Rodriguez asked if the site were visited at present would the permanent sleeve be installed.

Mr. Timana responded stating the permanent sleeve would not be installed at present because the removable type chair lift was there.

Chairman Rodriguez asked Mr. Timana if he understood that the motion called for installation of a permanent sleeve and a lift.

Mr. Timana stated he understood.

Chairman Rodriguez asked if Mr. Timana was in agreement with the motion.

Mr. Timana stated he was in agreement.

Commissioner Goodloe expressed concern it appeared the Commission was designing an alternative and perhaps the applicant should come up with the different design and take it back to the Accessibility Council and let them approve or disapprove rather than approve it under the specific terms being discussed.

Chairman Rodriguez stated Commissioner Goodloe made a good point.

Commissioner Vann asked of the lift were a self operating lift and if the accommodation would be set up by the facility.

Commissioner Gregory offered clarification stating the lift was self-operable. He explained there was a water supply sent to the lift with a push button. He stated the chair user positions himself over the water and pushes the button to be lowered into the water. He then stated when the user was ready to get out of the water they get into the chair, press the button and are taken back out. He further stated there was not a lot of design. He stated it was a two inch drilled into the concrete to approximately 4 ½ inches with a metal sleeve and the pole of the lift goes into the hole.

Mr. Blair stated he believed everyone was aware how the lift worked.

Commissioner Bahadori asked if the lift was permanent or temporary.

Chairman asked someone to explain what part of the lift was permanent and what part was temporary.

Commissioner Gregory explained the lift looks like a pole with a seat on it which can be pulled out of sleeve and removed from the area. He stated when a patron needs the lift it would be brought out and placed into the hole and after they have finished it would be removed. He then stated the state had ruled it a removable option therefore does not violate the requirement of 4 feet of unobstructed area within 50% around the pool. He further stated he was very comfortable with the option and stated he believed it would work well.

Chairman Rodriguez stated the sleeve has to be there ready for installation of the pole with seat when needed.

Commissioner Tolbert asked if the lift would be used to get into the water or up the stairs to get to the deck.

Commissioner Greiner suggested a withdrawal of the motion and recommended sending it back to the Council because the Commission was now trying to design and was discussing equipment the applicant may or may not have. He further stated there were two issues: getting up the stairs and getting into the pool. He concluded by stating he did not feel comfortable approving the waiver because he did not feel the Commission had all of the information and Mr. Humberg had stated the Council did not have the pictures or some of the other items the Commission received today.

Commissioner Gregory withdrew his motion.

Commissioner Gregory moved approval to defer the item back to the Accessibility Council for reconsideration. Commissioner Carson entered a second to the motion.

Commissioner Franco stated his question was answered.

Chairman Rodriguez stated the motion was to defer the item back to Council. He stated the applicant had heard the Commission and where it stands and believed it would be better to have the case presented to the Council.

Vote to approve the motion was unanimous. Motion carried.

#5 FAU/UF Joint Use Facility

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended approval by a vote of 4-1 to approve the waiver.

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

Deferral:

#9 Stephen Sanders

Mr. Humberg stated there was no representative present. He stated the Council recommended deferral of the waiver to obtain additional information.

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

CONSIDER APPLICATIONS FOR PRODUCT AND ENTITY APPROVAL

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

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

TST 1527 Hurricane Test Laboratory LLC – FL

TST 3160 Timberco Inc dba TECO

QUA 2401 Timberco Inc dba TECO

QUA 3214 CEL Consulting

QUA 3726 Pyramid1, Inc

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

Mr. Blair stated there was a consent agenda for all those issues that were posted with the same result from all four compliance methods either for approval, conditional approval or deferral. These were the ones without comment or there was no change to the recommendation as proposed presented. He stated if no commissioner wished to pull any if the products for individual consideration he asked for a motion to approve the consent agenda for all four compliance methods for approval, conditional approval and deferral.

Commissioner Carson entered a motion to approve the consent agenda as amended for all four compliance methods for approvals, conditional approvals and deferrals. Commissioner Tolbert entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair presented the following products for consideration individually:

6193-R1 Greenblock Worldwide

Mr. Blair stated the product was recommended for approval with the condition the applicant indicates "No" for use within HVHZ.

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

11192 BASF Construction Chemicals, LLC

Mr. Blair stated the product was recommended for denial stating the product is outside the scope of Rule 9B-72 FAC.

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

13042 Hurd Windows and Doors, Inc.

Mr. Blair stated the product was recommended for conditional approval with the condition the applicant indicates "Yes" for Impact Resistance.

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

2453-R2 Exclusive Wood Doors

Mr. Blair stated the product was recommended for deferral with the following conditions: The applicant needs to withdraw impact products, provide safety glazing for the insulated glass, and provide administrator with copies of the test reports for the non-impact products for further review of application for approval.

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

6417-R2 Transparent Protection Systems, Inc.

Mr. Blair stated the product was recommended for approval.

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

11288-R3 CertainTeed Corporation-Roofing

Mr. Blair stated the product was recommend for conditional approval with the condition, in reference to Section 5.4 of Evaluation Report, the applicant needs to correct use of the two membranes indicating "No" for use with slate.

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

11927 Mahon Door Corporation

Mr. Blair stated the product application had been withdrawn.

8283-R1 Tamlyn

Mr. Blair stated the product was recommended for conditional approval with the conditions the applicant needs to include the ICC-ES evaluation report in addition to the manufacturers notes on the Installation Instructions area of the application and in the Testing Standards section of the application the applicant needs to include 2001 North American Specification for the Design of Cold-formed Steel Structural Members in Referenced Standards of application.

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

12331 Proactive Technology Inc

Mr. Blair stated the product was recommended for conditional approval with the condition the applicant provides a Certificate of Independence by evaluator, on limits of use indicate "The boards are used as a component of an approved roof-covering assembly." and on Installation Instructions remove all details not related to roofing insulation.

Commissioner Schulte stated there was some discussion regarding the product during the POC meeting. He then stated the question became would the product be used as intended under the subcategory Roofing and Installation. He continued by stating he believed if Mr. Berman were asked it would sound like some information came across as the insulation were in fact roofing insulation. He further stated he would recommend conditional approval with additional language stating “On limits of use indicate the boards are to be used as a component of an approved roof covering assembly.” He concluded by stating he believed based on the information Mr. Berman has it would be a reasonable condition.

Mr. Blair asked Commissioner Schulte, for clarification, he was recommending a conditional approval stating “On the limits of use indicate the boards are to be used as a component of an approved roof covering assembly.”

Commissioner Schulte responded that was correct in addition to the condition already there which was to provide a certificate of independence by evaluator.

Mr. Blair asked if Commissioner Schulte intended that as a motion.

Mr. Madani stated the installation instructions that were uploaded needed to be cleaned. He then stated there were applications other than the roof, such as floor, wall, etc. He further stated the Commission does not have the authority to approve those, therefore he requested he would like to have the installation instructions cleaned.

Mr. Blair asked Mr. Madani if he was asking for the installation instruction to reviewed and revised to be specific to roof systems.

Mr. Madani responded yes.

Mr. Blair asked Commissioner Schulte if he would accept that condition to his motion.

Commissioner Schulte accepted the amendment.

Mr. Blair stated there were three conditions to the motion: 1) provides a Certificate of Independence by evaluator, 2) on limits of use indicate "The boards are used as a component of an approved roof-covering assembly." and 3) Installation instructions should be revised to be specific to the roof application.

Commissioner Gregory entered a second to the motion.

Commissioner Carson asked if Proactive was present. He asked if anyone knew if this motion would be acceptable to them.

Mr. Blair stated he would imagine they would be pleased based on the conversation.

Commissioner Carson stated it was a lot for the applicant to get together before the next meeting.

Mr. Madani stated it was his understanding Mr. Berman had been in touch with the manufacturer and he was okay with the conditions.

Vote to approve the motion was unanimous. Motion carried.

Commissioner Grippa asked if the application was in the commissioners’ packets or on the computers.

Mr. Blair stated he needed to defer to Mr. Berman. He then stated it should be attached to the agenda under product approval.

Mr. Madani stated the product had been on the system for some time. He then stated it was being updated with the recommendations, but should be on the system.

Mr. Blair stated it was posted on the website some time ago, the POC reviewed, the POC’s recommendation were posted,

Commissioner Grippa asked in the future if staff could confirm these items are on the website prior to the meeting

Chairman Rodriguez stated of course. He then stated the information had been on the website for years and it would be nice to read along with the information as presented.

Commissioner Grippa stated there was something about the website.

Chairman Rodriguez stated over and above the website when Mr. Blair reads the product approval information it would be nice for the commissioners to have the information in front of them.

Mr. Blair stated the product approval information had been but it was obviously not there now. He thanked Commissioner Grippa for bringing it to staff’s attention.

CONSIDER APPLICATIONS FOR ACCREDITOR AND COURSE APPROVAL

Accreditor Approvals

Commissioner Browdy stated

Course Approvals

Commissioner Browdy stated there were three courses being submitted

for consideration by the Florida Building Commission that have been reviewed by the Education POC:

Advanced Building Code (Online) 2007 with the 2009 Supplements

Course #372.0

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

Advanced Florida Building Code – Permits, Inspections and Paperwork

Course# 373.0

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

Mitigation Guidelines for Single Family Residential Structures

Course# 375.0

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

Commissioner Browdy then stated the following courses were administratively approved:

Florida Accessibility Code for Building Construction, BCIS Course #258.1

2007 Advanced Code: Building/Structural Summary, BCIS Course#323.1

2007 Advanced Code: Building/Structural Summary (Internet), BCIS Course#324.1

Commissioner Browdy moved approval of the POC recommendation. Commissioner Hamrick 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 Marlene Stern would be joining him at future Commission meetings primarily to work on Accessibility issues and other issues as needed.

Legal Issues:

None

Binding Interpretations:

None

Declaratory Statements:

Second Hearings:

DCA09-DEC-129 by Rodger England, Bermuda Roof Co., 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 Carson moved approval of the committee recommendation. Commissioner Gregory entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA09-DEC-253 by C.S. Breslauer of Bermuda Roof, Co., Inc.

Mr. Richmond stated there had been assigned a case number in error because this declaratory statement was actually an amendment to the declaratory statement previously discussed. He stated the petition would be dismissed and there was no need for a motion.

DCA09-DEC-254 by Mike Harris of Sea Shutters, 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 Carson moved approval of the committee recommendation. Commissioner Goodloe entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA09-DEC-257 by MitchThomas

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 with proposed amendment that ECLB is the licensing issue. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA-DEC-260 by Joseph Scofield, Advanced Manufacturing & Power System, 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.

Mr. Madani recommended an amendment to add language to the draft order to make the answer applicable to both occupiable and unoccupiable enclosures.

Commissioner Carson moved approval of the committee recommendation as amended. Commissioner Tolbert entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

DCA-DEC-263 by Steven Clissett of Windstrips LLC

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 as amended. Commissioner Tolbert entered a second to the motion.

David Clissett, President Divine Design and Development

Mr. Clissett stated he had a professional statement from Kenneth Zechiel (See handout from Kenneth Zechiel, Professional Engineering Services, Professional Statement, October 9, 2009.)

Commissioner Schulte stated Mr. Richmond had read the answer, but he wanted to clarify because on the computer it stated “However, as per Section 104.2.8…” and Mr. Richmond had referenced a different section.

Mr. Madani stated it was a typo and should read Section 104.11.

Mr. Clissett stated the main issue to consider was Windstrips, Inc. drafted its own petition for declaratory statement. He then stated upon review there was an amended petition for declaratory statement which redefines the scope of what Windstrips, Inc. was asking the Commission to reconsider. He further stated his main purpose for appearing before the Commission was to determine if rather than issuing a declaratory statement was it possible to resubmit the amended petition for declaratory statement.

Chairman Rodriguez asked if it would have to go back to the TAC.

Mr. Richmond stated if the Commission accepted the amended version at this late time, it would have to be referred back through the process of TAC review and Commission review. He then stated it was the second Commission review with the draft order. He explained it was highly unusual in the realm of administrative procedures to allow an amendment or withdrawal at such a late date. He further stated he would recommend moving forward with the draft order as it does not preclude any future filings by the petitioner if he seeks further clarification. He stated unless there was something substantively wrong with the answer there was no reason to change the question which had already been answered.

Chairman Rodriguez stated the petitioner could come back and raise another question.

Mr. Clissett stated he had hoped it would be possible to withdraw because when reviewed they discovered the product had been presented in the wrong fashion. He then stated rather than begin the process from the start he thought it could be brought back with another way of looking at it very simply, easy to review and determine if it was appropriate to go through the process.

Mr. Richmond stated the only reason an issue could be raised was if Mr. Clissett did not have the authority to represent the company. He asked if he did have the authority to represent the company.

Mr. Clissett responded stating he was the owner of Windstrips, Inc.

Commissioner Grippa asked if the Commission had allowed applicants to withdraw in the past or refer petitions back to the appropriate committee.

Mr. Richmond responded stating withdrawals were freely allowed between TAC readings and the first Commission review. He then stated between the first and second readings the Commission reviews and decides. He further stated there had been cases where the Commission has permitted a withdrawal and some cases it did not permit a withdrawal.

Commissioner Grippa asked if the Commission had permitted it in the past it would not be violating any sort of law or code he was aware of if the Commission allowed it to go back to the appropriate committee.

Mr. Richmond responded stating it would not be. He then stated at that point if the Commission wanted to refer it back to the TAC it should accept the amendment, defer action and refer it back to the TAC. He explained this would prevent having to file for a new case number.

Commissioner Greiner stated he believed there had been a very long discussion relative to withdrawal. He then stated the Commission was not in favor of allowing withdrawals up until the very last stage of process and was more in favor of sending it back to the TAC for further review. He further stated in this situation he agreed with legal counsel because there was nothing wrong with the answer given and if the petitioner wanted to submit another case he could.

Commissioner Greiner moved approval of the declaratory statement as written. Commissioner Goodloe entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

First Hearings:

DCA-DEC-259 by Robert S. Fine, Counsel for Malibu Lodging Investments, LLC.

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, Counsel for Malibu Lodging Investments, LLC

Mr. Fine stated the petition for declaratory statement asks three questions all of which were related to the issue of vinyl or plastic signs or murals attached to the exterior of buildings, and whether the Florida Building Code currently requires a building permit when one installs such signage. He then stated Question A was “Does a petition of lightweight material such as vinyl murals or signs on the exterior of an existing building, where the material does not encroach the public right-of-way, require a building permit under Section 105.1 of the Florida Building Code.” He stated the reason he used the word mural, defined as a product made integral with a wall or ceiling, relative to the exterior walls of this building. Question B was “If the answer to question A is yes a permit was required that on an existing building which had a mural or sign as described in Question A, installed prior to Section B of the Florida Building Code, would the lowering and re-hanging of the mural to the existing facets carry out the maintenance purposes or if in a hurricane zone and a hurricane warning comes for the passing of the storm period, would that constitute a repair or alteration under the Florida Building Code existing volume?”. He continued by stating Question C was “Regarding the situation set forth by Questions A & B wouldn’t those signs and murals be considered structural elements for the purpose of the Florida Building Code existing volume?”

Mr. Fine stated the Code Administration TAC heard the matter and adopted the staff recommended response for Questions 1 and 3 and staff shows 1 of 2 responses for Question 2. He then stated the petitioner would accept the TAC recommendation for the response to Question 2, but strongly disagreed with the staff’s recommendation and the TACs response to Questions 1 and 3.

Mr. Fine then discussed Questions 1 and 3 of the petition:

Mr. Fine stated the staff analysis of the Question 3 appears to be on the premise of the proposition if the scope of work falls within something governed by the Florida Building Code, then a building permit is always required. He stated staff’s response was “yes, according to Section 403 of the Florida Building Code existing volume and Section 3107 of the Building Volume so well as work falls within the scope of the Florida Building Code ‘regulated by the Code’ and for that a building permit would be required.” He then stated as discussed in the petition and notwithstanding what the Commission’s ultimate response to the Question will be, not all work governed by the Florida Building Code is required to have a building permit. He continued by stating anything that requires a permit certainly must comply with the Code, but it did not mean everything subject to the Code requires a building permit. He stated 105 is basically a provision which states when a group of things was done an application to the building official and obtain the required permit. He then stated in its analysis staff also uses Section 101.2 which lists a set of requirements, items or activities of the Building Code which are covered by the Building Code but nothing in the provisions state a permit was required. Mr. Fine further stated Section 3107.1 indicates “signs must be designed, constructed and maintained in accordance with this Code”. He stated that was the only provision in the sign section of the Code and the provision does it state anything about the signs requiring a permit. He continued by stating the Florida Building Code was an administrative rule. He stated the Florida Supreme Court has held that the rule of statutory construction, how the Building Code, Statutes or Administrative Rules are read, that the rules are read the same way they apply to statutes. He further stated the Supreme Court also held “when the Legislature has used a term in one section of a statute but omits in another it would not be implied where it had been excluded”. He continued by stating although Section 105.1 mandates which activities require permits and Section 101.2, 31.7 of the Building Volume, 4403.1 and 602.3 of the existing volume do not require permits, those sections cannot be read to mandate the requirement for a building permit unless it was provided for in 105.1. He further stated the Florida Building Code recognizes there are certain types of work that do not require permits even if it was required to comply with the Code. He stated, for example Section 105.2 states “Some permanent requirements of the Code shall not be deemed to grant authorization for any work to be done in any manner in violation of provisions of this Code.” He then stated as he discussed in the petition of all items in Section 105.1 the only one which can reasonably apply to the petition would be, if taking the building and adding a sign to it or altering it.

Mr. Fine then explained “altering” is not defined in the Code, “alteration” is. He continued by stating alteration was defined as “any construction or renovation to an existing structure other than a repair or addition”. He further stated if the definitions for renovation, repair or addition do not apply in this situation. He stated the ultimate question the Commission will answer in Question 1 will be “is the installation of the vinyl murals and signs to the side of the existing building considered construction”? He then stated the Supreme Court states “the language should be construed when it is unambiguous it must be recorded in plain and ordinary meaning.” He stated if the Commission decides the sign requires a permit it would be opening “Pandora’s Box”. He explained the sign provision in its current form does not give any provisions to tailor the requirements relative to size, location, etc. He stated if the Commission ruled a permit was required then all signs of all sizes and materials and applications would be subject to all inspections and permitting processes required in the usual building process. He stated in great detail a variety of examples of how different committees, inspectors, officials, etc would be negatively impacted should the Commission rule in favor of a permit requirement. He then presented a power point presentation of photos of various signs for the Commission to consider prior its decision on the petition.

Chairman Rodriguez interrupted Mr. Fine indicating he had been speaking for nearly 20 minutes. He stated the TAC had heard the petition.

Mr. Fine summarized his comments by stating he did not mean to say there should not be provisions in the Code relative to signs. He stated perhaps it should be reviewed for different parameters. He then stated if the big signs are going to require permitting the little signs also must require it. He then stated to summarize Question 1, since there was no objective criteria for signs if the Commission requires a permit it will be forced to (inaudible - spoken fast and mumbled). He stated the Building Code had provisions for enforcing without a permit, as well, in Section 104.11.2.

Mr. Fine then briefly discussed Question 3. He stated the staff recommendation was “yes, the product would impose additional deadload” which has to be supported by the existing building and transferred to structural members of the existing building.” He then stated, respectfully, a reading of the definition in Section 202 cannot possibly come up with that answer. He continued by stating Section 202 states “Structural is any part, material, assembly, of a building which affects the safety of the building and would support any dead or designated liveload and the removable of the part which could cause or be expected to cause any portion to fail.” He further stated signs do increase the deadload but it cannot be said removing these signs would cause part of the structure to fail.

Chairman Rodriguez interrupted Mr. Fine stating it was time to end his presentation.

Mr. Fine stated in summary for Question 1 the answer should be “no, while the signs may be required to comply with the Code, at this time a building permit was not required, for Question 2) the petitioner was in agreement with the staff recommendation and for Question 3) no, vinyl murals should not be within the definition of structural. He then thanked the Commission.

Commissioner Palacios asked if a 5 minute limit could be set for future presentations.

Chairman Rodriguez stated he appreciated the question especially when the case had been heard already at the TAC. He then stated it would be take into consideration.

Commissioner Gross asked when driving down the highway and there is a billboard with advertising, then the advertisement is changed, i.e. the skin not the structure of the billboard, is a permit required to change the advertising.

Commissioner Greiner stated in his jurisdiction a permit was not required for change of copy. He continued by stating a structural change would require a permit and meeting the Code requirements. He then stated in this particular case he did not remember seeing any pictures of the sign being discussed, which would’ve been very helpful. He further stated when permitting signs it was important to know how they were attached because they could become windborne debris which was more of an issue than anything.

Commissioner Schock stated in his jurisdiction it was very close to what Commissioner Greiner had described. He then stated in his jurisdiction banners of this type and their attachments are viewed as a zoning issue, utilizing a zoning permit that was required so 468 certified personnel was not used.

Commissioner Gonzalez stated he agreed with Commissioner Greiner having not seen the actual pictures for the declaratory statement. He then stated the attachments were actually penetrating into the structure in some places. He further stated most of the pictures shown were not from the declaratory statement address, but he had pictures of the actual address.

Douglas Harvey, Executive Director, Building Officials Association Florida

Mr. Harvey stated he believed the recommendation which came to the Commission was very clear and the Code was very clear. He then stated the Code states explicitly that any work requires a permit and in 105.2 it states if work was exempt from the permit requirements of the Code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of the Code. He further stated it goes directly to what was stated to the Commission regarding the requirements not applying to other sections of the Code. He stated Chapter 1 applies to the entire Code. He then stated Section 105.2.2 titled Minor Repairs states “All work requires permits.” and for minor repairs it is the building official’s opinion the work being done will not impact the structural integrity, will not cause any additional work to be required and if there are provisions such as for changing copy on a sign or when it was constructed fasteners were put into place to attach new copies when put into place the building official has the authority, whether it was a 12 x 12 or a 120 x 120ft sign, to determine if a permit was required.

John O’Connor, President, Building Officials Association of Florida

Mr. O’Connor stated the issue was not a new issue. He then stated signs have been regulated by the Code and permitted for as long as there have been building departments. He continued by stating the building officials use their discretion to determine what requires permitting and what does not. He further stated if parameters are required to put into the Code he suggested the petitioner go back and submit changes to the ICC Codes that address the signs which will filter back to the Commission. He concluded by stating BOAF supported the position of the TAC

Jaime Gascon, Miami-Dade Product Control

Mr. Gascon stated he was in favor of the TAC’s recommendation. He then stated the issue was heard before the TAC. He continued by stating when signs become very large, stemming from the knowledge the Commission has acquired with fabric type hurricane protection, it does carry and transfer significant load to the structure specifically if it is just being attached at the top and bottom. He stated if these were attached to a parafit wall on an existing building the load on the parafit needs to be analyzed structurally for the resistance and windload transferred to the structure.

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

Commissioner Tolbert stated in the TAC meeting he had expressed he did not believe the declaratory statement was necessary. He then stated the decision whether a permit was required or not should be left up to the building official. He further stated there was no way the intent behind the scope of what needs to be permitted within the Code was to permit the small signs and banners.

Vote to approve the motion resulted in 23 in favor, 1 opposed (Tolbert). Motion carried.

DCA09-DEC-309 by Alan Plante of Orange County Division of Building Safety (Deferred)

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.

Mr. Madani asked for clarification of which TAC the declaratory statement would be referred to Plumbing or Swimming Pool Subcommittee or both. He then stated he thought it would normally go to the Swimming Pool Subcommittee.

Commissioner Gregory stated there were many codes that explain how to keep a pool safe but clarification was needed for what constitutes when an existing pool being renovated needs to comply and how much o the Code is applied. He then stated he believed the subcommittee had various experts which he would like opinions from before taking it to the Plumbing TAC for its approval.

Chairman Rodriguez asked if it were acceptable to go first to the subcommittee and then to the Plumbing TAC.

Mr. Dixon stated under the administrative rules it needed to be referred to the Plumbing TAC, which would work with its subcommittee.

Commissioner Gregory stated the subcommittee would like to handle it if the Plumbing TAC would refer it to them to review , it would be then be sent back to the TAC for its final review.

Chairman Rodriguez stated for clarification the declaratory statement would go back to the Plumbing TAC, who has the ability to send it to the Swimming Pool Subcommittee. He then stated the chairman of the subcommittee had stated he would gladly review the declaratory statement and forward it back if necessary.

DCA09-DEC-269 by Thomas Ford, RA of Bhamani, Ford & Associates, 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 Carson moved approval of the committee recommendation. Commissioner Tolbert entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CONSIDER COMMITTEE REPORTS AND RECOMMENDATIONS:

Accessibility Code Work Group

Mr. Blair presented the report of the Accessibility Code Workgroup from August 10, 2009. (Please see Florida Accessibility Code Workgroup Meeting Minutes August 10, 2009.)

Commissioner Gregory moved approval to accept the report.

Commissioner Gross stated there were approximately 20 items on the Accessibility Waiver Council agenda and it continues to grow. He then stated some of the reason was due to the less frequent meetings, but it could also be due to more items being sent to the Council. He continued by stating he felt it worth mentioning the federal government was looking at exemptions of incorporating exemptions relative to vertical accessibility whereas the state law does not. He stated in the future there would be a workgroup meeting to discuss possibly recommending to the Legislature some of the exemptions because there would be 400-500 items on the Waiver Council.

Chairman Rodriguez asked when the ADA exemptions would be ready.

Mr. Blair responded stating first the Department of Justice rule was needed, but did not know when it would be given.

Chairman Rodriguez stated after the Council knows the rule of the Department of Justice it could move on to state issues.

Commissioner Gross stated maybe the next Legislative package could be reviewed soon. He asked when the process for preparing the next Legislative package would begin.

Mr. Blair responded stating at the December Commission meeting.

Commissioner Gross entered a second to the motion.

John O’Connor, President, Building Officials Association of Florida

Mr. O’Connor stated BOAF would very much like to see the process be open as the Code was reviewed. He then stated it was the one opportunity to determine what may not be working right from a design perspective. He further stated they believed opening it up for public comment and invite public comment. He continued by stating he realized the Commission may be restricted to what can be done given both the legislative and federal requirements but he believed it important to come back with recommendations perhaps to the Legislature of what the public had to say. He reiterated the importance of a public invite of the interest and advocate groups to the workgroup session to be heard.

Mr. Dixon stated the project was designed to have two phases. He then stated under the current law the only authority the Commission has is to adopt updated editions of the ADAAG. He continued by stating the Legislature writes the Florida specific criteria into law and the Florida Building Commission is responsible for taking those and integrating those into any new edition of the ADAAG. He stated the project was put together to develop the draft when the Department of Justice got to the final stages of its rule revision before the change in administration. He continued by stating at a later stage of the Commission project there will need to be changes to Florida law. He further stated specifically there are current elements of Florida’s Accessibility law that are no longer in compliance with the standards of design adopted by the Department of Justice. He stated that criteria, at the very minimum, will have to be changed to maintain the certification of Florida’s Code in the future. He then stated the second phase of the project was to determine where the new ADAAG and previously adopted Florida specific criteria may not match up anymore and to develop recommendations for the Legislature.

Mr. Dixon continued by stating the process was multi-staged and approaching the Legislature multiple years in a row with Accessibility Code criteria changes would not work. He stated when the process of identifying where the new ADAAG will create overlap problems with the current Florida law and areas within the new Accessibility codes are identified that will need to be changed to maintain certification is completed would be the right time to approach the Legislature. He stated it was originally thought the Department of Justice would be finished with its process by the summer of 2009 but they didn’t. He further stated the planning based on the DOJ being completed by the summer anticipated going to the 2010 Legislature with a set of proposed changes. He stated it did not appear that was going to happen and 2011 would be a more realistic time for going to the Legislature with a packet of changes recommended by the Commission. He then stated there would be plenty of time for public input, public review of the draft and for discussions between the state and the Department of Justice.

Mr. Blair stated the workgroup is a very open process with 22 members representing a number of constituencies and stakeholders ensuring a variety of people would be involved in the process.

Vote to approve the motion was unanimous. Motion carried.

Code AdministrationTAC

Commissioner Gonzalez presented the report of the Code Administration TAC. (See Code Administration TAC Conference Call Minutes October 5, 2009).

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

Education POC

Commissioner Browdy presented the report of the Education POC. (See Education POC Conference Call Meeting Minutes October 6, 2009).

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

Electrical TAC

Commissioner Carson presented the report of the Electrical TAC. (See Electrical TAC Conference Call Meeting Minutes October 5, 2009.)

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

Energy Code Workgroup

Mr. Blair presented the report of the Energy Code Workgroup. (See Florida Energy Code Workgroup Report.)

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

Energy TAC

Commissioner Greiner presented the report of the Energy TAC. (See Energy TAC Meeting Minutes October 5, 2009.)

Commissioner Carson moved approval to accept the report. Commissioner Tolbert 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 October 8, 2009.)

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

Swimming Pool Efficiency Sub-Committee to the Energy Code Workgroup

Mr. Blair presented the report of the Swimming Pool Efficiency

Sub-Committee to the Energy Code Workgroup. (See Swimming Pool Efficiency Sub-Committee to the Energy Code Workgroup Meeting Minutes August 12, 2009.)

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

Swimming Pool Sub-Committee to Plumbing TAC

Commissioner Gregory presented the report of the Swimming Pool Sub-Committee to the Plumbing TAC. (See Swimming Pool Sub-Committee to Plumbing TAC Meeting Minutes August 12, 2009.)

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

Window/Wall Workgroup

Mr. Blair presented the report of the Window/Wall Workgroup. (See Window/Wall Workgroup Meeting Minutes August 11, 2009.)

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

Septic Tank Sizing Workgroup Update

Mr. Blair stated Commissioner Browdy had requested this update be added to the agenda for the plenary session. He then stated one year ago the Commission approved a recommendation from the Septic Tank Sizing Workgroup, previously known as the Bedroom Definition Workgroup. He continued by stating the workgroup was made up of 8 or 9 commissioners and 8 or 9 Department of Health appointees. He stated the workgroup did reach consensus on a recommendation for revisions on how the health departments decide how to size septic tank systems. He then stated the recommendations were brought to the Department of Health’s Technical Review and Advisory Panel (TRAP) for review. He continued by stating the TRAP had met twice regarding the issue, as recently as August. He stated basically the Commission was recommending was to use the definition of a bedroom of 70 square foot minimum and 50 gallons per room each day for sizing the system which would help address some of the larger houses and other houses which did not fit into the systems.

Mr. Blair explained there were discrepancies from how building officials and health departments interpreted bedrooms for sizing systems and the goal was to make it a more uniform standard across the state. He stated the TRAP apparently discussed this methodology at length and did not agree with it stating the current system worked fine and there was no need to change it. He further stated the TRAP committee members did not feel the proposals from the workgroup were needed and would make it more confusing. He stated members of the TRAP thought the few exceptions could apply for variances. He then stated at the last meeting the TRAP decided to table the issue and send a letter to the Florida Building Commission indicating the issue remained a work in process. He further stated the letter would explain the TRAP met on the issue and debated and revised the Code language but the panel was unable to reach any conclusion and the issue was tabled pending further consideration.

Commissioner Browdy stated he had been a proponent for taking action on the subject for years. He then stated he thought considerable progress had been made and consensus had been achieved in the meetings that were held. He further stated he believed the process was excellent, well attended and qualified individuals participated in the process. He stated he was amazed at the fact after the process was carried out there was no need to address the issue. He then stated the issue was still out there and will continue to be out there and people who fortunately or unfortunately are required to use septic tanks as a result of lack of availability of public utilities are being penalized as a result of the enforcement of the Code in a haphazard, ununiform manner in an unfair way. He concluded by stating his recommendation would be while reviewing the Legislative agenda in the future and consider taking the issue to the Legislature either to obtain some type of recommendation by the Legislature that action be taken on the issue or take the action legislatively to make sure some equitable determination was mad on how to size septic tank fields.

Chairman Rodriguez asked if a letter was being sent to the Commission.

Mr. Blair responded stating yes that was said.

Chairman Rodriguez asked if anything could be done to expedite the letter. He stated once the letter was received he would be in favor of taking a proactive position and take something to the Legislature. He then asked Mr. Blair if the Commission needed to wait for the letter.

Commissioner Vann entered a second to the motion.

Mr. Blair stated an email could be sent to those

Commissioner Browdy stated if the minutes were read and understood the Commission was waiting on that letter it would not receive it any time in the near future.

Mr. Dixon stated an extensive discussion had been scheduled for the December Commission meeting regarding the recommendations from the Commission to the 2010 Legislature. He further stated the issue could be more thoroughly discussed at that time.

Mr. Blair stated he would recommend putting it on the list of issues for the December meeting and at that time determine what the best course of action would be.

Chairman Rodriguez stated with or without the letter from the TRAP the issue would be discussed.

RULE DEVELOPMENT WORKSHOP ON RULE 9B-72.130 PRODUCT APPROVAL, APPLICATION LIMITATIONS AND AMEND BCIS SCREENS

Chairman Rodriguez stated at the August meeting the Commission voted to open Rule 9B-72.130 Product Approval, for the purpose of limiting the number of lines in an application to 150, and to conduct a rule development workshop at the

October 2009 meeting. He further stated in addition, the BCIS screens will be modified to correlate with the change. He then stated the October Workshop provided an opportunity for public comment before the Commission proceeded with rule adoption.

Mr. Richmond opened the hearing.

There was no public comment.

Mr. Madani stated the committee had comments which were part of the amendment recommended by the POC, revised language which the POC reviewed and would like moved forward as the proposed language for the proposed rule providing specific language for the proposed rule that stated for new and revised application received after January 11, 2010 shall be limited to a maximum of a 15 product sequence number and the limitation could not be applicable to the Code revisions or affirmation of an existing revocation.

Commissioner Carson stated there were two editorial changes: 1) the original date of January 10^th was changed to January 11^th because it fell on a Sunday and 2) the word maximum inserted.

Mr. Richmond closed the hearing.

Commissioner Carson moved approval to proceed with rule adoption for

Rule 9B-72.130, Product Approval, Application Limitations and Amending BCIS Screens to conform to the rule amendments, by integrating and noticing the adopted changes and proceeding with rule adoption by conducting a rule adoption hearing at the December 2009 meeting.

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

CONSIDER THE SCHEDULE FOR DEVELOPMENT AND ADOPTION OF THE 2010 FLORIDA BUILDING CODE

Mr. Dixon presented the staff's proposed schedule for the development and adoption of the 2010 Florida Building Code. (See 2010 Updates to the Florida Building Code.)

Commissioner Stone asked if the Florida specific amendments that were automatically being carried forward were by legislation or a previous decision by the Commission.

Mr. Dixon responded stating it was done by Legislation. He then stated essentially the law states the Commission must review Florida specific amendments where there was an overlap with a change to the foundation code. He further stated if the 2006 or 2009 codes had a change which would affect something already adopted as a Florida specific amendment the Commission would review that particular one.

Commissioner Stone stated one thing he would hope one thing the Commission and the TACs could do was to identify the unique conditions that exist within Florida for any modification to the I-Codes to the base document. He continued by stating that ability would provide two things: 1) provides a history of why the Code had changed and 2) provides documentation for development of a commentary to the Code which he believed to be critical in Code enforcement. He explained further that although it was stated the Florida specific amendments were automatically carried forward he believed the TACs should identify what was unique whether it be geographical, climatic, social or economic conditions being addressed by the modification and identifying it. He stated he thought the idea of having a glitch cycle and posting what the modifications are to the Code before the glitch cycle or during the glitch cycle was excellent especially for people who have jobs that carry across state lines. He continued by stating like other states it would give the amendments by Florida to the base code for comparison with other states in the union and it was a good proposal.

Mr. Dixon stated another difference for this cycle is the final Florida Building Code would not be printed and published until the first glitch amendment cycle was complete. He then stated the Commission would not want to wind up in the situation with a printed document on the street and a supplement kept on the website without replacement pages being provided closely thereafter.

Commissioner Stone asked if the Commission came up with a proposal to post the proposed change would it be carried through the glitch cycle if someone wanted to use that and the I-Codes.

Mr. Dixon responded stating yes there were supplements for that. He then stated another more technical difference was what was proposed this cycle was instead of adopting code books with Florida amendments integrated in them by reference in the administrative Rule, the Rule would adopt the 2009 I-Code by reference and then the supplement by reference.

Commissioner Stone stated it would be cheaper for a lot of people.

Mr. Dixon stated another point was the code change proposal application requires the proponent to give a justification for Florida specific amendments. He further stated the TACs will have the justification before them to determine if they were in agreement or not with the proponent or if it felt it adequate or not.

Commissioner Gross stated the Commission discussed the entire process a few meetings prior relative to trying to get as close as possible to the IBC and have as few Florida amendments as possible. He stated on one of the issues there was a subcommittee who reviewed the new high wind I-Code requirements versus the Florida Building Code HVHZ requirements. He asked if there had been any progress on looking at replacing the HVHZ requirements with HVHZ requirements with the I-Codes.

Mr. Dixon stated the Commission had not had a specific project to look at eliminating the HVHZ criteria.

Mr. Madani stated he thought he was speaking of the fact when the Commission went to the ICC to incorporate high wind provisions specific to Florida into the I-Code it was not successful. He further stated since it could not be done the Commission had to continue with its process.

Commissioner Gross stated he was trying to “put the Code on a diet”. He stated he understood it was legislatively mandated the amendments rollover. He asked if the Commission wanted to do some type of sunsetting of Florida specific amendments to make them stand on their own would it have to be a legislative change.

Mr. Dixon responded stating yes. He then stated there had been preliminary discussions about moving that direction in the future. He further stated there were some issues which would have to be worked out to get to a position where the Florida specific amendments would be reviewed again and rejustified. He then stated he believed the Commission can get there. He stated there is a preplanned a process after this code change cycle that will probably take a fairly energetic consensus building effort to try to get all parties satisfied and find a way of revolving “putting the Code on a diet” but still preserving those amendments the Legislature may define as “sacred cows”.

Commissioner Greiner stated along with Commissioner Gross’ points he believed last year the Commission came to some type of an agreement with BOAF to review the Florida specific items and the other code change items the Commission wanted. He then stated in lieu of Commission sending a delegation to ICC it was agreed BOAF would handle that particular area. He asked how that fit into this workplan.

Mr. Dixon stated, as Mr. Madani had pointed out, Florida’s efforts at trying to have specific concerns taken care of through the ICC have not been that successful. He then stated the National Codes have to cover many different environments and many different social conditions. He continued by stating, imagine what the Code would be like if on a national basis they crafted a Code which took into account every geographic and climatic difference, etc. that needed to be accounted for. He then stated, understandably there is resistance at the national level to refine their Code for state specifics. He stated the issue Mr. Madani mentioned was wind resistance. He continued by stating, there was a big effort by BOAF and staff to go to the ICC and have the design criteria currently in the Florida Building Code for hurricane wind resistance added to the International Residential Code. He then stated that proposal was rejected. He continued by stating a previous Commission voted it would not spend any of its resources trying to modify the I Codes directly and that the Commission then partnered with BOAF to pursue I Code change issues. He continued by stating there currently was a BOAF project to look at Florida specific amendments and evaluate if those requirements were still necessary. He stated for amendments which BOAF or others feel are no longer necessary there would have to be a proposal to have them removed from the Code unless there was a change between 2006 and 2009 I Codes which addresses the issue, which would automatically require bringing it back before the Commission.

Commissioner Greiner stated he believed his question had been answered. He then stated he would defer comment that a National Code could be built that addresses snow but it would not address wind. He further stated he understood BOAF was putting together, working on, and reviewing the Florida specific items. He continued by stating he wanted to make sure those items are reviewed by the TACs as suggestions or recommendations for deletion from the Code. He concluded by stating in this way he hoped the Commission could reduce the amount of Florida specific items which are actually added to the ICC base code. He stated the Commission’s ultimate goal should be to be using the ICC code as a base with only a handful of Florida specific items that are added because there were not that many items in Florida that differ from the rest of the national code. He then stated he assumed the Commission would be voting, with respect to the 2009 I-Codes, will include the IECC .

Mr. Dixon responded stating that was correct.

Chairman Rodriguez stated a motion was necessary to adopt the schedule for the development of the rule approval.

Commissioner Greiner moved approval of the schedule for the development of the rule approval. Commissioner Boyer entered a second to the motion.

Commissioner Stone asked what would happen if the Commission thought it needed more time for the Code hearings. He asked if it expanded to more days at anytime.

Mr. Dixon stated it was not known how many proposals each TAC will have to review. He then stated if the Commission cannot get through the number on any certain TAC schedule within the time that was planned it can be expanded within certain restraints.

Vote to approve the motion was unanimous. Motion carried.

CONSIDER SELECTION OF 2009 I CODES FOR 2010 BUILDING CODE FOUNDATION

Chairman Rodriguez stated after the Commission selected the I-Codes it is required by law to wait six months after all volumes of the I-Codes are available prior to selecting the latest Edition of the I-Codes as the foundation for the Florida Building Code. He then stated the last volume of the I-Codes was available on April 2, 2009 and the six month time-frame was achieved. He further stated this allowed the Commission to finalize its to select the 2009 Edition of the I-Codes as the foundation for the 2010 Edition of the Florida Building Code.

Commissioner Stone moved approval of selection of the I-Codes as the

foundation for the 2010 Florida Building Code. Commissioner Greiner entered a

second to the motion.

Commissioner Hamrick stated after attending the last meeting of the I-Codes in Minneapolis he had a very great concern relative to the integrity of the Code. He explained one particular investor took over the adoption of amendments or approval of the Code during the Residential hearings. He stated it influenced the entire vote outnumbering participants 3-1 to get their codes adopted. He further stated he did not know how the Commission could adopt the Code without any amendments as it requires multi and single family residences.

Chairman Rodriguez stated the Commission was not adopting the Code without any amendments. He then stated the I Code was being adopted as a foundation for the Florida Building Code.

Mr. Dixon stated this was just the selection; the starting point. He then stated the adoption comes through the Chapter 120 process at the end. He further stated the Commission would see any amendments come forward before getting to the adoption process.

Commissioner Hamrick stated he understood but his concern begins with the 2010 Code. He further stated he proposed staying with the 2006 until ICC can go through the process of weeding out what took place in Minneapolis or wait one cycle and then use the 2012 ICC code as the base code. He stated as it stood he would not be able to support the current motion.

Mr. Richmond stated the Commission had a brief window of time when that proposal could have been considered. He further stated he believed there was some discussion among the Code Development Workgroup regarding that option. He continued by stating unfortunately now the 2009 Code is out and had been for 6 months. He stated the law directs the Commission to adopt the most current version of the I Code. He then stated the Commission is constrained currently, functional discretion is in timing. He stated he did not believe there was an option of selecting the 2006 Codes as the base code at this point.

Commissioner Hamrick stated he thought the Commission had the choice of selecting the 2009 I Codes. He further stated he thought he had heard that discussion during the process.

Mr. Richmond stated he did not believe so.

Commissioner Gonzalez asked what other options the Commission had if the law directed the Commission to adopt the most current version of the ICC Code. He then stated it was more logical to him to continue working with the 2007 and work with that Code in order to have the 2010 Code. He further stated why go back to the 2009 I Code and start all over again when there was already a code for 2007. He stated it would take less work and he did not understand why the Commission would do anything different.

Mr. Richmond stated the Commission was required to update the Code every three years and as part of the update the most current edition of the I Code plus the addition of the National Electric Code as a foundation code. He then stated there was very little discretion in the process. He further stated the discretion comes in the timing. He stated the Commission does not have to select it during the meeting but in order to meet the schedule this selection starts the schedule.

Mr. Dixon stated he believed what Mr. Richmond was explaining to the Commission was if it had selected the 2006 Code as the base for the 2010 Code before the 2009 I Codes came out perhaps the 2006 Code could have been used and in that way move forward with the 2007 Code. He then stated once the 2009 Code was on the street the way the law was written was the Commission had to select the most current edition. He further stated the reason the 2009 Code was chosen was because it is the most current edition and if the process does not begin soon the 3 year update which the law requires would not be possible to complete.

Jaime Gascon, Miami-Dade

Mr. Gascon asked hypothetically if something existed in the newer version of the Code which was completely contradictory to the direction Florida was going would the Commission be forced to use it as the base code.

Mr. Richmond responded stating if it was not appropriate for the state of Florida it can be amended. He stated as long as there was a Florida specific need to amend the I Code the Commission has the opportunity. He then stated this step begins the process for looking at it for the submittal for proposed modifications then go through the entire process to mix it all together.

Mr. Gascon asked if the six months would then be available to identify what provision was unacceptable to the Commission and then to propose it as a Code modification.

Mr. Dixon stated the Commission would actually have more time. He stated the six months from the time the I Codes are on the street until the Commission makes the selection is the time period people have to identify what they believe does not work for Florida in those new codes.

Vote to approve the motion resulted in 23 in favor, 1 opposed (Hamrick). Motion carried.

PRODUCT APPROVAL ADMINISTRATOR CONTRACT

Chairman Rodriguez stated at the August 2009 meeting the Commission concluded rulemaking regarding Product Approval fees and decided to a fee split of 60% to the Commission and 40% to the administrator. He then stated the Department met with the current administrator (Ted Berman) to negotiate over the new split and the issue was referred to the POC for their recommendations. He continued by stating any changes to the adopted fee distribution will need Commission approval. He further stated the Product Approval POC discussed the issue during their meeting and developed recommendations. He stated the fee used to be $300.00 and the split was $275.00 to the administrator and $25.00 to the Commission. He then stated the fee was increased to $500.00 and the split

will be a 60/40 split, 60 to the Commission ($300.00) and 40 to the administrator ($200.00), as adopted at the last Commission meeting. He stated the administrator would like to keep the $275.00 for the life of the contract which ends in June.

Commissioner Carson stated the current contract expires at the end of June and the Commission will need to deal with it for four more cycles. He then stated the POC recommended Ted Berman & Associates be allowed to continue collecting revenues consistent with the current fees and in any future fee increase will be remitted to the state.

Chairman Rodriguez asked for clarification the POCs recommendation was for the life of the contract which ends in June the administrator will continue to collect $275.00.

Commissioner Carson responded stating that was correct. He then stated he would also continue to be paid for any other service he provided to the Commission.

Commissioner Carson moved approval of the POC recommendation to continue the administrator’s contract until June.

Chairman Rodriguez stated other commissioners who served on the POC were Commissioners Schulte, Gonzalez, Stone and Tolbert. He then stated he would like to conduct a straw poll vote to determine how the Commission feels about the issue and if it wanted to hear further testimony.

Commissioner Nicholson asked what happens after June. He asked if it would just go to the 60/40 split.

Chairman Rodriguez stated the Commission would bid the contract out after June. He further stated the Commission would be able to stipulate what it wanted. He further stated there may or may not be a response.

Commissioner Browdy asked if the current fee of $175.00 was going to the administrator with a total of $300.00 being charged to the individual submissions.

Chairman Rodriguez offered clarification the fee to the administrator is $275.00 of the $300.00, $25.00 to the Commission. He then stated the new fee of $500.00 would provide $275.00 to the administrator and $225.00 to the Commission if the contract was not changed. He continued by stating the recommendation from the Commission, due to the economic times and the need for a slush fund for times like these, was to change the split to 60 to the Commission ($300.00) and 40 to the administrator ($200.00) reducing the administrator’s fee by $75.00.

Mr. Richmond stated the increase would not be in effect until October 28^th based on the delay in filing with the Department of State. He further stated any changes to the contract or the fee structure would be effective on that date as well.

Chairman Rodriguez stated in seven months in July the contract ends.

Commissioner Browdy asked regardless of the fees the state charges Berman and Associates gets a percentage of the amount. He asked if the Commission wanted to raise the fees to $1,000.00 in the middle of Mr. Berman’s contract fee what precludes the Commission getting the difference between the $1,000.00 and the fee Berman and Associates was receiving.

Chairman Rodriguez responded stating nothing precluded it. He then stated the Commission could accept the POCs recommendation for the seven months or the contract can be terminated in 90 days. He further stated the issue is of the increase from $300.00 to $500.00 none of it goes to Mr. Berman. He stated the motion passed by the Commission would’ve reduced the fee from $275.00 to $200.00.

Commissioner Browdy asked if the fee goes up to $500.00 and Mr Berman is under contract when the fee increases from $300.00 to $500.00 why can’t the Commission collect the difference.

Chairman Rodriguez stated the administrator currently collects $275.00 of the $300.00. He then stated when the fee is increased to $500.00 Mr. Berman will still be collecting $275.00.

Commissioner Browdy asked if the Commission would get the difference of $225.00.

Chairman Rodriguez stated that was correct. He then stated what the Commission had asked previously and with considerable discussion was the administrator portion is reduced to $200.00. He explained it was primarily due to the situation the Commission finds itself currently in terms of funding. He continued by stating everyone thinks the administrator was doing a very good job. He stated the administrators as well as the Florida Building Commission’s income had been reduced because there are fewer applications, which is an important point. He reiterated all that the Commission was talking about was 7 months and whether or not the Commission would want to reduce the administrator’s share by $75.00 or not. He further stated or the Commission could wait until July 1, 2009 when the Commission could stipulate in the new advertisement in June whatever new conditions the Commission wants and hope to get a response.

Commissioner Carson stated for point of clarification it was his understanding the way the contract was written the contract would be written the administrator would collect the fee and remit $25.00 back to DCA. He then stated with the fee changing to $500.00 the $25.00 remittance but the Commission would get $475.00 according to the letter of the contract if he understood from before. He concluded by stating it was somewhat of a compromise.

Chairman Rodriguez thanked Commissioner Carson for the clarification. He then asked if those issues were discussed prior to the POC meeting.

Commissioner Grippa moved approval of the POC recommendation. Commissioner Greiner entered a second to the motion.

Commissioner Nicholson asked how the decision would affect the Commission’s budget since the budget was based on the increase. He asked what the Commission would do with the loss of $75.00.

Ms. Jones responded by stating it would negatively impact the Commission’s budget. She stated because it was October it was early in the fiscal year and staff was waiting to see how much funding increases the Commission will receive from the rural adoptions that were done for the surcharge fees with the elimination of the exemptions. She then stated at this point the surcharge was collected for the last quarter from April to June 30^th of last year. She further stated a little bit of the $250,000.00 was collected.

Commissioner Nicholson stated that did not answer his question.

Ms. Jones stated there was not going to be enough funding to cover all of the projects anticipated for this fiscal year.

Chairman Rodriguez stated it was very difficult to predict because it was early in the process. He then asked in the seven months left until the contract is renegotiated roughly the amount she thought would be collected.

Ms. Jones answered based on the collections from ???? for product approval approximately $250,000.00.

Chairman Rodriguez asked in order to use the $75.00 difference how much would it be.

Ms. Jones responded stating if 1000 applications were reviewed it would be $75,000.00

Chairman Rodriguez stated the Commission was collecting $250,000.00 and if it gives up on the 60/40 split idea there would be $75,000.00 less.

Commissioner Nicholson asked how the Commission was going to function. He stated Ms. Jones had just stated the projects were not going to be done. He asked how the Commission would fill its obligation to the public.

Chairman Rodriguez offered clarification Ms. Jones had stated some of the projects would not have funding.

Commissioner Nicholson stated the Commission was not going to be able to fill its obligation to the public. He then stated he would not vote in favor of the motion.

Chairman Rodriguez stated for the record if the Commission goes the other route it would have to terminate the contract in 90 days.

Commissioner Nicholson stated he would be in favor of doing that.

Chairman Rodriguez stated he would need to vote against the motion.

Commissioner Franco asked Commissioner Carson if the option of cancelling the contract were discussed.

Commissioner Carson responded stating it was not discussed.

Commissioner Scherer asked what the cost implications were for terminating the contract.

Mr. Richmond responded by stating the cost implications would probably involve re letting the RFP to identity a new contractor for that period of time. He then stated the uncertainty of whether the Commission could find anyone who could do it for less.

Chairman Rodriguez stated to be clear it would be done in either 90 days or 7 months.

Commissioner Scherer stated it was only a four month difference and more like $35,000.00 savings to the Commission rather than $75,000.00.

Mr. Dixon stated another point to keep in mind during these economic times was the Legislature and Governor only release spending authority to the agencies one quarter at a time, understanding there may be trust funds that do not have enough cash to cover all of the authority that has been appropriated. He then stated there may be another 2 billion dollar shortfall next year. He continued by stating the Legislature could require a 10% holdback which would mean the cash generated by the $75.00 less would be enough to cover the budget authority reduction.

Commissioner Schulte asked what other programs would not be funded. He asked if they were product approval projects. He then stated the discussions had been about each of the product approvals have to be self-funding. He then asked with the reduced rate is the Commission still able to cover the cost of product approval or were different projects being discussed.

Ms. Jones stated in the POC meeting it was discussed basically that the POC would be collecting $300,000.00 this year and the proposed budget for Product Approval this fiscal year was $600,000.00.

Chairman Rodriguez stated the Commission had always heavily subsidized Product Approval and was happy to do it because the funds were available. He then stated it was a service the Commission renders and everyone who uses it is happy with the service. He further stated there was no downside, except the Commission may not have the funds.

Commissioner Schulte stated he understood. He then stated it seemed as though there was a $300,000.00 shortfall. He continued by stating the change with the administrator equated to about a $75,000.00 change.

Ms. Jones stated when she looked at the budget she reviewed it with all of the fees collected by the Commission, not just the Product Approval. She continued by stating as the Chairman stated the Product Approval program had always been subsidized by surcharges and any other fees collected by the Commission. She stated the Department does not charge anything directly to Product Approval. She explained staff reviews based on workload and Product Approval is approximately 20% of the Commission’s staff and approximately 20% of the Commission’s workload. She stated that was how the figures were determined for Product Approval. She then stated there were certain things that that may be funded this year such as research products, for instance, to determine how much belongs with Product Approval and how much does not.

Ms. Jones continued by stating after her research her projection for Product Approval this fiscal year is $600,000.00. She stated every year a lot of shifting is done i.e. funding from one project may go from one funding source to another in order to be able to approve it. She then stated the Commission would collect a projected 3 million dollars during the fiscal year with the budget starting off with approximately $600,000.00. She stated the Commission has roughly 3.6 million. She continued by stating the Legislature appropriated 3.4 million to the Commission and that with all the funding sources the Commission has there is enough funds to cover all the projects. She further stated if the fees sources included in Product Approval at the last meeting were cut the budget would be short that amount of money. She stated the Commission and the Department would have to make a determination as to what projects are not funded based on that.

Commissioner Gregory asked for clarification if the contractor was not willing to reduce his fees to $200.00 during the current contract.

Chairman Rodriguez responded stating that was correct.

Commissioner Gregory asked Ms. Jones if the $75,000.00 shortfall would put the Commission $75,000.00 short for the year.

Ms. Jones responded stating that was correct. She then stated the $75,000.00 was based on the number of applications done at the first two meetings. She further stated that number could go up or down. She stated at this point everyone is in a predictive manner relative to what could happen.

Commissioner Gonzalez stated he was in favor of the motion. He then stated in the beginning Product Approval used to take 14-16 hours a day which cost the Commission a lot of money. He continued by stating at this point it takes 20-30 minutes which he considers money the Commission is saving by using an administrator. He further stated having an administrator who was paid $275.00 and now reducing his fee to $200.00 is not right while the Commission gets $300.00. He stated the Commission used to have a lot of money and the Legislature took it away, which he had concerns with. He then stated there was always a possibility of charging $575.00 instead of $500.00 and make up for the difference the Commission needs to complete the necessary projects. He concluded by stating sacrificing the administrator is not right. He stated he would be voting in favor of the motion.

Commissioner Franco stated he was in support of Commissioner Gonzalez’s comments.

Chairman Rodriguez stated there was a motion on the floor to honor the contract with the administrator through June when it expires and to continue paying the fee of $275.00 to the administrator, leaving the increase of the additional $200.00 to the Commission.

Commissioner Stone asked if it was authorizing the attorneys to modify the contract.

Chairman Rodriguez responded stating there was no contract. He stated the administrator fee is $275.00 and the increase does not go to the administrator, but to the Commission $225.00.

Commissioner Franco asked if the Commission wanted to change the amount to $575.00 instead of $500.00 would they have to vote against the current motion.

Mr. Blair responded stating that was a different process.

Mr. Madani stated the Commission had already gone through the rule, established the fees, and adopted the rule. He stated at this point it was not possible.

Chairman Rodriguez stated for the benefit of Commissioners Franco and Gonzalez he asked although the change could not be done at this point it could be changed in the future.

Mr. Madani responded stating yes it could be done in the future.

Fred Dudley, representing Ted Berman

Mr. Dudley stated the contract will need to be modified. He explained the current contract provides the entire fee be remitted to Ted Berman and Associates. He stated he remits $25.00 to the Commission. He further stated Mr. Berman did not intend to keep $475.00 starting at the end of October. He stated if the motion passes it will require a contract modification and he was willing to do the modification.

Chairman Rodriguez thanked Mr. Dudley for the clarification.

Commissioner Carson stated for clarification it applies to all of the different fees not just the application fees.

Mr. Blair restated the motion stated the revenues would remain consistent with the current fees for all services and the residual would go to the DCA and the contract would be revised to reflect the same.

Vote to approve the motion resulted in 24 in favor, 1 opposed (Nicholson), Motion carried.

REPORT TO U.S. DEPARTMENT OF ENERGY ON EQUIVALENCE OF FLORIDA ENERGY CODE TO ASHRAE 90.1-2004

Chairman Rodriguez stated that States are required to certify that their energy codes are equivalent to a code identified by US DOE. He then stated Florida must certify that Florida Energy Code is equivalent to ASHRAE 90.1-2004 and FSEC has done the analysis supporting that Florida's Code is stronger than the ASHRAE 90.1-

2004. He further stated the Energy TAC reviewed the analysis and recommended that the Commission send the certification to the United States Department of Energy ( US DOE).

Commissioner Gregory moved approval of sending certification certifying that the Florida Energy Code is equivalent to ASHRAE 90.1-2004. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

REPORT ON FLORIDA ENERGY CODE IMPACT ON UTILITY CONSERVATION PROGRAMS

Chairman Rodriguez stated as reported at the August meeting Chair the Commission received a letter from Jim Murley, chair of the Florida Energy and Climate Commission (FECC) indicating that the FECC is charged with providing comments to the Florida Public Service Commission concerning the updating

of energy efficiency goals pursuant to the Florida Energy Efficiency and Conservation Act. He then stated the FECC requested the Commission's assistance in providing input to the PSC regarding "assessment of building codes and appliance efficiency standards on the need for utility sponsored programs". He continued by stating the Commission had a report prepared providing the basic information for the 2007 Florida Building Code, and the Report has been updated for the 2010 Code development process, the revised Report and other existing documents will be used to provide the FECC with the information they need relative to their request.

Commissioner Greiner moved approval to transmit the Report, "Florida Energy Code, The Baseline Efficiency for Florida Buildings", regarding assessment of building codes and appliance efficiency standards on the need for utility sponsored programs and relevant supporting documents to the Florida Energy and Climate Commission. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

COMMISSION MEMBER COMMENTS AND ISSUES

Commissioner Grippa stated two meetings previous when the fees were increased there had been discussion of putting together a committee to take a look at efficiencies, the budget, etc. He asked if that committee will be set up.

Mr. Dixon responded stating a workshop was held at the October meeting to look at Product Approval efficiencies. He then stated the Commission has a budget committee the Commission and it will meet at the December Commission meeting.

Commissioner Grippa asked if there would be a report at the next meeting.

Chairman Rodriguez stated there would be a report. He also stated Commissioner Grippa and any other commissioner was invited to attend the Budget Committee meeting.

Commissioner Grippa stated as long as there was a report he would let the committee do its good work. He then stated he saw there was a Florida Building Commission Research Advisory Committee whereby the state insurance company, Citizens was in the process of adopting mitigation credits. He continued by stating when starting to look at them in the short experience he had with the Commission he did not know if there was a reason for the credit. He stated, for example, if there were a 1985 building receiving a 35% credit because there was a roof modification and someone could have built to the newest code and it would only be receiving a 10-15% credit. He asked if there had been a discussion in the past for the Commission staff to get involved and to make sure from a technical standpoint there is a rhyme and a reason for the credits being given.

Mr. Dixon stated the Department of Community Affairs initiated that process and recommendations 10 years ago to the Department of Insurance at that point in time. He further stated a project was funded that developed lost cost relativities which projected what kind of savings or reductions ensuring costs could be reduced by certain types of physical improvements to buildings. He then stated it was his understanding that study was updated last year under funding by the Office of Insurance Regulation. He continued by stating the Department utilized the same contractor in some of the windborne debris studies which the Legislature directed the Commission to conduct. He stated there was some overlap from the technical data side. He then stated the physical information that went into economic credits determination but there had not been direct participation in the credit dollar amount side.

Commissioner Hamrick stated a few months ago when the Commission met in Gainesville they took a side trip to the University of Florida to see the wind laboratory. He stated next year the Commission meets a few times in Melbourne and the Florida Solar Energy Center is in Cocoa Beach. He stated he thought it would be great if the Commission could see the kind of good work going on there as well.

Mr. Dixon stated staff would try to arrange that for the Commission.

Commissioner Gregory stated the Commission voted an exception to the NEC for residential pool pumps and it appears the way it is written, all residential pool pumps are exempt from GFI requirements. He then stated he thought what the Commission voted on was hardwired residential pool pumps would be exempt but above ground pool plug-in type pumps would not be exempt. He asked if he was misreading it.

Mr. Madani responded stating he believed the exemption, the way it came before the Commission was for residential, one and two bedroom family dwellings. He then stated it was not specific to hardwire.

Commissioner Gonzalez stated maybe the Commission should consider putting fees for services the Commission had provided for free such as the Accessibility Waivers or the Declaratory Statements. He then stated there had been no Commission meeting in South Florida in two years and hoped it would be considered for 2011-2012.

Chairman Rodriguez stated for a meeting to happen in South Florida a hotel that complies with the ADA would be necessary because the Commission should not be meeting in places that do not comply. He then stated the room would need to be less than $100.00 and there needed to be adequate space for the Commission meeting needs.

Commissioner Gross stated at the last Commission meeting a commissioner asked about the progress of the integration of the 2000 Code with the 2009 Supplement as far as online.

Mr. Madani stated staff had just finalized the replacement pages and hoped to have it available late in October. He then stated in terms of the CD it would be available three months from the date of the finalized replacement pages i.e. December.

GENERAL PUBLIC COMMENT

Phil McMahon, International Code Council

Mr. McMahon stated he spoke with the technical department yesterday and it was their intent to have the Code online for review by November 1^st.

ADJOURN

12:05 p.m. adjourned.