rEcEnt aMEndMEnts to florida’s privatE providEr statutE
Construction law Section
Chairs:GreggHutt-TrenamLawandKatherineHeckert-CarltonFields
subject to certain
requirements, the statute
allows an owner to use a
qualified private provider for
S
ection 553.791, Florida
Statutes, often referred
to as Florida’s “Private
Provider Statute,” provides
a framework for owners and their
authorized contractors to use
private providers (in lieu of a local
jurisdiction’s building department)
for plan review and building
inspection services. Since its
enactment in 2002, the Statute
has been amended six times,
most recently in the 2019 regular
legislative session. 1 Subject to
certain requirements, the Statute
allows an owner to use a qualified
private provider for plan review
and/or building inspection services.
The most recent amendments
offer guidance and clarification
on critical components of the
Statute, including mandated fee
reductions and auditing of private
provider services.
The Statute has been amended
in part to clarify and expand upon
the nature, scope, and calculation
of required fee reductions.
Subsection 553.7912(b), first added
in 2017, sets forth the Legislature’s
explicit intent that owners “pay
reduced fees” when using a private
provider, and also requires a local
jurisdiction to calculate its resulting
cost savings when a private provider
is used and reduce certain fees
accordingly. Through the most
recent amendment, § 553.791(2)(b)
also prohibits a local jurisdiction
32
plan review and/or building
inspection services.
from charging a building inspection
fee when a private provider is used
for such services (except that a
“reasonable administrative fee”
may be charged). § 553.791(2)(b),
Fla. Stat. (2019). As such, the
amendments clarify how and to
what extent fees must be reduced,
and also provide additional
guidance to jurisdictions for
ensuring compliance with the
calculation and fee reduction
requirements.
The Statute also allows
local jurisdictions to audit the
performance of private provider
services, subject to certain
limitations as expanded and
clarified in the most recent
amendment. Pursuant to
§ 553.791(18), a local jurisdiction
may audit a private provider’s
building inspection services,
provided, however, that such audit
may not delay work on a building
already inspected, approved,
and duly noticed by the private
provider. As most recently
amended, § 553.791(18) also
imposes a general limit of no more
than four audits per calendar year
of any particular private provider.
The reasoning behind this added
limitation may be gleaned from
the corresponding amendment
to the definition of “audit” under
§ 553.791(1)(b), which was first
added in 2007. Specifically, an
audit entails “the process to
confirm that the building code
inspection services have been
performed by the private
provider… .” § 553.791(1)(b), Fla.
Stat. (2019). Through the most
recent amendment, § 553.791(1)(b)
also clarifies that a “local building
official may not replicate the
plan review or inspection being
performed by the private provider,
unless expressly authorized by
this section.” Id. As such, local
jurisdictions are encouraged to
avoid unnecessary or excessive
auditing practices, including the
improper duplication of private
provider work.
Ideally, these recent amendments
will allow local jurisdictions to
meaningfully analyze their existing
private provider practices and
policies, which will facilitate
better compliance and encourage
more uniformity in the Statute’s
implementation. n
Ch. 2019-
165, Laws
of Fla.
1
Author:
Kendra McCan
Lyman – Hill
Ward Henderson
NOV - DEC 2019
|
HCBA LAWYER