Condominiums May Still Need to Install Engineered Life Safety System After Opting Out of Fire Sprinkler Retrofit

As our regular readers are aware from our previous posts on the subject, there are many questions Florida condominium associations face in determining whether their buildings must be retrofitted with a fire sprinkler system or Engineered Life Safety System (“ELSS”).  While many Florida condominium associations voted to opt-out of installing fire sprinkler systems, there may still be an obligation for associations to install an ELSS. Despite well-intentioned attempts from the Florida Legislature, Department of Business and Professional Regulation, local fire marshals, and community leaders, confusion has been the only consistent theme for associations in this ongoing saga.

Here are the basics of what you need to know:

High Rise Condominiums

If a high-rise residential condominium followed the proper procedures and voted to opt-out of the fire sprinkler system retrofitting requirement by December 31, 2016, the association is not required to install a fire sprinkler system.  However, as the law currently stands, these condominiums are likely still required to install an ELSS, as directed by local fire officials and specified by fire safety engineers, as an alternative to the fire sprinkler system.  Pursuant to the Florida Fire Prevention Code and Fla. Stat. §718.112(2)(d)(l), these associations must install an ELSS by December 31, 2019.

One of the main reasons high-rise condominiums chose to opt-out of the fire sprinkler system was to help owners that may be unable to afford the high cost of retrofitting the entire condominium with sprinklers.  This was particularly so for condominiums with older residents living on fixed incomes. Unfortunately, now that the deadline to opt-out has passed, some associations are being told by local officials and fire safety engineers that installing an ELSS on their condominium may be more expensive than installing a fire sprinkler system.  While this may not be true for every community, this presents a new set of questions that must be addressed by those associations – Can the association now “opt back in” to install the fire sprinkler system, rather than the ELSS, in order to reduce costs? Does the association need a membership vote to do so? Will there be a way to opt out of the ELSS requirement, as well?

Buildings Less Than 75 Feet in Height

As we wrote in our last post on the subject, condominiums with buildings less than 75 feet in height should not be required to retrofit their buildings with either a fire sprinkler system or an ELSS based upon a fair reading of the Florida Fire Prevention Code and Fla. Stat. §718.112(2)(d)(l), unless a local code or ordinance imposes a stricter requirement for low- and mid-rise condominiums.  However, despite much deliberation across the state, there are still several officials and practitioners who feel this is an unsettled issue.  While many low- and mid-rise condominiums chose to pursue an opt-out vote as a matter of risk avoidance, many others did not. For those that did, the question is whether by opting-out of the sprinkler system, the association is now required to install an ELSS by December 31, 2019. For those that did not opt-out, there is still a question of whether the association must retrofit the condominium with fire-sprinklers by the same deadline based upon local codes and ordinances.

Proposed Legislation

Florida’s 2017 Legislative Session begins today in Tallahassee.  House Bill 653 will be considered to address some of the lingering questions regarding fire safety requirements.  To be clear, proposed bills can always change during the legislative process.  However, as currently written, the bill affirmatively provides that condominiums of 75 feet or less (low- and mid-rise condominiums) are exempt from both fire sprinkler systems and ELSS retrofitting requirements, even if those associations did not conduct an opt-out vote prior to the December 31, 2016 deadline.  This proposed law is intended to “clarify existing law,” and if adopted, would give low- and mid-rise condominiums across the state much needed certainty regarding what is required for their community.

Additionally, HB 653 also proposes to allow high-rise condominiums to opt-out from the ELSS requirement, in addition to fire sprinkler systems. The proposed deadline for this new round of opt-out votes is December 31, 2018.  For those non-exempt condominiums that do not vote to opt-out of both fire sprinkler retrofitting or an ELSS, HB 653 would extend the deadline for installing those systems from December 31, 2019, to December 31, 2021.

What Should Your Association Do Now?

At this point, based upon the uncertainty of the proposed legislation, it may be wise for associations to refrain from making any decisions regarding retrofitting projects, either for fire sprinkler systems or an ELSS, until the 2017 Legislative Session is complete.  Based upon the proposed bill, high-rise condominiums may need to pursue yet another opt-out vote to exempt themselves from an ELSS.  Moreover, if the legislature does not adopt the provision seeking to “clarify existing law” that low- and mid-rise condominiums are not required to retrofit their buildings, it could add even more uncertainty as to what is currently required for those condominiums.  In other words, if the legislature chooses not to adopt that “clarification,” does that indicate the opposite of the statement is true – that low- and mid-rise condominiums are required to retrofit their communities unless an opt-out vote has been held?

Regardless, before making any decision on this complicated and continuously changing topic, your association should seek professional advice from a fire safety engineer familiar with local requirements, as well as from the association’s legal counsel.

Keep checking back here as we monitor the developing requirements for Florida communities.