ALTERNATIVE PLANS REVIEW AND INSPECTION PROCESS
By, Randall Gilbert, Esq.
What is a Private Provider (“PP”)? Enacted October 1, 2002, and revised on June 19, 2007, Florida Statute §553.791 provides that “[t]he fee owner may elect to use a private provider to provide plans review or required building inspections, or both.” A PP must be licensed under chapter 471 as an Engineer or under chapter 481 as an Architect. Individuals licensed under chapter 468 Part XII as a Building Inspector are also permitted to do inspections but are limited to residential additions and alterations up to 1,000 sq. ft. A PP can also act through their “Duly Authorized Representatives” to review plans, perform inspections, and sign off on reports. To avoid self-policing and conflicts of interest, PP’s cannot provide services for any building designed or constructed by the PP, and the PP’s Duly Authorized Representatives must actually be an employee of the PP who is entitled to unemployment compensation.
Big advantages of using a Private Provider.
Sovereign immunity for municipal building inspectors. In Trianon Park Condominium Ass'n. v. City of Hialeah, 468 So.2d 912 (Fla. 1985), the plaintiffs were condominium unit-owners seeking damages against the City of Hialeah building inspectors for negligence in inspecting their condominium building and certifying it for occupancy. The Supreme Court held that unless the plaintiffs could show that the city owed either an underlying common-law or statutory duty of care to the individual condominium owners with respect to the alleged negligent conduct, there could be no governmental liability for this negligence. The Trianon plaintiffs argued that the city owed them a statutory duty of care to properly inspect construction projects pursuant to Chapter 553, Florida Statutes; that the inspection laws were enacted for the protection of individual citizens as well as the general public. The Supreme Court, however, determined that Chapter 553 was enacted only for the purpose of protecting the health and welfare of the public in general, and was not intended by the Legislature to create a governmental duty of care to individual property owners. Finding no statutory or common-law duty of care owed by the city to the individual property owners to inspect their building and issue certificates of occupancy, the Court held that the city could not be held liable for any negligence in the performance of these acts. In addition, if a PP is used then the BO also enjoys a statutory immunity from liability in connection with the building code inspection services.
How much professional liability insurance must a PP maintain? The PP must maintain professional liability coverage. For projects of $5 million or less, the policy must be $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. For projects more than $5 million the policy must be $2,000,000.00 per occurrence and $4,000,000.00 in the aggregate. The PP can purchase claims-made policies but must maintain tail coverage for at least 5 years. Therefore, if this amount is insufficient then an owner should request that the insurance coverage be increased. However, even though a PP is required to carry insurance “[t]he contractor’s contractual or legal obligations are not relieved by any action of the private provider” and thus may also be joined in as a responsible party.
Who can hire the PP and Where to find a registered PP? Most building departments require the PP and their “Duly Authorized Representatives” to register in order to verify their licensure and ensure that they maintains the requisite insurance. The PP must have a written contract with the fee owner for its services. With the recent 2007 revision, contractors can now contract for a PP as well, but only with the owner’s written permission. If a PP is used for plan review, then the building official, in accordance with local adopted polices, may also require a PP to be used for the building inspections as well.
“Notwithstanding any other provision of law or local government ordinance or local policy, the fee owner of a building or structure, or the fee owner's contractor upon written authorization from the fee owner, may choose to use a private provider to provide building code inspection services with regard to such building or structure and may make payment directly to the private provider for the provision of such services.”
When do I have to elect to use a PP? Prior to the 2006 revision, the question of when the election to use a PP must be made generated a lot of confusion and generated two interpretive attorney general opinions. It used to be that the election could only be made either “at the time of permit application, or no less than seven (7) business days prior to the first scheduled inspection.” The current version of the statute now provides that, “if the local building official is unable to provide inspection services in a timely manner,” then election can be made no less than seven (7) business days prior to the next scheduled inspection.”
The term “timely manner” is not defined anywhere in the Florida Statutes. Nor does the Florida Building Code specify the time that an inspection must take place. However, Broward County has issued amendments and interpretations to the Florida Building Code requiring that “Inspections shall be made not later than the following workday after the day of the request for inspection when a request is made prior to 12:00 noon. Requests for inspections received after 12:00 noon, shall be made not later than the day after the following workday.”
Therefore, unless there is some local amendment to the Florida Building Code specifying when an inspection must take place, the term “timely manner” seems unconstitutionally vague, since it is not defined anywhere. Therefore, this author is of the opinion that because at least one local jurisdiction essentially requires that the inspection must occur within virtually the next day, a BO should not reject a PP’s application based solely on the grounds that the BO feels as though it is providing inspection services in a timely manner.
Can I use a PP for just one portion of a project (e.g. close out a plumbing permit only when other permits remain open) or must they inspect the entire project? The statute does not specifically address this question but here is the answer. An independent poll of chief building officials in multiple building departments in multiple counties resulted in the unanimous consensus that: (1) If there is a master permit with multiple subtrades under it then the PP must inspect and close out the entire master permit with all of the subtrades connected with that master permit; but (2) If there are independently issued permits for those subtrades (i.e. not connected with other permits or a master permit) then a PP will be allowed to inspect just that subtrade and close out that permit. In support of this position, the statute provides that “A PP performing required inspections under this section shall inspect each phase of construction as required by applicable codes.”
However, as a counterargument for allowing inspections of only one trade, the application for a PP allows the fee owner or the fee owner’s contractor to specifically list “the services to be performed by the PP,” and the “Certificate of Completion” signed by the PP must only state “to the best of my knowledge and belief, the building components and site improvements outlined herein and inspected under my authority have been completed….”
Providing Notice that a PP is going to be used. Election must be made with a form typically called “Notice to Building Official of Use of Private Provider Form.” Although each building department has various versions of the form on their county or municipal letterhead. (Miami-Dade’s Form is attached as an example). The form must be signed by the owner, posted at the project, and must generally contain: (1) The PP’s license number, contact information, resume or statement of qualifications; (2) A description of the services to be provided by the PP; (3) a certificate of professional liability insurance for the PP if required by the building official; and (4) statement from the owner indemnifying the building department from the owner’s use of the PP. The PP and its DulyAuthorized Representative can only perform services within the disciplines covered by their licensure or certification under chapter 468 (Building Code Administrators And Inspectors for additions and alterations that are limited to 1,000 sq. ft. or less to residential buildings) chapter 471 (Engineering), or chapter 481 (Architecture, Interior Design, and Landscape Architecture). If changes are made to either the PP or the PP’s scope of work, then the Notice must be updated within one (1) business day from the change.
Plan review by a PP. If a PP is used for plan review then the PP is required to review the construction plans and sign an affidavit in a form authorized by the Florida Building Commission, under oath that the plans comply with the applicable codes. (Miami-Dade’s Form is attached as an example). Although special permission may be sought from the BO, there is nothing in §553.791 that authorizes construction to commence prior to issuance of the permit. There is also a 30-business-day deadline for the BO to review the plans, which can be tolled by the BO providing the PP with notice of a deficiency. Each time the BO issues a notice of deficiencies the BO is given 5 extra business days, to review the PP’s revisions to the plans.
Inspections of the construction. If a notice of commencement is required (generally for jobs more than $2,500.00) then the PP may not perform or approve inspections until the Notice of Commencement is filed. Whatever inspections the BO is required to perform, the PP is also required to perform. The PP must notify the BO of any intended inspections and the approximate time.
Auditing the PP’s inspections and delays by the BO. The BO may perform audits and visit the site as often as necessary to verify that the PP is actually providing the inspections. Although the statute specifically states that after the first inspection is approved, the BO is not permitted to delay the PP’s subsequent inspections with inspection audits, there are other delays that may be encountered. For instance, the BO may issue a “Deficiency Notice” if there is a noncompliance with the code or permitted documents. The BO may issue a “Stop-Work-Order” if there is an immediate threat to public safety and welfare meaning immediate hazard that could result in death, serious bodily injury, or significant property damage. In addition, a BO can issue a “Notice of Corrective Action” at any time if the condition violates the building code or approved plans.
Completion of an inspection.
After each completed inspection, the PP is required to record on a form posted at the jobsite indicating pass or fail, and sign it. A PP is required to post a deficiency notice for each noncompliance with the code or permitted documents. The PP then has 2-business-days to notify the BO about the PP’s conclusion. However, what usually happens is that the BO waives the requirement that each inspection be separately reported and instead simply requires the PP to submit a record of all the inspections together with a “Certificate of Compliance.”
Completion of all inspections by the PP. Upon completion of all required inspections, the PP must submit to the BO: (1) A record of all required inspections; (2) Request for either a “certificate of completion” or “certificate of occupancy”; and (3) A “Certificate of Compliance” under oath a statement in substantially the following form:
“To the best of my knowledge and belief, the building components and site improvements outlined herein and inspected under my authority have been completed in conformance with the approved plans and the applicable codes.”
How long does the BO have to issue a “Certificate Of Completion” or “Certificate Of Occupancy”? Upon receipt of the above three (3) items from the PP, the BO has 2-business-days to “identify the specific deficiencies, as well as the specific code chapters and section” or must issue the Certificate of Occupancy or Certificate of Completion the next business day.
What happens if the BO refuses to issue a Certificate of Completion or Certificate of Occupancy? If the BO determines that the construction is not code compliant, then the BO may deny the Certificate of Occupancy or Certificate of Completion, or issue a stop-work order for the project. Upon denial of a Certificate of Occupancy or Completion or issuance of the stop-work-order, the PP may: (1) Submit a corrected request for a Certificate of Occupancy or Certificate of Completion; or (2) Meet with the BO within 2 business days to resolve the dispute. If the dispute still cannot be resolved then the PP can appeal the decision to the BO’s Board of Appeals, or the local BO if there is no Board of Appeal, which must consider the matter at the next scheduled meeting. Thereafter, if there is still a dispute it must be brought before the Florida Building Commission.
Disciplinary action. Because a PP must be licensed as either an engineer, architect, or building inspector they are still subject to the disciplinary guidelines of their applicable professional boards respectively found under Florida Chapters 471, 481, and 468. In addition, a PP is also subject to the disciplinary guidelines of §468.621(1)(c)-(h) which are specifically for Building Code Administrators and Inspectors. Although currently, there is only one reported disciplinary case against a PP, there is certainly room for abuse. The most notable violations involve: Making or filing a report or record which the PP knows to be false; Failing to properly enforce applicable building codes by committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property; and failure to maintain the required insurance.
Fla. Stat §553.791(1)(i) (2007), Fla. Stat §553.791(3) (2007) (A PP can only perform services within the disciplines covered by their licensure or certification under chapter 468 (Building Code Administrators And Inspectors for additions and alterations that are limited to 1,000 sq. ft. or less to residential buildings) chapter 471 (Engineering), or chapter 481 (Architecture, Interior Design, and Landscape Architecture).
2005 Broward County Amendments To The 2004 Florida Building Code 109.5 provides: “Inspection requests shall be made to the Building Department office at least one day prior to the required inspection and shall provide reasonable time for such inspections to be made. Inspections shall be made not later than the following workday after the day of the request for inspection when a request is made prior to 12:00 noon. Requests for inspections received after 12:00 noon, shall be made not later than the day after the following workday. The request for inspection shall be made by the person, firm or corporation performing the work Failure to request such inspections constitutes a violation of this Code.”
“Vagueness, of course, is the term given to that ground of constitutional infirmity of a statute that is based on its failure to convey sufficiently definite notice of what conduct is proscribed. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” State v. Gray, 435 So.2d 816, 819 (Fla. 1983); See generally, DuFresne v. State 826 So.2d 272, 274 (Fla. 2002) (“It is well established that where reasonably possible and consistent with constitutional rights, a statute will be interpreted by the courts in a manner that resolves all doubt in favor of its validity. This Court has noted, however, that in a vagueness challenge, any doubt as to a statute's validity should be resolved in favor of the citizen and against the State.”); Cf, State v. Webb 786 So.2d 602, 604 (Fla. 1st DCA 2001) (upholding statute using the term “reasonable time”).