SEEKING INTERPRETATIONS OF THE BUILDING CODE

By, Randall Gilbert, Esq.[1]

The “Commission.” The Florida Building Commission adopts recommendations as are deemed appropriate to determine and ensure consistent, effective, and efficient enforcement and compliance with the Florida Building Code.[2]

Non-Binding Interpretations. In 2003, The Commission contracted with the Building Officials Association of Florida (BOAF), a private organization dedicated to code interpretation.[3] Pursuant to Florida Administrative Code 9B-3.054, entitled “Non-Binding Interpretations of the Florida Building Code,” non-binding advisory interpretations may be obtained by logging onto BOAF’S website found at http://www.boaf.net/ihelp.html and simply sending an email.

Petition For Binding Interpretation. Local enforcement agencies, building officials, state agencies and the Commission are required to interpret the Building Code consistent with declaratory statements and interpretations entered by the commission.[4] The process for obtaining a Binding Interpretation of a Building Code occurs as follows:

1. Condition Precedent. After the local board of appeals (usually called the “Board of Rules of Appeals”), if such board exists, considers the inspector’s decision, then “any substantially affected person” state agency, or local enforcement agency may file a Petition for Binding Interpretation with the Commission.

2. Time For Filing Petition. After the appeals process is concluded before the local board, if one exists, then the Petition for Binding Interpretation must be filed with the Commission within 25 business days.[5] The form for the Petition is published on the Commission’s website located at http://www.floridabuilding.org. The fee is $250.00.[6]

3. What The Petition Must Contain. (1) The name and address of the county or municipality in which provisions of the Florida Building Code are being interpreted; (2) The name and address of the local building official who made the interpretation being appealed; (3) name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner's representative, if any; and an explanation of how the petitioner's substantial interests are being affected by the local interpretation of the Florida Building Code; (4) The provisions of the Florida Building Code being interpreted by the local building official; (5) A statement of the interpretation given to provisions of the Florida Building Code by the local building official and the manner in which the interpretation was rendered; (6) A statement of the interpretation that the petitioner contends should be given to the provisions of the Florida Building Code and a statement supporting the petitioner's interpretation; (7) Space for the local building official to respond in writing either admitting or denying the statements contained in the petition and a statement of the interpretation of the provisions of the Florida Building Code which the local jurisdiction or the local building official contends is correct, including the basis for the interpretation.[7] In order to insure that the filing deadline is not missed, the Petition should be filed with the Commission, as soon as possible even though it does not contain the local building official’s Response.[8]

4. Response To The Petition. The petitioner must submit the petition to the local building official, who shall place the date of receipt on the petition.[9] Within 5 days after receipt (exclusive of Saturdays, Sundays, and legal holidays), the local building official must return the Petition and Response to the Petitioner. [10] If there is no response within 10 days after receipt of the petition, then the petitioner may file the Petition with the Commission and note that the local building official did not respond. [11]

5. The Binding Interpretation. The panel reviewing the Petition consists of five (5) licensed code administrators who are members of BOAF and designated by the Commission. [12] The panel “shall conduct proceedings as necessary to resolve the issues” and must issue an interpretation regarding the provisions of the Florida Building Code within 21 days after the filing of the petition.[13] However, the 21 day time period may be waived only by the consent of the parties.[14]

Appeal From The Panel. Within 30 days after publication of the interpretation on the Building Code Information System or in the Florida Administrative Weekly (the statute does not mention whichever is earlier or later), any substantially affected person may appeal an interpretation rendered by the panel by filing a petition with the Commission in accordance with chapter 120 (The Administrative Procedures Act).[15] Hearings shall be conducted pursuant to chapter 120 and the uniform rules of procedure.[16]

Appellate Review With The DCA. Before seeking redress from the courts a party must exhaust its administrative remedies first. See generally, Vanderbilt Shores Condominium Ass'n, Inc. v. Collier County, 891 So.2d 583, 585-586 (Fla. 2^nd DCA 2004), citing, Skaggs-Albertson's Props., Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So.2d 113 (Fla. 2^nd DCA 1976).   Thereafter, decisions of the commission are subject to judicial review.[17] Judicial review of the administrative ruling must be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed.[18]

Summary For Seeking Building Code Interpretations

1. Meet with the inspector.

2. Email BOAF and obtain a non-binding interpretation hopefully in your favor.

3. Meet with the building official and use the non-binding interpretation if it supports your position.

4. Appeal to the local Board of Rules and Appeals if it exists.

5. W/in 25 business days of the appeal being concluded file a Petition for Binding Interpretation with the Commission

6. W/in 30 days after publication of the interpretation on the Building Code Information System or in the Florida Administrative Weekly (the statute does not mention whichever is earlier or later) file a petition with the Commission.

7. W/in 30 days Seek judicial review by filing a notice of appeal or Petition with the District Court of Appeal.

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[1] Randall Gilbert, Esq. is a founding member of Gilbert & Kaufman, PA., passed the test for board certification for construction litigation in 2005 (application pending), has appeals to the Supreme Court of Florida and the District Courts of Appeal, Recipient of the National Institute of Trial Advocacy Award, 2003. Florida Certified Master Plumbing Contractor’s license in 1993; Member of Attorneys’ Title Fund, Vice Chairman of the Broward County Construction Lawyer's Association, 2005-2008; Broward County Bar Association; Licensed Florida Real Estate Agent, 2005; Admitted to Florida Bar, 1999, Practices in U.S. District Court, Southern and Northern Districts of Florida, 2000. Education: University of Florida (B.A., 1996); Nova Southeastern University, Shepard Broad Law Center (J.D., 1999). Practice Areas: Construction Litigation; Commercial Litigation; Contracts; Corporate; Appeals, and Real Property.

[2] See, Fla. Stat. §553.76(5) (2007).

[3] Florida Statute §553.77(7) repealed in 2006 by Chapter 2005-147 and renumbered as §553.775(3)(h)

[4] Fla. Stat. §553.775(2)(2007), except that conflicts between the Florida Fire Prevention Code and the Florida Building Code shall be resolved in accordance with s. 553.73(10)(c) and (d).

[5] Fla. Stat. §553.775(3)(c)(2007)

[6] Fla. Stat. §553.775(4)(2007)

[7] Fla. Stat. §553.775(3)(c)2 (2007)

[8] See, Fla. Stat. §553.775(3)(c)4 (2007)

[9] Fla. Stat. §553.775(3)(c)3 (2007)

[10] Fla. Stat. §553.775(3)(c)3 (2007)

[11] Fla. Stat. §553.775(3)(c)3 (2007)

[12] Fla. Stat. §553.775(3)(c)1 (2007)

[13] Fla. Stat. §553.775(3)(c)5 (2007)

[14] Fla. Stat. §553.775(3)(c)5 (2007). There appears to be an ambiguity as to when the interpretation must be issued because §553.775(3)(b) provides that “When requested in writing by any substantially affected person or state agency or by a local enforcement agency, the commission shall issue a declaratory statement pursuant to s. 120.565.” Florida Statute §120.565(3) then states “The agency must either issue the declaratory statement or deny the petition within 90 days after the filing of the petition.”

[15] Fla. Stat. §553.775(3)(c)7 (2007)

[16] Fla. Stat. §553.775(3)(c)7 (2007)

[17] Fla. Stat. §553.775(3)(c)7 (2007)

[18] Fla. Stat. §120.68 (2007).