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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF MIAMI BEACH, )

)

Petitioner, )

)

vs. ) Case No. 08-5188RU

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Respondent. )

_________________________________)

FINAL ORDER

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

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

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

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maggie M. Schultz, Esquire

Harold F.X. Purnell, Esquire

Gary Rutledge, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302

Rhonda Montoya Hasan, Esquire

Jose Smith, Esquire

City of Miami Beach

Fourth Floor, Legal Department

1700 Convention Center Drive

Miami Beach, Florida 33139

For Respondent: Patricia Nelson, Esquire

Philip F. Monte, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Respondent's statements regarding enforcement

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

Petition Challenging Agency Statement Defined as a Rule filed

November 21, 2008, constitute agency statements defined as rules

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

Statutes (2008). 1

PRELIMINARY STATEMENT

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

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

as a Rule with the Division of Administrative Hearings. The

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

Petition Challenging Agency Statement Defined as a Rule

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

original Petition. In the Amended Petition, the City challenged

as agency statements defined as rules but not adopted pursuant

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

the Department of Business and Professional Regulation

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

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

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

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

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

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

website entitled "Elevators Current Practices." The City also

challenged certain statements made by the Bureau of Elevator

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

August 18, 2008. 2

The City alleged in its Amended Petition that, in the

challenged statements, the Department

has made a unilateral determination that all

elevators, including those installed before

the adoption of the Florida Building Code,

must comply with certain ASME [3] standards

referenced in the 2004 edition of the

Florida Building Code (including the 2006

supplement) and that any elevator which does

not comply with such standards constitutes a

threat to public safety and presents a

hazard to the riding public. [4]

The City further alleges in its Amended Petition that "the

Department's statements of general applicability contained

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

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

that such bulletins seek to require retrofitting of existing and

older elevators to comply with current requirements of the

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

receipt of the original Petition, the Division of Administrative

Hearings assigned an administrative law judge to hear the case,

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

2008.

Prior to the hearing, the Department filed a Motion for

Official Recognition, in which it requested that official

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

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

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

considered at the final hearing, and official recognition was

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

request for official recognition of House Bill 7183 and the

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

At the final hearing, both the Petitioner and the

Respondent presented the testimony of Doug Melvin, Chief of the

Bureau, and Timothy Hemstreet, Assistant City Manager for the

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

offered and received into evidence. Respondent's Exhibits 1

through 4 were offered and received into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on December 29, 2008, and

the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Final Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding,

including the stipulated facts contained in the Pre-Hearing

Stipulation, the following findings of fact are made:

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

out all of the provisions of this chapter relating to the

inspection and regulation of elevators and to enforce the

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

Stat. The Department is given rulemaking authority to carry out

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

Stat.

2. The City is an incorporated municipality of the State

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

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

adopted by the Department to carry out its responsibilities

under Chapter 399, Florida Statutes.

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

elevators . . . subject to this chapter must be annually

inspected," and the Department has the authority to require

correction of any violations of Chapter 399, Florida Statutes,

or of the Florida Building Code discovered in those inspections.

authority to protect the public safety by ordering that the use

of any elevator found to be in an unsafe condition be

discontinued until the elevator has been repaired and may be

operated safely. § 399.061(3).

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

elevator owner the responsibility "for the safe operation,

proper maintenance, and inspection and correction of code

deficiencies of the elevator after a certificate of operation

has been issued by the department."

5. The Department has adopted standards for the

installation and maintenance of elevators in Florida

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

part:

(1) Adopted Standards. The installation

and maintenance of elevators, dumbwaiters,

escalators, moving walks, inclined and

vertical wheelchair lifts, and inclined

stairway chairlifts shall be governed by the

following standards, which are hereby

adopted and incorporated by reference.

(a) Chapter 30, Elevators and Conveying

Systems, of the 2004 Florida Building Code,

including the 2006 supplements;

(b) American National Standard Guide for

Inspection of Elevators, Escalators, and

Moving Walks, ASME A17.2-2004; and

(c) The Uniform Fire Safety Standards for

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

established by the Department of Financial

Services.

6. Chapter 30 of the Florida Building Code provides in

pertinent part:

3001.1 Scope

This chapter governs the design,

construction, installation, alteration and

repair of elevators and conveying systems

and their components.

Note: Other administrative and programmatic

provisions may apply. See the Department of

Business and Professional Regulation [DBPR]

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

Florida Administrative Code . The regulation

and enforcement of the following sections of

the adopted codes, and their addenda, are

preempted to the Bureau of Elevator Safety

of the Department of Business and

Professional Regulation: ASME A17.1, Part

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

ASME A18.1, Part 10.

3001.2 Referenced standards

Except as otherwise provided for in this

code, the design, construction,

installation, alteration, repair and

maintenance of elevators and conveying

systems and their components shall conform

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

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

ASME A18.1.

The Division of Hotels and Restaurants may

grant exceptions, variances and waivers to

the Elevator Safety Code as authorized by

the Elevator Safety Code . (ASME A17.1,

Section 1.2) and Florida Statutes

(Chapter 120). [6]

The Department did not separately incorporate by reference

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

Administrative Code Rule 61C-5.001.

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

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

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

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

follows

Requirements for Existing Elevators

Elevators and escalators in

jurisdictions that have adopted the Safety

Code for Existing Elevators and Escalators,

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

conform to the requirements identified in

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

installation does not meet the requirements

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

an existing installation was required to

meet more stringent requirements, it must

continue to meet those requirements. [7]

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

standard used by the Department, includes a statement of the

general purpose of the standard and provides in pertinent:

This Code is intended to serve as the basis

for state and local jurisdictional

authorities in adopting retroactive

requirements for existing elevators and

escalators to enhance the safety of the

general public. It is also intended . . .

as a standard of safety practices for

building owners and managers of structures

where existing elevator equipment covered in

the scope of the Code is used.

The purpose of this Code is to establish

minimum requirements that will provide a

reasonable degree of safety for the general

public. . . . [8]

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

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

meet the requirements of this Code. If an existing installation

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

upgraded. If an existing installation was required to meet more

stringent requirements, it shall continue to meet those

requirements." 9

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

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

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

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

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

standard used by the Department, "contains general requirements

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

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

8.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing

installations." 12 Requirement 8.1 deals with security for new

and existing elevators; Requirement 8.9 requires placement of a

Code data plate on all new and existing elevators;

Requirement 8.10 applies to new installations and alterations to

existing installations.

12. Pertinent to this proceeding, Requirement 8.6 "applies

to maintenance, repairs, and replacements" and

Requirement 8.6.1.2 provides as follows:

Maintenance, repairs, and replacement shall

conform to 8.6 and the

(a) Code at the time of the installation

(b) Code requirements at the time of any

alteration

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

having jurisdiction[.] [13]

Requirement 8.11 applies to "periodic inspections and tests of

existing installations", and Requirement 8.11.1.2 provides as

follows:

Inspections and tests required by 8.11.2

through 8.11.5 are to determine that the

existing equipment conforms with the

following Code requirements:

(a) the Code at the time of installation

(b) the Code effective as applicable to and

for each alteration

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

authority having jurisdiction[.] [14]

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

installation, and alteration of conveyances, and provides in

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

edition of the Florida Building Code or Elevator Safety Code

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

construction permit for the elevator." 15

14. The Department publishes Industry Bulletins and

Technical Advisories regarding the implementation of

Chapter 399, Florida Statutes, and it also publishes statements

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

statements made in Industry Bulletin for Florida's Elevator

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

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

2006; Industry Bulletin for Florida's Elevator Industry

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

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

contained in a posting on the Department's website entitled

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

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

it would enforce the provisions of the then currently-adopted

edition of the Florida Building Code to the extent that the

Florida Building Code required retrofitting or modification of

existing elevators.

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

2006, the Department stated that, notwithstanding the provision

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

comply with the edition of the Florida Building Code or Elevator

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

[sic] application for the construction permit for the

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

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

that "require[] retrofitting older elevators because aging

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

stated that "Florida Statutes [specifically section 399.001 and

399.061(3)] are in agreement with ASME A17.1 (2000) and

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

Department would require "that, in the interest of public

safety, the older and potentially hazardous elevator be brought

into compliance with the newer code." 16

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

2006, the Department reiterated its intent to enforce the "new"

edition of the Florida Building Code regarding the modification

of existing elevators to protect public safety because public

safety was its paramount regulatory responsibility. It also

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

exemption from a new code provision essential to the safe

operation of the elevator." The Department advised that it

would specifically "require the single wall hydraulic cylinder

safety provision of the ASME A17.1 2000 code [Section 8.6.5.8]

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

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

considered these sections [Section 8.6.5.8 and sections

reference therein] so important to life safety that corrective

action is required for all existing single wall hydraulic

cylinder elevators." The Department also advised elevator

owners that, because compliance with certain code requirements

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

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

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

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

of an Order to Correct." 17

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

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

pertinent part:

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

Chapter 61C-5, Florida Administrative Code;

Chapter 30 of the Florida Building Code; and

the American Society of Mechanical Engineers

(ASME) national standards ASME A17.1-2004

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

1996, and ASME A18.1-2003 provide a minimum

standard for public safety. These are the

codes currently in effect and they will be

enforced. In fact, the more stringent of

the codes in effect apply, unless

specifically stated or otherwise adopted by

the Bureau of Elevator Safety, which is the

Authority Having Jurisdiction (AHJ). There

are no exceptions. The elevator safety code

is not subject to individual interpretation.

The codes collectively apply to all

elevators and provide for the health,

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

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

2008, headed "Temporary Variance for ASME A17.3 Violations," the

Department stated that "elevator owners of older elevators have

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

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

advised that the Bureau of Elevator Safety "was moving forward

to extend the current temporary compliance alternative

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

the initial cylinder replacement issue [see Industry Bulletin

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

effect of the temporary variances, set out requirements that

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

effect, and outlined requirements for elevator owners to request

a temporary variance. In addition to information regarding

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

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

2002 revision of the Florida Building Code."

19. In an undated document entitled "Current Practices"

related to elevators, found on the Department's official

website, the Department made the following statement:

In recent months there has been some

confusion regarding which version of the

safety code the division uses to conduct

safety inspections. The division relies

upon Chapter 399, Florida Statutes; 61C-

5(1)(a), Florida Administrative Code; and

Chapter 30 of the Florida Building Code.

The division follows Chapter 30 of the

Florida Building Code which in turn adopts

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

maintenance of elevators. Consequently,

when inspecting elevators, pursuant to

399.061, Florida Statutes, the division uses

ASME A17.1 and A17.3 codes.

Nothing has changed the division's reliance

on any of these documents.

The division has not ceased enforcing A17.3.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Statutes (2008).

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

a party challenging an agency statement defined as a rule be

"substantially affected by the agency statement." The parties

have stipulated that the City has standing to maintain this

challenge.

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

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

adopted by the rulemaking procedure provided by this section as

soon as feasible and practicable." The party challenging an

agency statement that meets the definition of a rule but that

has not been adopted pursuant to Section 120.54, Florida

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

evidence that the challenged statements are unadopted rules.

§ 120.56(1)(e) and (4)(b), Fla. Stat.

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

in pertinent part as "each agency statement of general

applicability that implements, interprets, or prescribes law or

policy or describes the procedure or practice requirements of an

agency and includes any form which imposes any requirement or

solicits any information not specifically required by statute or

by an existing rule."

Department's failure to adopt as rules agency statements defined

as rules

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

Proposed Final Order as follows

The requirement and procedures, purportedly

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

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

in the . . . Industry Bulletins and

Technical Advisory that all existing

elevators, regardless of the date of

installation, be retrofitted to comply with

the current Florida Building Code, rather

than the code at the time of installation,

as provided in section 399.03(7), Florida

Statutes, is being challenged as an agency

statement defined as a rule but not adopted

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

Statutes. [19]

25. The Department has adopted Florida Administrative Code

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

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

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

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

Code specifies that "the design, construction, installation,

alteration, repair and maintenance of elevators . . . shall

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

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

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

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

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

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

reflects an interpretation of Section 399.03(7), Florida

Statutes, which would allow the provisions of the current

Florida Building Code to apply to existing elevators. This is

correct, but the Department is not interpreting

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

Technical Advisory, and Current Practices identified by the City

as agency statements. Rather, the Department explained in those

statements that its primary statutory responsibility in

regulating elevators under Chapter 399, Florida Statutes, is to

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

enforce the Florida Building Code, adopted and incorporated by

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

requiring without exception that existing elevators conform to

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

requirements necessary to provide a reasonable degree of safety

to the public.

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

Final Order and the allegations in its Amended Petition that the

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

Statutes, prohibits the Department from applying the provisions

of Chapter 30 of the Florida Building Code, specifically ASME

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

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

cannot be resolved in a challenge to agency statements that have

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

requires only that agency statements defined as rules be adopted

"by the rulemaking procedure provided by this section."

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

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

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

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

must be specifically adopted and incorporated by reference in

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

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

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

specifically incorporate by reference standards that are adopted

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

29. The Department of State set forth the requirements for

incorporating materials into a rule by reference in Florida

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

part:

(1) Any ordinance, standard, specification

or similar material may be incorporated by

reference in a rule adopted pursuant to

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

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

(a) The material shall be generally

available to affected persons.

(b) The material shall be published by a

governmental agency or a generally

recognized professional organization.

(2) The agency incorporating material by

reference shall file with the Department of

State a correct and complete copy of the

referenced material with an attached

certification page which shall state a

description of the referenced material and

specify the rule to which the referenced

material relates. . . .

Chapter 30 of the Florida Building Code is incorporated by

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

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

the Secretary of State, as required by Florida Administrative

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

that copies of all standards or specifications adopted in

material incorporated by reference in a rule must also be filed

with the Secretary of State.

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

specifically incorporate by reference all of the standards

adopted in the Florida Building Code is found in the statutory

requirements governing the adoption of the Florida Building

Code. The Florida Building Code was adopted pursuant to

Section 553.73, Florida Statutes, which provides in pertinent

part:

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

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

Florida Building Code which shall contain or

incorporate by reference all laws and rules

which pertain to and govern the design,

construction, erection, alteration,

modification, repair, and demolition of

public and private buildings, structures,

and facilities and enforcement of such laws

and rules, except as otherwise provided in

this section.

* * *

3) The commission shall select from

available national or international model

building codes, or other available building

codes and standards currently recognized by

the laws of this state, to form the

foundation for the Florida Building Code.

The commission may modify the selected model

codes and standards as needed to accommodate

the specific needs of this state. Standards

or criteria referenced by the selected model

codes shall be similarly incorporated by

reference. If a referenced standard or

criterion requires amplification or

modification to be appropriate for use in

this state, only the amplification or

modification shall be specifically set forth

in the Florida Building Code. . . .

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

Florida Building Commission need only incorporate in the Florida

Building Code by reference the standards or criteria that are

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

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

the amplification or modification shall be specifically set

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

Building Code was adopted in Florida Administrative Code

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

and model codes adopted in the Florida Building Code itself:

(1) The Florida Building Code, 2004

Edition, as updated by the Florida Building

Commission on July 1, 2005, and as amended

by the Commission on December 11, 2005,

December 8, 2006, and May 21, 2007,

incorporated herein by reference is hereby

adopted as the building code for the State

of Florida until February 28, 2009.

32. It would be unreasonable to require the Department to

incorporate by reference in Florida Administrative Code

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

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

Florida Building Commission is not required to incorporate by

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

the standards and model codes adopted in the Florida Building

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

rejected.

Plans of Corrective Action and Temporary Variances

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

procedures set out in Industry Bulletin Number 2006-04 allowing

elevator owners to submit a plan of corrective action when cited

for violations of the Florida Building Code is an agency

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

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

to the temporary variance described in Technical Advisory

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

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

Florida Administrative Code" 22

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

related to the plan of corrective action in the Amended

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

Stipulation filed by the parties refers to "overall guidelines

and standards regarding plans of corrective action of purported

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

action and accompanying standards and guidelines are neither

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

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

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

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

to the provisions of Section 399.03(7)."

35. It is unclear that the City is challenging the

procedures for plans of corrective action set out in Industry

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

but not adopted pursuant to Section 120.54, Florida Statutes.

First, the statement of the Nature of the Controversy included

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

Department "regarding the application of certain standards to

existing elevators under Chapter 399, Florida Statutes." In

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

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

Hotels and Restaurants] plan of corrective action process, while

well intended, is but further evidence that the agency

statements constitute an unadopted rule as that term is defined

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

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

the petition challenging an agency statement defined as a rule

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

statement." The purpose of this requirement is to provide

notice to the agency of the specific statement being challenged

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

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

court in Aloha Utilities observed that the defective notice can

be cured if the specific policies and/or procedures being

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

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

Pre-Hearing Stipulation that it was challenging as unadopted

rules the Department's statements in Industry Bulletin Number

2006-04 regarding the procedures for plans of corrective action.

The City is, therefore, precluded from challenging these

procedures in the instant case.

37. The City is also precluded from challenging the

temporary variance procedures and requirements set out by the

Department in Technical Advisory Number 2008-01 as unadopted

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

quotes from the Technical Advisory:

"The bureau is moving forward to extend the

current temporary compliance alternative

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

violations beyond the initial cylinder

replacement issue.

. . . . .

The temporary variance for compliance will

remain in force until modernization is

complete as established by the owner

(petitioner)." [23]

The City, however, prefaced the quote with the following

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

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

require all existing elevators to comply with ASME standards

beyond the initial cylinder placement." 24

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

Petition on the Department's statements regarding the

"retrofitting of existing and older elevators to comply with

current requirements of the Florida Building Code and the

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

notice to the Department in its Amended Petition that it was

challenging the temporary variance procedure as an unadopted

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

the Department with notice that the City intended to challenge

the temporary variance; the Pre-Hearing Stipulation contains no

mention of the temporary variance procedure. The City is,

therefore, precluded from challenging these procedures in the

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

appellants "did not describe the specific agency statements they

intended to challenge at the final hearing in sufficient detail,

either in their petitions or in the prehearing stipulation" and

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

being challenged.).

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

prove by a preponderance of the evidence that the challenged

agency statements are unadopted rules.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Amended Petition Challenging Agency

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

dismissed.

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

Tallahassee, Leon County, Florida.

________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February 2009.

ENDNOTES

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

edition unless otherwise indicated.

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

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

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

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

Engineers and will be used herein when references are made to

the American Society of Mechanical Engineers.

4 / Amended Petition at paragraph 9.

5 / Amended Petition at paragraph 20.

6 / Petitioner's Exhibit F.

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

8 / Respondent's Exhibit 2.

9 / Id.

10 / Id.

11 / Respondent's Exhibit 1.

12 / Id.

13 / Respondent's Exhibit 1.

14 / Id.

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

governs the design, installation and alteration of elevators,

includes an almost identical provision: "1. Each elevator

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

the time of receipt of application for the construction permit

for the elevator." Petitioner's Exhibit F.

16 / Petitioner's Exhibit A.

17 / Petitioner's Exhibit B.

18 / Petitioner's Exhibit C.

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

20 / Petitioner's Exhibit F.

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

paragraph 45 and 46.

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

23 / Amended Petition at paragraph 14.

24 / Id.

25 / Id. at paragraph 20.

COPIES FURNISHED:

Rhonda Montoya Hasan, Esquire

City of Miami Beach

Fourth Floor, Legal Department

1700 Convention Center Drive

Miami Beach, Florida 33139

Maggie M. Schultz, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Patricia Nelson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2022

Philip F. Monte, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

F. Scott Boyd, Executive Director

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled 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 agency clerk of

the Division of Administrative 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 within 30 days of rendition of the order to

be reviewed.