DBPR Chaos: Fire Sprinkler Opt Out Requirement Revisited
In May, we published an article discussing the upcoming December 31, 2016 deadline for high-rise condominiums to hold an opt out vote in order to avoid the requirement to retrofit their buildings with fire sprinkler systems. Since publication of our article, there has been much confusion and misinformation circulating as a result of a Palm Beach Post article quoting Travis Keels, Deputy Director of Communications for the Department of Business and Professional Regulation (“DBPR”), stating “generally speaking, the fire sprinkler requirement applies to all residential condominiums.”
In the article, the DBPR further confirmed its intent to enforce the opt-out/retrofit requirement on all condominiums despite the Division of State Fire Marshal’s opinion that the fire code only requires high-rise buildings to retroactively install fire sprinklers. According to the DBPR, while the Fire Marshal has jurisdiction to interpret the fire code, it “makes the call when it comes to Florida statutes concerning condos.” Naturally, a wave of confusion and concern has spread through the condominium community. In an effort to cut through the confusion, we are revisiting this issue.
What is the Law?
The fire sprinkler retrofitting requirement comes from Chapter 633 of the Florida Statutes (the Florida Fire Prevention Code). Chapter 633 incorporates the National Fire Protection Association (“NFPA”) standards. Section 220.127.116.11 of the NFPA 101 Life Safety Code states:
18.104.22.168 All high-rise buildings shall be protected throughout by an approved, supervised automatic sprinkler system or an engineered life safety system approved by the fire official in compliance with the provisions of this section not later than December 31, 2014, subject to the provisions of any statute or rule adopted there under which may supersede these rules.
A high-rise building is defined as “a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story.”
In 2003, the Florida legislature enacted §718.112(2)(l) to allow condominiums to opt out of retrofitting their buildings with fire sprinkler systems. In pertinent part, the statute provided:
… notwithstanding the provisions of chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, condominium, or unit owner is not obligated to retrofit the common elements or units of a residential condominium with a fire sprinkler system or other engineered lifesafety system in a building that has been certified for occupancy by the applicable governmental entity, if the unit owners have voted to forego such retrofitting and engineered lifesafety system by the affirmative vote of two-thirds of all voting interests in the affected condominium. However, a condominium association may not vote to forego the retrofitting with a fire sprinkler system of common areas in a high-rise building. For purposes of this subsection, the term “high-rise building” means a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story. For purposes of this subsection, the term “common areas” means any enclosed hallway, corridor, lobby, stairwell, or entryway. In no event shall the local authority having jurisdiction require completion of retrofitting of common areas with a sprinkler system before the end of 2014.
In 2010, a bill sponsored by Rep. Ellyn Bogdanoff and Senator Jeremy Ring, amended the statute by removing the references to “high-rise” and “greater than 75 feet” from the statute. The amended statute read as follows:
… notwithstanding chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system before January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compliant by December 31, 2019.
That change, it seems, is the genesis of the interpretation by DBPR of a legislative intent to create a retrofitting requirement for all condominiums. However, that interpretation appears misguided in light of the legislative history.
In fact, neither the Condominium Act nor Fla. Stat. §718.112(d)(l) imposes a retrofitting requirement whatsoever. On the contrary, the Florida Fire Prevention Code, by incorporating NFPA 101 Chapter 31, Section 3.5.11, is the source of the requirement for the installation of the fire sprinkler system for high-rise buildings. Fla. Stat. §718.112(d)(l) was implemented to be read in conjunction with the Florida Fire Prevention Code so when read together the fire sprinkler system requirements and the opt-out procedures only apply to high-rise buildings.
Indeed, Senator Ring penned a letter to DBPR on July 28, 2016 confirming the “removal of the reference to ‘high rise’ buildings was in recognition of the fact that the Condominium Act is not the place to impose physical requirements relative to life safety standards, this should be left to the appropriate statutes and governmental agencies.” To put a finer point on it Senator Ring proclaimed: “I state, unequivocally, as the Co-Sponsor of the 2010 law that it was not my intent, nor the intent of the Legislature, to obliquely impose a substantial economic burden on a large segment of condominium owners.” The vast majority of Florida’s community association legal counsels and fire marshals are in agreement with Senator Ring that the DBPR’s position is incorrect.
Does Your Condominium Need to Opt Out of Retrofit Requirement?
If any of the buildings in your community are seventy-five feet or higher (regardless of the number of floors), the association must conduct an opt-out vote by December 31, 2016. Any high-rise condominium not in compliance with the Florida Fire Prevention Code requirements or having opted out must initiate an application for a building permit demonstrating that the association will become compliant by December 31, 2019.
If any of your buildings approach seventy-five feet you are well advised to have those building measured by a qualified fire safety engineer, local Fire Marshal, state Fire Marshal or other qualified individual to render an opinion whether the state-wide retrofit requirement applies.
Buildings Less Than 75 Feet in Height
Unfortunately, while a fair reading of the Florida Fire Prevention Code and Fla. Stat. §718.112(d)(l) is that they are applicable to high-rise buildings, that is not determinative of whether your condominium needs to pursue the opt-out vote or retrofit the buildings. Local jurisdictions with authority can impose a different standard. Moreover, the levels and types of occupancy and uses of your buildings or modifications and reconstructions to the buildings may also impact whether retrofitting is required.
Ultimately, the association should consult a qualified fire safety engineer, the local Fire Marshal, the state Fire Marshal or other qualified individual to render an opinion. Even then you may not receive a conclusive response that you can rely on. The problem we have encountered is in some jurisdictions county officials assert there is no retrofitting requirement for buildings less than 75 feet in height while cities within that jurisdiction impose a different threshold. Even in jurisdictions where the local agencies’ positions are in congruence, we have had limited success in having those authorities put their opinion in writing.
Therefore, as a matter of risk avoidance, and cost efficiency (obtaining a reliable opinion may cost more than pursuing the opt-out vote), condominiums with buildings less than 75 feet in height may choose to pursue an opt-out vote instead of investing in what could be expensive and inconclusive opinions from their experts.