Our High-Rise Building Opted Out Of Fire Sprinklers, Now We Have To Do What?!

STATE FIRE MARSHAL CLARIFIES ENGINEERED LIFE SAFETY SYSTEM REQUIREMENTS AND DEADLINES

Many articles, seminars and correspondence from B&P and others have addressed the looming December 31, 2016 deadline for high-rise condominium and cooperative buildings to vote to opt out of the fire sprinkler retrofit requirements in the Florida Fire Prevention Code, and many communities have taken advantage of the opt-out process. However, many communities are unaware that there may be other fire safety obligations with which they must comply. In a recent Declaratory Statement issued by the Florida Department of Financial Services, Division of State Fire Marshal, the State Fire Marshal provided additional clarity on this issue for high-rise buildings. In In re David Woodside, President Florida Fire Marshals and Inspectors Association, Case No. 189152-16-DS (May 4, 2016), the President of the Florida Fire Marshals and Inspectors Association filed a petition with the State Fire Marshal, essentially requesting guidance on whether certain high-rise buildings that are not protected throughout by an approved automatic fire sprinkler system must instead have an approved Engineered Life Safety System (“ELSS”), and if so, what the deadline to comply with the ELSS requirement would be.

As supporting authority, the State Fire Marshal noted in the Declaratory Statement that the Florida Fire Prevention Code adopted the NFPA, including the Fire Code (NFPA 1) and Life Safety Code (NFPA 101), with certain Florida-specific amendments. The Fire Marshal referenced FFPC 101:31.3.5.11.1, which provides that all high-rise buildings, other than those meeting 31.3.5.11.2 or 31.3.5.11.3, shall be protected throughout by an approved, supervised automatic sprinkler system in accordance with 31.3.5.2. The State Fire Marshal stated that FFPC 101:31.3.5.11.2 provides that an automatic sprinkler system is not required where every dwelling unit has exterior exist access in accordance with 7.5.3. The Fire Marshal further stated that FFPC 101:31.3.5.11.3 provides that a “sprinkler system shall not be required in buildings having an approved, engineered life safety system in accordance with 31.3.5.11.4.” In addition, the Fire Marshal referred to FFPC 1:13.3.2.26.2.4, which provides that all existing high-rise apartment buildings shall be subject to the provisions of sections 718.111 and 718.112, Florida Statutes, which shall “supersede the requirements for an automatic sprinkler system.”

The Fire Marshal concluded that an ELSS would still be required in high-rise buildings if compliant automatic sprinkler systems were not present or if all of the dwelling units do not have exterior exit access. Specifically, the State Fire Marshal concluded that although a Florida-specific amendment to the Fire Code permits the fire sprinkler opt-out process from the general sprinkler retrofitting requirements, another Florida-specific amendment, FFCP 1:13.3.2.26.2.3, clarifies that if the entire high-rise building is not protected by an approved automatic sprinkler system, it must comply with the ELSS requirements if there is not an exterior exit access for every dwelling unit. Concerning the deadline for implementing an approved ELSS when required, the State Fire Marshal stated that the deadline would be December 31, 2019, pursuant to FFPC 1:13.3.2.2.26.2.3 of the Florida Fire Prevention Code.

Therefore, if your condominium or cooperative community is a high-rise building that has previously voted to opt out of fire sprinklers or your association plans to do so before the opt-out deadline, but otherwise is still subject to ELSS upgrade requirements, your community should begin preparing for any changes to your building’s current ELSS, if any, to comply by the December 31, 2019 deadline. The Florida Fire Prevention Code states that the ELSS, where required by relevant sections of the Florida Fire Prevention Code, must be developed by a registered professional engineer experienced in fire and life safety system design, approved by the Authority Having Jurisdiction (i.e. the local fire marshal), and shall include some or all of the following: partial automatic sprinkler protection, smoke detection systems, smoke control systems, compartmentation, and “other approved systems.” Of course, if your building currently has compliant automatic fire sprinkler systems throughout, or your community chooses not to opt out of the retrofitting requirements and plans to perform the fire sprinkler retrofit, then an approved ELSS will not be required, pursuant to the Florida Fire Prevention Code. Not sure if your building may be subject to additional ELSS requirements or how they may impact your community? We suggest contacting a registered professional engineer experienced in fire and life safety system design, and consult with your association’s counsel for legal guidance when needed.

 

Written by Lance D. Clouse, Esq. Originally posted on Community Update by Becker and Poliakoff

Can a New Condominium Board Change or Rescind a Policy Adopted by a Previous Board?

Question: When a board adopts a motion or resolution, is a subsequent board bound by the vote if it does not agree? Can a subsequent board change or rescind a policy adopted by a previous board? (G.S. via e-mail)

Answer: Though directors may come and go, board policies, resolutions, or votes, if properly adopted, stay in place unless and until a subsequent board (or even the same board) votes to amend or rescind the resolution.

For example, if a current board adopted a rule regarding the procedure to inspect official records, all future boards would be required to abide by those rules until action was taken at a duly noticed meeting to amend or rescind the rule. For example, if a rule adopted by board resolution allows for an owner to submit a records request by e-mail, a future board could not ignore such a request (even though not required by law) unless and until the rule was amended.

My answer assumes the board actually had authority to take the action in the first place. For example, I am often asked to review board-adopted rules that regulate what can and cannot be done within a unit or on a privately-owned parcel. Rulemaking authority is often limited to common area issues or the common elements (as to condominium associations). In that example, even if adopted at a properly noticed board meeting, a subsequent board would not be required to recognize the previous board’s action, since it exceeded the board’s legal authority and is “void ab initio.”

Originally posted on Florida Condo HOA Law Blog

 

Can a Florida HOA Reject the Votes of a Tenant Proxyholder?

Question: I recently attended the annual meeting of my homeowners’ association. Many absentee owners sent in proxies. The association’s attorney advised the association to reject several proxies because they named a tenant as the proxyholder. The attorney said that only association members may serve as proxyholders. Is this true and should these proxies have been disregarded? (T.Y. via e-mail)

Answer: It depends. There is nothing in theFlorida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) that specifies or limits who may serve as a proxyholder. The statute only provides that, to be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.

The Florida Not For Profit Corporation Act (Chapter 617 of the Florida Statutes) similarly contains no limitations on who may serve as a proxyholder. Rather, this law provides that a member may vote by proxy executed in writing by the member or by his or her duly authorized attorney in fact. The only reason provided in Chapter 617 for rejecting a proxy appointment is if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubting the validity of the signature on it or the signatory’s authority to sign for the member.

While there is no legal limitation on who may serve as a proxyholder, it is possible (and somewhat common) that the association’s bylaws may do so. Such a provision, if properly adopted, in my opinion is valid. Many of my association clients include proxy limitations when updating their bylaws, but such restrictions are far from universal.

 

Originally posted on the Florida Conda HOA Law Blog