Concern About Your Florida Condo’s Sprinkler System – New Law Interpretation

So what’s the problem?

For starters, neither the condominium law nor the cooperative law impose retrofitting requirements nor do Chapters 718 or 719 of the Florida Statutes confer jurisdiction on the Division to interpret or enforce life safety laws. That function rests with the Fire Marshal. The requirement for sprinkler retrofitting arises from Chapter 633 of the Florida Statutes not from either Chapter 718 or 719 where the opt out rights are provided. Chapter 633 of the Florida Statutes incorporates the National Fire Protection Association (NFPA) standards. The NFPA requires “high rise” buildings (which are defined as buildings in excess of 75 feet) to retrofit with sprinklers. While there may be other circumstances where buildings less than 75 feet must be equipped with fire sprinklers, there is no blanket requirement that all condominiums and cooperatives in the State of Florida, regardless of height or occupancy or date of construction be equipped with fire sprinklers.

Why does the Division and those following their lead believe otherwise?

In 2010 Chapters 718 and 719 were amended to remove the word “high rise” from the original “opt out law” which was enacted in 2003. That change occurred through SB 1222/SB 1196 which was sponsored by Rep. Ellyn Bogdanoff and Senator Jeremy Ring. It is likely that the Division believes that the removal of the reference to the “high rise buildings” signified a legislative intent to create a retrofitting requirement for all condominium and cooperative buildings through the condominium statute. As discussed above, that logic is not supported by the statutes or the NFPA standards. Moreover, Senator Ring has confirmed that the legislative intent behind the 2010 change was not to impose a blanket retrofitting requirement on all multifamily buildings in Florida but rather was to remove the reference to building height since the shared ownership statutes were not the proper place to impose physical requirements relative to life safety standards.

What does this mean for your multifamily building?

After Jan 1, 1994, all new buildings 3 stories and above had to have fire sprinklers. In addition, buildings of 3 stories or more that are treated as public lodging establishments, have life safety obligations which may include sprinkler installation. Other than those exceptions, if your building is not a high-rise of 75 feet or higher and you are confused about whether or not you should take a sprinkler opt out vote prior to the 12/31/16 deadline you need to discuss with your association attorney (who is hopefully experienced in these matters) whether or not your local government is requiring low and mid-rise buildings to retrofit with sprinklers due to a local code or ordinance and what the costs and repercussions of taking and not taking that opt out vote are.

Are there any repercussions to taking or not taking this vote?

For high-rises, the failure to take the opt out vote prior to the December 31, 2016 deadline is clearly spelled out in the statutes. Those high-rises who fail to opt out by the deadline must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will install a full sprinkler system by December 31, 2019.

For buildings other than high-rises, the failure to take the vote may have no repercussions at all if they are not otherwise required by a life safety statute or local ordinance or code to install sprinklers or it might have some preventative value should a local authority try to impose a sprinkler requirement on them. Your low and mid-rise building must weigh the costs and labor to take the vote against the preventative value or no value in doing so. It is also important to remember that once an opt out vote is taken that the association doing so must take the following steps:

(1) Within 30 days after the association’s opt-out vote, notice of the results of the opt-out vote must be mailed or hand delivered to all unit owners. Evidence of compliance with this notice requirement must be made by affidavit executed by the person providing the notice and filed among the official records of the association.

(2) After notice of an opt out vote is provided to each owner, a copy must be provided by the current owner to a new owner before closing and by a unit owner to a renter before signing a lease.

(3) As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per-unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting.

What is CALL and Becker & Poliakoff doing to address this issue?

We have reached out to the sponsor of the 2010 amendment, Senator Jeremy Ring, and he has written a letter to the Director of the Division of Condominiums, Timeshares, and Mobile Homes, expressing his disagreement with the Division’s interpretation.   To read Sen. Ring’s letter, please click here. And at yesterday’s meeting of the Florida Bar’s Condominium & Planned Development Committee Meeting, Becker & Poliakoff attorney Joe Adams read Sen. Ring’s letter and the Committee passed a Resolution expressing agreement with the content of Sen. Ring’s letter. There were approximately 50 to 70 attorneys present that represent developers and associations and the Resolution passed unanimously.  The Committee also appointed a 5-member task force, including Joe Adams, to meet with the Division and try to convince them to retract their “interpretation”.  We hope to impress on the Division the burden that their interpretation has placed on the thousands of condominium and cooperative associations around the State, an interpretation which is not supported by law or by any fire marshal that we have spoken to about the issue.

If you manage or serve on the board of a multifamily condominium or cooperative building in Florida which does not currently have a full sprinkler system and you have not yet taken an opt out vote, relying on media articles, newsletters and communications from attorneys who do not serve your community is not your best course of action. This CALL Alert is a good way to start a conversation about an important topic but an informed board must make that decision by relying upon its own advice of counsel.

As always, if you have any questions about the contents of this CALL Alert, please don’t hesitate to contact your CALL Team.

Very truly yours,

Donna DiMaggio Berger, Shareholder
Community Association Leadership Lobby (CALL)