03-001524BC Trg-Aquazul, Ltd., And Alfonso Fernandez-Fraga vs. Broward County Board Of County Commissioners, Broward County Board Of Rules And Appeals, And Broward County Board Of Rules And Appeals/Countywide Compliance Review Board Status: Closed Recommended Order on Monday, June 30, 2003.

Summary: Local governing body failed to prove that local amendments to Florida Building Code were properly adopted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRG - AQUAZUL, LTD., and ALFONSO )

FERNANDEZ - FRAGA, )

)

Petitioners, )

)

vs. ) DOAH Case No. 03 - 1524BC

)

BROWARD COUNTY and THE BROWARD )

COUNTY BOARD OF RULES AND APP EALS )

)

Respondents. 1 )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 28, 2003, by means of a video teleconference in sites at

Fort Lauderdale and Tallahassee, Flori da, before Administrative

Law Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Robert S. Fine, Esquire

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131

For Respondent Jose R. Go nzalez, Esquire

Broward County: Broward County Attorney's Office

115 South Andrews Avenue

Governmental Center, Suite 423

Fort Lauderdale, Florida 33301

For Respondent Robert Ziegle r, Esquire

BORA: Rogers, Morris & Ziegler

1401 East Broward Boulevard

Suite 300

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The principal issue in this case is whether certain local

technical amendments to the Florida Building Code adopted by the

Broward County Board of Review and Appeals (BORA) comply with

the requirements of Section 553.73(4)(b), Florida Statutes

(2001). As to Broward County, there is the additional issue of

whether Broward County is a proper party to this proceeding.

PRELIMINARY STATEMENT

On April 29, 2003, Petitioners filed an Amended Notice of

Appeal and Petition for Formal Administrative Hearing (Amended

Petition) with the Florida Building Commission (Commission)

pursuant to Section 553.7 3(4)(b)8., Florida Statutes (2002).

The Amended Petition contests the validity of certain local

technical amendments to the Florida Building Code adopted by

BORA. On April 30, 2003, the Commission referred the Amended

Petition to the Division of Administ rative Hearings (Division)

for the assignment of an administrative law judge to conduct the

hearing requested by Petitioners.

The basic position of Petitioners is that, for a number of

reasons set forth in detail in their Amended Petition, the

technical a mendments challenged here are invalid because the

manner in which the amendments were adopted failed to comply

with several of the applicable statutory provisions. The basic

position of BORA is that the challenged amendments were properly

adopted and are valid. The basic position of Broward County is

that Broward County is not a proper party to this proceeding,

and that BORA is the only appropriate Respondent in a proceeding

challenging the validity of local technical amendments adopted

by BORA.

Because Section 553.73(4)(b)8., Florida Statutes (2002),

mandates expedited consideration of cases such as this, a

telephonic case management conference was held on May 6, 2003,

to schedule the final hearing and to establish "fast track"

deadlines for several preh earing activities. The case was set

for final hearing on May 28, 2003.

Petitioners called the following witnesses: James DiPietro,

Administrative Director of BORA; Jose Suarez, an expert in the

field of the architectural design of high - rise buildings; an d

Alfonso - Fernandez - Fraga, an expert in the fields of mechanical

and fire - safety engineering. Respondent Broward County called

no witnesses. All parties stipulated to the deposition

testimony of Steven Feller, an expert in the fields of

mechanical and fi re safety engineering, being entered into the

record as his hearing testimony. Respondent BORA called the

following witness: Robert Andrews, who testified as the Chief

Mechanical Code Compliance Officer for BORA and as an expert in

the application of mec hanical and fire - safety systems in high -

rise buildings.

A large number of exhibits were received into evidence,

some by offer of a specific party, but most by stipulation of

all parties. All of the exhibits received in evidence are

described in a master index which is part of the record in this

proceeding. The parties' pre - hearing stipulation, which was

modified at the beginning of the hearing, was also received into

evidence.

The transcript of the hearing was filed with the Division

on June 13, 2003. A t the conclusion of the hearing, the parties

were allowed 15 days from the date of the hearing within which

to file their respective proposed recommended orders and were

instructed that such filing should be by fax. All parties filed

timely proposed recom mended orders. 2 The proposals submitted by

all parties have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, and upon the parties' stipulations, t he following

findings are made:

Findings about status of Broward County

1. Respondent Broward County is a county created pursuant

to the laws of the State of Florida.

2. Broward County became a charter county effective on

January 1, 1975, by a referend um approved by the voters of

Broward County in November of 1974.

3. In 1976, the Broward County Charter was amended to add

a new Section 8.18, which the legislative history for the

charter describes as establishing BORA as “an arm of Charter

government.”

4. Broward County has not voted to adopt any local

amendments to the Florida Building Code.

Findings about status of BORA

5. Respondent BORA, is a board created under the

provisions of the Charter of Broward County (the “Charter”).

6. BORA was origi nally created in 1971 by a special act of

the Florida legislature, 71 - 575, Laws of Florida, Special Acts

of 1971. That special act adopted the South Florida Building

Code, as the applicable building code for Broward County and

included within the South Fl orida Building Code as Section 203

the following language, which created BORA:

203. Board of Rules and Appeals. In order

to determine the suitability of alternate

materials and types of construction, to

provide for reasonable interpretation of the

provis ions of this code and to assist in the

control of the construction of buildings and

structures, there is hereby created a BORA,

appointed by the appointing authority,

consisting of twenty - four (24) members who

are qualified by training and experience to

pa ss on matters pertaining to building

construction.

Findings about status of Petitioners

7. Petitioner, TRG - Aquazul, Ltd. ("TRG"), is a Florida

limited partnership and is the developer of a high - rise multi -

family residential building project located in Broward County

(“Project”) which is subject to the Florida Building Code, as

amended, in Broward County.

8. Petitioner, Alfonso Fernandez - Fraga, is a principal of

Initial Engineers. Mr. Fernandez - Fraga and Initial Engineers

are the mechanical engineers of record on the Project.

Mr. Fernandez - Fraga's firm has designed other high - rise

residential buildings in Broward County in the past and plans on

doing more such projects in the future. Petitioners allege that

they will be materially and adversely affe cted by the

application of the Broward County local technical amendments to

the Florida Building Code in that the application of said

technical amendments to the Project will require a redesign of

the mechanical systems of the Project to comply with those

technical amendments and undertaking such redesign will cost

significant time and money.

9. Alfonso Fernandez - Fraga submitted plans to the Broward

County Building Department for approval in connection with the

Project. The plans submitted included pl ans for smoke control

measures. The smoke control measures were not approved by the

chief mechanical official because in his estimation they did not

comply with the local technical amendments to the Florida

Building Code enacted by BORA on March 1, 2002. Despite the

Broward County Building Official’s suggestion that

Mr. Fernandez - Fraga appeal the Building Official’s decision

interpreting the applicable code, Mr. Fernandez - Fraga decided

not to appeal that decision. Rather, Mr. Fernandez - Fraga chose

to cha llenge the validity of the local technical amendments to

the Florida Building Code adopted by BORA, a different appeal

than the one discussed with the Building Official.

10. TRG, through its engineer and its architect of record

on the project, attempted to comply with option four of the

local technical amendments at issue here, which allows one to

achieve an understanding with the local building official on an

alternative method for smoke control. TRG could not, and did

not, reach that understanding with the Broward County Building

Official.

11. The building that TRG proposes to build is over

75 feet high, which makes it subject to the local technical

amendments at issue here.

12. At the time the local technical amendments at issue

here were being ado pted, Petitioners were not concerned with

such developments because at that time they did not have any

projects in Broward County.

Findings about BORA's amendment process

13. Once it was clear that Florida was going to have a new

statewide Florida Build ing Code, BORA embarked upon a course of

action to adopt several local technical amendments to the

Florida Building Code. Such amendments were allowed, with

certain qualifications and requirements, by the then - new

statutes providing for the implementation of a new Florida

Building Code. On March 1, 2002, BORA adopted the local

technical amendments that are at issue here. Those two local

technical amendmants, Sections 412 and M403.6.4, contained

standards for the application and testing of smoke control

s ystems for high - rise buildings. The two amendments were more

stringent than the corresponding requirements in the Florida

Building Code.

14. Each of these local technical amendments had been part

of Broward County’s local building code in effect prior t o the

adoption of the Florida Building Code, and as set forth in the

South Florida Building Code, Broward Edition. BORA sought to

maintain the status quo within Broward County with respect to

the adoption of these two local technical amendments to the

Flo rida Building Code, a status quo that had been in effect

since the mid 1980's. The two local technical amendments at

issue here did not introduce any new subjects that had not

previously been contained in the South Florida Building Code,

Broward Edition.

15. The process leading up to the adoption of amendments

on March 1, 2002, began several months earlier with the

appointment of a committee and a sub - committee to discuss and

draft proposed amendments.

16. The chairman of BORA’s Mechanical Committee ap pointed

a subcommittee which reviewed materials and made decisions with

respect to the Local Amendments and made recommendations to the

Mechanical Committee which, in turn, made recommendations to

BORA

17. The meetings of BORA’s Mechanical Committee and its

Smoke Control Subcommittee were not publicly noticed in the Sun

Sentinel or any other local newspaper of general circulation.

18. No findings or determinations made by BORA’s

Mechanical Committee or Smoke Control Subcommittee with respect

to the loca l need to enact the Local Amendments are reflected in

the minutes of their meetings.

19. On December 13, 2001, BORA held a hearing to receive

and consider information from the subcommittee and the committee

regarding the pending proposed amendments.

20. BORA’s December 13, 2001 hearing was not publicly

noticed in the Sun Sentinel or any other local newspaper.

21. Final BORA action to adopt the proposed amendments was

eventually scheduled for March 1, 2002.

22. The March 1, 2002, BORA meeting was the only BORA

meeting pertaining to the local technical amendments at issue

here that was publicly noticed in the Sun Sentinel or any other

local newspaper.

23. BORA did not make any findings or determinations at

the March 1, 2002, meeting.

24. There was no discussion or determinations made at the

March 1, 2002, hearing regarding whether there was a local need

justifying the subject local technical amendments.

25. There was no discussion at the March 1, 2002 hearing

regarding the subject local technical amendments.

26. At the March 1, 2002, meeting, BORA determined that

what its Mechanical Committee presented was acceptable and BORA

therefore voted to adopt it without any meaningful discussion.

BORA did not make any other determinations with respect to the

local technical amendments at that hearing.

27. The members of the Florida Building Commission’s

Mechanical and Technical Advisory Committee, which drafted

and/or made recommendations with respect to the Florida Building

Code, are presently consider ing the possibility of putting more

stringent smoke control measures into the Florida Building Code

for statewide application.

Findings about the challenge process

28. Broward County does not have, and has never had, an

interlocal agreement establishing a countywide compliance review

board for the purpose of reviewing any challenges to local

technical amendments to the Florida Building Code that may be

challenged by a substantially affected party.

29. Neither Broward County, per se, nor any of the

munic ipalities in Broward County, is authorized to exercise any

authority over the building code in Broward County. In light of

this situation in Broward County it appears to have been the

concensus of the members of BORA that it was simply not

necessary to st ructure any interlocal agreement nor create any

county - wide compliance review board as otherwise generally

provided for in the applicable statutory provisions. Thus, when

Petitioner Fernandez - Fraga advised BORA that he wished to

challenge the validity of two of the local technical amendments

adopted by BORA, it was initially unclear where the challenge

should be filed and where it should be heard. Following

discussion with Commission staff, BORA advised that the

challenge should be filed with BORA and wou ld be heard by BORA.

30. On or about March 20, 2003, Petitioners filed an

appeal with BORA challenging the validity of the subject

amendments. BORA scheduled a hearing on the challenge for

April 10, 2003.

31. BORA was apparently of the initial view th at it was

hearing the Petitioners' appeal in the capacity of a statutory

"countywide compliance review board" because BORA originally

noticed the April 10, 2003, hearing as being held by “the Board

of Rules and Appeals sitting as a Countywide Compliance Re view

Board pursuant to Florida Statutes 553.73(4)(b) to hear

challenges to Broward County Local Amendments to Sections 412

and M403.6.4 by Mr. Alfonso Fernandez - Fraga, P.A.”

32. Notwithstanding the notice and agenda of the April 10,

2003, BORA meeting/he aring, during the course of the hearing BORA

took the position that Broward County does not have a countywide

compliance review board as described in Section 553.73(4)(b)8,

Florida Statutes. Counsel for BORA stated, on the record, that

BORA “has exclusive authority over the building code in Broward

County.” Counsel then advised the Board:

That statutory section which refers to an

interlocal agreement applies to counties

where the county and municipalities have the

authority to amend the code. In Broward

County, the municipalities and the county do

not have that authority. Therefore, we don’t

have a Compliance Review Board in Broward

County because it’s just not authorized

because we operate on a different procedure

here. The Board of Rules and Appeals h as the

sole authority to amend the code, so we’re

hearing this appeal tonight really as an

appeal to reconsider whether the action of

this board in March of 2002, when you passed

these amendments, were done properly, and

that’s the sole issue.

33. The a ppeal was heard by BORA on April 10, 2003. BORA

voted unanimously to deny the appeal. Mr. Fernandez - Fraga

promptly received a letter from James DiPietro advising him that

the appeal had been rejected. Thereafter the Petitioners timely

filed their petiti on seeking relief from the Commission.

CONCLUSIONS OF LAW

Conclusions on basic and introductory matters

34. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

553.73(4)(b)8., Florida Statutes (2002).

35. The Florida Building Code was created under the

authority of Chapter 98 - 287, Laws of Florida, as amended by

Chapter 2000 - 141, Laws of Florida. The Florida Building Code

became effective on the first day of March, 2002, pursuant to

Chapter 2001 - 372, Laws of Florida. Prior to the effective date

of the Florida Building Code, Broward County was subject to the

provisions of the South Florida Building Code (Broward Edition).

36. The Florida Buildin g Code is binding on Broward County

and its municipalities.

37. At all times relevant hereto, Section 553.73(4)(b),

Florida Statutes, provided the sole authority, procedures and

prerequisites for local governments to be able to adopt local

technical amen dments to the Florida Building Code.

38. Section 553.73(4)(b)1, Florida Statutes, provides:

(b) Local governments may, subject to the

limitations of this section, adopt amendments

to the technical provisions of the Florida

Building Code which apply sol ely within the

jurisdiction of such government and which

provide for more stringent requirements than

those specified in the Florida Building Code,

not more than once every 6 months. A local

government may adopt technical amendments

that address local nee ds if:

1. The local governing body determines,

following a public hearing which has been

advertised in a newspaper of general

circulation at least 10 days before the

hearing, that there is a need to strengthen

the requirements of the Florida Building

Cod e. The determination must be based upon a

review of local conditions by the local

governing body, which review demonstrates by

evidence or data that the geographical

jurisdiction governed by the local governing

body exhibits a local need to strengthen the

Florida Building Code beyond the needs or

regional variation addressed by the Florida

Building Code, that the local need is

addressed by the proposed local amendment,

and that the amendment is no more stringent

than necessary to address the local need.

( Emphasis added.)

39. Section 553.73(4)(b)7, Florida Statutes, provides, in

pertinent part:

7. Each county and municipality desiring to

make local amendments to the Florida Building

Code shall by interlocal agreement establish

a countywide compliance re view board to

review any amendment to the Florida Building

Code, adopted by a local government within

the county pursuant to this paragraph, that

is challenged by any substantially affected

party for purposes of determining the

amendment’s compliance with this paragraph.

* * *

8. If the compliance review board determines

such amendment is not in compliance with this

paragraph, the compliance review board shall

notify such local government of the

noncompliance and that the amendment is

unenforceable u ntil the local government

corrects the amendment to bring it into

compliance.

* * *

The local government adopting the amendment

that is subject to challenge has the burden

of proving that the amendment complies with

this paragraph in proceedings befor e the

compliance review board and the commission,

as applicable. (Emphasis added.)

40. The parties in this case have stipulated that the

Petitioners have standing to challenge the local technical

amendments at issue here. 3

Conclusions regarding Broward County

41. Broward County is a political subdivision of the State

of Florida. Section 7.06, Florida Statutes; Broward County

Charter, Article I, Section 1.01. Unless provided to the

contrary in the Charter, Broward County has all powers of local

self - government not inconsistent with general law, or with

special law approved by vote of the electors. Constitution of

the State of Florida, Article VIII, Section 1(g); Broward County

Charter, Article I, Section 1.02.

42. BORA is an autonomous board whose members are

appointed by the Broward League of Cities and the Broward County

Commission. The procedures for appointing members of BORA are

set out in the Broward County Charter.

43. It is the function of the BORA to exercise the powers,

duties, responsi bilities, and obligations as set forth and

established in Chapter 71 - 575, Laws of Florida, Special Acts of

1971, as amended by Chapters 72 - 482 and 72 - 485, Laws of Florida,

Special Acts of 1972; Chapter 73 - 427, Laws of Florida, Special

Acts of 1973; and Cha pters 74 - 435, 74 - 437, and 74 - 448, Laws of

Florida, Special Acts of 1974; and the applicable building code.

See Broward County Charter, November 5, 2002 Revision, Article

IX, Section 9.02 (A); and Broward County Charter, Article VIII,

November 5, 1996 Revi sion, Section 8.18. The provisions of the

applicable building code shall be amended only by BORA. See

Broward County Charter, November 5, 2002 Revision, Article IX,

Section 9.02 (A); and Broward County Charter, Article VIII,

November 5, 1996 Revision, Se ction 8.18 (F). Neither the Board

of County Commissioners nor any municipality in Broward County

may enact any ordinance in conflict with the applicable building

code. See Broward County Charter, November 5, 2002 Revision,

Article IX, Section 9.02 (A); a nd Broward County Charter,

Article VIII, November 5, 1996 Revision, Section 8.18 (F).

Broward County is not the local government that adopted the

local technical amendments being challenged herein.

44. Section 553.73(4)(b)(8), Florida Statutes, provides in

part that the local government adopting the amendment that is

subject to challenge has the burden of proving that the

amendment complies with this paragraph in proceedings before the

compliance review board and the commission (Florida Building

Commissi on), as applicable. The Broward County Commission never

voted to adopt any amendment to the Florida Building Code.

Accordingly, Broward County has no burden of proof to meet in

this matter and is not a proper party to this proceeding.

45 Section 553.73 (1)(e), Florida Statutes, provides:

Subject to the provisions of this act,

responsibility for enforcement,

interpretation, and regulation of the

Florida Building Code shall be vested in a

specified local board or agency, and the

words "local government" an d "local

governing body" as used in this part shall

be construed to refer exclusively to such

local board or agency.

46. Accordingly, BORA, rather than the County Commission,

is the "local government" and "local governing body" referenced

in Sections 55 3.73(1)(e) and 553.73(4)(b)(8), Florida Statutes.

47. Broward County does not have an interlocal agreement

establishing a countywide compliance review board. Whether or

not such a review board is a prerequisite in Broward County in

order for BORA to ado pt local amendments to the Florida Building

Code, it does not require Broward County as a party to this

proceeding.

48. Broward County did not act or fail to act in any way

that makes it a proper party to this proceeding. The actions of

the Broward Coun ty Building Official are not relevant to a

determination of the validity or invalidity of the technical

amendments at issue here.

Conclusions regarding the "Sunshine" issue

49. In their Proposed Recommended Order Petitioners argue

that the challenged am endments should also be invalidated

because of conduct by a member of BORA that Petitioners argue is

a violation of the "Government in the Sunshine Law."

Petitioners' arguments in this regard must be rejected for

several reasons. First, no such issue was raised in the Amended

Petition and no motion was made or granted to allow further

amendment of the Amended Petition on the day of the hearing.

Second, in the usual course of events the Division does not have

any original jurisdiction to determine or reme dy violations of

the Sunshine Law. And, finally, enforcement of the Sunshine Law

does not appear to be one of the statutory functions of the

Florida Building Code Commission.

BORA's authority to adopt local technical amendments

50. There is no doubt tha t today BORA has the necessary

authority to adopt local technical amendments to the Florida

Building Code. But Petitioners argue that BORA did not have

that authority on March 1, 2002, when BORA purported to adopt

the local technical amendments at issue h ere. Petitioners'

argument in this regard relies in large part on the language of

relevant portions of the Broward County Charter as it existed on

March 1, 2002, and as later amended.

51. The Broward County Charter that was in effect on

March 1, 2002, s till described the functions of BORA as

exercising the powers and duties established by the BORA Special

Acts. The Charter at that time did not make any mention of the

Florida Building Code. Section 8.18 read as follows:

It shall be the function of the B roward

County BORA, created by this Charter, to

exercise the powers, duties,

responsibilities, and obligations as set

forth and established in Chapter 71 575,

Laws of Florida, Special Acts of 1971, as

amended by Chapters 72 - 482 and 72 - 485,

Laws of Florid a, Special Acts of 1972;

Chapter 73 - 427, Laws of Florida, Special

Acts of 1973; and Chapters 74 - 435, 74 - 437,

and 74 - 448, Laws of Florida, Special Acts

of 1974; and the South Florida Building Code

as enacted and amended by Chapter 71 - 575,

as amended.

52. The Charter also provided:

The provisions of the South Florida Building

Code shall be amended only by the Board of

Rules and Appeals and only to the extent and

in the manner specified by the Code. Neither

the Board of County Commissioners nor any

mu nicipality within Broward County may enact

any ordinance in conflict with Chapter 71 -

575, as amended, or the South Florida

Building Code.

53. The Broward County Charter provisions relating to BORA

were amended by referendum on November 5, 2002, approx imately

eight months after the adoption of the local technical

amendments at issue here. Those Charter amendments became

effective on January 1, 2003, and were codified as Section 9.02

of the Broward County Charter. Section 9.02, which became

effective o n January 1, 2003, and is currently in effect, states

that BORA has the authority to amend the Florida Building Code.

The language of Section 9.02 A.(2) includes the following:

The provisions of the Florida Building Code

shall be amended only by the Board of Rules

and Appeals and only to the extent and in

the manner specified in the Building Code.

The County Commission or a municipality

shall not enact an ordinance in conflict

with Chapter 98 - 287 and Chapter 2000 - 141,

Laws of Florida, as may be amended fr om time

to time.

54. Since sometime in the early 1970's, BORA has been, and

is today, the only local government in Broward County with

authority to administer, amend, and enforce whatever building

code was in effect in Broward County at any given time; first

the South Florida Building Code (Broward Edition), and more

recently the Florida Building code. BORA was created and vested

with authority under the South Florida Building code in 1971 by

Chapter 71 - 575, Laws of Florida, Special Acts, which Special Act

was incorporated into the Charter of Broward County in 1976 by

public referendum as Section 8.18, which is now numbered

Section 8.02. The South Florida Building Code was one of

several state minimum building codes prior to March 1, 2002.

55. Under the letter of the law at the time BORA adopted

the subject amendments, BORA was specifically authorized to

exercise various powers with regard to the "South Florida

Building Code." At the same time, neither Broward County, nor

any municipality in Broward County, nor any other unit of local

government in Broward County was expressly authorized to

exercise any powers with regard to the new "Florida Building

Code." Further, at that same time, the Broward County Charter

contained the following limitation on B roward County and all

municipalities in Broward County: "Neither the Board of County

Commissioners nor any municipality may enact any ordinance in

conflict with Chapter 71 - 575, as amended, or the South Florida

Building Code." In view of all of the forego ing, under the

letter of the law relied upon by Petitioners, from the date the

new Florida Building Code went into effect until the changes in

the Broward County Charter took effect in November of 2002,

neither BORA nor any other local government entity in Broward

County was expressly authorized to, among other things, adopt a

local technical amendment to the new Florida Building Code.

That would be an absurd result; a result the Florida Legislature

surely did not intend. It is well - settled law in Florida that

the courts will not attribute to the Legislature an intent to

create an absurd result.

56. In circumstances such as are before us here, the

intent of the Legislature must control over the letter of the

laws it has enacted. Upon consideration of all of the statutory

provisions regarding the establishment and enforcement of a

state - wide Florida Building Code, the most reasonable conclusion

is that the intent of the Legislature was that BORA, and boards

like BORA, would have, within the requirements of the new state -

wide code, the same types of powers with respect to the Florida

Building Code as they had over the South Florida Building Code.

Accordingly, the undersigned is of the view that, the letter of

the law notwithstanding, BORA had the necessa ry authority to

adopt amendments to the Florida Building Code on the date it

adopted the local technical amendments at issue here.

Some recent guidance

57. Florida Home Builders Association, Inc., et al., vs.

City of Daytona Beach, et al. , DOAH Case No. 03 - 0131BC

(RO issued April 29, 2003), is the only prior case addressing

challenges to local technical amendments to the Florida Building

Code which has come before the Division of Administrative

Hearings. Much of what was concluded in that proceeding is

e qually applicable here. Attention is especially directed to

the following conclusions of law reached in the Recommended

Order in the Florida Home Builders case:

141. The Legislature amended Section

553.73(4)(b) in 2002 through Chapter 2002 -

293, Sectio n 14, Laws of Florida, but that

act did not become effective until May 30,

2002, which is after the local amendments at

issue in this proceeding were adopted.

Accordingly, the determination as to whether

Respondents' local amendments comply with

the subst antive criteria in Section

553.73(4)(b) must be based on the 2001

version of the statute. However, the

procedural aspects of the 2002 version of

the statute apply in this proceeding. See

South West Florida Water Mgmt. Dist. v.

Charlotte County , 774 So. 2 d 903, 909 (Fla.

2nd DCA 2001).

142. The parties stipulated that this

proceeding is de novo in nature even though

Section 553.73(4)(b)8., Florida Statutes

(2002), refers to the Commission's review of

the countywide compliance review board's

decision as an "appeal."

143. The parties' stipulation accurately

characterizes the nature of this proceeding

because Section 553.73(4)(b)8., Florida

Statutes (2002), also provides that "[t]he

provisions of Chapter 120 and the uniform

rules of procedure apply." Proceedings

under Chapter 120, Florida Statutes, are de

novo proceedings whose purpose is to

formulate final agency action, not to simply

review preliminary agency action such as the

countywide compliance review board's

decision. See Section 120.57(1)(k) ("All

proceedings conducted pursuant to this

subsection shall be de novo."); Dept. of

Transportation v. J.W.C. Co., Inc. , 396 So.

2d 778, 785 - 87 (Fla. 1st DCA 1981) (citing

McDonald v. Dept. of Banking & Fin. , 346 So.

2d 569 (Fla. 1st DCA 1977)). But cf.

Florida Board of Medicine v. Florida Academy

of Cosmetic Surgery , 808 So. 2d 243, 257

(Fla. 1st DCA 2002) (characterizing rule

challenge proceedings as "technically" de

novo , at least with respect to the

determination as to whether the rule is

supported by competent substantial

evidence).

144. The parties further stipulated that

Respondents have the burden to prove that

the challenged amendments comply with the

requirements of Section 553.73(4)(b). This

allocation of the burden of proof was

specificall y added to the statute in 2002.

See Chapter 2002 - 293, Section 14, Laws of

Florida (amending Section 553.73(4)(b)7. and

re - designating the pertinent language as

Section 553.73(4)(b)8.). Because statutory

amendments affecting procedural matters such

as the allocation of the burden of proof may

be applied in pending cases, see South West

Florida Water Mgmt. Dist. , 774 So. 2d at

909, Respondents would have the burden of

proof in this proceeding even without the

parties' stipulation.

145. The standard of proof is a

preponderance of the evidence. See Section

120.57(1)(j).

* * *

162. The enabling legislation for the

Florida Building Code was enacted in 1998

based upon the recommendations of the

Governor's Building Codes Study Commission

(Study Commi ssion). See generally Chapter

98 - 287, Laws of Florida (effective

January 1, 2001).

163. The Study Commission found the

State's existing system of building codes

"to be particularly deficient in the . . .

large number of codes found around the State

[a nd] the inconsistencies among and between

them . . . ."

164. To address that deficiency, the

Study Commission recommended as its first

"foundation" that:

Florida should have one building code

for use statewide which governs all

administrative and techn ical

requirements applicable to Florida's

public and private Built Environment.

That building code should be called the

Florida Building Code ("The Code") and

should become effective for use

statewide.

165. The Study Commission expanded on

that recomm endation as follows:

The Code should be a single set of

documents and should apply to the

design, construction, code enforcement,

erection, alteration, modification,

maintenance (specifically related to

code compliance), and demolition of

Florida's public and private Built

Environment. The Code should be

organized so as to offer consistency and

simplicity of use. It should be

applied, administered, and enforced

uniformly and consistently from

jurisdiction to jurisdiction. It should

allow flexibility that is exercised in a

manner that meets minimum requirements,

is affordable, does not inhibit

competition, and promotes innovation and

new technology.

166. Consistent with the Study

Commission's recommendation, Section

553.72(1), provides that the Code is the

"unified state building code . . . [and]

consists of a single set of documents that

apply to the design, construction, erection,

alteration, modification, repair, or

demolition of public or private buildings,

structures, or facilities in this state an d

to the enforcement of such requirements . .

. ." See also Section 553.73(1)(a)

(requiring the Code to "contain or

incorporate by reference all laws and rules

which pertain to and govern the design,

construction, erection, alteration,

modification, repai r, and demolition" of all

buildings and structures).

167. The Code is required to contain

"provisions or requirements . . . relative

to structural, mechanical, electrical ,

plumbing, energy, and gas systems" in

buildings and structures subject to the

Co de. See Section 553.73(2) (emphasis

supplied).

168. The Code was adopted by the

Commission through Rule 9B - 3.047, and became

effective on March 1, 2002.

* * *

170. The Code preempts the building codes

adopted by local governments. See Section

553.898. And cf. Section 553.72(1) ("The

Florida Building Code shall be applied,

administered, and enforced uniformly and

consistently from jurisdiction to

jurisdiction.").

171. The Florida Building Code is

required to be reviewed and updated every

th ree years. See Section 553.73(6).

* * *

173. Despite the Study Commission's

recommendation, the 1998 enabling

legislation for the Code authorized local

governments to adopt amendments to both the

administrative requirements and technical

provisio ns of the Code. See Chapter 98 - 287,

Laws of Florida, at Section 40 (amending and

renumbering Section 553.73(4)(a), Florida

Statutes (1997), as Section 553.73(4)(b)).

As discussed below, that authorization

remains in the statutes.

174. Section 553.73( 4)(b) and Rule 9B -

3.051(1) authorize local governments to

periodically adopt amendments to the

technical provisions of the Code to address

"local conditions."

175. Local technical amendments to the

Code shall be effective only until the

adoption of t he new edition of the Code.

See Section 553.73(4)(b)6. And cf. Rule 9B -

3.051(4) (describing the process for review

of local amendments during the triennial

update of the Code).

176. Local technical amendments apply

solely within the jurisdiction of t he

adopting local government and must provide

for more stringent requirements than those

specified in the Florida Building Code. See

Section 553.73(4)(b). It is undisputed that

the amendments at issue in this proceeding

impose more stringent requirements than the

Code.

177. Local technical amendments to the

Code must meet the requirements enumerated

in Subparagraphs 553.73(4)(b)1. though

(4)(b)9. . . .

* * *

178. The Legislature amended Section

553.73(4)(b) in 2002 to provide that local

technic al amendments do not become effective

until 30 days after the amendments have been

received and published by the Commission.

See Chapter 2002 - 293, Section 14, Laws of

Florida (amending Section 553.73(4)(b)5.).

The 2002 legislation further provided that

i f the amendment is challenged by a

substantially affected party, the amendment

does not become effective until after the

Commission enters a final order determining

the amendment to be in compliance with

Section 553.73(4)(b). See id. (amending

Section 553 .73(4)(b)7.).

179. As noted above, the 2002 legislation

did not become effective until May 30, 2002,

which is after the local technical

amendments at issue in this proceeding were

adopted. Accordingly (and subject to the

discussion in Part D.3. below ), the local

technical amendments at issue in this

proceeding are currently in effect.

* * *

1. Section 553.73(4)(b)1.:

(Local Conditions Justifying the Amendments)

181. Petitioners first allege that the

local technical amendments are invalid

beca use Respondents failed to demonstrate

the existence of any "local conditions"

justifying the amendments as required by

Section 553.73(4)(b)1. Petitioners'

argument on this issue is twofold: (1) the

conditions identified by Respondents are not

"local cond itions" as contemplated by

Section 553.73(4)(b), and (2) even if such

conditions were "local conditions" they do

not "justify" the amendments at issue in

this proceeding. With respect to Respondent

South Daytona, Petitioners also contend that

the governin g body of that City failed to

perform the review and make the

determinations required by Section

553.73(4)(b)1. Each contention will be

addressed in turn.

a. Review and Determinations by Local

Governing Bodies

182. Section 553.73(4)(b)1. requires th e

local governing to hold a public hearing and

determine that there is a need to strengthen

the Code prior to adopting a local technical

amendment. The statute further provides

that the determination must be based upon a

review of local conditions by the local

governing body which demonstrates that the

local conditions justify the more stringent

requirements in the local technical

amendments.

* * *

185. Nevertheless, because this is a de

novo proceeding (rather than a certiorari -

type review of the local governing body's

findings based upon the "evidence" before

it), Port Orange was not precluded from

putting on evidence which might show that

the other amendments were justified by the

"local condition" of high winds, just as

Petitioners were not prec luded from putting

on evidence to show that the findings and

determinations made by the City Council were

incorrect.

186. In sum, South Daytona's local

technical amendments fail to comply with

Section 553.73(4)(b)1. because the evidence

fails to establ ish that the City Council

conducted the required review and made the

necessary determinations. By contrast, the

evidence establishes that Port Orange's City

Council conducted the required review and,

at least as to the amendments based upon the

area's cor rosive conditions, made the

required findings. However, because this is

a de novo proceeding, those findings are not

dispositive or determinative.

b. Existence of "Local Conditions"

187. Section 553.73(4)(b) does not define

"local conditions" and th e parties disagree

as to the meaning of that phrase. The

proper construction of that phrase is a

significant threshold question because it

determines the circumstances under which

local technical amendments are permitted.

Although the phrase "local condi tions" has

been part of the law since 1974, the meaning

of that phrase appears to be a matter of

first impression. The parties have cited no

controlling authority on that issue, nor has

the undersigned's research located any.

188. Petitioners contend that a "local

condition" is a condition that is unique to

the local government adopting the amendment.

By contrast, Respondents contend that the

condition need not be unique to the local

government so long as the condition exists

within the local governme nt's boundaries and

does not exist at all or to the same degree

statewide.

189. Ultimately, the meaning of the

phrase "local conditions" turns on the

meaning word "local" because the parties

appear to agree that environmental matters

such as atmospheri c salt and high winds are

"conditions" for purposes of Section

553.73(4)(b). And cf. Exhibit P4, at 6, 47

(identifying "climatic conditions, soil

types, termites, weather - related events,

[and] risks associated with coastal

development" as potential subjec ts of "local

variations" which the Study Commission

recommended be part of the Code).

190. Where, as here, the words used in a

statute are not defined by statute, they

should be given their plain and ordinary

meaning as set forth in the dictionary. See

Southwest Florida Water Management District

v. Save the Manatee Club , 773 So. 2d 594,

599 (Fla. 1st DCA 2000).

191. Petitioners' construction is more

consistent with the dictionary definitions

of "local." See Mirriam - Webster's Online

Dictionary , w ww.m - w.com (defining "local" to

mean "of, relating to, or characteristic of

a particular place: not general or

widespread ") (emphasis supplied); Black's

Law Dictionary , at 938 (6th ed. 1990)

(defining "local" to mean "[r]elating to a

place, expressive of a place; belonging or

confined to a particular place .

Distinguished from 'general,' 'personal,'

'widespread,' and 'transitory.'") (emphasis

supplied).

192. Petitioners' construction is also

more consistent with the legislative intent

of the Code, beca use a restrictive

interpretation of the phrase "local

conditions" serves to protect the

uniformity of the Code. See Section

553.72(1).

193. Petitioners' construction is also

more consistent with the amendments to

Section 553.73(4)(b)1. adopted by the

Legislature in 2002. See Chapter 2002 - 293,

Section 14, Laws of Florida. Those

amendments further illustrate the

Legislature's intent to restrict local

technical amendments to conditions which are

local rather than regional. Even though the

substantive criteria in the 2002 version of

the statute do not apply in this proceeding

because Respondents' local amendments were

adopted prior to the 2002 amendments

becoming effective, it is appropriate to

consider those amendments in construing the

existing law. See , e.g. , Lowry v. Parole

and Probation Comm'n , 473 So. 2d 1248, 1250

(Fla. 1985).

194. The conditions Respondents cited as

the justifying the local amendments --

corrosive environment resulting from

atmospheric salt and high winds -- are not

"local conditions" for purposes of Section

553.73(4)(b). Those conditions exist to

varying degrees in all coastal communities,

and portions of more than half of Florida

counties and a significant number of

municipalities. As a result, those

conditions are "gene ral or widespread," and

clearly not "confined to" Port Orange and

South Daytona.

195. Indeed, if conditions which exist in

more than half of the Florida counties can

be considered "local conditions" then each

local government within those counties coul d

adopt amendments to the Code to address

those conditions. Each of those local

governments might address the local

condition differently -- e.g. , restricting

aluminum wire to "number 2" or larger, or

"number 3" or larger, rather than "number 1"

or larger as Port Orange and South Daytona

did. In such circumstances, the uniformity

of the Code would be undermined and the Code

would effectively be replaced with the

patch - work building code system that existed

prior to the Code which, according to the

finding s of the Study Commission ( see

Exhibit P4, at 6, 8, 39 - 48), contributed to

the failure to enforce building codes and

untold property damage.

c. "Justification" for the Amendments

196. Respondents not only have the burden

of proving the existence of " local

conditions," but also that the local

conditions "justify" the more stringent

requirements in the local technical

amendments. See Section 553.73(4)(b)1.

Stated another way, Respondents must

demonstrate that the more stringent

requirements in the loc al amendments are

necessary because of the cited local

conditions, or that there is a direct nexus

between the cited local conditions and the

more stringent requirements. The 2002

amendments to the statute confirm as much.

See Chapter 2002 - 293, Section 1 4, Laws of

Florida (amending Section 553.73(4)(b)1. and

clarifying that the local need to strengthen

the Code must "beyond the needs or regional

variation addressed by the [Code]" and that

the local need must be addressed by an

amendment which is no more s tringent than

necessary to address that need).

197. In light of the foregoing

determination that Respondents failed to

prove the existence of "local conditions,"

it is not necessary to determine whether

such conditions justify their local

technical ame ndments. However, in the event

that the undersigned's construction of

"local conditions" is rejected by the

Commission in its final order or by an

appellate court, the issue as to whether the

conditions cited by Respondents -- corrosive

environment caused by atmospheric salt and

high winds -- "justify" the amendments will

be addressed below.

* * *

200. The local technical amendment to NEC

Section 230 - 70 may be desirable from a

safety standpoint, but it is not justified

by high wind conditions. Inde ed, the fact

that an outside "main disconnect" or "shunt

trip" might make it easier for firefighters

to turn off power to a building in case of

an emergency is no more significant in the

event of a hurricane than it is in the event

of a fire or some other emergency.

Accordingly, even if high winds were

considered a "local condition" in Port

Orange and South Daytona, that condition

does not justify the local amendment to NEC

Section 230 - 70.

The undersigned agrees with all of the above - quoted conclusions

f rom Florida Home Builders and is of the view that, to the

extent those conclusions address issues in this case, they are

equally applicable here.

Compliance with Section 553.73(4)(b)7

58. Petitioners contend that an interlocal agreement

between the Count y and the municipalities in Broward County

establishing a county - wide compliance review board is a

condition precedent to BORA’s authority to adopt the local

technical amendments at issue here. In this regard Petitioners

direct attention to the language o f Section 553.73(4)(b)7,

Florida Statutes, which reads as follows:

7. Each county and municipality desiring to

make local technical amendments to the

Florida Building Code shall by interlocal

agreement establish a countywide compliance

review board to rev iew any amendment to the

Florida Building Code, adopted by a local

government within the county pursuant to

this paragraph, that is challenged by any

substantially affected party for purposes of

determining the amendment's compliance with

this paragraph. If challenged, the local

technical amendments shall not become

effective until time for filing an appeal

pursuant to subparagraph 8. has expired or,

if there is an appeal, until the commission

issues its final order determining the

adopted amendment is in compliance with this

subsection. (Emphasis added.)

59. The foregoing language must also be considered in pari

materia with the following language from Section 553.73(1)(e),

Florida Statutes:

(e) Subject to the provisions of this act,

responsibility fo r enforcement,

interpretation, and regulation of the

Florida Building Code shall be vested in a

specified local board or agency , and the

words "local government" and "local

governing body" as used in this part shall

be construed to refer exclusively to suc h

local board or agency. (Emphasis added.)

60. There does not appear to be any doubt that BORA is a

"specified local board or agency" within the meaning of Section

553.73(1)(e), Florida Statutes. And it follows logically from

the provisions of Section 553.73(1)(e) that BORA is a "local

government" authorized by Section 553.73(4)(b), Florida

Statutes, to "adopt amendments to the technical provisions of

the Florida Building Code. . . ." But BORA is not a "county" or

a "municipality" within the meaning o f subparagraph 7 of Section

553.73(4)(b). Such being the case, the requirements of

subparagraph 7 do not expressly apply to an entity like BORA,

because the requirements of subparagraph 7 are expressly limited

to a "county' or a "municipality" that desire s to make local

technical amendments.

61. While the letter of subparagraph 7 does not apply to

BORA, one must ask whether the purpose and intent of the

requirements of that subparagraph are such as would necessarily

encompass BORA to fulfil the purposes of the subject statutory

requirement. The undersigned is of the view that BORA is not

encompassed by the requirements of subparagraph 7 of Section

553.73(4)(b), Florida Statutes. This conclusion is reached

largely on the basis that in a geographic area l ike Broward

County, where only one unit of local government is authorized to

adopt amendments to the Florida Building Code, it would serve no

useful purpose to have a countywide compliance review board if

there is only one entity in the county that is auth orized to

adopt local technical amendments. 4 In view of the foregoing

conclusions, the undersigned also concludes that the

establishment of a countywide compliance review board by

interlocal agreement is not a necessary prerequisite to the

authority of BO RA to adopt local technical amendments to the

Florida Building Code.

62. The foregoing conclusion raises, of necessity, the

question of whether, in the absence a statutory "countywide

compliance review board," challenges to BORA's local technical

amendme nts may, or must, be addressed to BORA before seeking

relief before the state Commission. Stated otherwise, the

unresolved question is: Even though BORA is not a countywide

compliance review board, may BORA, or must BORA, act as though

it were a countywi de compliance review board? This question

does not appear to be answered by any language in Chapter 553,

Florida Statutes. Hopefully, the Commission will be able to

fashion some solution to this problem for the benefit of future

parties.

63. Although i t cannot be said with any degree of

certainty that a proceeding before BORA challenging the validity

of the local technical amendments at issue here was a

prerequisite to filing an appeal with the Commission, it seems

quite certain that such a proceeding b efore BORA prior to an

appeal to the Commission was not in any way an impediment to the

Petitioner's subsequent efforts to seek relief before the

Commission. From the Petitioner's point of view, it would seem

that the proceeding before BORA was, at worst, an exercise of an

over - abundance of caution to make sure that the Petitioners had

exhausted all of their local administrative remedies before

seeking relief from the Commission. 5

Conclusions regarding newspaper notice

64. Petitioners contend that BORA f ailed to comply with

the statutory requirement in Section 553.73(4)(b)1, Florida

Statutes, of publishing notice in a newspaper of general

circulation at least 10 days before a public hearing to adopt

local technical amendments to the Florida Building Code. The

sub - committee and committee meetings constituted workshop

meetings and were advisory in nature. The BORA meeting of

December 13, 2001 was a meeting to discuss the proposed

amendment in concept. These meetings do not appear to have been

within the s cope of the cited statutory requirements for

publication of notice in a newspaper because no final action was

taken at those sub - committee or committee meetings or at the

BORA meeting of December 13, 2001. In addition, the aforesaid

publication requiremen t did not become effective until March 1,

2002, and, therefore, was not applicable to the sub - committee

and committee meetings and BORA’s meeting of December 13, 2001.

When BORA officially adopted the Amendments on March 1, 2002,

the notice of the meeting was published in compliance with

Section 553.73(4)(b)1, Florida Statutes .

Local conditions and local needs

65. Section 553.73(4)(b)1, Florida Statutes, requires, as

a prerequisite to any local technical amendment, that a

determination be made based upon a review of local conditions

"by the governing body" which review demonstrates "by evidence

or data that the geographical jurisdiction governed by the local

governing body exhibits a local need to strengthen the Florida

Building Code beyond the needs or r egional variation addressed

by the Florida Building Code." The statute also requires

evidence or data "that the local need is addressed by the

proposed local amendment." And, finally, the statute requires

evidence or data that "the amendment is no more s tringent than

necessary to address the local need." The evidence in this case

is insufficient to show that BORA complied with any of the three

last - mentioned statutory requirements.

66. With regard to the "local conditions" requirement, for

the reasons discussed in Florida Home Builders , supra, the

quoted term must be given a narrow construction to accomplish

the legislative goals of the new legislation. The local

conditions mentioned in BORA's arguments are not unique to

Broward County. Nor do any of such conditions demonstrate a

"need" for local technical amendments. The most that can be

said on the basis of the record in this case is that BORA has

shown that it has a strong "desire" to have the amendments in

order to maintain a 20 - year - old status qu o, but there has been

no showing of a "need."

67. As explained in some of the above - quoted language from

Florida Home Builders , in the absence of a showing of a "local

need" it is impossible to demonstrate that the subject local

technical amendments addr ess the need that has not been shown.

The same is equally true of the statutory requirement of a

showing that "the amendment is no more stringent than necessary

to address the local need." If no local need is shown, it

follows logically that any local te chnical amendments that

impose more stringent requirements than the Florida Building

Code of necessity also impose requirements that are more

stringent than necessary.

68. In reaching the foregoing conclusions, the undersigned

has not overlooked the test imony in support of BORA's position

that included a list of several conditions the witness cited as

justifying the local technical amendments at issue here. Those

conditions may be briefly described as follows:

(a) A large number of high - rise building s.

(b) Very high high - rise buildings.

(c) Large elderly population.

(d) Response time impacted by bridges and

by volunteer fire departments

(e) Use of impact glass in high - rise

buildings.

(f) Use of HVWZ — hurricane shutters.

(g) Long history of s moke control

regulations in Broward County.

69. The conditions summarized immediately above fail to

provide any support for BORA's position for two reasons. First,

they are not "local conditions" within the meaning of Section

553.73(4)(b). All of thos e conditions exist to one extent or

another in a number of other Florida counties and in a

significant number of municipalities. As a result, those

conditions are "general or widespread," and clearly not

"confined to" Broward County. Second, even if the conditions

summarized above were "local conditions" within the meaning of

the applicable statutes, there is no persuasive evidence that

the members of BORA ever considered even a single one of those

conditions prior to voting to adopt the subject amendment s. It

is clear from the evidence in this case that, whatever the

members of BORA may have had in mind when they voted to adopt

the subject amendments, they never memorialized any "local

conditions" within the meaning of Section 553.73(4)(b), Florida

Statu tes, that they relied upon as justification for the

amendments.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Building Commission

issue a final order which concludes that, for the reas ons set

forth above, the local technical amendments adopted by BORA

which are challenged in this case fail to comply with the

requirements of Section 553.73(4)(b)1, Florida Statutes (2001),

and are invalid local technical amendments, and further

concluding that Broward County is not a necessary or appropriate

party to this proceeding.

DONE AND ENTERED this 30th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of June, 2003.

ENDNOTES

1/ The style of this proceeding has been changed in the

interest of accuracy. The proper name of the party previously

described as "BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS" is

simply "BROWARD COUNTY." The party des cribed in the original

style as "THE BROWARD COUNTY BOARD OF RULES AND APPEALS/COUNTY -

WIDE COMPLIANCE REVIEW BOARD" has never existed. Although the

party named "THE BROWARD COUNTY BOARD OF RULES AND APPEALS" has

on at least one occasion acted as, or attem pted to act as, a

"countywide compliance review board" within the meaning of the

applicable statutes, there has never been an entity named "THE

BROWARD COUNTY BOARD OF RULES AND APPEALS/COUNTYWIDE COMPLIANCE

REVIEW BOARD."

2/ Petitioners and Broward Coun ty requested and were granted a

few extra hours for the submission of their respective proposed

recommended orders.

3/ The issue of standing in a case of this nature is discussed

at some length at paragraphs 146 through 161 of the Recommended

Order in Fl orida Home Builders Association, Inc., et al., vs.

City of Daytona Beach, et al. , DOAH Case No. 03 - 0131BC (RO

issued April 29, 2003).

4/ This is a matter on which reasonable people acting in good

faith could disagree. Thus, this conclusion is not entire ly

free from doubt. Hopefully the Commission's final order will

provide clear guidance to be followed in the future.

5/ The Petitioners' reliance on BORA's assertion that BORA had

authority to hear challenges as though it were a countywide

compliance re view board would appear to resolve any dispute on

this issue between these parties. But future cases could

present more complicated circumstances, and it would be most

helpful to have some Commission or Legislative clarification on

this issue. On this ge neral subject it is gratuitously noted

that, if in the future BORA undertakes to fulfil the role of a

countywide compliance review board within the meaning of Section

553.73(4)(b)7 and 8, Florida Statutes, BORA should offer the

challenging party a trial - ty pe proceeding, and BORA should have

someone participating in the hearing on BORA's behalf to present

evidence and argument in support of the challenged local

technical amendments. At such a hearing, even if the hearing is

conducted by itself and before it self, sub - paragraph 8 of

Section 553.73(4)(b) imposes the following requirement on BORA:

"The local government adopting the amendment that is subject to

challenge has the burden of proving that the amendment complies

with the provisions of this paragraph in proceedings before the

compliance review board and the commission, as applicable."

(Emphasis added.)

COPIES FURNISHED :

Robert S. Fine, Esquire

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Jose R. Gonzalez, Esquire

Broward Coun ty Attorney's Office

115 South Andrews Avenue

Governmental Center, Suite 423

Fort Lauderdale, Florida 33301

Robert Ziegler, Esquire

Rogers, Morris & Ziegler

1401 East Broward Boulevard

Suite 300

Fort Lauderdale, Florida 33301

Timothy E. Dennis, Esquir e

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

David Jordan, Acting General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 100

Tallahassee, Florida 32399 - 2100

Ila Jones, Administra tor

Florida Building Commission

Department of Community Affairs

Codes & Standards

2555 Shumard Oak Boulevard, Suite 210

Tallahassee, Florida 32399 - 2100

Cari L. Roth, General Counsel

Florida Building Commission

2555 Shumard Oak Boulevard, Suite 100

Tallah assee, Florida 32399 - 2100

Colleen M. Castillo, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.