08-005188RU City Of Miami Beach vs. Department Of Business And Professional Regulation, Division Of Hotels And Restaurants
 Status: Closed
DOAH Final Order on Friday, February 27, 2009.

View Dockets  
Summary: Petitioner failed to prove challenged agency statements were unadopted rules. Statements explained agency`s statutory duty to protect public safety and confirmed that it was enforcing standards in building code incorporated by reference in existing rule.





14Petitioner, )


17vs. ) Case No. 08-5188RU







39Respondent. )



44Pursuant to notice, a formal hearing was held in this case

55on December 12, 2008, in Tallahassee, Florida, before

63Patricia M. Hart, a duly-designated Administrative Law Judge of

72the Division of Administrative Hearings.


78For Petitioner: Maggie M. Schultz, Esquire

84Harold F.X. Purnell, Esquire

88Gary Rutledge, Esquire

91Rutledge, Ecenia & Purnell, P.A.

96Post Office Box 551

100Tallahassee, Florida 32302

103Rhonda Montoya Hasan, Esquire

107Jose Smith, Esquire

110City of Miami Beach

114Fourth Floor, Legal Department

1181700 Convention Center Drive

122Miami Beach, Florida 33139

126For Respondent: Patricia Nelson, Esquire

131Philip F. Monte, Esquire

135Department of Business and

139Professional Regulation

1411940 North Monroe Street, Suite 42

147Tallahassee, Florida 32399


154Whether the Respondent's statements regarding enforcement

160of the Florida Elevator Safety Code, as set forth in the Amended

172Petition Challenging Agency Statement Defined as a Rule filed

181November 21, 2008, constitute agency statements defined as rules

190that must be promulgated pursuant to Section 120.54(1), Florida

199Statutes (2008). 1


204On October 17, 2008, the City of Miami Beach, Florida

214("City"), filed a Petition Challenging Agency Statement Defined

224as a Rule with the Division of Administrative Hearings. The

234City was granted leave to amend its Petition, and the Amended

245Petition Challenging Agency Statement Defined as a Rule

253("Amended Petition") filed November 21, 2008, supersedes the

263original Petition. In the Amended Petition, the City challenged

272as agency statements defined as rules but not adopted pursuant

282to Section 120.54(1), Florida Statutes, certain statements of

290the Department of Business and Professional Regulation

297("Department") contained in Industry Bulletin for Florida's

306Elevator Industry Number 2006-01, dated April 1, 2006; Industry

315Bulletin for Florida's Elevator Industry Number 2006-04, dated

323August 1, 2006; Industry Bulletin for Florida's Elevator

331Industry Number 2008-03, dated July 18, 2008, and revised

340July 21, 2008; and contained in a posting on the Department's

351website entitled "Elevators Current Practices." The City also

359challenged certain statements made by the Bureau of Elevator

368Safety ("Bureau") in a Technical Advisory Issue 2008-01, dated

379August 18, 2008. 2

383The City alleged in its Amended Petition that, in the

393challenged statements, the Department

397has made a unilateral determination that all

404elevators, including those installed before

409the adoption of the Florida Building Code,

416must comply with certain ASME [3] standards

423referenced in the 2004 edition of the

430Florida Building Code (including the 2006

436supplement) and that any elevator which does

443not comply with such standards constitutes a

450threat to public safety and presents a

457hazard to the riding public. [4]

463The City further alleges in its Amended Petition that "the

473Department's statements of general applicability contained

479within the three (3) industry bulletins constitute a rule as

489defined by Section 120.52(15), Florida Statutes, to the extent

498that such bulletins seek to require retrofitting of existing and

508older elevators to comply with current requirements of the

517Florida Building Code and the Elevator Safety Code." 5 Upon

527receipt of the original Petition, the Division of Administrative

536Hearings assigned an administrative law judge to hear the case,

546and pursuant to notice, the hearing was held on December 12,


558Prior to the hearing, the Department filed a Motion for

568Official Recognition, in which it requested that official

576recognition be taken of House Bill 7183 (2007); the Governor's

586Veto Letter dated June 27, 2007, vetoing House Bill 7183; and

597Chapter 2008-104, Laws of Florida (2008). The motion was

606considered at the final hearing, and official recognition was

615granted to Chapter 2008-104, Laws of Florida (2008). The

624request for official recognition of House Bill 7183 and the

634Governor's Veto Letter was denied on the grounds of relevance.

644At the final hearing, both the Petitioner and the

653Respondent presented the testimony of Doug Melvin, Chief of the

663Bureau, and Timothy Hemstreet, Assistant City Manager for the

672City of Miami Beach. Petitioner's Exhibits A through F were

682offered and received into evidence. Respondent's Exhibits 1

690through 4 were offered and received into evidence.

698The transcript of the proceedings was filed with the

707Division of Administrative Hearings on December 29, 2008, and

716the parties timely filed proposed findings of fact and

725conclusions of law, which have been considered in the

734preparation of this Final Order.


742Based on the oral and documentary evidence presented at the

752final hearing and on the entire record of this proceeding,

762including the stipulated facts contained in the Pre-Hearing

770Stipulation, the following findings of fact are made:

7781. The Department is the state agency "empowered to carry

788out all of the provisions of this chapter relating to the

799inspection and regulation of elevators and to enforce the

808provisions of the Florida Building Code." § 399.02(6), Fla.

817Stat. The Department is given rulemaking authority to carry out

827the provisions of Chapter 399, Florida Statutes. § 399.10, Fla.


8382. The City is an incorporated municipality of the State

848of Florida. As a property owner, it is subject to the

859provisions of Chapter 399, Florida Statutes, and to the rules

869adopted by the Department to carry out its responsibilities

878under Chapter 399, Florida Statutes.

8833. Pursuant to Section 399.061, Florida Statutes, "[a]ll

891elevators . . . subject to this chapter must be annually

902inspected," and the Department has the authority to require

911correction of any violations of Chapter 399, Florida Statutes,

920or of the Florida Building Code discovered in those inspections.

930authority to protect the public safety by ordering that the use

941of any elevator found to be in an unsafe condition be

952discontinued until the elevator has been repaired and may be

962operated safely. § 399.061(3).

9664. Section 399.02(5)(b), Florida Statutes, places on the

974elevator owner the responsibility "for the safe operation,

982proper maintenance, and inspection and correction of code

990deficiencies of the elevator after a certificate of operation

999has been issued by the department."

10055. The Department has adopted standards for the

1013installation and maintenance of elevators in Florida

1020Administrative Code Rule 61C-5.001, which provides in pertinent


1029(1) Adopted Standards. The installation

1034and maintenance of elevators, dumbwaiters,

1039escalators, moving walks, inclined and

1044vertical wheelchair lifts, and inclined

1049stairway chairlifts shall be governed by the

1056following standards, which are hereby

1061adopted and incorporated by reference.

1066(a) Chapter 30, Elevators and Conveying

1072Systems, of the 2004 Florida Building Code,

1079including the 2006 supplements;

1083(b) American National Standard Guide for

1089Inspection of Elevators, Escalators, and

1094Moving Walks, ASME A17.2-2004; and

1099(c) The Uniform Fire Safety Standards for

1106Elevators, Chapter 69A-47, F.A.C.,

1110established by the Department of Financial


11176. Chapter 30 of the Florida Building Code provides in

1127pertinent part:

11293001.1 Scope

1131This chapter governs the design,

1136construction, installation, alteration and

1140repair of elevators and conveying systems

1146and their components.

1149Note: Other administrative and programmatic

1154provisions may apply. See the Department of

1161Business and Professional Regulation [DBPR]

1166Chapter 399, Florida Statutes, and 61C-5,

1172Florida Administrative Code . The regulation

1178and enforcement of the following sections of

1185the adopted codes, and their addenda, are

1192preempted to the Bureau of Elevator Safety

1199of the Department of Business and

1205Professional Regulation: ASME A17.1, Part

12108, ASME A17.3, Sections 1.2, 1.5,

1216ASME A18.1, Part 10.

12203001.2 Referenced standards

1223Except as otherwise provided for in this

1230code, the design, construction,

1234installation, alteration, repair and

1238maintenance of elevators and conveying

1243systems and their components shall conform

1249to ASME A17.1, ASME A17.1S, ASME A90,

1256ASME B20.1, ALI ALCTV, ASME A17.3 and

1263ASME A18.1.

1265The Division of Hotels and Restaurants may

1272grant exceptions, variances and waivers to

1278the Elevator Safety Code as authorized by

1285the Elevator Safety Code . (ASME A17.1,

1292Section 1.2) and Florida Statutes

1297(Chapter 120). [6]

1300The Department did not separately incorporate by reference

1308ASME A17.1, Part 8 (2004), or ASME A17.3 (1996) in Florida

1319Administrative Code Rule 61C-5.001.

13237. ASME A17.2-2004, which is specifically incorporated by

1331reference in Florida Administrative Code Rule 61C-5.001(1)(b),

1338is entitled "Guide for Inspection of Elevators, Escalators, and

1347Moving Walks" and provides in the Preface in pertinent part as


1359Requirements for Existing Elevators

1363Elevators and escalators in

1367jurisdictions that have adopted the Safety

1373Code for Existing Elevators and Escalators,

1379ASME A17.3, . . . must, at a minimum,

1388conform to the requirements identified in

1394the Guide as "A17.3." If an existing

1401installation does not meet the requirements

1407of the A17.3 Code, it must be upgraded. If

1416an existing installation was required to

1422meet more stringent requirements, it must

1428continue to meet those requirements. [7]

14348. The Preface to ASME A17.3 (1996), the edition of the

1445standard used by the Department, includes a statement of the

1455general purpose of the standard and provides in pertinent:

1464This Code is intended to serve as the basis

1473for state and local jurisdictional

1478authorities in adopting retroactive

1482requirements for existing elevators and

1487escalators to enhance the safety of the

1494general public. It is also intended . . .

1503as a standard of safety practices for

1510building owners and managers of structures

1516where existing elevator equipment covered in

1522the scope of the Code is used.

1529The purpose of this Code is to establish

1537minimum requirements that will provide a

1543reasonable degree of safety for the general

1550public. . . . [8]

15559. Section 1.2 of ASME A17.3 (1996) provides in pertinent

1565part as follows: "Existing installations, as a minimum, shall

1574meet the requirements of this Code. If an existing installation

1584does not meet the requirements of this Code, it shall be

1595upgraded. If an existing installation was required to meet more

1605stringent requirements, it shall continue to meet those

1613requirements." 9

161510. Section 1.5 of ASME A17.3 (1996) provides that

1624existing installations must conform to Part X of ASME A17.1,

1634Routine, Periodic, and Acceptance Inspections and Tests, and to

1643Part XII, Alterations, Repairs, Replacements, and Maintenance. 10

165111. Part 8 of ASME A17.1 (2004), the edition of the

1662standard used by the Department, "contains general requirements

1670for new and used existing equipment ." 11 A note appended to the

1683statement of the scope of Part 8 states that "[r]equirements

16938.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing

1705installations." 12 Requirement 8.1 deals with security for new

1714and existing elevators; Requirement 8.9 requires placement of a

1723Code data plate on all new and existing elevators;

1732Requirement 8.10 applies to new installations and alterations to

1741existing installations.

174312. Pertinent to this proceeding, Requirement 8.6 "applies

1751to maintenance, repairs, and replacements" and

1757Requirement provides as follows:

1762Maintenance, repairs, and replacement shall

1767conform to 8.6 and the

1772(a) Code at the time of the installation

1780(b) Code requirements at the time of any


1789(c) ASME A17.3 if adopted by the authority

1797having jurisdiction[.] [13]

1800Requirement 8.11 applies to "periodic inspections and tests of

1809existing installations", and Requirement provides as


1817Inspections and tests required by 8.11.2

1823through 8.11.5 are to determine that the

1830existing equipment conforms with the

1835following Code requirements:

1838(a) the Code at the time of installation

1846(b) the Code effective as applicable to and

1854for each alteration

1857(c) the ASME A17.3 Code, if adopted by the

1866authority having jurisdiction[.] [14]

187013. Section 399.03, Florida Statutes, governs the design,

1878installation, and alteration of conveyances, and provides in

1886pertinent part: "(7) Each elevator shall comply with the

1895edition of the Florida Building Code or Elevator Safety Code

1905that was in effect at the time of receipt of application for the

1918construction permit for the elevator." 15

192414. The Department publishes Industry Bulletins and

1931Technical Advisories regarding the implementation of

1937Chapter 399, Florida Statutes, and it also publishes statements

1946of "Current Practices" on its website. At issue herein are

1956statements made in Industry Bulletin for Florida's Elevator

1964Industry Number 2006-01, dated April 1, 2006; Industry Bulletin

1973for Florida's Elevator Industry Number 2006-04, dated August 1,

19822006; Industry Bulletin for Florida's Elevator Industry

1989Number 2008-03, dated July 18, 2008, and revised July 21, 2008;

2000Technical Advisory Issue 2008-01, dated August 18, 2008; and

2009contained in a posting on the Department's website entitled

"2018Elevators Current Practices." In each of these documents, the

2027Department indicated that, to ensure the safety of the public,

2037it would enforce the provisions of the then currently-adopted

2046edition of the Florida Building Code to the extent that the

2057Florida Building Code required retrofitting or modification of

2065existing elevators.

206715. In Industry Bulletin Number 2006-01, dated April 1,

20762006, the Department stated that, notwithstanding the provision

2084in Section 399.03(7), Florida Statutes, "that elevators 'shall

2092comply with the edition of the Florida Building Code or Elevator

2103Safety Code that was in effect at the time of the receipt for

2116[sic] application for the construction permit for the

2124elevator,'" it would not exempt existing elevators from the

2134provisions of the "new" edition of the Florida Building Code

2144that "require[] retrofitting older elevators because aging

2151equipment may pose a threat to public safety." The Department

2161stated that "Florida Statutes [specifically section 399.001 and

2169399.061(3)] are in agreement with ASME A17.1 (2000) and

2178A17.3 (1996) regarding life safety issues" and that the

2187Department would require "that, in the interest of public

2196safety, the older and potentially hazardous elevator be brought

2205into compliance with the newer code." 16

221216. In Industry Bulletin Number 2006-04, dated August 1,

22212006, the Department reiterated its intent to enforce the "new"

2231edition of the Florida Building Code regarding the modification

2240of existing elevators to protect public safety because public

2249safety was its paramount regulatory responsibility. It also

2257reiterated that it could not "provide an elevator owner with an

2268exemption from a new code provision essential to the safe

2278operation of the elevator." The Department advised that it

2287would specifically "require the single wall hydraulic cylinder

2295safety provision of the ASME A17.1 2000 code [Section]

2305[to] be enforced as part of the annual elevator inspection."

2315The Department observed that "[t]he ASME Standards Committee

2323considered these sections [Section and sections

2330reference therein] so important to life safety that corrective

2339action is required for all existing single wall hydraulic

2348cylinder elevators." The Department also advised elevator

2355owners that, because compliance with certain code requirements

2363might be "costly and/or complex," they "may submit to the bureau

2374[of Elevator Safety] a letter of intent to comply within 30 days

2386of the date of issuance of an Order to Correct and a plan of

2400corrective action (PCA) within 60 days of the date of issuance

2411of an Order to Correct." 17

241717. In Industry Bulletin Number 2008-03 dated July 18,

24262008, and revised July 21, 2008, the Department stated in

2436pertinent part:

2438The Elevator Safety Code, Chapter 399, F.S.;

2445Chapter 61C-5, Florida Administrative Code;

2450Chapter 30 of the Florida Building Code; and

2458the American Society of Mechanical Engineers

2464(ASME) national standards ASME A17.1-2004

2469with A17.1a-2005 addenda, A17.2-2004, A17.3-

24741996, and ASME A18.1-2003 provide a minimum

2481standard for public safety. These are the

2488codes currently in effect and they will be

2496enforced. In fact, the more stringent of

2503the codes in effect apply, unless

2509specifically stated or otherwise adopted by

2515the Bureau of Elevator Safety, which is the

2523Authority Having Jurisdiction (AHJ). There

2528are no exceptions. The elevator safety code

2535is not subject to individual interpretation.

2541The codes collectively apply to all

2547elevators and provide for the health,

2553safety, and welfare of the riding public. [18]

256118. In Technical Advisory Number 2008-01 dated August 18,

25702008, headed "Temporary Variance for ASME A17.3 Violations," the

2579Department stated that "elevator owners of older elevators have

2588stated they cannot meet the 30-day requirement to correct costly

2598and complex violations [of A17.3(1996)]." The Department

2605advised that the Bureau of Elevator Safety "was moving forward

2615to extend the current temporary compliance alternative

2622(variance) to include additional A17.3(1996) violations beyond

2629the initial cylinder replacement issue [see Industry Bulletin

2637Number 2006-04]." The Department described the purpose and

2645effect of the temporary variances, set out requirements that

2654must be met in order for the temporary variance to remain in

2666effect, and outlined requirements for elevator owners to request

2675a temporary variance. In addition to information regarding

2683temporary variances, the Department reiterated that "ASME A17.3

2691(1996) code applies to all existing elevators according to the

27012002 revision of the Florida Building Code."

270819. In an undated document entitled "Current Practices"

2716related to elevators, found on the Department's official

2724website, the Department made the following statement:

2731In recent months there has been some

2738confusion regarding which version of the

2744safety code the division uses to conduct

2751safety inspections. The division relies

2756upon Chapter 399, Florida Statutes; 61C-

27625(1)(a), Florida Administrative Code; and

2767Chapter 30 of the Florida Building Code.

2774The division follows Chapter 30 of the

2781Florida Building Code which in turn adopts

2788ASME A17.1 and ASME A17.3 as governing the

2796maintenance of elevators. Consequently,

2800when inspecting elevators, pursuant to

2805399.061, Florida Statutes, the division uses

2811ASME A17.1 and A17.3 codes.

2816Nothing has changed the division's reliance

2822on any of these documents.

2827The division has not ceased enforcing A17.3.


283720. The Division of Administrative Hearings has

2844jurisdiction over the subject matter of this proceeding and of

2854the parties thereto pursuant to Section 120.56(4), Florida

2862Statutes (2008).

286421. Section 120.56(4)(a), Florida Statutes, requires that

2871a party challenging an agency statement defined as a rule be

"2882substantially affected by the agency statement." The parties

2890have stipulated that the City has standing to maintain this


290122. Section 120.54(1)(a), Florida Statutes, requires that

"2908[e]ach agency statement defined as a rule by s. 120.52 shall be

2920adopted by the rulemaking procedure provided by this section as

2930soon as feasible and practicable." The party challenging an

2939agency statement that meets the definition of a rule but that

2950has not been adopted pursuant to Section 120.54, Florida

2959Statutes, has the burden of proving by a preponderance of the

2970evidence that the challenged statements are unadopted rules.

2978§ 120.56(1)(e) and (4)(b), Fla. Stat.

298423. Section 120.52(16), Florida Statutes, defines a "rule"

2992in pertinent part as "each agency statement of general

3001applicability that implements, interprets, or prescribes law or

3009policy or describes the procedure or practice requirements of an

3019agency and includes any form which imposes any requirement or

3029solicits any information not specifically required by statute or

3038by an existing rule."

3042Department's failure to adopt as rules agency statements defined

3051as rules

305324. The City has framed the issue in this case in its

3065Proposed Final Order as follows

3070The requirement and procedures, purportedly

3075pursuant to ASME A17.3(1996 ed.) and

3081ASME A17.1, Part 8 (2004 ed.), as set forth

3090in the . . . Industry Bulletins and

3098Technical Advisory that all existing

3103elevators, regardless of the date of

3109installation, be retrofitted to comply with

3115the current Florida Building Code, rather

3121than the code at the time of installation,

3129as provided in section 399.03(7), Florida

3135Statutes, is being challenged as an agency

3142statement defined as a rule but not adopted

3150as required by section 120.54(1)(a), Florida

3156Statutes. [19]

315825. The Department has adopted Florida Administrative Code

3166Rule 61C-5.001(1), which adopts and incorporates by reference

3174Chapter 30 of the 2004 Florida Building Code, with the 2006

3185supplements, as one of the standards to be applied to elevators

3196in the State of Florida. Chapter 30 of the Florida Building

3207Code specifies that "the design, construction, installation,

3214alteration, repair and maintenance of elevators . . . shall

3224conform to ASME A17.1 . . . [and] ASME A17.3" and that the

3237regulation and enforcement of ASME A17.1, Part 8, and ASME A17.3

3248is preempted to the Department. 20 As set forth in the findings

3260of fact herein, ASME A17.3 applies, by its terms, to existing

3271elevators, as do several requirements in ASME A17.1, Part 8.

328126. The City contends that the Department has no rule that

3292reflects an interpretation of Section 399.03(7), Florida

3299Statutes, which would allow the provisions of the current

3308Florida Building Code to apply to existing elevators. This is

3318correct, but the Department is not interpreting

3325Section 399.03(7), Florida Statutes, in the Industry Bulletins,

3333Technical Advisory, and Current Practices identified by the City

3342as agency statements. Rather, the Department explained in those

3351statements that its primary statutory responsibility in

3358regulating elevators under Chapter 399, Florida Statutes, is to

3367protect the safety of the public and that, in doing so, it will

3380enforce the Florida Building Code, adopted and incorporated by

3389reference in Florida Administrative Code Rule 61C-5.001(1), by

3397requiring without exception that existing elevators conform to

3405the ASME A17.1 and ASME A17.3 standards, which are the minimum

3416requirements necessary to provide a reasonable degree of safety

3425to the public.

342827. It appears from the arguments in the City's Proposed

3438Final Order and the allegations in its Amended Petition that the

3449City takes the position that Section 399.03(7), Florida

3457Statutes, prohibits the Department from applying the provisions

3465of Chapter 30 of the Florida Building Code, specifically ASME

3475A17.1, Part 8, and ASME A17.3, to existing elevators. If this

3486is indeed the City's position, it has raised an issue that

3497cannot be resolved in a challenge to agency statements that have

3508not been adopted as rules. Section 120.54(1), Florida Statutes,

3517requires only that agency statements defined as rules be adopted

"3527by the rulemaking procedure provided by this section."

3535Failure to specifically incorporate ASME A17.1 and ASME A17.3 by

3545reference in Florida Administrative Code Rule 61C-5.001(1)

355228. In its Proposed Final Order, the City contends for the

3563first time that the ASME A17.1, Part 8, and ASME A17.3 standards

3575must be specifically adopted and incorporated by reference in

3584Florida Administrative Code Rule 61C-5.001(1) in order to be

3593considered part of the rule. The City does not, however, cite

3604any statute, rule, or case law requiring an agency to

3614specifically incorporate by reference standards that are adopted

3622in a document that is incorporated by reference in a rule.

363329. The Department of State set forth the requirements for

3643incorporating materials into a rule by reference in Florida

3652Administrative Code Rule 1B-30.005, which provides in pertinent


3661(1) Any ordinance, standard, specification

3666or similar material may be incorporated by

3673reference in a rule adopted pursuant to

3680Section 120.54, F.S. , and Rule 1B-30.002,

3686F.A.C., subject to the following conditions:

3692(a) The material shall be generally

3698available to affected persons.

3702(b) The material shall be published by a

3710governmental agency or a generally

3715recognized professional organization.

3718(2) The agency incorporating material by

3724reference shall file with the Department of

3731State a correct and complete copy of the

3739referenced material with an attached

3744certification page which shall state a

3750description of the referenced material and

3756specify the rule to which the referenced

3763material relates. . . .

3768Chapter 30 of the Florida Building Code is incorporated by

3778reference in Florida Administrative Code Rule 61C-5.001(1) and a

3787copy of that portion of the Florida Building Code was filed with

3799the Secretary of State, as required by Florida Administrative

3808Code Rule 1B-30.005(2). There is no requirement in that rule

3818that copies of all standards or specifications adopted in

3827material incorporated by reference in a rule must also be filed

3838with the Secretary of State.

384330. Support for the Department's position that it need not

3853specifically incorporate by reference all of the standards

3861adopted in the Florida Building Code is found in the statutory

3872requirements governing the adoption of the Florida Building

3880Code. The Florida Building Code was adopted pursuant to

3889Section 553.73, Florida Statutes, which provides in pertinent


3898(1)(a) The commission shall adopt, by rule

3905pursuant to ss. 120.536(1) and 120.54, the

3912Florida Building Code which shall contain or

3919incorporate by reference all laws and rules

3926which pertain to and govern the design,

3933construction, erection, alteration,

3936modification, repair, and demolition of

3941public and private buildings, structures,

3946and facilities and enforcement of such laws

3953and rules, except as otherwise provided in

3960this section.

3962* * *

39653) The commission shall select from

3971available national or international model

3976building codes, or other available building

3982codes and standards currently recognized by

3988the laws of this state, to form the

3996foundation for the Florida Building Code.

4002The commission may modify the selected model

4009codes and standards as needed to accommodate

4016the specific needs of this state. Standards

4023or criteria referenced by the selected model

4030codes shall be similarly incorporated by

4036reference. If a referenced standard or

4042criterion requires amplification or

4046modification to be appropriate for use in

4053this state, only the amplification or

4059modification shall be specifically set forth

4065in the Florida Building Code. . . .

407331. Pursuant to Section 553.73(3), Florida Statutes, the

4081Florida Building Commission need only incorporate in the Florida

4090Building Code by reference the standards or criteria that are

4100contained in the selected model codes that are, in turn,

4110incorporated by reference in the Florida Building Code: "[O]nly

4119the amplification or modification shall be specifically set

4127forth in the Florida Building Code." Accordingly, the Florida

4136Building Code was adopted in Florida Administrative Code

4144Rule 9B-3.047, without incorporating by reference the standards

4152and model codes adopted in the Florida Building Code itself:

4162(1) The Florida Building Code, 2004

4168Edition, as updated by the Florida Building

4175Commission on July 1, 2005, and as amended

4183by the Commission on December 11, 2005,

4190December 8, 2006, and May 21, 2007,

4197incorporated herein by reference is hereby

4203adopted as the building code for the State

4211of Florida until February 28, 2009.

421732. It would be unreasonable to require the Department to

4227incorporate by reference in Florida Administrative Code

4234Rule 61C-5.001(1) all of the specific standards and model codes

4244adopted in Chapter 30 of the Florida Building Code, when the

4255Florida Building Commission is not required to incorporate by

4264reference in Florida Administrative Code Rule 9B-3.047 all of

4273the standards and model codes adopted in the Florida Building

4283Code. The City's position on this issue is, therefore,


4293Plans of Corrective Action and Temporary Variances

430033. The City asserts in its Proposed Final Order that the

4311procedures set out in Industry Bulletin Number 2006-04 allowing

4320elevator owners to submit a plan of corrective action when cited

4331for violations of the Florida Building Code is an agency

4341statement not adopted as a rule in violation of Section 120.54,

4352Florida Statutes. 21 It also alludes in its Proposed Final Order

4363to the temporary variance described in Technical Advisory

4371Number 2008-01 and states that "the subject of temporary

4380variance is not set forth in Chapter 399 or Chapter 61C-5,

4391Florida Administrative Code" 22

439534. The City did not, however, mention the statements

4404related to the plan of corrective action in the Amended

4414Petition. The position of the City set out in the Pre-Hearing

4425Stipulation filed by the parties refers to "overall guidelines

4434and standards regarding plans of corrective action of purported

4443ASME A17.3 standards" and states that "the plan of corrective

4453action and accompanying standards and guidelines are neither

4461provided for by statute nor rule." The emphasis in the City's

4472position statement is, however, on the Department's enforcement

4480of ASME A17.3 (1996) and ASME A17.1 (2004) to existing elevators

4491and on the City's assertion that "such enforcement is contrary

4501to the provisions of Section 399.03(7)."

450735. It is unclear that the City is challenging the

4517procedures for plans of corrective action set out in Industry

4527Bulletin Number 2006-04 as an agency statement defined as a rule

4538but not adopted pursuant to Section 120.54, Florida Statutes.

4547First, the statement of the Nature of the Controversy included

4557in the Pre-hearing Stipulation refers only to the policy of the

4568Department "regarding the application of certain standards to

4576existing elevators under Chapter 399, Florida Statutes." In

4584addition, the final sentence in the City's position statement in

4594the Pre-Hearing Stipulation is ambiguous: "The Division's [of

4602Hotels and Restaurants] plan of corrective action process, while

4611well intended, is but further evidence that the agency

4620statements constitute an unadopted rule as that term is defined

4630in Section 120.52(20), F.S."

463436. Section 120.56(4)(a), Florida Statutes, requires that

4641the petition challenging an agency statement defined as a rule

4651include "the text of the statement or a description of the

4662statement." The purpose of this requirement is to provide

4671notice to the agency of the specific statement being challenged

4681as an unpromulgated rule. See Aloha Utils., Inc. v. Public

4691Serv. Comm'n , 723 So. 2d 919, 921 (Fla. 1st DCA 1999) . The

4704court in Aloha Utilities observed that the defective notice can

4714be cured if the specific policies and/or procedures being

4723challenged are "stated with precision" in the pre-hearing

4731stipulation. Id. Here, the City did not precisely state in the

4742Pre-Hearing Stipulation that it was challenging as unadopted

4750rules the Department's statements in Industry Bulletin Number

47582006-04 regarding the procedures for plans of corrective action.

4767The City is, therefore, precluded from challenging these

4775procedures in the instant case.

478037. The City is also precluded from challenging the

4789temporary variance procedures and requirements set out by the

4798Department in Technical Advisory Number 2008-01 as unadopted

4806rules. In the Amended Petition, the City includes the following

4816quotes from the Technical Advisory:

"4821The bureau is moving forward to extend the

4829current temporary compliance alternative

4833(variance) to include additional A17.3(1996)

4838violations beyond the initial cylinder

4843replacement issue.

4845. . . . .

4850The temporary variance for compliance will

4856remain in force until modernization is

4862complete as established by the owner

4868(petitioner)." [23]

4870The City, however, prefaced the quote with the following

4879statement: "The fourth bulletin, number 2008-01, issued on or

4888about August 18, 2008, provides that the Department would now

4898require all existing elevators to comply with ASME standards

4907beyond the initial cylinder placement." 24

491338. Taken in the context of the emphasis in the Amended

4924Petition on the Department's statements regarding the

"4931retrofitting of existing and older elevators to comply with

4940current requirements of the Florida Building Code and the

4949Elevator Safety Code," 25 it cannot be said that the City provided

4961notice to the Department in its Amended Petition that it was

4972challenging the temporary variance procedure as an unadopted

4980rule. In addition, the Pre-Hearing Stipulation does not provide

4989the Department with notice that the City intended to challenge

4999the temporary variance; the Pre-Hearing Stipulation contains no

5007mention of the temporary variance procedure. The City is,

5016therefore, precluded from challenging these procedures in the

5024instant case. See Aloha Utils., Inc. , 723 So. 2d at 921 (The

5036appellants "did not describe the specific agency statements they

5045intended to challenge at the final hearing in sufficient detail,

5055either in their petitions or in the prehearing stipulation" and

5065the agency was, therefore, deprived of notice of the statements

5075being challenged.).

507739. For the reasons stated above, the City has failed to

5088prove by a preponderance of the evidence that the challenged

5098agency statements are unadopted rules.


5104Based on the foregoing Findings of Fact and Conclusions of

5114Law, it is ORDERED that the Amended Petition Challenging Agency

5124Statement Defined as a Rule of the City of Miami Beach is


5137DONE AND ORDERED this 27th day of February, 2009, in

5147Tallahassee, Leon County, Florida.



5155Administrative Law Judge

5158Division of Administrative Hearings

5162The DeSoto Building

51651230 Apalachee Parkway

5168Tallahassee, Florida 32399-3060

5171(850) 488-9675 SUNCOM 278-9675

5175Fax Filing (850) 921-6847


5180Filed with the Clerk of the

5186Division of Administrative Hearings

5190this 27th day of February 2009.


51971 / All references herein to the Florida Statutes are to the 2008

5210edition unless otherwise indicated.

52142 / The Bureau is part of the Department's Division of Hotels and

5227Restaurants ("Division"). The Department, the Division, and the

5237Bureau are referred to collectively herein as the "Department."

52463 / ASME is the acronym for the American Society of Mechanical

5258Engineers and will be used herein when references are made to

5269the American Society of Mechanical Engineers.

52754 / Amended Petition at paragraph 9.

52825 / Amended Petition at paragraph 20.

52896 / Petitioner's Exhibit F.

52947 / Petitioner's Exhibit F at page xvi of ASME A17.2.

53058 / Respondent's Exhibit 2.

53109 / Id.

531310 / Id.

531611 / Respondent's Exhibit 1.

532112 / Id.

532413 / Respondent's Exhibit 1.

532914 / Id.

533215 / Section 3001.5 of the Florida Building Code, which also

5343governs the design, installation and alteration of elevators,

5351includes an almost identical provision: "1. Each elevator

5359shall comply with the Elevator Safety Code that was in effect at

5371the time of receipt of application for the construction permit

5381for the elevator." Petitioner's Exhibit F.

538716 / Petitioner's Exhibit A.

539217 / Petitioner's Exhibit B.

539718 / Petitioner's Exhibit C.

540219 / Petitioner's Proposed Final Order at paragraph 7.

541120 / Petitioner's Exhibit F.

541621 / City's Proposed Final Order at paragraphs 11; see also

5427paragraph 45 and 46.

543122 / Id. at paragraph 14; see also paragraph 47.

544123 / Amended Petition at paragraph 14.

544824 / Id.

545125 / Id. at paragraph 20.


5459Rhonda Montoya Hasan, Esquire

5463City of Miami Beach

5467Fourth Floor, Legal Department

54711700 Convention Center Drive

5475Miami Beach, Florida 33139

5479Maggie M. Schultz, Esquire

5483Rutledge, Ecenia & Purnell, P.A.

5488Post Office Box 551

5492Tallahassee, Florida 32302

5495Ned Luczynski, General Counsel

5499Department of Business and

5503Professional Regulation

5505Northwood Centre

55071940 North Monroe Street

5511Tallahassee, Florida 32399-0792

5514Patricia Nelson, Esquire

5517Department of Business and Professional Regulation

55231940 North Monroe Street

5527Tallahassee, Florida 32399-2022

5530Philip F. Monte, Esquire

5534Department of Business &

5538Professional Regulation

55401940 North Monroe Street, Suite 42

5546Tallahassee, Florida 32399-2202

5549F. Scott Boyd, Executive Director

5554Joint Administrative Procedure Committee

5558120 Holland Building

5561Tallahassee, Florida 32399-1300

5564Liz Cloud, Program Administrator

5568Administrative Code

5570Department of State

5573R. A. Gray Building, Suite 101

5579Tallahassee, Florida 32399


5588A party who is adversely affected by this Final Order is

5599entitled to judicial review pursuant to Section 120.68, Florida

5608Statutes. Review proceedings are governed by the Florida Rules

5617of Appellate Procedure. Such proceedings are commenced by

5625filing the original Notice of Appeal with the agency clerk of

5636the Division of Administrative Hearings and a copy, accompanied

5645by filing fees prescribed by law, with the District Court of

5656Appeal, First District, or with the District Court of Appeal in

5667the Appellate District where the party resides. The notice of

5677appeal must be filed within 30 days of rendition of the order to

5690be reviewed.

Select the PDF icon to view the document.
Date: 11/13/2009
Proceedings: Transmittal letter from Claudia Llado forwarding a one-volume Transcript of Proceedings, along with Petitioner's Exhibits lettered A-F, Respondent's Exhibits numbered 1-4, and Official Recognition of Chapter 2008-104, Senate Bill 704, to the agency.
Date: 09/18/2009
Proceedings: BY ORDER OF THE COURT: Appellant's notice of voluntary dismissal is recognized by the Court, and this appeal is dismissed.
Date: 07/10/2009
Proceedings: Notice of Delay in Transmitting the Record to the District Court of Appeal.
Date: 05/08/2009
Proceedings: Index (of the Record) sent to the parties of record.
Date: 05/08/2009
Proceedings: Invoice for the record on appeal mailed.
Date: 03/26/2009
Proceedings: Notice of Administrative Appeal filed and Certified copy sent to the Third District Court of Appeal this date.
Date: 02/27/2009
Proceedings: DOAH Final Order
Date: 02/27/2009
Proceedings: Final Order (hearing held December 12, 2008). CASE CLOSED.
Date: 01/20/2009
Proceedings: Respondent`s Proposed Final Order filed.
Date: 01/20/2009
Proceedings: (Petitioner`s) Proposed Final Order filed.
Date: 12/29/2008
Proceedings: Transcript filed.
Date: 12/12/2008
Proceedings: Respondent`s Notice of Filing, Exhibit 4 filed.
Date: 12/12/2008
Proceedings: CASE STATUS: Hearing Held.
Date: 12/12/2008
Proceedings: Respondent`s Exhibits numbered 1 and 2 under seal (exhibits not available for viewing) filed.
Date: 12/12/2008
Proceedings: Respondent`s Motion for Official Recognition filed.
Date: 12/12/2008
Proceedings: Pre-hearing Stipulation filed.
Date: 12/11/2008
Proceedings: Notice of Re-service of Subpoena filed.
Date: 12/11/2008
Proceedings: Petitioner`s Supplemental Response to Respondent`s First Request for Production of Documents filed.
Date: 12/10/2008
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for December 12, 2008; 9:00 a.m.; Miami and Tallahassee, FL; amended as to location and video).
Date: 12/10/2008
Proceedings: Petitioner`s Response to Respondent`s First Request for Production of Documents filed.
Date: 12/09/2008
Proceedings: Petitioner`s Response to Respondent`s First Request for Admissions filed.
Date: 12/09/2008
Proceedings: Notice of Service of Petitioner`s Responses to Respondent`s First Set of Interrogatories filed.
Date: 12/02/2008
Proceedings: Notice of Deposition filed.
Date: 12/01/2008
Proceedings: Petitioner`s First Request for Production of Documents filed.
Date: 12/01/2008
Proceedings: Petitioner`s First Request for Admissions filed.
Date: 12/01/2008
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories filed.
Date: 11/26/2008
Proceedings: Order Expediting Discovery.
Date: 11/26/2008
Proceedings: Order Granting Leave to Amend Petition.
Date: 11/21/2008
Proceedings: Motion for Leave to Amend Petition Challenging Agency Statement Defined as a Rule filed.
Date: 11/20/2008
Proceedings: Motion for Entry of Order of Pre-hearing Instructions filed.
Date: 11/18/2008
Proceedings: Notice of Appearance (filed by P. Monte) filed.
Date: 11/18/2008
Proceedings: Notice of Withdrawal as Counsel filed.
Date: 11/18/2008
Proceedings: Notice of Appearance (filed by Patricia Nelson) filed.
Date: 10/29/2008
Proceedings: Notice of Hearing (hearing set for December 12, 2008; 9:00 a.m.; Tallahassee, FL).
Date: 10/29/2008
Proceedings: Order Staying Proceedings.
Date: 10/23/2008
Proceedings: Notice of Proposed Rule Development filed.
Date: 10/23/2008
Proceedings: Notice of Additional Counsel (filed by Charles Tunnicliff) filed.
Date: 10/21/2008
Proceedings: Order of Assignment.
Date: 10/20/2008
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
Date: 10/17/2008
Proceedings: Petition Challenging Agency Statement Defined as a Rule filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida
Department of Business and Professional Regulation


Related DOAH Cases(s) (1):

Related Florida Statute(s) (11):

Related Florida Rule(s) (4):