FLORIDA BUILDING COMMISSION

WELCOME

Chairman Rodriguez welcomed the Commission, staff and the public to Melbourne for the August 2009 plenary session which would be conducted in a single day meeting. He stated the primary focus of the meeting would be the Rule 9B-72, Product Approval, rule initiatives on fees and criteria for approving product approval evaluation entities. 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.

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 Gregory entered a second to the motion. Vote to approve the motion as amended was unanimous. Motion carried.

REVIEW AND APPROVE JUNE 9, 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 Carson moved approval of the minutes and Facilitator’s Report from the June Commission meeting. Commissioner Greiner entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

CHAIR’S DISCUSSION ISSUES AND RECOMMENDATIONS

Chairman Rodriguez first announced the following reappointments to the Florida Building Commission:

Commissioner Bahadori – Fire Protection Technologist

Commissioner Goodloe – State Insurance Representative

Commissioner Gonzalez – Code Official

Commissioner Schulte – Roofing, Sheet metal and AC Contractor

Commissioner Greiner – Code Official

Chairman Rodriguez then announced the following new appointments to the Florida Building Commission. He asked each of the new Commissioners present to address the Commission and introduce themselves.

Donald Dawkins – Representative of Persons with Disabilities,

replacing William Norkunas

Nicholas Nicholson - Structural Engineer, replacing Paul Kidwell

Commissioner Nicholson stated he came to Florida in 1986 working in site development in subdivisions and commercial development. He then stated he had a graduate degree from Cleveland State University in Structural Engineering, a Master’s degree from the University of Kentucky in Environmental Engineering, and a Master’s degree from the University of South Carolina in Business Administration. He continued by stating in 1994 he started doing residential and commercial structural design, which he currently still does. He further stated at the height of the building boom his company was designing more than 500 homes a year and 30 commercial projects a year, which also included building design for some. He then stated the company considered expansion at that time but decided against it. He stated he believed that was a good decision considering with the turn of the economy his company has had to lay off a number of people.

John Scherer- General Contractor, replacing Matt Carlton

Commissioner Scherer stated he was born and raised in Fort Lauderdale, Florida. He then stated he had been in the construction industry for ten years. He received his degree from the University of Florida in Building Construction and returned to Fort Lauderdale to work. He continued by stating one of the first buildings he built was designed by Rodriguez Quiroga Architects. He stated he also received a law degree. He stated he was the president and owner of Gulf Building Corporation, located in Fort Lauderdale. He continued by stating the company primarily does construction for the commercial hospitality and gaming industries as well as home industries. He further stated he was a partner in the law firm Conrad and Scherer. He stated he gives expert testimony as it relates to cost and scheduling for projects.

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

Code Administration TAC

Commissioner Scherer was appointed to replace Matt Carlton on the Code Administration TAC.

Structural TAC

Commissioner Schock was appointed to replace Paul Kidwell as chairman of the Structural TAC.

Commissioner Nicholson was to replace Paul Kidwell on the Structural TAC.

Window/Wall Workgroup

John Jervis was appointed to the Window/Wall Workgroup.

Accessibility Advisory Council

Chris Masal was appointed by DCA Secretary Pellham to replace Michael Elliot on the Accessibility Advisory Council.

Accessibility TAC

Commissioner Dawkins was appointed to replace William Norkunas on the AccessibilityTAC.

Accessibility Code Workgroup

John O'Conner was appointed to the Accessibility Code Workgroup to replace Neil Mellick.

Julie Shaw was appointed to the Accessibility Code Workgroup.

Chris Masal was appointed to the Accessibility Code Workgroup

Soy Williams, Bob Vincent, and Bill Norkunas rotated off the Accessibility Code Workgroup.

Chairman Rodriguez next addressed the issue of Chinese Drywall which involves contaminated gypsum board as discussed at the June Commission meeting. He reported the US Consumer Product Safety Commission (CPSC) and the US Environmental Protection Agency (EPA) are now engaged in evaluating the issues involved with this product. He further stated to date, there had not been conclusive determination of a health risk, but the concerns regarding building systems degradation and potential resultant problems are still being evaluated. He concluded by stating DCA is participating in the State's multi-agency task group and will keep the Commission updated on the issue as events develop.

Chairman Rodriguez then addressed the Energy and Climate Commission letter. He stated 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 is requesting 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 further stated the Commission had a report prepared providing the basic information for the 2007 Florida Building Code and the Report is being updated for the 2010 Code development process, and the revised Report and other existing documents will be used to provide the FECC with the information they need relative to their request.

REVIEW AND UPDATE OF COMMISSION WORKPLAN

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

Mr. Dixon stated DCA staff had completed the bidding on meeting sites and locations. He reviewed those briefly explaining most meetings were in a central Florida location, but two would be held in Melbourne, a bit further south.

Mr. Dixon stated the law requires triennial update of the Florida Building Code. He continued by stating the Commission must wait six months after the new International codes edition were available for purchase before it could start the process of developing the next edition of the Florida Code. He continued by stating a development plan would be ready for the Commission to review by the next meeting. He stated the I-codes were available by April so the selection process, referred to by law, would take place at the October Commission meeting. He then stated scheduling would be based on when the documents identifying Florida specifics could be developed and ready for the public. Mr. Dixon further stated he felt it necessary to point out to individuals who want to propose changes to the I-codes that the six months waiting period will have passed and the six months was provided by law to give parties time to understand the foundation codes and what Florida specific changes they want to propose. But the intent was to try to keep the Florida Building Code up-to-date with the I Codes. He asked those individuals to work on their proposed amendments and not to wait until the last minute and he stated staff intended to ask the Commission to not allow grace periods after the planned cut-off dates. He encouraged any individuals who wished to make further changes to go through the I Codes processes and leave the Florida Building Code as consistent with the National Code as possible.

Commissioner Goodloe moved approval of the updated workplan. Commissioner Carson 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 Humburg for consideration of the Accessibility Waiver Applications.

Mr. Humburg presented the waiver applications for consideration. He stated recommended approvals would be presented in consent agenda format with conditional approvals, deferrals and denials being considered individually.

Recommendation for Approval with No Conditions:

#1 Muvico Theaters Cocowalk

Mr. Humburg 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 that it create an unnecessary, extreme and unreasonable hardship because of technical infeasibility and disproportionate cost.

#3 The Urbana Retal Tenant Building

Mr. Humburg 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 parking area falling within the exemption provided for unoccupiable spaces and the definition of unoccupiable space contained in Chapters 2 and 11 of the Florida Building Code.

#6 Miami Marlins Park

Mr. Humburg 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 that providing vertical accessibility would create an unnecessary and extreme hardship because of technical infeasibility and that equivalent facilitation would be achieved by providing a variety of accessible seating options throughout the stadium.

#8 IPic Entertainment

Mr. Humburg 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 that providing vertical accessibility would create an unnecessary, unreasonable and extreme hardship because of technical infeasibility and disproportionate cost.

#10 Henry Hotel

Mr. Humburg 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 demonstrating that providing vertical accessibility would create an unnecessary, unreasonable and extreme hardship based on technical infeasibility and disproportionate cost.

#13 Sunrise Cinemas Deerfield Mall

Mr. Humburg 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 demonstrating that it would create an unnecessary, unreasonable and extreme hardship because of technical infeasibility and disproportionate cost.

Commissioner Carson moved approval of the Council’s recommendation for approval of the consent agenda for items 1, 3, 6, 8, 10 and 13. Commissioner Boyer entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Recommendation for Approval with Conditions:

# 7 Ridge Cinema

Mr. Humburg 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 is to provide documentation of the sight lines from the accessible seating.

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

#12 Dr. Kiran Patel Center for Global Solutions

Mr. Humburg 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 is to relocate one of the wheelchair seating locations from the rear of the theater to the end of the back row to remove the wheelchair from the flow of foot traffic.

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

Deferrals

#4 Winter Haven Fire Safety Complex

#5 Dick Brown Park

#9 Italia Villa Hotel

#11 FAU/UF Joint Use Facility

Mr. Humburg stated the Council ran out of time because the room was needed for another meeting. He stated there were four applications which had no representatives present, therefore the Council recommended deferral to obtain additional information.

Kathy Roshay, Schenkel Shultz Architecture

Ms. Roshay stated she was speaking on #11 FAU/UF Joint Use Facility. She stated it seemed the applicant missed the Advisory Council meeting and there were questions.

Chairman Rodriguez stated that was correct. He then stated the Advisory Council makes recommendations to the Commission. He further stated this application would be heard at the next Council meeting.

Ms. Roshay asked when and where the next meeting would be what would be the process.

Mr. Dixon responded stating the next Council meeting would be October 12, 2009 at the Embassy Suites in Tampa and the Commission will meet the next day, October 13, 2009.

Ms. Roshay asked if a letter or an email would be sent to the applicant stating the application was deferred.

Mr. Dixon responded yes.

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

Denial

#2 Fire Rescue Station 64

Mr. Humburg explained the petitioner’s request for waiver as it was described in each Commissioner’s files. He stated the Council recommended by a 4-1 vote for denial based on the conviction that vertical accessibility should be provided in new construction. He further stated the case was contingent in that the Council had traditionally, and on a number of occasions, approved these waivers when the fire fighters and fire stations were using the Uniform Accessibility Standards as opposed to the ADA Accessibility Guidelines for use in a fire station. He stated there were new members on the Advisory Council who felt strongly that the Title Two entity in this case was a public entity building, a two-story facility which should be accessible. He continued by stating there were also two letters that recently came to their attention from the Department of Justice, which were actually over a decade old, and expressed their belief in unclear terms that even with the use of UFAS a fire station should be accessible therefore the Council recommended denial. He concluded by requesting the Commission seek a current opinion from the Department of Justice as it relates to UFAS and fire stations and whether the second floor dormitory should be accessible even under UFAS.

Angel Lamela, Manager for facilities and construction for Miami- Dade Fire Rescue

Mr. Lamela stated he had researched and had copies of ten previous similar projects which had been approved for fire stations from different municipalities including four cases from Miami-Dade. He then stated most of the cases were based on UFAS which was the main issue. He continued by stating under Title Two, UFAS and the Department of Justice gives the state or local jurisdiction the option of using ADA or UFAS. He stated the applicant chose to use UFAS specific occupancy classifications in Section 4.14, which specifically quotes fire stations. He further stated it also clarified it applied only to areas of use by the public or if a physically handicapped person were employed. He stated in the past UFAs had been used and approved, as recent as the last Commission meeting. He then stated he hoped the Commission would seek an opinion for the Department of Justice as they were the ones who years ago recommended him using UFAS in cases such as this. He further stated the letters submitted were not completely clear because they were making references to the fact there was some concern with the intent of not employing individuals with disabilities as firefighters. He stated there are regulations which state firefighters have to be a physically abled body which conflicts with that concern of limitation. He further stated documentation regarding the physical testing required by fire fighters was included with the application. Mr. Lamela continued by stating the letter also made reference to situations regarding cleaning personnel, cooks, etc. but the individuals who were stationed at fire stations were the ones who went out on calls. He stated those individuals have to be able to run to the trucks, because using an elevator in critical times would not be a fast enough response time. He further stated the cleaning and cooking was usually done by the firefighters who live at the station. He then stated in the fire station seeking the waiver, most of the facilities are on the ground floor, including offices, cooking facilities, the day room, a handicap bathroom, and the second floor is the dorm area, with a pole for faster response. He stated the ground floor does comply with UFAS and ADA making sure complete access was available including handicap parking, doors, and fully equipped handicap bathroom for members of the public who visit the fire station. He then stated the addition of the elevator and a handicap bathroom upstairs would be a difficult additional cost. He stated the applicant was trying to move forward with the project without having to modify the drawings or have the additional cost. He concluded by stating their purpose was to provide the best services possible for the residents of Miami Dade County. He further stated at the moment the fire fighters were stationed in a trailer and the fire truck is under a canopy because they have no station. He respectfully requested the Commission approve the waiver.

Chairman Rodriguez stated Mr. Humburg had recommended the Commission seek an opinion from the Department of Justice. He asked legal counsel for a recommendation on a course of action to follow.

Ms. Anderson stated if the Commission wished to seek an opinion from the Department of Justice, DCA staff could assist in writing a letter, however she understood the process could take a very long time to get a response. She further stated she would recommend not waiting regarding this applicant.

Commissioner Greiner asked if this was the fire station from the last meeting the Commission sent back to the Council.

Mr. Humburg responded yes.

Commissioner Greiner stated the Commission sent it back asking the Council to review the application and determine which way it should be going; with UFAS, ADA or Florida Accessibility and the answer was a 4-1 denial. He then stated he was concerned because these had been done both ways in most jurisdictions. He stated he was not speaking for others but he knows in his jurisdiction fire stations have been built with elevators and without elevators depending on which code was used. He further stated he believed it would behoove the Commission to get the right answer at some point. He stated the Commission was in a bad position going back and forth; pushing people economically when there was a lot of good logic relative to the fire fighters, as he was certain Commissioner Goodloe would tell them. He then stated he believed the Commission needed to get a handle on the issue and if it took time then the time should be taken.

Robert S. Fine, member of the public

Mr. Fine stated he had no representation with the applicant. He then stated he had been dealing with accessibility issues for many years and had seen many of these cases. He further stated there had been charettes for hotel rooms, movie theaters and cases such as this where no one really knew what to do. He stated it seemed a number of the fire stations were coming up and having lived in Dade County, knowing what the budget was, he could only imagine what a small county faced. He suggested maybe the Accessibility TAC should conduct a charette with representatives from both fire marshall’s office and the fire departments to provide the TAC with information to help them better determine the best options in future cases.

Chairman Rodriguez asked Mr. Fine his guess on the time period it could take to get a response from the Department of Justice.

Mr. Fine responded when things were good with the Department of Justice and a good congressman maybe a year or two. He stated the bottom line was a waiver was specific for Florida Law.

Mr. Richmond stated it was his understanding, from Ms. Anderson, that it was a time issue because new rules were coming into effect from the federal level and would do away with UFAS. He then stated he had not independently verified that but if it were the case he believed the Department of Justice would be even more reluctant to issue anything in writing. He further stated opinions have been sought from the Department of Justice in the past and have gotten no response.

Chairman Rodriguez asked if Mr. Richmond believed the future of this controversy would end in the near future, towards the conservative side of having to provide elevators.

Mr. Richmond responded that had been mentioned in passing.

Mr. Blair stated a decision needed to be made on this particular case.

Ms. Anderson stated the Commission was not being asked to determine what UFAS required.

Chairman Rodriguez asked if she wanted to expand on that for the Commission.

Ms. Anderson stated the Commission was only being asked to grant a waiver from Florida specific requirements to clear the way for the applicant.

Commissioner Vann stated he did not believe it was time to reinvent the wheel from an economic standpoint. He further stated there was enough precedent to follow and get an opinion. He stated instead of changing the procedure at this point, let the project continue without the opinion from the Department of Justice.

Commissioner Hamrick stated relative to the economic issue, being a Title II entity does not have any bearing on the applicant. He then stated Title Two has to comply with the Accessibility requirements no matter what the cost is. He further stated he had to provide it in all the schools no matter the cost. He stated he was in support of the Advisory Council’s recommendation of denial. He expressed his concern of fire stations having open houses when schools are invited to fire stations and small school children tour the fire station or fire stations participating in “bring your child to work” day and if they do access must be provided. He then stated if a child had a traumatic experience and needed to know if mom or dad were safe while they were at work and wanted to see them at work they need to be able to get to where they sleep. He stated he believed the public would get up there and an elevator needs to be provided.

Chairman Rodriguez asked if Commissioner Hamrick would like to make a motion.

Commissioner Hamrick moved approval of the Council’s recommendation of denial. Commissioner Scherer entered a second to the motion.

Commissioner Carson stated the amount of money required to add the elevator would be less than 1 ½ percent of the total cost. He then stated anyone would recognize the current economic times but for the amount of money on a project this size he could not see not doing it.

Commissioner Gregory stated one of the key issues brought forward by Commissioner Norkunas which struck him was the facility would not always be a fire station. He asked the applicant if he would entertain a provision stating if the use of the building changes in any way, an elevator would have to be retrofitted to the building. He then stated he agreed with Commissioner Carson considering the amount of money stated on application it would be more cost effective to do it now.

Commissioner Goodloe stated he would be voting against the motion, not from the standpoint of economics, because that would not sway him either way. He continued by stating he believed a fire station could be designed with the areas above being non-accessible to the public. He further stated he did not believe taking children to work day, which typically does not occur in fire stations, nor did open houses warrant having an elevator. He stated the private living quarters of the fire stations are typically the private living quarters and people are in various stages of dress. He then stated in most cases members of the public, including children, were not allowed in those areas at any time.

Commissioner Tolbert asked if anyone had mentioned a compromise with a chair lift or something similar.

Mr. Humburg answered stating it had not been suggested.

Commissioner Vann stated he was puzzled, if it met UFAS and UFAS approved, he did not understand the issue. He then mentioned there were hundreds and hundreds of factories where dads work with platforms and chains and million ton machines running back and forth over the ground floors without elevators. He continued by stating he understood this was only one building, but the problem was the precedent set prior to all those applicants were granted a gift. He stated if this was sent to the Department of Justice for evaluation two years from now the opinion could come stating it was right. He reiterated he did not understand why it was so important to change the way things had been done for so long today.

Chairman Rodriguez stated the Commission had both denied and granted waivers similar to this one. He then stated it was because of the built-in dilemma a change was necessary.

Commissioner Vann asked if someone on the Commission could tell him how it has leaned the majority of the time.

Commissioner Greiner stated he believed the majority of the time the Commission has allowed it without the elevator.

Mr. Humburg stated the one question raised relative to UFAS was in part the reason the Advisory Council made the recommendation it did. He then stated the two opinion letters from the Department of Justice, although over a decade old, seemed to indicate in fairly clear language it believed, even with the use of UFAS, the second floor of a fire station should be accessible.

Commissioner Schock stated he would be voting for the proposal of the having the elevator because he believed the Commission has an Advisory Council who advises the Commission, which it has done. He further stated he seemed to support the advice therefore the Commission should follow it.

Mr. Lamela stated in terms of the building use changing usually outdated fire stations were demolished and a new one would be built. He stated therefore he did not see in ten years, for example, changing the design of the building. He further stated because the locations were more specific and based on the needs of the communities in terms of response time, the specific problem with this fire station was that the land acquired in the specific area forced the two-story design. He explained whenever possible one-story designs were used because it was better for everyone. He then stated any time there was an occupancy change, there had to be code compliance, even forty years from now, the building would have to be designed according to the existing laws which by that time could be completely different. He continued by stating he did not believe open houses or tours would be conducted at this particular fire station as there were other fire stations built with the public in mind relative to education and those stations were completely accessible.

Chairman Rodriguez

Vote to approve the Council’s recommendation resulted in 15 in favor, 8 opposed (Vann, Turner, Bahadori, Gonzalez, Goodloe, Tolbert, Greiner and Palacios). 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 nineteen entities were recommended for approval by the POC:

CER-1739 Underwriters Laboratories Inc.

CER-8236 IAPMO ES

TST-1585 Intertek Testing Services NA Inc.

TST-1589 National Certified Testing Laboratories, Inc.

TST-1657 Fennestration Testing Lab

TST-1667 PSI/Pittsburgh Testing Laboratory.

TST-1740 Underwriters Laboratories Inc.

TST-1795 Architectural Testing Inc. - Minnesota

TST-2513 APA - The Engineered Wood Association

TST-3478 NTA, Inc.

TST-4205 Progressive Engineering, Inc.

TST-4310 Architectural Testing Inc. – Washington

TST-6485 ENCON Technology Inc.

TST-7110 Architectural Testing, Inc - Springdale, PA

TST-7195 Hurricane Test Laboratory, LLC – TEXAS

TST-8039 Quast Consulting and Testing Inc.

QUA-1680 PFS Corporation

QUA-3504 NTA, Inc.

QUA-8223 CertiWood Technical Centre - QUA

Commissioner Stone moved approval of the POC recommendation. Commissioner Goodloe 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 of 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 Boyer entered a second to the motion. Vote to approve the motion was unanimous. Motion carried.

Mr. Blair presented the following products for consideration individually:

10558-R1 M W Manufacturers Inc

Mr. Blair stated the product was recommended for approval.