BROWARD COUNTY



BROWARD COUNTY

Board of Rules & Appeals

One North University Drive, Suite 3500-B, Plantation, Florida 33324

Phone (954) 765-4500 Fax: (954) 765-4504



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BOARD OF RULES AND APPEALS

March 11, 2010

Meeting Minutes

Call to order:

Chair Steve Kastner called a published meeting of the Broward County Board of Rules and Appeals to order at 7:01 p.m.

Roll Call

Ron Burr

Marc Celetti

John Famularo

Steve Kastner – Chair

Albert Korelishn

Allan Kozich

Dan Lavrich

Shalanda Giles Nelson

Jay Shechter – Vice Chair

John Sims

John R. Smith

Abbas Zackria

Henry Zibman

The presence of a quorum was established.

Approval of Minutes

The Chair asked for a motion to approve the minutes for January 14, 2010. Mr. Kozich moved to approve the January 14, 2010 board meeting minutes. Mr. Korelishn seconded the motion.

THE MOTION CARRIED UNANIMOUSLY, 13 to 0.

CONSENT AGENDA

1. Certifications

The Chair asked for a motion. Mr. Kozich moved to approve and Mr. Korelishn seconded the motion.

THE MOTION CARRIED UNANIMOUSLY, 13 to 0.

REGULAR AGENDA

1b. Certifications

Mr. DiPietro brought to the Board’s attention the application of Lanny R. Walker from the City of Oakland Park for the position of Chief Structural Inspector.

Mr. DiPietro noted that to the best of staff’s knowledge, Mr. Walker has met all the other requirements such as required licensing, etc. and based upon that opinion asked for the Board’s approval. Mr. DiPietro also informed the Board that we had to blend two tests for the high velocity hurricane zone for Mr. Walker, and he passed both tests. One was for inspector and one was for building official. This application is for the chief’s position, and since no test for chief has been created, we used the blended test and we wanted to disclose that on the record.

The Chair asked for a motion. Mr. Kozich moved to approve the certification and Mr. Korelishn seconded the motion.

THE MOTION CARRIED UNANIMOUSLY, 13 to 0.

2. Appeal #10-01 – A-Tech Fire and Security, 1945 West Copans Road, Pompano Beach

***

The following comments were typed verbatim for the record from Board member, Mr. Allan Kozich:

“I made a motion at the Fire Code Committee and a gentleman from A-tech called me because there was some confusion in regards to the motion. A gentleman from A-Tech Fire and Security, it may have been Michael Masi, but I do not remember his name. We discussed what I thought my motion was, but there was so much confusion at the Fire Code Committee Meeting, in regards to some documents that were handed out as far as the electrical final which actually I think they listed as the Fire Final – Electrical or Fire Rough, and Fire said they don’t do it, but it was listed on the sheet, and I thought that was part of it, and there was confusion as to what I thought I was making a motion on and so I want to tell the Board that if they want me to step down, I will step down because I did talk to him about what I thought was my motion.”

Mr. Lavrich: “You made disclosure but you should inform the Board the nature of the conversation you had.”

Mr. Kozich: “O.K. The nature of the conversation I had is that I thought I was making the motion, the intention, and I thought everybody voted on like this, that if they had the rough electrical and/ or the Final Fire it was going to be approved like that. To approve anything with a “yes” on it, a “y’ on this piece of paper that they gave to us. That is what I thought that the motion was going to be about, but how the motion was written up was that either one or the other would have to have a yes in it, or the fire would have to have a yes in it in order to get the approval. But there was some confusion as to what that was because there was some language on that piece of paper that was given to us by A-Tech that was a little confusing.”

Mr. Lavrich: “As long as you don’t feel that you have a conflict.”

Mr. Kozich: I do not feel that I have a conflict. I know what I meant to say in the appeal, and what was voted on, but if anyone wants to question me, it is fine with me.”

Mr. Kastner: “Is there anyone who wants to question Allan at all? I was there; I do not have any questions for him. I feel comfortable moving forward unless there is an objection from anyone here on the Board.” There were no objections. The meeting moved forward.

There was some discussion. Board attorney, Mr. Russell White verified that there was no conflict.

The meeting resumed at 7:08 p.m.

*****

Bryan Parks, Chief Fire Code Compliance Officer addressed the Board. Mr. Parks gave the Board a synopsis of what occurred, and added that Mr. Masi supplied plans to Deerfield Beach. Those plans were reviewed, and were approved. A-Tech then installed, per the plans, a fire alarm system. This appeal is based on where the manual pull stations are located on the first floor. Deerfield believes that the plans were not complete, and did not catch the violation until thirty buildings had been finalized by their department, so we have a problem on both sides going forward. Mr. Parks referred to photo #1 in the agenda packet, pointing out the manual pull stations, which are very evident, and indicating the sidewalk that leads out to the public way or towards the parking lot.

It is staff’s opinion that that is where the manual pull box should be located. Mr. Parks referred to photo #2, where some of these are bound by hedges, and the tenant or the dwelling owner cannot exit directly out of their unit and go straight out into the lot. Mr. Parks said this forces the tenant to make a decision. If they (on the first floor) had a fire in their apartment, they would have to come back down to the stairs to pull the alarm, the fire might be coming out the window. This is not a fire rated corridor, and these are not fire rated windows. They might run out to the parking lot, and the alarm might not be sounded, until somebody else came out. Mr. Parks cited NFPA 72, which is the standard that alarm systems are to be installed by:

“A manual fire alarm box shall be located within five feet of an exit doorway opening at each exit on each floor.”

Mr. Parks further stated that the catwalk on the first floor, since it is bound by hedges on the outer side and a wall on the inner side is a common pathway, and does not deviate from the catwalk, until you hit the sidewalk, which exits out to public way as per Life Safety Code 101, which is a requirement.

Mr. Parks referred to the local Broward County Amendments, Chapter One, 105.10 and 105.10.2.1 that say, if I issued you a permit, and if I find something wrong, I can go back and make you correct it. The other one says if I approved your plan, and I do not catch it on plan review, I can go back and ask you to correct it. I believe the code section is specific as to where the manual pull boxes should be located, and in the local Broward County Code, Chapter One, we have addressed that. It says “The Board of Rules and Appeals may interpret the provisions of the code to cover a specific case if it appears that the provisions of the code do not define or cover the point raised, or that the intent of the code is not clear, or an ambiguity exists in the wording, but it shall have no authority to grant variances where the code is clear and specific.

Michael Masi – A-Tech Fire and Security addressed the Board. Mr. Masi stated his explanation of the situation that these are garden style apartments that have exterior open corridors, when anyone exits an upper floor; they are forced to go down a staircase. This is where the pull stations are – by the stairs leading down. Historically, every fire alarm that has been installed, ever, when the pull stations come down, they land at the ground floor by the staircase, because that is where they go vertically in a row. As soon as that person exits their apartment door, they have already exited the building. In this scenario, there are twelve units on the ground floor. All these buildings are identical. This is a twenty-four unit building, twelve up and twelve down. On the ground floor, there are three pull stations for twelve apartments. We have approved plans, using a round number of a hundred, a hundred fire alarm systems were approved, and a hundred fire alarm systems were installed. Forty fire alarm systems were signed off completely on rough electric, rough fire and final fire. The other sixty had rough electrics and rough fires. The back of the document clearly shows the signature of a rough electric, a rough fire and a final fire. The Fire Department now feels that the pull station would be better placed if it were by this particular sidewalk on the exit. Again, historically, in a garden style apartment, the pull stations are by the staircase, with a sign that says to call 911.The travel distance for these people is less than fifty feet. Half of those apartments actually have a pull station standing right outside their door. These people live there. They are not renting or vacationing, and they understand very well where that pull station is located.

There are many horns in the apartments. There are smoke detectors and heat detectors in common areas, such as laundry rooms. Smoke detectors in the apartments detect smoke, set off an alarm in that unit only, and reset itself by code. We have added a feature to this fire alarm, which is a heat detector, should there actually be a fire in that unit, and the fire alarm system will go off automatically, so it does not even need human intervention. The pull station would not be an issue. If you have accepted 40 fire alarm systems as they were, and the building next to it is identical, and I have already been through the rough and final fire inspection, you should not ask me to relocate all these pull stations.

In the future, A-Tech has no issue putting the pull stations where they are asking them to go now.

We already have the permit. It was approved. Asking us to go back, and asking the residents of Century Village to pay the price for the relocation of these pull stations would be a nightmare.

The Chair asked to hear from the city. Chief Fernaays, Deerfield Beach Fire Code Official, Fire Rescue and Fire Marshall addressed the Board. He concurs that this is a touchy situation from both sides, from the City and from A-Tech’s standpoint. We have talked to other contractors relating to this particular problem and concluded that the pull stations on the first floor need to be relocated. One of the issues is the clientele who occupy the development. The residents are approximately sixty and older. Some are disabled. Some use walkers and some are wheelchair bound. We are thinking of what is best for the residents of this community. There is no question that the installation of the fire alarms and the methods and products in the installation have made this development a lot safer, however, we had to address the code issue. There is some disagreement with parts of the evidence presented. One of the things we looked at was the documentation area of a fire rough. We have never done a fire rough and it is incorrectly worded. It should have been an electrical rough, which we do not conduct until the conclusion of the job, and would like to clarify that for the record.

Chief Fernaays further stated that some of the documents are not as accurate as suggested. Some of the buildings have not been finalized. I have some questions to the documentation. The bottom line is that we believe the pull stations need to be relocated and would like to take a reasonable approach. We have discussed this with the Fire Chief of Deerfield Beach, and have concluded that any building that we have actually finalized, which is around a thirty category, we are willing to accept their present location. We understand the potential financial impact that A-Tech would incur. However, we are not willing to accept that the other buildings that have not been finalized by us may be allowed to continue. We would like the pull stations to be relocated. We have had to take into consideration Life Safety Codes, such as exit, exit access, and pathway. When we look at the true meaning of these definitions, we think that the relocation of these pull boxes on the first floor is necessary.

The plans that were submitted did not suggest the exit paths were away from the building. We indentified that sometime later in the plan review process. When we finally did a visual identification of the building, we felt that yes, we were correct in stating the pull stations needed to be rotated near that pathway. We would like the Board to consider our request that only those buildings that have not been finalized be relocated at this time. We are willing to go, building by building, to see which buildings fall into that category. We are willing to take the additional time and effort with our staff to complete that task.

The Chair asked Mr. Parks some questions about the pathways. Mr. Parks clarified for the Board that if they were going to grant Mr. Fernaays request - under rational analysis or under the alternate, and under the alternate, it would be equal to or better than and documentations would need to be generated from A-Tech to Mr. Fernaays for his acceptance.

Mr. Lavrich commented on the second issue regarding buildings that have already been finalized, and presumes it cannot pose too big of a life safety issue.

Mr. Zibman discussed an alternate method where heat sensors are automatic and operate the entire system, especially with an elderly population. They are not going to pull those things, they are just going to get out.

Mr. Kozich made a Motion to approve the appeal based upon use of a combination of heat and smoke detectors in the apartments, i.e. final fire or the rough/final electrical, one or the other or both. Mr. Korelishn seconded the motion.

The MOTION was approved, 11 – 2.

The descending votes were Mr. Zackria and Mr. Celetti.

3. Appeal #10-02 – Courtyards of Tivoli Park, 603 Siesta Key Circle, Deerfield Beach

Mr. Parks again addressed the board and discussed the concept of what is considered a building. NFPA 101 Chapter 31.3.4.1.1 explains what is required for alarm systems to be installed in an existing apartment building. Apartment buildings with more than three stories in height or with more than eleven dwelling units shall be provided with a fire alarm system. The buildings in Deerfield Beach have five different properties, which have sixteen dwellings located under a single roof. It is staff’s opinion that they need to have an alarm system installed as per NFPA 101.

Robert Sweetapple, Esquire – Boca Raton, Florida represented Mr. Falso, the appellant. Mr. Sweetapple referred to a letter dated February 3, 2010 that the Department of Fire Rescue of Deerfield Beach wrote adjudicating this appeal. A threshold issue is what caused the city to reach this conclusion. Mr. Sweetapple pointed out that with very few exceptions; these are two story buildings. There are a couple of areas where there are three story buildings, in a very limited area. The issue that was litigated at the city level was whether these buildings, which have a breezeway connecting what my client referred to as pods, typically had four units, and were one building or four buildings. What I want you to focus on this evening, is the issue of equal protection and the constitutionality of what has occurred regarding these buildings, because the threshold determination that I referred to earlier, was that, even assuming that these are eleven units or sixteen units in a two story building, and even assuming that the fire wall separation rating met the code, what Mr. Fernaays concluded was that, “however this separation rating still does not exempt a dwelling because two units still share a common stairs from the second floor.” So what becomes dispositive in the city’s entire analysis of these buildings and why these buildings which are thirty years old should now have millions of dollars of fire improvements installed, retroactively, is because, the exits from the two story building, in some instances, the unit owners share a stairway. That is the basis for the conclusion. I tell you that I believe as a matter of law that that is unconstitutional because the legislature, the state promulgated a condominium statute 627.714, and sub-section 13. The law says, “a condominium that is one or two stories in height, and has an exterior means of egress corridor is exempt from installing a manual fire alarm system as required in Section 9.6 of the most recent edition of the Life Safety Code adopted in the Florida Fire Prevention Code.

Mr. Kastner asked to what Statute Mr. Sweetapple was referring. Mr. Sweetapple said Section Two; sub-section 13 is added to section 333.0215. Mr. Kastner asked what year. Mr. Sweetapple was not sure. Mr. Kastner said that statute no longer exists. Mr. Sweetapple asked for clarification as to the Chair saying that a condominium with two stories is no longer exempt. The Chair answered, yes, it was repealed in 2001.

Chief Fernaays interjected that the code is very specific. We are not going to possibly dispute the fact that there might be some wall separations between the units, but what we are disputing is the fact that we don’t think that they meet the requirements for single exit access. It is not an and/or type of a code, it has an “and code request”, and that is where we stand.

Mr. Parks referred to NFPA Chapter 31, 101, 2006 Edition, and said there have been many declaratory statements on this.

Mr. Kozich made a MOTION to deny the appeal based on the evidence presented. Mr. Korelishn seconded the Motion.

THE MOTION CARRIED UNANIMOUSLY, 13 TO 0.

* The Chair later contacted the Board attorney and the Director to confirm that the Governor vetoed the statute in question.

4. Proposed Board Policy #10-01 Rainwater Harvesting Guidelines for Irrigation and Other Non-potable Outdoor Domestic Uses in One-and-Two-family Dwellings.

Kevin Fennell, Chief Plumbing Code Compliance Officer addressed the Board. Mr. Fennell discussed the fact that Dade County had given us some guidelines at a meeting between Broward and Dade County where we worked together to tweak some of the verbiage in the guidelines. Mr. Fennell reiterated that everyone is trying to save energy and money. Businesses have developed rain barrels to put under rain gutters to use in order to save rainwater, so when the dry spell comes they would have water. These barrels are being sold and installed in homes. The Dade County Board wrote up some guidelines in an effort to control the confusion that was bound to occur. Residents will start calling the Building Department and enquiring as to whether this is legal. Therefore, Dade County wants to distribute these guidelines throughout the County and make sure that the Building Departments are able to uniformly answer these questions. Broward did meet with them and wanted to strongly promote the fact that the water collected would only be used on the outside of the building for non-potable uses. Broward also indicated that these guidelines would pertain to single-family homes. Another point of contention by Broward was that the Dade County guidelines were unclear in reference to the proper code, so Dade County agreed to include the Residential Code in the guidelines. Mr. DiPietro assured that they understood this applied only to one and two-family dwellings.

Allan Kozich informed the Board that the Islands had been using the water for potable purposes as well, and asked why we limit its use to non-potable. There was some discussion about cisterns. Grey water and re-used water have stipulations. Rainwater collected in a barrel has no regulations. The Health Department has not been involved in any of this to date. The reason for one and two-family dwellings only, is that the Building Departments are trying to control these installations before they get out of hand.

Mr. Kozich made a MOTION to approve. Mrs. Giles Nelson seconded the MOTION.

THE MOTION CARRIED UNANIMOUSLY, 13 TO 0.

* At this time (8:00 p.m.), Mr. Sweetapple requested to re-call Appeal #10-02 because of a possible error in the conclusion that was reached concerning the law. I have gone back and looked at Florida Statute 6630215, and at the 2009 Florida legislature. I have looked at Florida Statute textbook, and apparently, words underlined are additions. Mr. Sweetapple continued to read same. I want on the record that we do not have any mistake. I’m citing 6630215 Florida Fire Prevention Code, sub-section 13, which is underlined and says “a condominium which is one or two stories in height, and has an exterior means of egress corridor, is exempt from installing a manual fire alarm system as required in Section 9.6 of the most recent edition of the Life Safety Code adopted in the Florida Fire Prevention Code. Are you telling me that that provision has been deleted from Florida law?”

The Chair informed Mr. Sweetwater that the Board was not re-opening the issue at this point.

Mr. Sweetapple notified the Chair he had relied on your representation to this body as the chair, that the law I cited was not the law of the State of Florida and based on that I ceded to your position. I now see that it is underlined as having been added, which is my whole point on equal protection. I am moving to reopen and ask for that relief. You are telling me that you are not sure that the statement you made that caused the relief obtained is actually valid. I am challenging you to either tell me that’s the law, and that what I am citing is not part of the law, and that you are denying me or telling me you are not certain now, and that you will allow me to make my argument, so I do not go to the Court prematurely.

Board attorney, Russell White, “If you had placed the Statute into your material, my office would have received it, we could have briefed it. It is not fair to the Board. The Chair does not have it in front of him.”

Mr. Sweetapple retorted that it is black letter law; you are deemed to know Florida Statutes. You are deemed to know the law, and you have told this body at the conclusion of my opening, that the law I cited was not the law of the State of Florida.

Board Member, Mr. Zibman told the Chair that this gentleman is out of order. “We are through with that issue. Mr. Sweetapple has no standing to call a reconsideration of the item. Let us just move on.”

Mr. Sweetwater thanked the Board, and said he would file his application in court.

5. Florida Building Code Wind Load Requirements on Mechanical Equipment, and Florida Building Commission Declaratory Statement #DCA 08-DEC205

Mr. DiPietro introduced the Wind load Requirements on Mechanical Equipment issue and stated that on January 9, 2009, the Florida Building Commission issued a ruling in the form of a declaratory statement. The industry has had a year to comply with the FBC ruling, yet there is little evidence as to that occurring. On page three of the agenda packet, there are excerpts from House Bill 663 that we disagree with, but the chair and I support the bills attempt to delay the enforcement date. We propose use of the FBC declaratory statement language in the proposed bill. The second issue is application throughout the State of Florida. The way HB663 is worded there is some confusion as to whether Dade and Broward are included in the proposed time delay to enforce the wind load requirements. Most of us feel that Dade and Broward are excluded, so if the legislature moves to postpone the enforcement of the wind load requirements on the unit integrity of the equipment for the rest of the State, we are going to have the same problem in Dade and Broward counties. The High Velocity counties refer to wind load in Code Section 202, while the other 67 counties utilize Section 1609.2.

Therefore, the first two changes we recommend to the bill are that we pick up the FBC declaratory statement language and, that Section 202 be added to the text of the bill because Broward is located in the High Velocity Hurricane Zone. The third point is that we endorse the proposal, and delay the code enforcement implementation date to approximately January 1, 2013.

There was considerable discussion among the Board members. Dan Lavrich stated that this issue started after Hurricane Andrew in 1990. Then it came up at FBC level. There were arguments as to how these requirements were to be enforced. The consensus was to enforce the tie downs rather than the letter of the code. Manufacturers will not verify that they meet the requirements of the code.

Mr. Lavrich and Mr. Kozich continued to discuss windborne debris regions, wording that is included in HB663 and how that might impact Broward County. Mr. Lavrich noted that the staff is requesting we support legislative efforts to delay enforcement. He recommended supporting the deferring until December 31, 2012, the anticipated effective date of the 2010 Florida Building Code. Mr. Kozich stated that if wind load requirements were implemented now, we are going to have a lot of people unable to install air conditioners on their houses or buildings, which is not a smart thing to do. All we are talking about doing is extending the status quo for another couple of years. Mr. Lavrich added that the failure of air conditioning units consists of several issues, number one; they are not properly anchored down. Number two, the anchors are rusted or deteriorated, or just not there at all. Number three, the shrouds on the units come apart because they are old, rusted or deteriorated. On the other hand, number four, somebody went up and worked on the unit and never refastened the shroud. There were many new units that were not properly anchored that came off their supports and tumbled over the roof, but in his work for insurance companies he did not see a major problem with newly installed units, meaning within the last five years. We need to clean up the language to include the High Velocity Hurricane Zone in that time extension. The windborne debris language has no business being in there in Mr. Lavrich’s opinion. Mr. Korelishn agreed. Mr. Zibman added that the manufacturers are not going to make a special unit for South Florida, and they know that South Florida is not going to live without air conditioning. Mr. Kozich agrees with Mr. Zibman and Mr. Lavrich. He thinks we are going to have to extend to December 31, 2012. If we do not, everybody will be installing these without permits. Mr. Kozich further suggested we send this to the Structural Committee for evaluation.

Mr. Zackria noted that the wind load compliance issue puts a liability on the designers. It also affects the efficiency of the units. He suggested that we need to push the recommendation forward and adopt.

Mr. Lavrich made a MOTION to approve the recommendation set forth by Mr. DiPietro, and to support the language on page two of the agenda packet that offers substitute language to the House Bill.

Mr. Kozich seconded Mr. Lavrich’s MOTION, supporting the way the proposal is written as stated on page two of the agenda packet.

THE MOTION PASSED UNANIMOUSLY, 13 – 0.

Adjournment

There being no further business to go before the board, Mr. Zibman moved to adjourn, and was seconded by Mr. Kozich. The meeting adjourned at 8:34 p.m.

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Steve Kastner - Chair

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