07-005126RU William R. Muldrow vs. Department Of Community Affairs, Division Of Housing And Community Development And The Florida Building Commission Status: Closed DOAH Final Order on Tuesday, July 1, 2008.

Summary: The Rule is neither vague nor outside the agency`s delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, )

)

Petitioner, )

)

vs. ) Case No. 07-5126RU

)

FLORIDA DEPARTMENT OF COMMUNITY )

AFFAIRS, DIVISION OF HOUSING )

AND COMMUNITY DEVELOPMENT and )

the FLORIDA BUILDING )

COMMISSION, )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, a hearing was held on the parties’

Motion and Cross Motion for Summary Final Order, before Diane

Cleavinger, Administrative Law Judge, Division of Administrative

Hearings on May 22, 2008, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William R. Muldrow, pro se

3070 Waterford Drive

Tallahassee, Florida 32309

For Respondent: James Richmond, Esquire

Deputy General Counsel

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

Whether Summary Final Order should be granted and, if so,

whether Florida Administrative Code Rule 9B-3.475 is an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

In October 2007, Respondents adopted Florida Administrative

Code Rule 9B-3.0475. On November 8, 2007, Petitioner, Doctor

William R. Muldrow, filed a Petition challenging the validity of

the Rule.

Subsequent to the filing of the Petition in this action,

Respondents amended Florida Administrative Code Rule 9B-3.0475.

The amended Rule was filed with the Department of State on

March 17, 2008, and became effective on April 6, 2008.

The amended Rule did not completely resolve Petitioner’s

challenge to the Rule, and Petitioner filed an amended Petition

on May 7, 2008. Specifically, Petitioner alleged that the Rule

was vague and outside Respondents’ delegated legislative

authority.

Both parties filed Motion’s For Summary Final Order. At

the hearing on those Motions, Petitioner offered the testimony

of one witness. From the record and the hearing, it is clear

that no disputed issues of fact remain. Therefore, Summary

Final Order is appropriate.

FINDINGS OF FACT

1. Petitioner is the owner of a construction company that

constructs roof-overs in the Leon County area. A roof-over is a

construction method where an existing roof is covered over with

an additional layer of roofing material without removing the old

roof. The construction method is specifically authorized by

section 1510, Florida Building Code, Building Volume (2004 as

amended 07/2007), and Section 511, Florida Building Code,

Residential Volume (2004 as amended 07/2007). Roof-overs are

not considered roof replacements; roof-overs are considered a

form of reroofing.

2. As indicated, amended Florida Administrative Code Rule

9B-3.0475 was effective on April 6, 2008. The rule adopted, by

reference, the Manual of Hurricane Mitigation Retrofits for

Existing Site-Built Single Family Residential Structures (the

Manual). In general, S ection 101 of the Manual provides the

requirements for mitigation as prescribed by law. Section 201.2

provides permissible techniques for accomplishing the

requirements defined by Section 101. The Manual is not part of

the Florida Building Code.

3. Section 101 of the Manual provides:

Retrofits Required. Pursuant to Section

553.844, Florida Statutes, strengthening of

existing site-built, single family

residential structures to resist hurricanes

shall be provided. Site built single-family

residential structures shall mean site built

family detached residential structures.

101.1 When a roof on an existing site-built,

single family residential structure is

replaced , the following procedures shall be

permitted to be performed by the roofing

contractor: (emphasis supplied)

(a) Roof-decking attachment and fasteners

shall be strengthened and corrected as

required by section 201.1.

(b) A secondary water barrier shall be

provided as required by section 201.2.

Section 201.2 of the Manual provides the methods for installation

of a secondary water barrier when an existing residence is

subject to work that includes a “reroof.”

4. The term “reroof” is not defined within the Manual.

5. The authority for Florida Administrative Code Rule 9B-

3.0475 is Section 553.844, Florida Statutes. Section

553.844(3)(a) states:

A roof replacement must incorporate the

techniques specified in subparagraphs (2)(b)

2 and 4. (emphasis supplied)

Subparagraph (2)(b)2 states:

Secondary water barriers for roofs and standards

relating to secondary water barrier. The criteria may

include, but not limited to. . . .

6. Chapter 2 of the Florida Building Code, defines

reroofing, for purposes of the Florida Building Code, to include

roof replacement and roof-overs. However, the Florida Building

Code definition of reroofing is not determinative of the meaning

of the term reroof in the Manual since the Manual is not part of

the Florida Building Code. Testimony demonstrated that Leon

County’s Building Inspector recognized the fact that the

mitigation manual was not meant to apply to roof-overs because

application of the requirement for a secondary water barrier

requires removal of an existing roof covering and is inconsistent

with the practice of roof-overs. Additionally, the Respondents

do not intend the requirement for secondary water barriers to

apply to roof-overs and have stipulated to that interpretation in

this hearing.

7. While the Manual could have been more precise in the

use of the terms roof replacement and reroofing, it is clear

that, when read as a whole, the Manual only addresses roof

replacement and does not apply to roof-overs. Such a

requirement is within the Respondents’ statutory authority.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.56, Fla. Stat. (2007).

9. Petitioner has the burden of proving by a

preponderance of the evidence that the challenged rule is an

invalid exercise of delegated legislative authority.

§ 120.56(1)(e), Fla. Stat. (2007).

10. Consideration of the validity of a rule must

necessarily commence with an analysis of Respondent's rulemaking

authority in accordance with the legislative mandate set forth

in Section 120.52(8), Florida Statutes (2007), states:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant

of rulemaking authority, citation to which

is required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency;

(e) The rule is arbitrary or

capricious;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

11. The standard of review in this proceeding has been

established in Section 120.56(1)(e), Florida Statutes (2007),

which provides, in pertinent part, that “[h]earings held under

this section shall be de novo in nature,” which effectively

superceded the earlier standard of review set forth in Florida

Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc. ,

808 So.2d 243,257 (Fla. 1st DCA 2002)(the standard was “to limit

the scope of review by ALJ’s in rule challenge proceedings to

whether legally sufficient evidence exists supporting the

agency’s proposal”).

12. In this case, Section 553.844, Florida Statutes,

limits the Respondents’ authority to require secondary water

barriers to roof replacements. The evidence demonstrated that,

the Manual’s use of the term reroof in Section 201 is limited by

the term replacement in Section 101. Thus, when read as a

whole, the manual is not vague and only requires the use of

secondary water barriers when replacing a roof. With that

limitation Florida Administrative Code Rule 9B-3.475 is a valid

exercise of the Respondents’ legislative authority and the

Petition challenging the Rule is dismissed.

ORDER

Based on the foregoing, Findings of Fact and Conclusions of

Law, it is

ORDERED that, the Petition challenging Florida

Administrative Code Rule 9B-3.475 is dismissed.

DONE AND ORDERED this 1st day of July, 2008, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2008.

COPIES FURNISHED :

William R. Muldrow

3070 Waterford Drive

Tallahassee, Florida 32309

James Richmond, Esquire

Deputy General Counsel

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399-2100

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oaks Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oaks Boulevard, Suite 325

Tallahassee, Florida 32399-2160

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.