02-002505RX Florida Pool And Spa Association, Inc. vs. Florida Building Commission Status: Closed DOAH Final Order on Wednesday, February 12, 2003.

Summary: There cannot be a valid delegation of legislative authority to support a rule amendment where the Legislature has clearly determined that the rule amendment should be superceded by previous rule language.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA POOL AND SPA )

ASSOCIATION, INC., )

)

Petitioner, )

)

and )

)

MARK RODRIGUE, )

)

Intervenor, )

)

vs. ) Case No. 02 - 2505RX

)

FLORIDA BUILDING COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Upon due notice, final hearing was held on October 1, 2002,

in Tallahassee, Florida, before Ella Jane P. Davis, a duly -

assigned Administrative Law Judge of the Division of

Administrative Hea rings.

APPEARANCES

For Petitioner: Fred R. Dudley, Esquire

Mia L. McKown, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

For In tervenor: Steve Pfeiffer, Esquire

Theriaque and Pfeiffer

1114 East Park Avenue

Tallahassee, Florida 32301

For Respondent: James L. Richmond, Esquire

Patricia Morell, Esquire

Department of Co mmunity Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Count I: Whether Rule 424.2.17.1.9 of the Florida Building,

Code, through an amendment of Rule 9B - 3.047, Florida

Administrative Code, is an invalid ex ercise of delegated

legislative authority because it: (a) enlarges, modifies, or

contravenes the statute; (b) exceeds the statutory rule - making

authority of the Florida Building Commission; (c) is arbitrary

and capricious; and/or (d) is not based on compet ent substantial

evidence.

Count II: Whether this Rule was adopted contrary to, and in

violation of, the Florida Building Commission's stated rule -

making procedure due to a prior settlement.

Count III: Whether, with regard to this Rule, the Florida

Buil ding Commission failed to adopt a less costly regulatory

alternative; and

Count IV: Whether Chapter 515, Florida Statutes, is

unconstitutional. 1/

PRELIMINARY STATEMENT

Respondent Florida Building Commission (the Commission) is

the state agency authorize d by statute to adopt, amend,

promulgate, and maintain the Florida Building Code (the Code),

which is a unified statewide set of building codes authorized by

Chapters 98 - 287, 2000 - 141, 2001 - 186, 2001 - 372, and 2002 - 1, Laws

of Florida.

The challenge herein is directed to Rule 424.2.17.1.9 of

the Florida Building Code which was adopted by reference when

Rule 9B - 3.047, Florida Administrative Code, was adopted and

became effective December 16, 2001.

On June 17, 2002, Petitioner Florida Pool and Spa

Associatio n, Inc., (FPSA), filed its Petition challenging the

validity of existing Rule 424.2.17.1.9 on the four counts set

forth above.

Upon Petition, Mark Rodrigue was granted Intervenor status

by an August 12, 2002 Order.

By agreement, final hearing, pursua nt to Section 120.56(3),

Florida Statutes, was held on October 1, 2002.

Petitioner presented the oral testimony of Jim Manning,

John Salvo, Tarry Baker, and Merle Stoner and had thirteen

exhibits admitted in evidence. Intervenor testified on his own

be half and presented the oral testimony of Jack Glenn. He had

two exhibits admitted in evidence. 2/

At the close of Petitioner's and Intervenor's cases,

Respondent moved ore tenus to dismiss Count III of the Petition.

This motion was taken under advisement for resolution in this

Final Order. (TR - 224 - 227)

Respondent presented the oral testimony of Jeff Blair,

Mohammad Madani, and Richard Dixon and had four exhibits

admitted in evidence.

At the close of all evidence, Petitioner moved ore tenus to

amend the Petition "to conform to the evidence." No specific

amendment was proposed nor was any evidence presented to show

that Respondent would not be prejudiced by such an amendment.

This motion was denied. (TR - 328 - 329). 3/

A Transcript was filed on Octobe r 23, 2002.

The parties stipulated to thirty days from the filing of

the Transcript for the filing of their respective proposals.

This date would have been November 23, 2002. Respondent and

Intervenor timely filed their respective Proposed Final Orders,

pursuant to the stipulation. Petitioner's "Proposed Recommended

Order" [sic] was not filed until November 25, 2002. However, no

motion to strike has been filed, and it appearing that no

advantage has been gained by Petitioner's late - filing,

Petitioner's proposal has been treated as its Proposed Final

Order and considered.

The parties waived the statutory time limit for entry of

this Final Order.

FINDINGS OF FACTS

1. The Code is a unified statewide set of building codes

authorized by Chapters 98 - 28 7, 2000 - 141, 2001 - 186, 2001 - 372, and

2002 - 1, Laws of Florida.

2. The Commission is the state agency authorized by

statute to adopt, amend, promulgate and maintain the Code.

3. The rule under challenge is Section 424.2.17.1.9 of the

Florida Building Co de which provides:

1. All doors and windows providing direct

access from the home to the pool shall be

equipped with an exit alarm complying with

UL2017 that has a minimum sound pressure

rating of 85dBA at 10 feet and is either

hard - wired or of the plug - i n type. The exit

alarm shall produce a continuous audible

warning when the door and its screen are

opened. The alarm shall sound immediately

after the door is opened and be capable of

being heard throughout the house during

normal household activities. The alarm

shall be equipped with a manual means to

temporarily deactivate the alarm for a

single opening. Such deactivation shall

last no longer than 15 seconds. The

deactivation switch shall be located at

least 54 inches above the threshold of the

door.

Exceptions:

a. Screened or protected windows having a

bottom sill height of 48 inches or more

measured from the interior finished floor at

the pool access level.

b. Windows facing the pool on floor above

the first story.

c. Screened or protected p ass - through

kitchen windows 42 inches or higher with a

counter beneath.

2. All doors providing direct access from

the home to the pool must be equipped with a

self - closing, self - latching device with

positive mechanical latching/locking

installed a minimu m of 54 inches above the

threshold, which is approved by the

authority having jurisdiction.

4. Section 424.2.17.1.9, above, was adopted by the

Commission by reference when it adopted Rule 9B - 3.047, Florida

Administrative Code. The Florida Administrati ve Code indicates

this amendment to Rule 9B - 3.047, also adopted the November 6,

2001, Florida Building Code and took effect December 16, 2001. 4/

Previous amendments to Rule 9B - 3.047, Florida Administrative

Code, had been effective on November 28, 2000, a nd February 7,

2001.

5. Although several portions of the rule were addressed at

hearing, see infra. , the main thrust of this rule challenge is

that Petitioner and Intervenor contend that the rule

discriminates against battery - powered alarms in favor of hard -

wired or plug - in alarms for doors and windows accessing a

swimming pool.

6. Prior drafts of 424.2.17.1.9 and prior provisions of

the Standard Building Code and other swimming pool codes

relating to exit alarms do not require that exit alarms be

"hard - wired" or "plug - in" type alarms. The Standard Building

Code does not eliminate battery - powered exit alarms as a means

for limiting access to swimming pool areas. No state besides

Florida has eliminated them as an option.

7. The rule only a pplies to new pools or new home

construction.

8. FPSA is a non - profit statewide construction trade

association of 850 company members, with 10,000 employees, whose

membership includes contractors engaged in swimming pool and spa

construction, repair, renovation, and service, and whose work is

regulated by the Code. It promotes the swimming pool industry

through educational business - to - business programs and provides

legislative and administrative rule monitoring and lobbying

services on behalf of its membership. The subject matter of the

challenged rule is within FPSA's scope of interest and activity

as a trade association.

9. Only a licensed electrician or alarm specialist can

legally install hard - wired alarms. Anyone, including the

homeowner; pool contractors, such as FPSA members; or a general

contractor, such as Intervenor, can install a battery - powered

window or door alarm for a swimming pool.

10. The rule has resulted in members' potential customers

delaying decisions to purchase swi mming pools. The rule has

resulted in FPSA pool contractors having to employ licensed

electricians and alarm specialists to do work swimming pool

contractors previously could do themselves. Awaiting completion

of work by these specialists can delay the a pproval (Certificate

of Completion) of the pool work by building inspectors.

11. Only licensed electricians can legally install

swimming pool pumps and pool lights. Awaiting completion of

this work can also delay the Certificate of Completion.

12. The type of alarm used affects the swimming pool

contractor's cost of doing the project and ultimately impacts

the swimming pool contractor's "bottom line." The record is

silent about the cost of plug - in alarms. Installation of hard -

wired devices cu rrently on the market which would meet the

requirements of the challenged rule have been costing FPSA

members approximately $400.00 - $500.00 for two windows and two

doors. This expense may be increased by the number of doors and

windows accessing the pool by approximately $150.00 - $160.00 per

extra door and $70.00 per extra window. Battery alarms cost

about $40.00 apiece.

13. Intervenor is a member of the Florida Home Builders'

Association. He is a Florida - licensed general contractor. As

such, he is required to comply with the Code. In recent years,

he has operated through a franchise agreement with Arthur

Rutenberg Homes. Ninety - eight percent of his business is

construction of new, custom - built, single family residences.

Approximately one - third of the homes Intervenor builds include

swimming pools as an amenity. Most of his homes range in price

from $300,000 to $1,200,000.

14. Intervenor usually hires swimming pool installation

sub - contractors, such as members of FPSA, who obtain a separa te

permit for construction of any pool. Intervenor leaves it to

the swimming pool contractor to call for inspections and to see

to it that the pool is compatible with all existing building

codes, but Intervenor has ultimate responsibility for his new

resi dences' final Code compliance.

15. For a new home, Intervenor usually subcontracts to

have hard - wired pool alarm systems installed for approximately

$695.00 for two doors and four windows in conjunction with a

home security system which itself costs approximately $695.00.

This expense can be increased by the number of doors and windows

accessing the pool.

16. When a hard - wired alarm is installed in a house under

construction after drywall has been installed, Intervenor has to

tear out the drywa ll so the wiring for the alarm can be run in,

and then he must re - install the drywall. This method becomes

necessary in the few older homes he upgrades with a swimming

pool and other amenities or where a new home customer decides to

install a pool in mid - construction of the house after further

financing has been obtained. This method and expense would not

be incurred if battery - powered alarms were allowable under the

Code.

17. During the years 2000 - 2001, the Florida Building

Commission was engaged in a marathon rule adoption procedure

designed to integrate into the Code, and thereby render uniform,

all the competing local building codes within the State of

Florida. The purpose thereof was to fulfill the intent of the

Florida Legislature that once a uniform basis was established,

any amendments to specific components, such as 424.2.17.1.9,

would thereafter proceed on triennial or annual cycles. To

reach a uniform starting point for the rule amendments and

cycles, enabling or implementing statutes w ere frequently

amended by the Legislature to extend their effective dates so as

to coincide with the Commission's adoption of the full state -

wide Code, which ultimately took effect March 1, 2002. Rule -

making, pursuant to Chapter 120, Florida Statutes, con tinued

throughout the various time frames of the statutory amendments.

18. As of June 8, 2001, 5/ Section 44, Chapter 2001 - 186,

Laws of Florida, directed that:

The Commission shall adopt no amendments

to the Florida Building Code until after

July 1 , 2002, except for the following:

emergency amendments, amendments that

eliminate conflicts with state law or

implement new authorities granted by

law, and amendments to implement

settlement agreements executed prior to

March 1, 2002. (Emphasis added)

19. Section 25, Chapter 2001 - 186, Laws of Florida, also

directed, in pertinent part, that:

Further, the Florida Building Code must

provide for uniform implementation of

Chapters 515.25, 515.27, and 515.29 by

including standards and criteria for

resid ential swimming pool barriers, pool

covers, latching devices, door and window

exit alarms, and other equipment required

therein, which are consistent with the

intent of Section 515.23 ....

This legislation was ultimately codified at Section 553.73(2),

Flor ida Statutes (2002).

20. Section 1, Chapter 2000 - 143, Laws of Florida, had

previously set out the following specific legislative findings

and intent which ultimately was codified into Section 515.23,

Florida Statutes (2002). 6/

Legislative findings and intent. -- The

Legislature finds that drowning is the

leading cause of death of young children in

this state and is also a significant cause

of death for medically frail elderly persons

in this state, that constant adult

supervision is the key to accompl ishing the

objective of reducing the number of

submersion incidents, and that when lapses

in supervision occur a pool safety feature

designed to deny, delay, or detect

unsupervised entry to the swimming pool,

spa, or hot tub will reduce drowning and

near - d rowning incidents. In addition to the

incalculable human cost of these submersion

incidents, the health care costs, loss of

lifetime productivity, and legal and

administrative expenses associated with

drownings of young children and medically

frail elderl y persons in this state each

year and the lifetime costs for the care and

treatment of young children who have

suffered brain disability due to near -

drowning incidents each year are enormous.

Therefore, it is the intent of the

Legislature that all new res idential

swimming pools, spas, and hot tubs be

equipped with at least one pool safety

feature as specified in this chapter. It is

also the intent of the Legislature that the

Department of Health be responsible for

producing its own or adopting a nationall y

recognized publication that provides the

public with information on drowning

prevention and the responsibilities of pool

ownership and also for developing its own or

adopting a nationally recognized drowning

prevention education program for the public

an d for persons violating the pool safety

requirements of this chapter.

21. Pursuant to the foregoing amendments, which all

concerned felt would take effect much sooner than they did, the

Commission had the obligation to adopt amendments to the Code t o

implement new authorities granted by statute, which, in part,

included adoption of standards and criteria for swimming pool

exit alarms, provided the standards and criteria were consistent

with the intent of Section 515.23, Florida Statutes.

22. Se ction 1, Chapter 2000 - 143, Laws of Florida, also

created Section 515.27, Florida Statutes, effective October 1,

2000, which provided:

(1) In order to pass final inspection and

receive a certificate of completion, a

swimming pool must meet at least one of the

following requirements relating to pool

safety features.

(a) The pool must be isolated from access

to a home by an enclosure that meets the

pool barrier requirements of Section 515.29;

(b) The pool must be equipped with an

approved safety pool c over;

(c) All doors and windows providing direct

access from the home to the pool must be

equipped with an exit alarm that has a

minimum sound pressure rating of 85 dB A at

10 feet; or

(d) All doors providing direct access from

the home to the pool must be equipped with a

self - closing, self - latching device with a

release mechanism placed no lower than 54

inches above the floor. (Emphasis added)

23. One of the four statutorily permissible safety options

was that all doors and windows that provide d irect access from

the home to the pool be equipped with an exit alarm which has a

minimum sound pressure rating of 85 dB A at 10 feet. See

Section 515.27(1)(c), Florida Statutes.

24. Section 515.25(4), Florida Statutes, defines "exit

alarm" as:

"Exit alarm" means a device that makes

audible, continuous alarm sounds when any

door or window which permits access from the

residence to any pool area that is without

an intervening enclosure is opened or left

ajar.

25. During 2001, the Commiss ion was mindful of Section 44,

Chapter 2001 - 186, Laws of Florida, which had been signed by the

Governor and filed on June 8, 2001. In fulfilling its mandate

to adopt rules to implement the Florida Building Code, the

Commission was careful to state on its tracking charts, agendas,

and workshop materials that it was only considering the four

exceptions for which it was permitted to adopt rules prior to

July 1, 2002.

26. The Commission employed the services of the Florida

Conflict Resolution Consortium to facilitate its processes. The

Consortium is an entity housed within Florida State University

that is legislatively mandated to perform consensus building

with regard to public policy issues.

27. In 2001, the Commission referred issues to one of

t hree types of subcommittee: Technical Advisory Committees

(TACs), Program Oversight Committees (POCs) or Ad Hoc

Committees. Ad Hoc Committees were/are comprised solely of

Commission members. Public comment was received by the

respective subcommittees. If an issue (proposed rule amendment)

received a favorable vote by at least 75% (three quarters) of

the subcommittee members, a recommendation was developed and

forwarded to the Commission as a whole.

28. A 75% (three - quarters) favorable vote of the

Commission was also required to adopt a rule.

29. The failure of a subcommittee or the Commission to

take affirmative action upon an issue amounted to a rejection of

that issue for incorporation into a rule, but the Commission and

its subcommittee d id not act on motions to deny. They only

voted on motions to approve the resolution of an issue.

30. In July 2001, the Commission, sua sponte , took up

provisions related to criteria and standards for pool safety

measures prescribed by Chapter 515, F lorida Statutes. The

Commission, with the assistance of the Florida Conflict

Resolution Consortium, applied its procedures described above.

31. Commission staff generated draft provisions

integrating portions of a recommendation by the Building

Offi cials Association of Florida, independent research and

review, and the existing provisions of Section 424.2, Florida

Building Code.

32. No amendments were proposed directly to the Commission

or its subcommittees from the public relating to pool safet y

measures on the form promulgated by the Commission for that

purpose.

33. On July 9, 2001, the Commission convened an Ad Hoc

Committee meeting to consider recommendations for resolution of

issues raised relating to implementation of the pool safety

measure. Petitioner had representatives, one of whom was its

Executive Director, Mr. Bednerik, attend the meeting and offer

oral comments. It appears from the transcript of that meeting

that written submissions of Petitioner's and other interested

person s' concerns were also received.

34. The draft provisions authored by Commission staff

included adoption of UL2017, a standard developed by

Underwriters Laboratories, and specified in Section

515.27(1)(c), Florida Statutes.

35. At the Ad Hoc Co mmittee meeting, FPSA's Executive

Director cited the need for the Code to specify a power source

for exit alarms, and specifically stated that, at the time of

the meeting, some jurisdictions were allowing battery - powered

alarms and some were requiring hard - wired alarms.

36. The Ad Hoc Committee also received comment from

Mr. Sparks, a building official from Sarasota. Mr. Sparks

expressed a preference that exit alarms be hard - wired, and that

if battery - powered alarms were to be allowed, that their use

should be limited to homes for which a building permit had been

pulled before October 1, 2000, the effective date of

Chapter 515, Florida Statutes.

37. The Ad Hoc Committee heard comments that batteries

always ultimately fail due to limited bat tery life and that the

date of failure cannot be predicted.

38. The Ad Hoc Committee discussed allowing plug - in type

alarms as a possible solution to difficulties with installation

of a hard - wired system. Mr. Sparks informed the Committee that

plug - in type alarms were available and that he had worked with

manufacturers of such devices.

39. The Ad Hoc Committee unanimously voted to recommend to

the Commission, during its July 11, 2001 Rule Development

Workshop, that exit alarms for new construct ion after the

amendment's effective date be hard - wired or a plug - in type.

40. The Ad Hoc Committee's recommendation was integrated

into the proposed Code amendment for the Commission's review, by

providing a complete printed copy of the proposed amen dment,

striking through for eliminated language, and underlining for

new language being added.

41. A Rule Development Workshop was convened by the

Commission on July 11, 2001.

42. The Ad Hoc Committee's recommendation was submitted to

the Commi ssion during the Rule Development Workshop held on

July 11, 2001, as a committee report.

43. During the Workshop, Petitioner's Executive Director

offered comment to the Commission urging that requiring a

retrofit of existing homes was impracticable a nd would not

comport with the "legislative intent" expressed by one of the

legislators involved with the passage of Section 515.27(1),

Florida Statutes. Petitioner's Director opposed any restriction

to hard - wired alarms but acknowledged that battery - power ed

alarms require positive action to refresh their power source.

He acknowledged that Underwriters' Laboratories had attempted to

mitigate this shortcoming in a chirper to alert when the battery

in a battery - powered alarm runs low.

44. Comments were heard that plug - in type alarms might be

dangerous to, or deactivated, by toddlers.

45. The Commission unanimously approved the

recommendations of the Ad Hoc Committee with regard to limiting

allowable power sources for exit alarms to hard - wired or pl ug - in

types, inherently rejecting the comments of Petitioner's

representative.

46. The Commission also approved Committee recommendations

allowing a temporary deactivation feature and an exception of

specified windows from the requirement for alarms. The

expressed purpose for these provisions was to address the

practical effects of the exit alarm requirement without

diminishing the intent of improved safety.

47. The Commission noticed the Code revisions for rule

adoption in the Florida Administ rative Weekly published on

August 3, 2001, with a hearing to be held on August 28, 2001.

48. At the Rule Adoption Hearing on August 28, 2001,

Petitioner's representative expressed his belief that it was the

Legislature's intent that inexpensive batte ry - powered alarms be

used everywhere and affirmatively stated that Petitioner would

concur in the view that battery - powered alarms should be

permitted in existing dwellings. Petitioner's representative

also implied that the Commission had the authority to adopt

UL2017.

49. The UL2017 standard provides criteria and

specifications for "residential swimming pool entrance alarms."

It addresses requirements for alarms that are battery - powered,

hard - wired, and plug - in. The standard was adopted by

Underwr iters' Laboratories and available in 1995 or 1996. It

encompasses 85 dBA at 10 feet of sound pressure. Its concept of

"continuous" means "not intermittent" or "not variable." It

allows a seven - second delay before an alarm activates and then

requires tha t an alarm activate immediately and continually.

50. Evidence was adduced in the instant rule challenge

hearing that none of the four protective options provided in

Section 515.27(1), Florida Statutes, is required to be

maintained after the final ins pection or certificate of

occupancy has been completed.

51. Batteries expire or homeowners may intentionally

remove them. In either situation, the alarm will not sound.

One of Intervenor's witnesses described a study in which the

main reason for f ailure of battery - powered smoke detectors is

that the battery had discharged. The Florida Life Safety Code

(Fire Code) permits battery - powered smoke detectors in older,

existing homes, but like the challenged rule, requires hard -

wired devices in new home construction.

52. Hard - wired pool exit alarms can be disabled by a power

outage or by deliberately flipping a circuit breaker.

53. Plug - in alarms can be unplugged so as to be rendered

ineffective. They also may present a danger to children or the

elderly if extension cords are used.

54. Some witnesses consider it inconsistent of the rule to

require an alarm deactivation switch and a self - latching device

that is 54 inches above the threshold but fail to specify that

an electric plug for a plug - in door or window alarm also be 54

inches above the threshold, due to the potential for children to

unplug plug - in alarms.

55. Some witnesses at hearing complained that because

Section 515.27(1)(d), Florida Statutes, specifies that a release

mec hanism switch for self - closing, self - latching doors is to be

54 inches above the floor and the challenged rule for door and

window exit alarms specifies deactivation switches are to be at

least 54 inches from the threshold, there is a variance between

the rule and the statute, and the rule is confusing. However, a

door's "threshold" as used in the rule, is a consistent place to

measure the 54 inches from; is a spot that can be agreed upon by

the contractor and inspectors; and is a designation which

elimina tes any confusion as to whether measurement is to begin

from the outside or inside "floor," while serving the spirit of

the statute.

56. Some witnesses at hearing complained that the language

"immediately after the door is opened and be capable of b eing

heard throughout the house during normal household activities,"

as used in the rule is vague. However, it appears that any

vagueness is cured by the inclusion of the UL2017 standard in

the challenged rule.

57. Witnesses who complained of confus ion as to whether

doors and screens must each be "alarmed" were not credible

because the challenged rule clearly specifies "warning when the

door and its screen are opened." (Emphasis supplied)

58. Some witnesses complained that they thought the term

"p lug - in" could refer to installing a battery into an alarm.

This concept defies both the first approved dictionary

definition in evidence and common sense.

59. There were a number of battery - powered exit alarms on

the market when the rule was adopted and when it became

effective which would make an audible, continuous alarm when a

door or window which permits access to the pool area is opened,

but there were no such hard - wired or plug - in devices available

at that time. Acceptable hard - wired and plug - in alarms which

meet the rule's requirements are available now.

60. The Florida Home Builders Association (FHBA) had

previously challenged unrelated proposed Code rules in DOAH Case

No. 00 - 1252RP. That rule challenge was resolved by an

October 17, 20 00, Settlement Agreement, which was amended on

November 1, 2001, after the case was closed.

61. The FHBA Settlement Agreement provided that, in

exchange for FHBA's dismissal of DOAH Case No. 00 - 1252RP, the

Commission would adopt a rule setting forth a procedure for

adoption by the Commission of any other new amendments to the

Code, including creating a fiscal statement in connection with

all proposed Code revisions; review by a TAC of all technical

revisions; providing notice on the Internet of all pr oposed

revisions; providing 45 days between the date of notice and

consideration of an issue by a TAC or by the Commission; and

providing a reasonable time period in which the Committee and

Commission respectively would hear testimony on rule proposals.

62. The FHBA Settlement Agreement did not require immediate

application of the agreed rule promulgation procedures prior to

adoption, by rule, of those rule promulgation procedures. It

also did not require application of new statutory requirements

to t he Commission's rule promulgation procedures prior to the

effective date of any new statute.

63. The Commission did not perform a fiscal

analysis/statement; have a TAC consider challenged Rule 9B - 3.047

or 424.2.17.1.9; or provide 45 days' notificati on of Committee

or Commission meetings. However, pursuant to Chapter 120,

Florida Statutes, Internet notice of all proposed rules and

amendments was provided.

64. The procedures required by the FHBA Settlement

Agreement, including but not limited to the requirement of a

fiscal impact statement, plus additional procedures, were

codified in Sections 553.73(2), 553.73(3), 553.73(6) and

553.73(7), Florida Statutes. These statutes originated in

Chapter 2001 - 186, Laws of Florida, which was subsequently

amended or superceded by other legislative action. The

legislative history shows the effective dates of these statutory

rule promulgation procedures was postponed to March 1, 2002.

See the Conclusions of Law

65. Also, similar rule promulgation pro cedures which

equate with the FHBA Settlement Agreement were promulgated in

Rule 9B - 3.050, Florida Administrative Code, which the Florida

Administrative Code states took effect on November 20, 2001.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.54, 120.56(1), 120.56(3), and

120.56(9), Florida Statutes.

67. Respondent has not suggested that Petitioner FPSA is

without standing herein. The fa cts as found support standing,

and it is concluded that Petitioner has standing to bring this

rule challenge.

68. Respondent asserts that Intervenor is without

standing, primarily on the grounds that his involvement with

swimming pool alarms is remo te and speculative since he works

through subcontractors and his increased cost for installing

hard - wired swimming pool alarms is de minimus . However, upon

the facts as found, Intervenor is also concluded to have

standing herein.

69. Count IV of the Petition assails the constitutionally

of Chapter 515, Florida Statutes. The Division of

Administrative Hearings is without jurisdiction to consider this

issue, and it is not addressed herein.

70. Respondent's oral motion to dismiss Count III of the

Petition, which alleges that the Commission did not explore a

lower cost regulatory alternative as required by Section 120.54,

Florida Statutes, is well taken. There is no evidence that

either Petitioner or Intervenor timely submitted to the

Commission a good faith written proposal suggesting a lower - cost

regulatory alternative that accomplishes the same objectives as

the challenged rule. Count III is dismissed. See Sections

120.52(8)(g); and 120.541(1)(c)3.b., Florida Statutes, and

Florida Board of Med icine v. Florida Academy of Cosmetic

Surgery, Inc., 808 So.2d 243, (Fla. 1st. D.C.A. 2002).

71. As to Count II, Petitioner and Intervenor rely on

FHBA's October 27, 2000/November 1, 2001 Settlement Agreement

with the Commission to assert that (l) the Settlement Agreement

was violated by the Commission, and (2) the Commission should

have applied the terms of the FHBA Settlement, specifically the

requirement of providing a fiscal impact statement, to the

development of challenged Rule 9B - 3.047 (424.2.17 .1.9), and did

not. In this same vein, they argue that the Commission failed

to comply with its announced non - rule policy, the non - rule

policy being the FHBA Settlement Agreement which ultimately

became Rule 9B - 3.050, for the development of challenged Rul e

9B - 3.047 (424.2.17.1.9). Ultimately, they argue that the

Commission failed to comply with its announced "non - rule policy"

which was developed as Rule 9B - 3.050, Florida Administrative

Code, contemporaneously with the challenged rule, during the

summer a nd autumn of 2001, and/or they assert that the

Commission failed to comply with a statutory requirement for

rule - making by failing to adhere to the criteria set forth in

Section 553.73(7)(b), Florida Statutes (2002), which reads, in

pertinent part:

A propo sed amendment shall include a fiscal

impact statement which documents the costs

and benefits of the proposed amendment.

Criteria for the fiscal impact statement

shall be established by rule by the

commission and shall include the impact to

local governme nt relative to enforcement,

the impact to property and building owners,

as well as to industry, relative to the cost

of compliance.

72. Petitioner's Proposed Final Order also makes the

argument that the Commission allegedly offended Section

553.73 (4)(b)9., Florida Statutes.

73. As to the challengers' first argument, no privity of

Petitioner or Intervenor with FHBA, nor authorization of them by

that entity, has been demonstrated which would permit either

Petitioner or Intervenor to enforce the FHBA's Settlement

Agreement. In any case, the Division of Administrative Hearings

is not the appropriate forum to enforce a settlement. That

jurisdiction lies with the Circuit Courts.

74. With regard to the challengers' concept that the FHBA

Settl ement Agreement constituted some "free form" Commission

obligation to adhere to the Settlement Agreement provisions in

all subsequent rule - making, the Commission correctly suggests

that the Commission's only obligation under the FHBA Settlement

was to adop t Rule 9B - 3.050, which it did. See further

discussion in Conclusion of Law 77, infra .

75. The Commission further states that because Section

553.73(7)(b), Florida Statutes, was not in effect during the

promulgation of Rule 9B - 3.050, the Commission h ad no obligation

to furnish a fiscal impact statement in the promulgation of Rule

9B - 3.047.

76. Finally, the Commission asserts that even if Rule

9B - 3.050, effective November 20, 2001, were applicable to

promulgation of Rule 9B - 3.047, effective De cember 16, 2001, the

content of Rule 9B - 3.050(3), excuses a fiscal impact statement

where, as here, there is no evidence of a written request for a

lower cost alternative. 7/

77. The two rules were promulgated contemporaneously but

did not take effect simultaneously, as the parties herein

attempted to stipulate. Until Rule 9B - 3.050 was in effect, the

Commission was not bound by it. The most that any agency can

guarantee is that it will attempt to promulgate a rule that

pleases a specific complaining party, which is what happened in

the FHBA Settlement Agreement. Although certain defenses

against challenges to statements of general applicability

(undeclared and unpromulgated rules) are available to agencies

which promptly engage in good faith rulemaki ng, these defense

opportunities for an agency cannot reasonably be construed to

require the Commission to put the terms of a proposed rule (Rule

9B - 3.050) into effect before the Commission has complied with

all of the procedures for adoption of that rule a s required by

Chapter 120, Florida Statutes (2002). See Section 120.56 (4)(a)

and (e), Florida Statutes (2002). To conclude otherwise would

be to promote an inequitable concept that is the antithesis of

the "level playing field" envisioned by the Adminis trative

Procedure Act. Moreover, until the statutory authority for Rule

9B - 3.050 (various delayed provisions of Chapter 553 Florida

Statutes) went into effect, that rule could not legitimately

impact challenged Rule 9B - 3.047, which was contemporaneously o n

the rule promulgation trail established by Chapter 120, Florida

Statutes. See Section 120.54(1)(f), Florida Statutes.

78. With regard to the suggestion that the Commission's

promulgation of Rule 9B - 3.047, offended Section 553.73(7)(b),

Florida Statutes, it is noted that Code amendments adopted and

reviewed pursuant to Legislative command in 2000 were expressly

subject to the requirement of a fiscal impact statement.

Section 109, Chapter 2000 - 141, Laws of Florida, and the current

language of Sec tion 553.73(7), Florida Statutes (2002), also

mandate that the Commission consider cost, regardless of a third

party written request. However, in its efforts to bring the

Florida construction industry's statutes and rules into

compatible cycles, the Legis lature, through a series of

amendments, ultimately prescribed an effective date of March 1,

2002, for those statutory provisions. See Section 40, Chapter

98 - 287; Section 75, Chapter 2000 - 141; Sections 34 and 35,

Chapter 2001 - 186; and Sections 2, 3, 4, 5, and 13, Chapter 2001 -

372, Laws of Florida. [Note: Chapter 2001 - 372 is found in

Vol. I, Part One, of the 2002, bound version of the Laws of

Florida.] Therefore, when the 2001 legislation at Section 44,

Chapter 2001 - 186, Laws of Florida, (see Finding of F act 18),

prohibited all but a limited menu of amendments without

re - imposing any cost consideration over and above that required

by Chapter 120, Florida Statutes, there was no statutory

requirement that the Commission comply, for the promulgation of

Commission rules, with the fiscal impact statement requirement

in Section 553.73(7)(b), Florida Statutes. Therefore, the

challengers' reliance on these statutes is misplaced because

these statutes could not apply to the promulgation of Rule

9B - 3.047, F lorida Administrative Code.

79. The Agency's failure to comply with Section

553.73(4)(b)9., Florida Statutes, was not pled in the Petition,

and the challenge related thereto appears to be an afterthought

of Petitioner's Proposed Final Order. That st atutory provision

does require a fiscal impact statement, but it applies to review

of local building codes which adopt more stringent requirements

than the (State) Code. In addition to not applying to the rule

here challenged, and probably not being in ef fect at any time

material ( See Section 13, Chapter 2001 - 372 and Section 86,

Chapter 2002 - 1, Laws of Florida), Section 553.73(4)(b)9.,

Florida Statutes, contains the specific provision that the

absence of a fiscal impact statement may not be used as a basis

for challenging that type of rule amendment for compliance.

80. That said, even though it was not specifically pled by

Petitioner or Intervenor, Section 13, Chapter 2001 - 372, Laws of

Florida, which was signed by the Governor on December 17, 2001,

cannot be ignored. It provided, in pertinent part:

. . . Notwithstanding Section 10 [of Chapter

2001 - 372], the residential swimming pool

safety requirements of the Florida Building

Code, Section 424.2, relating to private

swimming pools, of Rule 9B - 3.04 7, Florida

Administrative Code, as adopted November 28,

2000, shall take effect January 1, 2002.

(Emphasis and bracketed material supplied) 8/

81. The Legislature intended that "the residential

swimming pool safety requirements of the Florida Build ing Code,

Section 424.2, [including 424.2.17.1.9], relating to private

swimming pools, of Rule 9B - 3.047, Florida Administrative Code,

as adopted November 28, 2000," that is, the language of

424.2.17.1.9 which was in effect before the challenged

amendments, were to take effect on January 1, 2002. Stated

somewhat differently, the Legislature intended that the language

of 424.2.17.1.9 which was in effect on November 28, 2000, to the

extent that language addressed swimming pool safety

requirements, was to be r e - established on January 1, 2002.

82. The Legislature clearly indicated that it did not want

Rule 9B - 3.047, to the extent it incorporated the challenged new

swimming pool safety requirements into 424.2.17.1.9, to go into

effect on the date of the recent rule amendment, which the

Florida Administrative Code shows was December 16, 2001.

Accordingly, Rule 9B - 3.047, as amended December 16, 2001, to the

extent it contained the amendments to 424.2.17.1.9 here

challenged, was, to all intents and purposes, inval idated by the

Florida Legislature, effective January 1, 2002. Note also that

the Legislature specifically reinstated the November 28, 2000

Rule 9B - 3.047 as opposed to the February 7, 2001 or the

December 16, 2001 Rule 9B - 3.047. (See Finding of Fact 4).

83. There cannot be a valid delegation of legislative

authority where the Legislature has clearly determined that the

rule amendment should be superceded by previous rule language.

84. However, since only the portions of challenged Rule

9B - 3.047 ( December 16, 2001), and the portions of its

February 7, 2001 amendments, which dealt with swimming pool

safety requirements, were not in effect due to the direct

legislative action of Section 13, Chapter 2001 - 372, Laws of

Florida, only those portions of 42 4.2.17.1.9, are, and remain,

invalid. All technical amendments, not related to residential

swimming pool safety requirements, which were adopted on

February 7, 2001, or December 16, 2001, into Rule 9B - 3.047,

remain undisturbed and in full force and effect .

85. Rule 9B - 3.050, Florida Administrative Code, which

substantively complied with the FHBA Settlement Agreement,

became effective on November 20, 2001. The requirements of

Section 553.73, Florida Statutes, which also substantively

complied with the Settlement Agreement, became effective

March 1, 2002.

86. If the Commission now wants to adopt those amendments

to the residential swimming pool safety requirements which are

here deemed invalid, the Commission will have to promulgate

those ch anges as part of its next rule adoption cycle, pursuant

to the procedures outlined in Rule 9B - 3.050, Florida

Administrative Code, and those portions of Chapter 553 that

finally became effective on March 1, 2002, simultaneously with

the effective date of th e Florida Building Code.

87. Due to the foregoing Conclusions of Law, it is not

necessary to address any other issues.

ORDER

Based u pon the foregoing Findings of Fact and Conclusions

of Law, it is determined that:

(1) Rule 9B - 3.047 (424.2.17.1. 9) of the Florida Building

Code [Amended 2/7/01; 12/16/01] to the extent it incorporates

changes to 424.2.17.1.9 of the Florida Building Code since

November 20, 2000, is an invalid exercise of delegated

legislative authority;

(2) Those parts of 424.2.17.1 .9 as they were in effect on

November 20, 2000, are, and remain, in full force and effect;

and

(3) This ruling does not invalidate any other portions of

Rule 9B - 3.047, Florida Administrative Code, as adopted either

February 7, 2001 or December 16, 2001.

DONE AND ORDERED this 12th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of February, 2003.

ENDNOTES

1/ This issue is beyond the scope of this hearing. See the

Conclusions of Law.

2/ The Transcript's Table of Contents is in error.

Intervenor's Exhibit 2 was, in fact, admitted in evidence.

(TR - 209 - 210, 221).

3/ Petitioner did not renew earlier arguments raised at

TR - 25 - 28, wh erein Respondent opposed such motion on several

grounds, including prejudice by surprise. See Section

120.56(1)(b), Florida Statutes (2002).

4/ December 16, 2001, was a Sunday, so this date may be in

error, but it is the date designated by the Departmen t

(Secretary) of State in its official publication, the Florida

Administrative Code.

5/ As more fully set out in the Conclusions of Law, this date

is not necessarily accurate for effectiveness, but it is the

date Chapter 2001 - 186 was signed into law, and upon which the

Commission assumed it had authority to proceed. See also

Section 40, Chapter 98 - 287; Sections 75 and 109, Chapter 2000 -

141; Sections 25, 34, 35, 36, 44, and 47, Chapter 2001 - 186;

Sections 2, 3, 4, 5, 10, and 13, Chapter 2001 - 372; and Secti on

86, Chapter 2002 - 1, Laws of Florida, and the Conclusions of Law.

6/ See Sections 1 and 2, Chapter 2000 - 143 Laws of Florida;

endnotes 5 and 8; and the Conclusions of Law.

7/ It also is noted that Rule 9B - 3.050(9), Florida

Administrative Code, provide s that each amendment approved by

the Florida Building Commission shall take effect no earlier

than three months after the rule amendment is filed for adoption

with the Department of State.

8/ Section 13, Chapter 2001 - 372 also "re - enacts" the language

de scribed at Finding of Fact 19, which language was ultimately

codified at Section 553.73(2), Florida Statutes (2002). A

" Note " following that statute and following each of Sections

515.25, 515.27, and 515.29, Florida Statutes (2002), describes

this legisla tive action.

COPIES FURNISHED :

Fred R. Dudley, Esquire

Mia L. McKown, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

Steve Pfeiffer, Esquire

Theriaque and Pfeiffer

1114 East Park Avenue

Tall ahassee, Florida 32301

James L. Richmond, Esquire

Patricia Morell, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399

Carroll Webb, Executive Director

Joint Administrative Procedures

Committee

120 Hollan d Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building, Room 201

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entit led to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Adm inistrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

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

the Appellate District where the party resides. The notice of

appeal must be filed wi thin 30 days of rendition of the order to

be reviewed.