House Bill 1307

House Bill hb1307c1

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    Florida House of Representatives - 2002             CS/HB 1307

        By the Council for Smarter Government and Representatives
    Cantens and Arza





  1                      A bill to be entitled

  2         An act relating to private provider plans

  3         review and building code inspection services;

  4         creating s. 553.791, F.S.; providing

  5         alternative procedures for building plans

  6         review and inspection; providing definitions;

  7         authorizing use of a private provider to review

  8         plans and make building code inspections under

  9         certain circumstances; providing a limitation;

10         requiring notice to the local building

11         official; specifying notice information;

12         specifying requirements, duties, and

13         responsibilities of a private provider;

14         providing for a certificate of compliance;

15         providing duties of the local building

16         official; providing procedures for approval or

17         denial of a certificate of compliance or a

18         building permit; prohibiting local entities

19         from adopting or enforcing certain laws, rules,

20         procedures, or standards; requiring a private

21         provider to maintain certain insurance;

22         subjecting private providers to certain

23         disciplinary provisions; limiting use of a

24         private provider under certain circumstances;

25         requiring local building code enforcement

26         agencies to develop and maintain a process to

27         audit the performance of building code

28         inspection services; providing immunity from

29         liability; providing an effective date.

30

31  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  Section 553.791, Florida Statutes, is

  2  created to read:

  3         553.791  Alternative plans review and inspection.--

  4         (1)  As used in this section, the term:

  5         (a)  "Applicable codes" means the Florida Building Code

  6  and any local technical amendments to the Florida Building

  7  Code but does not include the applicable minimum fire

  8  prevention and firesafety codes adopted pursuant to chapter

  9  633.

10         (b)  "Building" means any construction, erection,

11  alteration, demolition, or improvement of, or addition to, any

12  structure for which permitting by a local enforcement agency

13  is required.

14         (c)  "Building code inspection services" means those

15  services described in s. 468.603(6) and (7) involving the

16  review of building plans to determine compliance with

17  applicable codes and those inspections required by law of each

18  phase of construction for which permitting by a local

19  enforcement agency is required to determine compliance with

20  applicable codes.

21         (d)  "Duly authorized representative" means an agent of

22  the private provider identified in the permit application who

23  reviews plans or performs inspections as provided by this

24  section and who is licensed as an engineer under chapter 471

25  or as an architect under chapter 481 or who holds a standard

26  certificate under part XII of chapter 468.

27         (e)  "Local building official" means the individual

28  within the governing jurisdiction responsible for direct

29  regulatory administration or supervision of plans review,

30  enforcement, and inspection of any construction, erection,

31  alteration, demolition, or substantial improvement of, or

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  1  addition to, any structure for which permitting is required to

  2  indicate compliance with applicable codes and includes any

  3  duly authorized designee of such person.

  4         (f)  "Permit application" means a properly completed

  5  and submitted application for:

  6         1.  The requested building or construction permit.

  7         2.  The plans reviewed by the private provider.

  8         3.  The affidavit from the private provider required

  9  pursuant to subsection (5).

10         4.  Any applicable fees.

11         5.  Any documents required by the local building

12  official to determine that the fee owner has secured all other

13  government approvals required by law.

14         (g)  "Private provider" means a person licensed as an

15  engineer under chapter 471 or as an architect under chapter

16  481 or a person who holds a standard certificate under part

17  XII of chapter 468.

18         (h)  "Request for certificate of occupancy or

19  certificate of completion" means a properly completed and

20  executed application for:

21         1.  A certificate of occupancy or certificate of

22  completion.

23         2.  A certificate of compliance from the private

24  provider required pursuant to subsection (10).

25         3.  Any applicable fees.

26         4.  Any documents required by the local building

27  official to determine that the fee owner has secured all other

28  government approvals required by law.

29         (2)  Notwithstanding any other provision of law, the

30  fee owner of a building may use a private provider to provide

31  building code inspection services with regard to such building

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  1  and may make payment directly to the private provider for the

  2  provision of such services.  All such services shall be the

  3  subject of a written contract between the private provider, or

  4  the private provider's firm, and the fee owner.

  5  Notwithstanding any other provision of law, the fee owner may

  6  elect to use a private provider to provide both plans review

  7  and required building inspections or to use the local

  8  enforcement agency for one or both of such purposes.

  9         (3)  A private provider and any duly authorized

10  representative may only perform building code inspection

11  services that are within the disciplines covered by that

12  person's licensure or certification under chapter 481, chapter

13  471, or chapter 468. A private provider may not provide

14  building code inspection services pursuant to this section

15  upon any building designed or constructed by the private

16  provider or the private provider's firm.

17         (4)  A fee owner using a private provider to provide

18  building code inspection services shall notify the local

19  building official at the time of permit application on a form

20  to be adopted by the commission. This notice shall include the

21  following information:

22         (a)  The services to be performed by the private

23  provider, whether plans review, required building inspections,

24  or both.

25         (b)  The name, firm, address, telephone number, and

26  facsimile number of each private provider who is performing or

27  will perform such services, his or her professional license or

28  certification number, qualification statements or resumes,

29  and, if required by the local building official, a certificate

30  of insurance demonstrating that professional liability

31  insurance coverage is in place for the private provider's

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  1  firm, the private provider, and any duly authorized

  2  representative in the amounts required by this section.

  3         (c)  An acknowledgment from the fee owner in

  4  substantially the following form:

  5

  6         I have elected to use one or more private

  7         providers to provide building code plans review

  8         and/or inspection services on the building that

  9         is the subject of the enclosed permit

10         application, as authorized by s. 553.791,

11         Florida Statutes.  I understand that the local

12         building official may not review the plans

13         submitted or perform the required building

14         inspections to determine compliance with the

15         applicable codes, except to the extent

16         specified in said law.  Instead, plans review

17         and/or required building inspections will be

18         performed by licensed or certified personnel

19         identified in the application.  The law

20         requires minimum insurance requirements for

21         such personnel, but I understand that I may

22         require more insurance to protect my interests.

23         By executing this form, I acknowledge that I

24         have made inquiry regarding the competence of

25         the licensed or certified personnel and the

26         level of their insurance and am satisfied that

27         my interests are adequately protected. I agree

28         to indemnify, defend, and hold harmless the

29         local government, the local building official,

30         and their building code enforcement personnel

31         from any and all claims arising from my use of

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  1         these licensed or certified personnel to

  2         perform building code inspection services with

  3         respect to the building that is the subject of

  4         the enclosed permit application.

  5

  6  If the fee owner makes any changes to the listed private

  7  providers or the services to be provided by those private

  8  providers, the fee owner shall, within 1 business day after

  9  any change, update the notice to reflect such changes.

10         (5)  A private provider performing plans review under

11  this section shall review construction plans to determine

12  compliance with the applicable codes. Upon determining that

13  the plans reviewed comply with the applicable codes, the

14  private provider shall prepare an affidavit or affidavits on a

15  form adopted by the commission certifying, under oath, that

16  the following is true and correct to the best of the private

17  provider's knowledge and belief:

18         (a)  The plans were reviewed by the affiant, who is

19  duly authorized to perform plans review pursuant to this

20  section and holds the appropriate license or certificate.

21         (b)  The plans comply with the applicable codes.

22         (6)(a)  Within 30 business days after receipt of a

23  permit application, the local building official shall issue

24  the requested permit or provide a written notice to the permit

25  applicant identifying the specific plan features that do not

26  comply with the applicable codes, as well as the specific code

27  chapters and sections.  If the local building official does

28  not provide a written notice of the plan deficiencies within

29  the prescribed 30-day period, the permit application shall be

30  deemed approved as a matter of law and the permit shall be

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  1  issued by the local building official on the next business

  2  day.

  3         (b)  If the local building official provides a written

  4  notice of plan deficiencies to the permit applicant within the

  5  prescribed 30-day period, the 30-day period shall be tolled

  6  pending resolution of the matter.  To resolve the plan

  7  deficiencies, the permit applicant may elect to dispute the

  8  deficiencies pursuant to subsection (12) or to submit

  9  revisions to correct the deficiencies.

10         (c)  If the permit applicant submits revisions, the

11  local building official has the remainder of the tolled 30-day

12  period plus 5 business days to issue the requested permit or

13  to provide a second written notice to the permit applicant

14  stating which of the previously identified plan features

15  remain in noncompliance with the applicable codes, with

16  specific reference to the relevant code chapters and sections.

17  If the local building official does not provide the second

18  written notice within the prescribed time period, the permit

19  shall be issued by the local building official on the next

20  business day.

21         (d)  If the local building official provides a second

22  written notice of plan deficiencies to the permit applicant

23  within the prescribed time period, the permit applicant may

24  elect to dispute the deficiencies pursuant to subsection (12)

25  or to submit additional revisions to correct the deficiencies.

26  For all revisions submitted after the first revision, the

27  local building official has an additional 5 business days to

28  issue the requested permit or to provide a written notice to

29  the permit applicant stating which of the previously

30  identified plan features remain in noncompliance with the

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  1  applicable codes, with specific reference to the relevant code

  2  chapters and sections.

  3         (7)  A private provider performing required inspections

  4  under this section shall inspect each phase of construction as

  5  required by the applicable codes. The private provider shall

  6  be permitted to send a duly authorized representative to the

  7  building site to perform the required inspections, provided

  8  all required reports and certifications are prepared by and

  9  bear the signature and seal of the private provider. The

10  contractor's contractual or legal obligations are not relieved

11  by any action of the private provider.

12         (8)  A private provider performing required inspections

13  under this section shall provide notice to the local building

14  official of the date and approximate time of any such

15  inspection no later than the prior business day by 2 p.m.

16  local time or by any later time permitted by the local

17  building official in that jurisdiction.  The local building

18  official may visit the building site as often as necessary to

19  verify that the private provider is performing all required

20  inspections.

21         (9)  Upon completing the required inspections at each

22  applicable phase of construction, the private provider shall

23  record such inspections on a form acceptable to the local

24  building official.  These inspection records shall reflect

25  those inspections required by the applicable codes of each

26  phase of construction for which permitting by a local

27  enforcement agency is required. The private provider, before

28  leaving the project site, shall post each completed inspection

29  record, indicating pass or fail, at the site and provide the

30  record to the local building official within 2 business days.

31  Records of all required and completed inspections shall be

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  1  maintained at the building site at all times and made

  2  available for review by the local building official.  The

  3  private provider shall report to the local enforcement agency

  4  any condition that poses an immediate threat to public safety

  5  and welfare.

  6         (10)  Upon completion of all required inspections, the

  7  private provider shall prepare a certificate of compliance, on

  8  a form acceptable to the local building official, summarizing

  9  the inspections performed and including a written

10  representation, under oath, that the stated inspections have

11  been performed and that, to the best of the private provider's

12  knowledge and belief, the building construction inspected

13  complies with the approved plans and applicable codes.  The

14  statement required of the private provider shall be

15  substantially in the following form:

16

17         To the best of my knowledge and belief, the

18         building components and site improvements

19         outlined herein and inspected under my

20         authority have been completed in conformance

21         with the approved plans and the applicable

22         codes.

23

24         (11)  Within 2 business days after receipt of a request

25  for a certificate of occupancy or certificate of completion

26  and the applicant's presentation of a certificate of

27  compliance and approval of all other government approvals

28  required by law, the local building official shall issue the

29  certificate of occupancy or certificate of completion or

30  provide a notice to the applicant identifying the specific

31  deficiencies, as well as the specific code chapters and

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  1  sections.  If the local building official does not provide

  2  notice of the deficiencies within the prescribed 2-day period,

  3  the request for a certificate of occupancy or certificate of

  4  completion shall be deemed granted and the certificate of

  5  occupancy or certificate of completion shall be issued by the

  6  local building official on the next business day.  To resolve

  7  any identified deficiencies, the applicant may elect to

  8  dispute the deficiencies pursuant to subsection (12) or to

  9  submit a corrected request for a certificate of occupancy or

10  certificate of completion.

11         (12)  If the local building official determines that

12  the building construction or plans do not comply with the

13  applicable codes, the official may deny the permit or request

14  for a certificate of occupancy or certificate of completion,

15  as appropriate, or may issue a stop-work order for the project

16  or any portion thereof, if the official determines that such

17  noncompliance poses a threat to public safety and welfare,

18  subject to the following:

19         (a)  The local building official shall be available to

20  meet with the private provider within 2 business days to

21  resolve any dispute after issuing a stop-work order or

22  providing notice to the applicant denying a permit or request

23  for a certificate of occupancy or certificate of completion.

24         (b)  If the local building official and private

25  provider are unable to resolve the dispute, the matter shall

26  be referred to the local enforcement agency's board of

27  appeals, if one exists, which shall consider the matter at its

28  next scheduled meeting or sooner.  Any decisions by the local

29  enforcement agency's board of appeals, or local building

30  official if there is no board of appeals, may be appealed to

31  the commission pursuant to s. 553.77(1)(h).

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  1         (c)  Notwithstanding any provision of this section, any

  2  decisions regarding the issuance of a building permit,

  3  certificate of occupancy, or certificate of completion may be

  4  reviewed by the local enforcement agency's board of appeals,

  5  if one exists.  Any decision by the local enforcement agency's

  6  board of appeals, or local building official if there is no

  7  board of appeals, may be appealed to the commission pursuant

  8  to s. 553.77(1)(h), which shall consider the matter at the

  9  commission's next scheduled meeting.

10         (13)  For the purposes of this section, any notice to

11  be provided by the local building official shall be deemed to

12  be provided to the person or entity when successfully

13  transmitted to the facsimile number listed for that person or

14  entity in the permit application or revised permit

15  application, or, if no facsimile number is stated, when

16  actually received by that person or entity.

17         (14)  No local enforcement agency, local building

18  official, or local government may adopt or enforce any laws,

19  rules, procedures, or standards more stringent than those

20  prescribed by this section.

21         (15)  A private provider may perform building code

22  inspection services under this section only if the private

23  provider maintains insurance for professional and

24  comprehensive general liability with minimum policy limits of

25  $1 million per occurrence relating to all services performed

26  as a private provider, including tail coverage for a minimum

27  of 5 years subsequent to the performance of building code

28  inspection services.

29         (16)  When performing building code inspection

30  services, a private provider is subject to the disciplinary

31  guidelines of the applicable professional board with

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  1  jurisdiction over his or her license or certification under

  2  chapter 468, chapter 471, or chapter 481.  All private

  3  providers shall be subject to the disciplinary guidelines of

  4  s. 468.621(1)(c)-(h).  Any complaint processing,

  5  investigation, and discipline that arise out of a private

  6  provider's performance of building code inspection services

  7  shall be conducted by the applicable professional board.

  8         (17)  Each local building code enforcement agency shall

  9  develop and maintain a process to audit the performance of

10  building code inspection services by private providers

11  operating within the local jurisdiction.

12         (18)  The local government, the local building

13  official, and their building code enforcement personnel shall

14  be immune from liability to any person or party for any action

15  or inaction by a fee owner of a building, or by a private

16  provider or its duly authorized representative, in connection

17  with building code inspection services as authorized in this

18  act.

19         Section 2.  This act shall take effect October 1, 2002.

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