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.
DOAH Final Order on Friday, February 27, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8CITY OF MIAMI BEACH, )
13)
14Petitioner, )
16)
17vs. ) Case No. 08-5188RU
22)
23DEPARTMENT OF BUSINESS AND )
28PROFESSIONAL REGULATION, )
31DIVISION OF HOTELS AND )
36RESTAURANTS, )
38)
39Respondent. )
41_________________________________)
42FINAL ORDER
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.
77APPEARANCES
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
150STATEMENT OF THE ISSUE
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
202PRELIMINARY STATEMENT
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,
5572008.
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.
739FINDINGS OF FACT
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.
837Stat.
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
1028part:
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
1116Services.
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
1358follows
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 8.6.1.2 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
1788alteration
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 8.11.1.2 provides as
1816follows:
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 8.6.5.8]
2305[to] be enforced as part of the annual elevator inspection."
2315The Department observed that "[t]he ASME Standards Committee
2323considered these sections [Section 8.6.5.8 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.
2834CONCLUSIONS OF LAW
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
2900challenge.
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
3660part:
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
3897part:
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,
4292rejected.
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.
5103CONCLUSION
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
5136dismissed.
5137DONE AND ORDERED this 27th day of February, 2009, in
5147Tallahassee, Leon County, Florida.
5151________________________________
5152PATRICIA M. HART
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
5179www.doah.state.fl.us
5180Filed with the Clerk of the
5186Division of Administrative Hearings
5190this 27th day of February 2009.
5196ENDNOTES
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.
5457COPIES FURNISHED:
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
5582NOTICE OF RIGHT TO JUDICIAL REVIEW
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.
- Date
- Proceedings
- PDF:
- 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.
- PDF:
- 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.
- PDF:
- Date: 07/10/2009
- Proceedings: Notice of Delay in Transmitting the Record to the District Court of Appeal.
- PDF:
- Date: 03/26/2009
- Proceedings: Notice of Administrative Appeal filed and Certified copy sent to the Third District Court of Appeal this date.
- Date: 12/29/2008
- Proceedings: Transcript 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.
- PDF:
- Date: 12/11/2008
- Proceedings: Petitioner`s Supplemental Response to Respondent`s First Request for Production of Documents filed.
- PDF:
- 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).
- PDF:
- Date: 12/10/2008
- Proceedings: Petitioner`s Response to Respondent`s First Request for Production of Documents filed.
- PDF:
- Date: 12/09/2008
- Proceedings: Petitioner`s Response to Respondent`s First Request for Admissions filed.
- PDF:
- Date: 12/09/2008
- Proceedings: Notice of Service of Petitioner`s Responses to Respondent`s First Set of Interrogatories filed.
- PDF:
- Date: 12/01/2008
- Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories filed.
- PDF:
- Date: 11/21/2008
- Proceedings: Motion for Leave to Amend Petition Challenging Agency Statement Defined as a Rule filed.
- PDF:
- Date: 10/29/2008
- Proceedings: Notice of Hearing (hearing set for December 12, 2008; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 10/23/2008
- Proceedings: Notice of Additional Counsel (filed by Charles Tunnicliff) filed.
Case Information
- Judge:
- CATHY M. SELLERS
- Date Filed:
- 10/17/2008
- Date Assignment:
- 07/05/2011
- Last Docket Entry:
- 11/13/2009
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- Department of Business and Professional Regulation
- Suffix:
- RU
Counsels
-
Rhonda Montoya Hasan, Esquire
Address of Record -
Ned Luczynski, General Counsel
Address of Record -
Philip F. Monte, Esquire
Address of Record -
Patricia Ann Nelson, Esquire
Address of Record -
Maggie M. Schultz, Esquire
Address of Record