Proposed Rule for Evaluating Damaged Structures Faces Pushback

By Veronica Bayó Clifford, Esq.
Grossman, Roopnarine & Bayó, L.L.C.

The Florida Board of Professional Engineers’ Rules Committee met on May 5 to review public comments on proposed Chapter 61G15-38, Florida Administrative Code, a new rule that would establish criteria for engineers evaluating damaged structures. While the meeting ended without a vote, the discussion and comments trended in one direction: the draft is too broad, too expensive, and too prescriptive.

What the Meeting Revealed

Roughly 115 public comments had been submitted before the meeting. The overwhelming majority opposed the proposed rules. A small number expressed support, and several offered observations without taking a position.

Public commenters raised concerns about economic impact and questioned whether legislative authorization would be required before the rules could take effect. Others recommended deferring to existing ASTM and ASCE standards rather than creating new requirements, and flagged the ambiguity in the rule’s triggering scope, specifically which types of damage and which types of assignments the draft rule is intended to reach.

One board member offered context for the Board’s rationale for the proposed rules. Legitimate roof evaluations typically cost $8,000 to $9,000. Deficient reports, the board member noted, have led to $300,000 to $400,000 in resulting litigation costs, ultimately affecting insurance rates statewide.

If the proposed rule adversely impacts small business or is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule, section 120.541(3), Florida Statutes, requires the Board to prepare a Statement of Estimated Regulatory Costs. The discussion reflected a consensus that the rule would trigger this threshold. If the economic analysis of the proposed rule shows estimated regulatory costs, including transactional costs for the general public, would exceed $1 million within five years of implementation, the Legislature must ratify the proposed rule before they take effect. 

In light of these statutory rulemaking requirements, three paths emerged: decline to proceed, identify lower-cost regulatory alternatives, or seek legislative ratification if costs exceed the statutory ceiling. Board counsel recommended simplifying the rules to focus on essential minimum standards that most engineers already follow, rather than creating documentation requirements that would burden the profession.

The committee directed that a summary of the public comments and the committee discussion be presented to the full Board for further direction.

What the Proposed Rule Would Require

Proposed Chapter 61G15-38 would apply to any Florida licensed professional engineer conducting an evaluation of a damaged building. Engineers would be required to comply with the Board’s existing General Responsibility Rules in Chapter 61G15-30, F.A.C., along with new requirements specific to damaged-structure work. The draft incorporates ASCE/SEI Standard 30-14, Guideline for Condition Assessment of the Building Envelope, and ASCE/SEI Standard 11-99, Guideline for Structural Condition Assessment of Existing Buildings, as mandatory references.

Reporting requirements under the proposed rule are extensive. When applicable, reports must identify the weather or damage event, inspection dates, individuals who performed inspections, references and standards relied upon, observed and recorded damage, any destructive or selective demolition performed, and weather assessment documentation from a qualified meteorologist for a site-specific survey and report.

The proposed rule would also require engineers to identify the mechanism of failure and causation as a non-discretionary report element, to take responsibility for all aspects of a signed and sealed damage report, and to verify information recorded by an authorized representative or delegated engineer if that information becomes part of the engineer’s deliverable.

The roof provisions are the most detailed. For roof evaluations, engineers would be required to document the type and age of the roof covering system, applicable building codes and industry standards, method of attachment, roof orientation and configuration, manufacturer and Notice of Acceptance information if available, permit information if available, the mechanism of failure or causation, roof plans showing damaged areas, photographs, weather-event documentation, and information from persons familiar with the roof history. Separate subsections address concrete and clay tile systems, asphaltic or fiberglass shingle systems, and low-slope roof covering systems.

Why the Board Initiated the Rulemaking

The Board has described the proposal as a response to complaints about engineering reports involving damaged buildings, particularly reports arising from severe-weather events. In recent years, FBPE has received complaints from engineers, building officials, and property owners about erroneous reports and reports not in compliance with existing General Responsibility Rules, and that investigations had often been inconclusive because many existing rules address design standards for new projects rather than evaluations of existing damaged buildings.

Florida already requires engineers to practice within their competence, use due care, comply with acceptable engineering standards, and avoid misleading professional reports. The proposed chapter would add a more specific regulatory framework for damage evaluations within that existing statutory structure.

The proposed rule also arrives during a period of broader regulatory attention to existing structures. The Board is separately considering changes related to special inspectors and existing threshold buildings, in part because of concerns following the Champlain Towers South collapse in Surfside. That is a different initiative, but reflects the same regulatory focus on engineering work involving existing structures.

What Commenters Said

Comments from opposition raised several recurring themes.

The most consistent objection was that the draft imposes uniform mandatory requirements regardless of scope, complexity, or available evidence. A limited single-component inspection is not the same as a full structural failure investigation, and the proposed rule does not distinguish between them.

Several commenters challenged the standards incorporated by reference. ASCE/SEI 30-14 and ASCE/SEI 11-99 are condition-assessment guidelines developed for existing structures, not a forensic framework for causation analysis of discrete damage events. Commenters argued that ASTM E2713 and ASTM E3176, both specifically designed to guide forensic investigation and causation analysis, were more appropriate references and were absent from the draft.

Many argued against proposed subsection 61G15-38.002(3), which would require engineers to identify the mechanism of failure and causation as a mandatory element of the report. Several forensic engineers stated that causation cannot always be established from available evidence. Engineers who cannot reach a definitive conclusion face an uncomfortable choice between overstating certainty and documenting indeterminate findings, both of which could expose them to noncompliance under the proposed rules.

Cost concerns were also prominent. Mandatory meteorologist reports, component-level documentation, historical permit research, product-approval research, and destructive testing documentation could substantially increase the time and expense of damage evaluations, costs that would ultimately be passed on to property owners, insurers, contractors, and consumers.

Some commenters argued that the proposed rule would constitute an invalid exercise of delegated legislative authority under section 120.52(8), Florida Statutes, because the rulemaking record does not contain competent substantial evidence of a documented public safety concern sufficient to justify the prescriptive requirements imposed.

What Happens Next

The full Board will receive a summary of the committee discussion and public comments and will provide further direction on whether to proceed, narrow, or abandon the proposal. The question of whether the rule requires a Statement of Estimated Regulatory Costs, and potentially legislative ratification, remains open.

Engineers who perform damage evaluations should monitor the rule as it evolves. Regardless of outcome, the rulemaking signals increased regulatory attention to damaged-structure evaluations. Reports in this area should clearly identify the assignment scope, the information reviewed, the limits of the inspection, the basis for any causation opinion, and the reasoning supporting the engineer’s conclusion.

*Disclosure: The authors practice with Grossman, Roopnarine & Bayó, LLC, which submitted public comments to proposed Chapter 61G15-38, F.A.C., on behalf of certain clients in connection with the rulemaking described in this article. This article is intended to be informational and does not advocate a position on behalf of any client or party.