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Petition #

Do you have a Local Board of Appeals

Yes

If Yes, have they rendered a decision on this issue

Yes

County

Miami-Dade

Jurisdiction

Archived Miami-Dade 1

Building Official

Tom Velazquez

Address/Phone/Email

1700 Convention Center Drive
Miami Beach, FL 33139
(305) 673-7000
thomasvelazquez@miamibeachfl.gov

Petitioner Name

Thomas Pepe/Karen Kalman

Address/Phone/Email

1450 Madruga Avenue
Suite 202
Coal Gables, FL 33146
(305) 667-2564 Ext. 2
pepenemirepa@bellsouth.net

Petitioner Representative's Name

Thomas Pepe

Address/Phone/Email

1450 Madruga Avenue
Suite 202
Coral Gables, FL 33146
(305) 667-2564 Ext. 2
pepenemirepa@bellsouth.net

Building Code Version

2004

Sub Code

Building

Chapter & Topic

Chapter 1 - Administration

Section

101.2,102.1.1,102.2,1010.2 & 1010.8

If permitted, date of permit application

Enter explanation of how the Petitioner's substantial interests are being affected by the local interpretation of the Florida Building Code

Petitioner fell on a ramp/walkway that was permanently attached to a pier and that had a substantial slope greater than 1:20.  The top of the walkway where she fell didn't have a handrail.  She filed suit against Fisher Island in Miami Dade County Circuit Court pursuant to s.553.84 alleging a violation of Florida Building Code, Means of Egress, governing ramps and handrails.  An interpretation of the building code can only be made by a judge, but the interpretation of a building official is given great weight and deference.  Since the city's Building Official has ruled that the Florida Building Code does not apply to this ramp, Mrs. Kalman will be substantially affected.

Enter 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
(If information is entered, it must be exactly as it appears in the hardcopy)

Tom Velazquez, the building official for the City of Miami Beach has ruled that the entire building code does not apply because the ramp, and the pier to which it is permanently attached, were constructed in the navigable waters of the Miami Ship Channel.  Furthermore, he informed his inspector that: "The ramp is a mechanical device that is not covered by the Florida Building Code."   Thus, according to his interpretation, none of the Florida Building Code applies to this ramp, including Chaper 1010 covering Means of Egress. This is despite the fact that hundreds of pedestrians walk across the walkway on the ramp every day in order to gain transportation to Fisher Island.

Enter 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

The city has jurisdiction to enforce the Florida Building Code (the Code) and specifically chaper 1010 Means of Egress as it applies to the ramp.  See section 101.2 which states: “The building code applies to all construction, alteration, ... of every building or structure or any appurtenances thereto.”   The only conceivable exception is section 102.2 (a) which provides that structures “specifically regulated and preempted” by the federal government are exempt from the Code as provided by law. While part of the pier and all of the ramp were constructed in navigable water, there is no federal agency or state agency that has exclusive jurisdiction over the ramp and there is no federal or state agency’s rules or regulations that preempts the Code. The Corp of Engineers does have jurisdiction over the issue of whether the ramp will cause a danger to navigation but its jurisdiction is concurrent with that of the Code and does not preempt the Code.  In addition, according to the law in Florida, and elsewhere, there is a presumption against preemption when dealing with state police powers such as criminal laws and building codes.  See Cloyd v. State, No. 3D05-1816, (Fla. 3rd DCA 2006).  Thus, in California v. ARC Am. Corp., 490 U.S. 93, 101 (1989) the United States Supreme Court found that "[w]hen Congress legislates in a field traditionally occupied by the States, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'")(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).”  Furthermore, the ramp is not a mechanical system, but even if it was, it was used by hundreds of pedestrians every day, seven days a week and the building provisions of the Code applies to all structures, appurtenances thereto and to equipment.

Enter local building official response by providing a statement 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

In the opinion of the Building Official, this  ramp is not under the jurisdiction of the Building Official just like a draw bridge, street, or highway bridge is not under the jurisdiction of the BO.
The issue here is not whether or not this ramp is covered under the FBC but that it is not under tghe jurisdiction of the local BO.
The local Board of Rules and Appeals (BORA) has determined that the decision of the BO is correct in that he does not have jurisdiction over this ramp.

History

Date Paid

10/19/2007

Date Pending Building Official Response

10/22/2007 08:15 AM

Date Building Official Response

10/22/2007

Date Submitted to BOAF

10/22/2007

Date Accepted

10/31/2007

Time Waiver Granted

Date Extended To

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