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July 2012

Don't Be Left Out in the Cold: Florida's New Energy Code

Overview of the Energy Code

Florida’s new Energy Code is in effect and causing consternation in the construction industry, as well as among code enforcement agencies. The effective date for the new Energy Code was March 15, 2012. Florida is not alone. Throughout the United States, Green Energy building codes have been enacted by most states during the past several years. However, Florida and several other states recently went “live” with their energy codes, specifying that the effective dates for their respective energy codes occur during 2011 - 2012. Florida passed one of the most stringent Energy Codes.
Florida’s Energy Code was enacted as part of a federal initiative for all residential and commercial buildings (new and old) to be energy efficient.  The Energy Code must be incorporated into the design and construction of all new residential and commercial buildings. Major repairs, additions and equipment replacements in existing residential and commercial buildings must also conform to the Energy Code. Significant changes were made to the mechanical section of the Code (changes related to air conditioner replacements in homes merits attention). However, the Energy Code also includes substantial changes to the electrical section of Florida’s Building Code (i.e., swimming pool pumps and motors and electrical power and lighting),  and specifications for the installations and replacements of windows, hurricane shutters, heat pumps and furnaces, and roofs.
While the implementation of new energy codes throughout the country may not be news to many construction law attorneys – it came as a big surprise to small companies whose primary business is to service individual homeowners, e.g., with respect to the mechanical trade, repairs and replacement of HVAC systems.  Furthermore, many local building code departments and code enforcement agencies were not prepared for the Energy Code to become effective and are grappling (at least in the State of Florida) with how to interpret the new code, educate their departments regarding the changes and formulating plans related to implementation and enforcement of the new Energy Code’s mandates. Funny, however I only became aware that the new Florida Energy Code had arrived when I was required to replace the air conditioning system in my home on March 17, 2012 – 3 days after the effective date!  It was the tough way to learn. But more about my story later in this article.
Given that all plans for new buildings submitted on or after March 15, 2012 were required to comply with the Energy Code, the “new building” sector of the construction industry (design professionals, contractors and equipment manufacturers) had little choice but to become educated regarding the changes prior to the effective date. With respect to existing residential and commercial structures, several years ago Florida Power & Light (“FPL”) and other utility companies in Florida were required by statute to contact owners of commercial and residential buildings for the purpose of conducting “Energy Audits.”  More recently, in anticipation of the effective date for the Energy Code and the attendant rebates and federal income tax credits approved by Congress to incentivize businesses and homeowners to upgrade their energy systems, the push for Energy Audits appeared to rise.  As a result, FPL’s approved contractors gained a “leg up” on other contractors in terms of a learning curve regarding the Energy Code.

The Impact of the Energy Code on Consumers and Small Businesses

The changes to Florida’s Energy Code are far too numerous for the purpose of this article. As such, in the remainder of this article I will focus on how the Energy Code has, and will continue to affect consumers and small businesses.

Permits are Required
Commencing March 15, 2012 when a homeowner’s air conditioning system cannot be repaired rather, must be replaced, the contractor or homeowner must obtain a permit from the applicable governing building department.
Section 553.912, Florida Statutes provides:

Air conditioners. – All air conditioners that are sold or installed in the state shall meet the minimum efficiency ratings of the Florida Energy Efficiency Code for Building Construction. These efficiency ratings shall be minimums and may be updated in the Florida Energy Efficiency Code for Building Construction by the department in accordance with s. 553.901, following its determination that more cost-effective energy-saving equipment and techniques are available. It is the intent of the Legislature that all replacement air-conditioning systems be installed using energy-saving, quality installation procedures, including, but not limited to, equipment sizing analysis and duct inspection.

What does this mean? First, it means that for the first time, code enforcement agencies must approve the type of HVAC system chosen to be installed in a house. When we insisted that our contractor (a licensed HVAC contractor, well known and respected by the city’s building department) get a permit for the job, his response was, “I have never pulled a permit for a switch-out before.” Second, obtaining a permit under the Energy Code to replace the HVAC system in a house is no longer a simple matter. Trust me, I know – as previously mentioned, I went through this whole “song and dance” and neither my contractor nor the code officials fully understood the process. In fact, I had to research the new Energy Code to assist them!
The contractor must demonstrate to code officials that the system to be installed is sized correctly. To prove that a system is correctly sized for the house in which it will be installed requires that “cooling loads” accompany a permit application. To determine the loads, the contractor needs a floor plan of your house and must calculate the loads, room by room, throughout the house.  The load calculation  cannot be determined manually, but must be run through a computer program. The results of the load test determines the size of the replacement system. Bigger is not always better, which may mean that a larger house will now need not only the broken unit replaced, but another unit or half-unit added. The contractor will not be issued a permit for the installation of the new HVAC system unless the load calculations supports the unit size chosen. 
The energy rater business has become a cottage industry as a result of the Energy Code. Small HVAC companies do not know, nor do they want to learn how to use to software to determine load calculations. As such, energy raters are hired by the contractor to perform the load calculations, the cost of which is passed on to the customer. The goal behind these new requirements is to save energy and to provide the homeowner with the cooling they want, absent the humidity.

Duct Certification

Thermal efficiency requires that the air in your home stays in your home through a sealed system – thus, the envelope of a house should be as leak free as possible. An added benefit is that ultimately, reduced energy usage will cost consumers less money and preserve energy that we previously wasted.
With these goals in mind, the rest of the story needs to be told. After the homeowner’s contractor successfully procures a permit and replaces the HVAC system, two more steps are required to pass inspection: the plenum  and the ductwork throughout the house must be certified by the contractor as being sealed.  A certification that the ductwork was inspected by the contractor and is properly sealed in accordance with the Energy Code must be posted on the unit installed. In my case, about two years ago my husband determined that we needed to invest the money (quite a bit of money) necessary to seal our ducts. Unbeknownst to us at the time, this was a wise and prudent investment given that, the contractor’s certification of the ductwork was never an issue and the city code inspector carefully checked both the plenum and the ductwork – the inspector was quite impressed with the work. As for me, I sighed a breath of relief when told that we passed inspection!

Reaction to Energy Code
The initial feedback regarding the Energy Code that I have received from small business owners is troubling. The changes found in the Energy Code has these contractors up in arms. Aside from increased costs to replace HVAC systems, they are convinced the Energy Code exposes them to greater liability to customers. As a result, certain HVAC business owners claim that they will no longer replace units, only repair them. However, other contractors told me that they will do what they have always done – replace the HVAC systems without a permit.

As for a typical homeowner – they do not even know about the Energy Code. There has yet to be any media attention given to the issue. As such, most consumers are blissfully unaware of the impact that the new Florida Energy Code may soon have on their lives and their pocketbooks. When the estimate to replace their air conditioning system is presented, homeowners will have sticker shock, especially if they have to seal or replace their ductwork as well. What used to be a $3,500 job for the ductwork in a 3,000 square foot house may be now be $6,000 or more.
Trying to delay the inevitable by repairing the system is not a long-term solution either. If Freon is leaking from a unit, the cost to replace it has doubled during the past 5-years. The high polluting Freon that was used for decades is no longer being made and the price of the Freon that is still available on the market will increase as the supply decreases – to the point where it will be unaffordable to most consumers. 

The foregoing is just the tip of an iceberg and barely scratches the surface regarding the extent of the changes to the construction industry which is contemplated by the Energy Code. Long term, the Energy Code will undoubtedly help the environment and save consumers money; provided homeowners hire reputable companies who pull permits and put their licenses on the line – the fines for unpermitted work add up quickly and must be paid when the applicable governmental agency files a lien against your home.
However, in the near term, the cost of compliance may be burdensome to both small business owners and their customers. Ultimately, the costs associated with compliance will be passed on to the consumers. Furthermore, reputable contractors that perform services in compliance with the requirements of the Energy Code will face competition from those contractors who do not. 
Change is hard and for the most part, people do not like change. While we may all look back one day in the future and say, “the enactment of the Energy Code was a great idea!” For now, many of us look at the Energy Code and its mandates and see a mountain, not a molehill, that must be climbed.


Lynn Maynard Gollin