Robert S. Fine, Esq. | GreenbergTraurig
Since the late 1980s, Florida has had in place legislation that preempted all accessibility requirements to the state Legislature. See, e.g., §§ 553.503, 553.513 (and formerly 553.495). Between 1989 and today, all state-mandated accessibility requirements were found in the Florida Accessibility Code or prescribed by the Florida Fair Housing Act.
When the National Fire Protection Agency (NFPA) published the 2018 edition of its Life Safety Code (NFPA 101-2018), the base reference for the Florida Fire Prevention Code, Seventh (2020) Edition (the Fire Prevention Code), it contained requirements for grab bars in specified configurations in the bathrooms of a number of building types, including but not limited to new apartment buildings (including residential condominiums). Because of the manner in which NFPA incorporated the language requiring grab bars, the requirement was not easily seen. As a result, when the State Fire Marshal’s Office undertook the rulemaking to adopt the 2020 edition of the Fire Prevention Code, the new code brought along with it the requirement for such grab bars to be installed in new apartment buildings, residential condominiums, and other building types as specified by the Fire Prevention Code. Local fire officials have typically been sympathetic to the position that accessibility requirements are preempted to the state, but because the grab bars requirement is included in the Fire Prevention Code that they are charged with enforcing, the officials feel they have no choice but to enforce the requirement.
The State Fire Marshal’s office was informed of the grab bar issue (including the state’s preemption requirement) going back a number of months and requested to remove the grab bar requirement. After reengaging the rulemaking process, the State Fire Marshal’s office has now adopted a rule to amend the Fire Protection Code, effective April 26, 2022, to eliminate the grab bar requirement.
The amendment to the Fire Prevention Code (eliminating the grab bar requirement) will apply to development projects whose initial application for building permit is filed on or after April 26, 2022. Because of how Florida law determines what edition of its building and fire prevention codes apply to construction projects, this curative Fire Prevention Code amendment may not necessarily apply to projects that are subject to the 2020 (or Seventh) edition of the Fire Prevention Code but have applied for building permits before April 26, 2022. Those with a development project that is being subjected to the Fire Prevention Code’s grab bar requirement and who have already filed an application for building permit (or plan to do so before April 26, 2022) may wish to contact their project’s building code law attorney or fire prevention consultant to discuss potential options and strategies.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.