FLORIDA BUILDING COMMISSION

WELCOME

Chairman Rodriguez welcomed the Commission, staff and the public to Tampa and the June 2010 plenary session. He then stated the primary focus of the June meeting was to decide on regular procedural issues including the product and entity approvals, applications for accreditor and course approvals, petitions for declaratory statements, accessibility waivers and consider recommendations from the Commission’s various committees. He stated in addition the Commission would adopt the Commission and TAC’s 2010 Code Amendment Review Processes.

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

Chairman Rodriguez then conducted a roll-call of the Commission members.

REVIEW AND APPROVE AGENDA

Mr. Blair conducted a review of the meeting agenda as presented in each Commissioner’s files. He amended the agenda stating there would be no Mechanical TAC report.

Commissioner Greiner moved approval of the meeting agenda as amended. Commissioner Carson entered a second to the motion. Vote to approve the motion as amended was unanimous. Motion carried.

REVIEW AND APPROVE APRIL 7, 2010 COMMISSION MEETING MINUTES AND FACILITATOR’S REPORT

Chairman Rodriguez called for approval of the minutes and Facilitator’s Report from the April 7, 2010 Commission meeting.

Commissioner Vann moved approval of the minutes and the Facilitator’s Report from the April 7, 2010 Commission meeting. Commissioner Turner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

REVIEW AND APPROVE MARCH 8, MARCH 15, MARCH 29, APRIL 12, APRIL 19, AND APRIL 26, 2010 TELECONFERENCE SUMMARY

REPORTS

Chairman Rodriguez called for approval of March 8, March 15, March 29, April 12, April 19, and April 26 Teleconference Meeting Summary Reports.

Commissioner Greiner moved approval of the summary reports from the March 8, March, 15, March 29, April 12, April 19 and April 26 teleconference meetings. Commissioner Schulte 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:

Accessibility TAC

Larry Schneider was appointed to the Accessibility TAC.

Education POC

Scott Mollan was appointed to the Education POC.

Roofing TAC

Mark Zenal was appointed to the Roofing TAC. He will be replacing Kenneth Everett.

Special Occupancy TAC

Wayne Young was appointed to the Special Occupancy TAC. He will be replacing Skip Gregory.

REVIEW AND UPDATE OF COMMISSION WORKPLAN

Mr. Dixon conducted a review of the updated Commission work plan. (See Updated Commission Work plan June 8, 2010).

Mr. Dixon stated the significant changes to the work plan include the directions of the 2010 Legislature through HB663. He then stated there were a number of building code changes directed by the Legislature as well as some changes to the Product Approval System, which must be made by changes to the Product Approval Rule. Mr. Dixon referenced a list of code changes on the overhead screen. He stated those changes would be entered as comments during the current round of the 2010 Code Development and would be considered at the August Commission meeting. He then stated there was a schedule for the amendment of Rule 9B-72 for Product Approval including a workshop to be held at the August meeting, a hearing with proposed changes at the October meeting and the changes to the rule were targeted to be effective by the middle of November. He continued by stating the changes in the list included the expedited approval process for products being submitted for approval based on certification by a certification agency, the elimination of the now defunct organizations which had been approved by law now removed as product evaluation entities and authority for applicants to pay the administrator directly instead of monies being transmitted through the department.

Mr. Dixon stated there were a couple other changes to rules which would need to be made. He then stated the Legislature had granted the Commission’s request for authority to charge a fee for Accessibility Code Waivers, declaratory statements and non-binding opinions. He further stated the Commission had to decide what to do with those i.e. whether to exercise those authorities and what the fee would be for each of those actions by the Commission.

Mr. Dixon stated there was one additional task which has been required by law since the Florida Building Code and the Commission were created. The triennial review of the state building code system and a report to the Legislature for any amendments or modifications which need to be made. He further stated the law requires the review to be done each time the Florida Building Code is updated. He stated the updated code was targeted to go into effect at the end of 2011, therefore, any recommendations decided on by the Commission, need to be submitted to the 2011 Legislature. He then stated an internet-based assessment of public opinion on the way things work with the building code system and what should be modified was scheduled for the summer. He further stated the committee appointed by the Chairman at the next Commission meeting would meet at the October Commission meeting and hopefully reach a final decision during that meeting for any recommendations to be made to the Legislature by January 1^st. Mr. Richmond indicated the Legislature would be starting early next year therefore the Commission’s report should be completed earlier than in the past years.

Commissioner Carson moved approval of the updated work plan. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CONSIDER TAC’s CODE AMENDMENT REVIEW PROCESS

Mr. Blair conducted a review of the TAC’s Amendment Review Process. (See TAC Code Amendment Review Process, August 2010 Rule Development Workshop - 2010 Code Update Process (For FBC Adoption June 8, 2010).

Commissioner Greiner referenced page 2, under amendments, “The person proposing the amendment is deemed to be the proponent of the amendment. All

amendments must be written, unless determined by the Chair to be either editorial or minor in nature.” He asked if that determination was appealable or was it concrete. He stated it was important because if the decision was appealable, i.e. if the chair determines it was minor or editorial in nature and someone thinks it was not so minor then there would be a long discussion area. He then stated in his opinion the Chairman’s decision should not be appealable.

Mr. Blair responded stating that was correct and it was the decision.

Commissioner Greiner asked if that could be indicated somewhere.

Mr. Dixon stated what was being defined was the process the TACs and the Commission will use. He then stated any decision was ultimately always appealable under Chapter 120 procedures.

Commissioner Greiner stated everything was appealable, but a process was being put in which would be wide open. He further stated if the Chairman made a decision there could be numerous conversations regarding if it was minor or not.

Mr. Blair asked if adding the line “The Chairman’s decision is final.”

Commissioner Greiner stated even if the decision was made that an appeal could not be made to the Chairman’s decision, the proposal could still be appealed.

Mr. Dixon stated the reason the chairmen of the committees were commissioners was because the Commission was the ultimate deciding body and TACs could only make recommendations. He then stated if the Commission was to decide an issue was minor, the commissioner who was on the TAC, as the Commission’s representative to the TAC, would have to make a judgment whether or not someone would likely appeal the decision in a Chapter 120 proceeding. He continued by stating the Commission would not want to put the total code change at risk, yet it should want to facilitate moving through the process. He further stated only workshops were being conducted by TACs and a final decision would not be made until the Commission review.

Mr. Blair asked Commissioner Greiner if his intent was to clarify the fact the Chairman’s decision was final with no debate.

Commissioner Greiner stated he was correct.

Commissioner Stone asked if there could be a vote on the issue.

Mr. Blair responded by stating yes there could be a vote.

Commissioner Stone stated he believed the TAC made the decision whether it was editorial or not. He further stated he believed the TAC members made the decisions not just the Chairman of the TAC.

Commissioner Greiner stated the problem was it would not be a Chairman’s decision as to whether it was editorial or minor in nature. He further stated normally the changes come before the TAC written or oral, if the Chairman decided on either one of those. He continued by stating it could be put to a vote to a vote at the TAC to determine if the members believed it was minor or editorial, but he believed the discussion should be led by the Chairman.

Commissioner Stone stated he believed most of the time the TAC members would defer to the Chairman, but when they do disagree, he believed the TAC members should be able to make their own decision regarding if an issue was editorial or minor.

Mr. Blair stated he believed, if the wording was left as it was drafted without making any changes, it would work as Commissioner Stone stated.

Commissioner Gonzalez asked for the definition of a TAC member relative to alternates sometimes being present for members who could not attend a meeting. He then stated if a proponent were making changes at the meeting would it be acceptable for an alternate to have an official letter stating they were sitting in for the TAC member.

Mr. Richmond stated he believed the rule stated prior to those meetings staff would need to know if an alternate would be sitting in for a TAC member, i.e., a letter that day would not be insufficient.

Mr. Blair asked for clarification if there was to be an alternate at a meeting advance notice would be required.

Chairman Rodriguez stated that was correct. He then stated the other issue was if there was an issue before a meeting, the TAC member may have to recuse himself from voting whether an alternate or the TAC member.

Mr. Richmond stated he believed that was the best form but he was not sure if it was a hard statutory requirement but it prevents any appearance of impropriety.

Mr. Blair stated he believed the current process requires the alternate to provide advance notice to staff before the meeting.

Commissioner Schulte asked, as a TAC member, if there would be any problem with him voting for his own proposals. He stated during the last cycle Mr. Madani had indicated through legal counsel he could vote on those proposals.

Mr. Blair asked for clarification if Commissioner Schulte meant he could or could not vote on the proposals.

Commissioner Schulte asked if the proponent of the change, who is a TAC member, could vote on his proposals.

Mr. Madani stated in previous practice TAC members were able to vote on their own modifications.

Mr. Richmond stated he would recommend against it. He further stated he generally recommended against TAC members proposing modifications.

Mr. Madani stated he would recommend following legal counsel’s advice.

Commissioner Gonzalez stated his understanding was a TAC member could recuse himself from voting but he could participate in the actual debate.

Chairman Rodriguez stated he believed that was correct because the TAC member would be an advocate for that modification.

Mr. Richmond concurred. He then stated as a matter of form the participation should come from the front table, i.e., the public, as opposed to sitting at the Commission table.

Commissioner Stone asked for clarification when the TAC makes a decision for or against an amendment does Florida require the reasons for approval or disapproval be declared. He stated he knew most of the time it was in writing per the proposal, but during the discussion there may be other reasons for the justification. He further stated he believed those reasons should be documented so anyone looking back could see why the code amendment occurred.

Mr. Blair referenced the Code Update Process and read “TAC members should provide specific and clear reason(s) for not supporting/approving a Code amendment proposal. It is the responsibility of the moderator to make sure that staff has ample time to record such reasoning and the vote count.”

Commissioner Stone stated there was public testimony and then the TAC discusses the issue. He asked what happened if there were a new issue came up, not discussed by the audience, would it be opened up again to the audience for proponents and opponents.

Mr. Blair responded stating it would be opened again to the audience.

Commissioner Stone added, the process states “Each side (proponent/opponent) will be allowed one counterpoint opportunity

Collectively,” then posed, when going through the rebuttal process, if AISI, Oil and Cement Association, and the American Wood Council were present, they may all be in favor or opposed to the amendment but may have different reasons. He then stated each side had to collectively choose somebody. He further stated he agreed the amount of discussion should be limited but each side should have more flexibility to allow each party to state their reasons because there were different interests.

Mr. Dixon stated the intent was to eliminate a case such as ten people from one association all getting up and stating the same reasons. He then stated that could be rewritten to allow for Commissioner Stone’s concern.

Commissioner Stone stated unless it was something new there was no need to address the Commission.

Commissioner Gregory asked if a TAC member was the proponent of a Code modification and he speaks during public comment when the public comment was closed could he continue to speak and talk with the discussion of the TAC or would he have to recuse himself.

Mr. Richmond responded stating he should recuse himself.

Commissioner Schulte asked if a Commissioner was the proponent of a modification, as it progressed up to the Commission level, would he have to additionally recuse himself at that level as well.

Mr. Richmond responded by stating yes.

Commissioner Schulte stated, in the Roofing TAC, FRSA had made multiple proposals. He asked if a TAC member was a member of the FRSA, on a Code committee, for example, what their standing would be regarding discussion and voting on the TAC.

Mr. Richmond stated it was a once removed situation and he did not see any conflict for the member. He then stated TAC members were appointed for specific knowledge and if everyone who had an interest in the field they were appointed for was disqualified why they would be on the TAC.

Jack Glenn, President, Homebuilder’s Association of Florida

Mr. Glenn stated he was a proponent of approximately 225 Code changes, the bulk of which were done at the request of the Commission. He then stated under Mr. Richmond’s latest decision he could not vote on any of those changes as a member of the TAC. He further stated the TAC he was a member of would be reviewing approximately 40 of those changes. He continued by stating if he had known he would’ve have been very reluctant in submitting any Code changes. He stated he would maintain 95% of the Code changes submitted during the current cycle were either by Commissioners or TAC members. He further stated he believed the Commission would be doing a disservice to the TAC members and the proponents by not allowing them to act in their official capacity as a TAC member. He continued by stating the Commission would not get code changes in the future, substantive or those of real concern to Floridians, if people who are involved in the Commission and/or the Commissioners were removed from the process by not being allowed to act as a TAC member.

Chairman Rodriguez stated those proponents could participate as a TAC member and be persuasive.

Mr. Glenn stated from what Mr. Richmond stated he would not be participating as a TAC member. He then stated from what he understood he could participate in the public comment but when it went back to the TAC he would have to recuse himself from any comment.

Chairman Rodriguez stated it was voting he would recuse himself from, not the discussion.

Mr. Richmond stated in an abundance of caution he thought it would be best for the proponent to recuse himself from the vote. He then stated the hard and fast requirements of the Ethics Code, which was what would be referred to under the circumstance, would require recusal if it impacted the direct financial interests of the Commissioner or TAC member. He continued by stating in many instances the Commissioners were acting in more of a representative capacity of trade groups and it would not impact their direct financial interests and in those instances it would be acceptable for them to participate. He further stated the advice was given in an abundance of caution because of the potential ramifications across the line. He stated he believed it would be inadvertent but it could still have a negative impact on both the Commission’s ultimate result and the members individually.

Mr. Glenn stated historically the bulk of the Code changes submitted to the Commission which have created Florida specific amendments have been submitted by those individuals serving on the TACs or the Commission.

Chairman Rodriguez stated he believed in layman’s language the Commission wants him to serve, just not profit from it.

Mr. Glenn stated he had no problem with that.

Commissioner Stone moved approval of the TAC Code Amendment Review Process. Commissioner Nicholson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CONSIDER PROCESS FOR REVIEW OF TAC RECOMMENDATIONS

Mr. Blair conducted a review of the process for Review of the TAC Recommendations. (See: Commission Foundation Code Modification Review Process, December Rule Adoption Hearing – 2010 Code Update Process (For FBC Adoption June 8, 2010).

Commissioner Nicholson moved approval of the process for Review of the TAC Recommendations. Commissioner Carson entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

REVIEW TAC MEETING SCHEDULE

Mr. Dixon conducted a review of the TAC meeting schedule as approved from the April Commission meeting. (See: Approved TAC Review of Proposed Code Amendment Schedule 2010 Code Update Process (Approved unanimously April 26, 2010). He stated that after review of the number proposed amendments and comments on those amendments some TACs would need to meet on days separate from the August Commission meeting days. He presented a revised schedule for commissioners approval. (See the Facilitator’s Report for the revised schedule)

Commissioner Schock stated at the Accessibility Code Workgroup meeting there was an agreement to not hold its meeting in August.

Mr. Dixon stated the Accessibility Code Workgroup would not be reviewing any Code change proposals. He then stated the Accessibility Code was done by a separate process not the Florida Building Code process. He stated the meeting would be removed from the TAC meeting schedule.

Commissioner Stone asked when a TAC meeting was being held in conjunction with the Commission are the commissioners encouraged to attend those TAC meetings.

Mr. Blair responded by stating yes.

Commissioner Nicholson moved approval of the TAC meeting schedule as amended. Commissioner Scherer 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.

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:

#2 Superstein Building,

#3 University of South Florida Basketball Training Facility

#4 Hollywood Golf

#5 Hernando Elementary Elementary K

#6 Orange County Orlando Magic Recreation Center

#8 Winter Park Community Center

#9 Alpha Delta Pi Sorority House Corporation

#11 Kids Inc. Daycare Facility

#14 Greenview Hotel.

Commissioner Nicholson moved approval of the council’s recommendation for approval for items 2, 3, 4, 5, 6, 8, 9, 11, and 14. Commissioner Schulte entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Approval with Conditions:

# 10 KIPP 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 with the condition the applicant move three of the eight accessible seats located on the end of the rows in and the companion seats be on the ends.

Commissioner Nicholson moved approval of the council’s recommendation.

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

Commissioner Schock stated KIPP School was in his jurisdiction and the petitioner had come into his office seeking direction on how to proceed. He then stated he advised the petitioner he needed to go to the Accessibility Waiver Council.

Chairman Rodriguez stated it was just a procedural issue and presented no problem.

Commissioner Nicholson moved approval of the council’s recommendation.

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

#12 Florida State University – Johnston Building

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 the petitioner move the accessible seats located on the ends of the rows be moved in and the companion seating be placed on the ends of the rows.

Commissioner Nicholson moved approval of the council’s recommendation.

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

#13 Soho Beach House

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 the modification to an existing waiver.

Commissioner Nicholson moved approval of the council’s recommendation.

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

Withdrawn

# Pine Creek

Mr. Humberg stated the application was withdrawn from review at the applicant’s request.

No action necessary.

Dismissed

#7 Whispering Pines Center

Mr. Humberg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the council unanimously recommended dismissal for lack of jurisdiction as the requirements were federal. He further stated the council recommended the order include language to the building official indicating they had jurisdiction to allow this based on technical infeasibility.

Commissioner Nicholson moved approval of the POC recommendation. Commissioner Carson 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 eleven entities were recommended for approval by the POC:

CER 1773 National Accreditation & Management Institute

TST 1558 Architectural Testing, Inc.

TST 1589 National Certified Testing Laboratories, Inc.

TST 1657 Fenestration Testing Lab

TST 1795 Architectural Testing Inc. – Minnesota

TST 4120 Architectural Testing Inc. – Wisconsin

TST 4311 Architectural Testing Inc. – Florida

TST 4317 Testing Evaluation Laboratories, Inc.

TST 4744 National Certified Testing Laboratories, Inc – York

TST 7110 Architectural Testing Inc. - Springdale, PA

QUA 7628 Quality Aditing-Institute Ltd.