17-006578RP Florida Association Of The American Institute Of Architects, Inc. vs. Florida Building Commission Status: Closed DOAH Final Order on Thursday, February 15, 2018.

Summary: Proposed rule amendments are valid as to objections raised, shown to implement specific powers and duties in the 2017 law that changed the Florida Building Code triennial update process.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF THE

AMERICAN INSTITUTE OF

ARCHITECTS, INC.,

Petitioner,

vs. Case No. 17 - 6578RP

FLORIDA BUILDING COMMISSION,

Respondent.

_______________________________/

FINAL ORDER

By agreement of the parties, t his proposed rule challenge

has been submitted for determination by Elizabeth W. McArthur ,

Administrative Law Judge, Division of Administrative Hearings

(DOAH), based on the partiesÓ stipulations and a stipulated

record in lieu of an evidentiary hearing .

APPEARANCES

For Petitioner: J. Michael Huey, Esquire

D. Ty Jackson, Esquire

Allison G. Mawhinney, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302

For Respondent: W. Justin Vogel, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2 2 02

STATEMENT OF THE ISSUE

The issue in this case is whether certain proposed

amendments to Florida Administrative Code R ule 61G20 - 2 . 002

enlarge, modif y , and/or contravene the cited provisions of law

implement ed , so as to render the proposed amendments invalid

exercise s of delegated legislative authority.

PRELIMINARY STATEMENT

On December 6, 2017, Petitioner Florida Association of

the American Institute o f Architects, Inc. (FAAIA or Petitioner ),

filed a Petition for the Administrative Determination of the

Invalidity of a Proposed Rule . The petition challenges the

validity of certain amendments proposed by Respondent

Florida Building Commission (Commission or Respondent) to

r ule 61G20 - 2.002 . T he case was assigned to the undersigned on

December 12, 2017 . By Notice of Hearing and Order of Pre - hearing

Instructions issued December 13, 2017, the fi nal hearing was s et

for January 11, 201 8 , and an expedited sche dule was established

for discovery and other pre - hearing matters .

On January 2, 2018, the parties filed a Joint Motion to

Cancel Hearing and Order Submission of Proposed Final Orders .

The parties represented that they believed there were no disputed

issue s of material fact and that the case could be submitted for

determination on the basis of the partiesÓ stipulations of fact

and submission of joint exhibits, in lieu of a hearing record

developed in an evidentiary hearing. Conditionally a ccepting the

part iesÓ representation (conditioned on the undersigned

ultimately agreeing that all material facts were addressed by the

partiesÓ stipulations and joint exhibits), the undersigned issued

an Order on January 3, 2018, that cancelled the final hearing and

adopt e d the partiesÓ proposed deadlines of January 9, 20 18, to

file a joint stipulation including stipulated facts and a joint

exhibit list , and January 19, 2018, to file proposed final orders

(PFOs) . The Order a dded a deadline of Janu ary 19, 2018, for

deliver y of a set of the joint exhibits listed in the joint

stipulation to DOAH .

The parties timely filed their Joint Stipulation on

Janua ry 9, 2018. Joint Exhibits 1 through 5, listed in the Joint

Stipulation, were delivered to DOAH on January 18, 2018. On

Janu ary 19, 2018, t he parties timely filed their PFOs , which have

been considered in the preparation of this Final Order. In

addition, following a brief telephone conference, the parties

filed a Supplemental Joint Stipulation on February 12 , 2018 ,

settin g for th additional agreed facts related to FAAIAÓs

associational standing.

FINDING S OF FACT

1 . The Commission is the state agency responsible for the

development and maintenance of the Florida Building Code under

chapter 553, Florida Statutes (2017) , 1/ a nd c ha pter 61G20 - 2 . The

Commission is created as a distinct agency , but is located within

the Department of Business and Professional Regulation for

administrative purposes. § 5 5 3.7 4 (1) , Fla. Stat.

2 . The subject matter at issue in this case is the Florida

Bu ilding Code update and amendment process, as recently changed

in section 553.73. On November 15, 2017, the Commission

published a Notice of Proposed Rule to substantially rewrite

rule 61G20 - 2.002 (the proposed rule) , Ð in order to conform with

changes made to section 553.73Ñ by the 2017 Legislature.

3 . FAAIA is a professional association representing roughly

2,700 architects licensed in Florida. These Florida - licensed

architects are the overwhelming majority of FAAIAÓs members .

4 . FAAIAÓs Florida - licen sed a rchitect members are subject

to the requirements of the Florida Building Code in the practice

of their profession . A failure to comply with the requirements

of the Florida Building Code exposes a licensed architect to

discipline against his or her li cense , as well as potential

liability for negligence. See, e.g. , Seibert v. Bayport Beach &

Tennis Club AssÓn , 573 So. 2d 889, 891 (Fla. 2d DCA 1990)

(statutory remedy and common law negligence each provided

independent basis for finding liability derived from architectÓs

violation of the building code ); Juhn v. DepÓt of ProfÓl Reg. ,

431 So. 2d 1 9 0 (Fla. 1st DCA 1983)(architect can be disciplined

by licensing board for fail ing to comply with applicable codes).

5 . The subject matter of the proposed rule i s within the

scope of FAAIAÓs re presentation of its members in the normal

course of its business and activit i es.

6 . As a professional association, FAAIA routinely

represents its members before the Florida Legislature as well as

before state agencies, and in DOAH administrative proceedings o n

matters of policy and regulation of its membersÓ practice.

7. On behalf of its members, FAAIA challenges two aspects

of the proposed rule, assert ing that in two respects, the

proposed rule does not square with the Ðun ambiguousÑ provisions

of the 2017 law intended to be implemented . As the parties

represented, FAAIA Ós objections to the proposed rule present

legal questions that must be an swered by comparing the statutory

language before and after amendment in 2017, so as to determine

whether the proposed rule implements the amended law, as the

Commission contends, or whether the proposed rule enlarges,

modifies, and/or contravenes the amended law, as FAAIA contends.

The parties offered no extrinsic aids as evidence to consider in

interpreting the 2017 law, such as legislative staff analyses or

other evidence regarding the 2017 legislati ve action . Instead,

b oth parties contend that the statutory changes at issue are

clear and unambiguous , albeit they manage to reach dia metrically

opposed interpretations of the Ðclear and unambiguousÑ statutory

changes.

CONCLUSIONS OF LAW

8 . DOAH has jurisdiction over the subject matter and the

parties to this action, pursuant to sections 120.56, 120.569,

and 120.57(1) , Florida Statutes .

9 . Section 120.56(1)(a) provides that any person

substantially affected by a proposed rule may seek an

administrative determination of the invalidity of the rule on

the ground that the rule is an invalid exercise of delegated

legislative authority. Purs uant to section 120.56(2)(a),

Petitioner has the initial burden t o prove its standing .

10 . One is Ðsubstantially affectedÑ by a proposed rule if

the proposed rule will result in a real and immediate injury in

fact, and the alleged interest is within the z one of interest to

be protected or regulated . This test is met if a proposed rule

will regulate a personÓs occupation or profession . Jacoby v.

Fla. Bd. of Med. , 917 So. 2d 358 , 360 (Fla. 1st DCA 2005) .

11 . A n association such as FAAIA that seeks to re present

the interests of its members must meet the three - part test for

associational standing, first set forth in the context of rule

challenges under the Administrative Procedure Act in Florida Home

Builders Association v. Department of Labor and Employme nt

Security , 412 So. 2d 351, 353 - 354 (Fla. 1982) , as follows :

To meet the requirements of section

120.56(1), an association must demonstrate

that a substantial number of its members,

although not necessarily a majority, are

Ð substantially affected Ñ by the challenged

rule. Further, the subject matter of the

rule must be within the association's

general scope of interest and activity , and

the relief requested must be of the type

appropriate for a trade association to

receive on behalf of its members.

12 . T he facts found above , based on the partiesÓ

stipulations, e stablish that a substantial number of FAAIAÓs

members would be substantially affected by the proposed rule if

it were adopted , and that the subject matter of the proposed rule

falls within the gene ral scope of FAAIAÓs interest and ac tivity.

In addition, t he relief requested -- a determination that the

proposed rule is invalid as to the objections raised -- is of a

type appropriate for a professional association to receive on

behalf of its members. FAA IA has associational standing.

13 . As for the merits of the proposed rule challenge, the

Commission has the burden to prove by a preponderance of the

evidence that the proposed rule is not an invalid exercise of

delegated legislative authority as to the o bjections raised .

§ 120.56(2)(a), Fla. Stat. In this proceeding, t he p roposed rule

is not presumed valid or invalid. 2/ § 120.56(2)(c), Fla. Stat.

14 . An Ðinvalid exercise of delegated legislative

authorityÑ is an Ðaction that goes beyond the powers, functions,

and duties delegated by the Legislature.Ñ £ 120.52(8), Fla.

Stat. A rule is an Ðinvalid exercise of delegated legislative

authorityÑ if , among other reasons , the rule enlarges, modifies,

or contravenes the specific provisions of law implemente d ,

citation to which is required by section 120.54(3)(a)1.

§ 120.52(8)(c), Fla. Stat. FAAIA challenges two aspects of the

proposed rule only on the grounds in section 120.52(8)(c), as

illuminated by the Ðflush leftÑ language after section

120.52(8)(a) t hrough (e), provid ing as follows :

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specifi c powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of pow ers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency sha ll be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

§ 120.52(8) , Fla. Stat. See also § 120.52(9), Fla. Stat.

(defining Ð l aw implementedÑ as Ð the language of the enabling

statute being carried out or interpreted by an agency through

rulemaking Ñ).

The Florida Building Code Update and Amendment Process P rior to

the 2017 Statutory Amendments

15 . Section 553.73(7), both before and after the 2017

statutory amendments, addr esses the triennial process to update

the Florida Building Code. T he 2016 law required that the

Florida Building Code be updated every three years. See

£ 553.73(7)(a), Fla. Stat. (2016) (ÐThe commission, by rule

adopted pursuant to ss. 120.536(1) and 12 0.54, shall update the

Florida Building Code every 3 years.Ñ) .

16 . Under the 2016 law, t h e triennial update process

resulted in a re - adoption of a new Florida Buildi ng Code. Every

three years, the Commission was required to Ðselect the most

current vers ionÑ of certain international and national model

codes to Ðform the foundation codes of the updated Florida

Building Code, if the version has been adopted by the applicable

model entity.Ñ £ 553.73(7)(a), Fla. Stat. (2016).

1 7 . The specific model codes that would form the foundation

of the updated Florida Building Code were enumerated in the law ,

as follows : the International Building Code; the International

Fuel Gas Code; the International Existing Building Code; the

International Mechanical Code; the International Plumbing Code;

the International Residential Code; the National Electrical Code;

and the International Energy Conservation Code (collectively, the

ÐModel CodesÑ) . Id.

18 . As part of the triennial update process, t he Commission

had authority to modify any portion of the foundation codes , but

Ðonly as needed to accommodate the specific needs of this state.Ñ

§ 553.73(7)(c), Fla. Stat. (2016). The Commission also had

authority to incorporate the CommissionÓs own interpretations,

declaratory st atements, appellate decisions, and approved

statewide and local technical amendments into the updated Florida

Building Code, but Ð only to the extent needed to modify the

foundation codes to accommodate the specific needs of the state.Ñ

§ 553.73(7)(d), Fla . Stat. (2016).

19 . In other words, for the triennial update process, the

Mode l Codes were the foundation of the updated Florida Building

Code, and could only be deviated from to the extent Ðneeded to

accommodate the specific needs of this state , Ñ pursu ant to the

requirements in section 553.73(7)(c) and (d), Florida Statutes

(2016).

20 . With few exceptions, for each new triennial update

process , the slate would be wiped clean of changes made to the

Model Codes as part of the prior triennial update p rocess . The

process would start anew with the most recent versions of the

Model Codes serving as the foundation for the re - enacted new

edition o f the Florida Building Code , and prior changes to the

Model Codes would have to be r esubmitted for consideratio n during

the triennial update process . § 5 5 3.73(7)(g), Fla. Stat. (2016).

21 . In between each triennial re - adoption of a new Florida

Building Code , t he Commission was authorized to adopt technical

amendment s to the Florida Building Code once each year , b y

meeting the requirements in section 553.73(9), Florida Statutes

(2016) . T he se interim annual technical amendments, like the

amendments to Mode l Codes made as part of the triennial update

process , had to meet the standard that the change Ðis needed

in or der to accommodate the specific needs of this state . Ñ

§ 533.73(9)(a)1., Fla. Stat. (2016 ). Beyond that common

standard, the interim annual technical amendments were also

tested by f our additional standards , enumerated in

section 553.73(9)(a) 2 . through 5 . , Fl orida Statutes (2016) .

Interim annual technical amendments were also authorized to

incorporate the Commission Ós interpretations of the Florida

Building Code , Ðbut only to the extent that the incorporation

of interpretations is needed to modify foundat ion codes to

accommodate the specific needs of this state.Ñ § 553.73(9)(a),

Fla. Stat. (2016) (flush - left language after paragraph (9)(a)1.

through 5.).

2 2. Like prior changes made to the Model Codes in a past

triennial update process, interim technical amendments were not

automatically carried forward into the re - enacted Florida

Building Code. The interim amendments could be considered by the

Commis sion during the triennial update and incorporated into the

updated Building Code Ðto the extent they are n eeded to modify

the foundation codes to accommodate the specific needs of the

state.Ñ £ 553.73(7)(d), Fla. Stat. (2016).

2 3 . Finally, t he Commission was also authorized to amend

the Florida Building Code at any time to address such issues as

conflicts wi thin the code itself, conflicts with the Florida Fire

Prevention Code, unintended results from previously adopted

Florida - specific amendments , and changes to or inconsisten ci es

with state or federal law. § 553.73(8), Fla. Stat. (2016).

The Florida Buildin g Code Update and Amendment Process as

Modified by the 2017 Legislative Changes

24 . In 2017, the Florida Legislature made changes to

section 553.73 with regard t o the adoption and amendment of the

Florida Building Code.

25 . Under the newly amended statu te, the Commission still

must Ðadopt an updated Florida Building Code every 3 years.Ñ

§ 553.73(7)(a), Fla. Stat .

26 . However, instead of directing the Commission to adopt

the most recent versions of the Model Codes as the foundation for

a new version o f the Florida Building Code, subject to changes as

needed to accommodate specific needs of this state, t he statute

now provides t hat the Commission is to conduct its triennial

update process through a Ðreview of . . . the most current

updates of the [Model Codes] . Ñ Id.

27 . The new statute does not require t he Commission to

adopt any of the updates to the Model Codes that it reviews , with

one possible exception: ÐThe Commission must, at a minimum,

adopt any updates to [the Model Codes] or other code nec essary to

maintain eligibility for federal funding and discounts from the

National Flood Insurance Program, the Federal Emergency

Management Agency, and the United States Department of Housing

and Urban Development.Ñ Id. If there are no Model Code update s

or other code provisions that must be adopted to maintain the

specified eligibility, then the new law does not require the

Commission to adopt any of the Model Code updates ; the Commission

is only required to review them.

28. While not required to adopt any other Model Code

updates , the Commission is given the discretion to adopt Model

Code updates reviewed under section 553. 73(7)(a) as technical

amendments to the existing Florida Building Code , but only as

needed to accommodate the specific needs of thi s state , as

determined after following the process in section 553.73(3)

(providing for notice of proposed amendment s , consideration by a

Technical Advisory Committee , public input, and recommendation to

the Commission) . § 553.73(7)(c), Fla. Stat.

2 9 . T he 2016 law providing for automatic expiration of

Florida - specific amendments made to the Model Codes during the

prior triennial update process (wiping the slate clean for each

triennial update process) was deleted in t he 2017 law. See

ch. 2017 - 149, § 11, Laws of Fla. (deleting section 553.7 3 (7)(g) ,

Florida Statutes (2016)).

30. The 2017 law retains the CommissionÓs authority to make

additional technical amendments to the Florida Building Code in

between triennial updates pursuant to section 553.73(8) and (9) ,

which were retained with only minor amendments, primarily to

reflect the discontinuance of using Model Codes as Ðfoundation

codesÑ for the triennial re - adoption o f the Florida Building Code.

3 1 . The Commission will head into the first triennial

update process under the new law with the last edition of the

Florida Building Code in place , w hich has as its foundation the

most recent versions of the Model Codes in effect at the last

triennial update . Specific provisions of the Model Code

foundation would have been changed in the last triennial update

process only to the extent needed to accommod ate specific needs

of this state, and those Florida - specific amendments to the

foundation codes are also reflected in the last edition of the

Florida Building Code . The existing Florida Building Code also

reflect s any interim technical amendments meeting the same

Florida - specific need standard plus additional standards,

pursuant to section 553.73(9), Florida Statutes (2016), a nd

amendments resolving code confl icts under section 553 .73(8) .

3 2 . Wh ereas under the 2016 law, the existing Florida

Building Code was put aside , and the triennial process beg a n anew

with the most recent versions of t he Model Codes as the

foundation , now the starting place and foundation for the

triennial update process is t he existing Florida Building Code ,

with prior updates and changes carried forward . 3/

3 3 . The 2016 law plainly re flected a policy choice to

primarily use the Model Codes for the Florida Building Code , with

only neces sary tweaks made to meet specific needs of this state.

Just as plainly, the 2017 law reflects a policy change . While

the existing Florida Building Code may largely reflect the Model

Code provisions in effect at the last triennial update, on a

going - forwa rd basis, the 2017 law inverts the presumption that

Model Code updates should be used, absent a showing of chang es

needed to the Model Codes to accommodate Florida - specific needs.

U nder the new law , t he Model Code updates themselves -- and not

changes to th e Model Codes -- must be shown to be needed to

accommodate the specific needs of this state. T he Commission is

given discretion to adopt Model Code updates to amend the

existing Florida Building Code Ð only as needed to accommodate the

specific needs of this state [ , ] Ñ using the technical amendment

procedures set forth in section 5 5 3.73(3). See § 553.73(7)(c),

Fla. Stat. (emphasis added). The only exception, as noted above,

is for any Model Code updates or other code provisions necessary

to maintain eligibil ity for federal funding and discounts, which

must be adopted by the Commission.

3 4 . Thi s policy shift can best be seen by viewing the

amendment to section 553.73(7) (c) in bill form ( i.e., words

stricken are deletions; words underlined are additions ) , as s et

forth in chapter 2017 - 149, section 11, Laws of Florida:

The commission may adopt as a technical

amendment to the Florida Building Code modify

any portion of the foundation codes

identified in paragraph (a), but only as

needed to accommodate the specific needs of

this state. Standards or criteria adopted

from these referenced by the codes shall be

incorporated by reference to the specific

provisions adopted . If a referenced standard

or criterion requires amplification or

modification to be appropriate f or use in

this state, only the amplification or

modification shall be set forth in the

Florida Building Code. The commission may

approve technical amendments to the updated

Florida Building Code after the amendments

have been subject to the conditions set forth

in paragraphs (3)(a) - (d). Amendments that to

the foundation codes which are adopted in

accordance with this subsection shall be

clearly marked in printed versions of the

Florida Building Code so that the fact that

the provisions are Florida - specifi c

amendments to the foundation codes is readily

apparent.

The Proposed Rule

3 5 . The p roposed r ule seeks to change the current rule

provisions addressing the triennial update process in order to

conform with the 2017 changes made to section 553.73.

3 6 . T he p roposed r ule provides that the Commission may

amend the Florida Building Code Ð [ t ] o update the Florida Building

Code every three years pursuant to S ubsection 553.73(7), Florida

Statutes . W hen updating the code, the Commission shall review

the most cu rrent updates to the [Model Codes] . Ñ Proposed Fla.

Admin. Code R. 61G20 - 2.002(2) and (2) (a). To this extent, the

parties stipulated that the proposed rule is consistent with the

2017 statute.

3 7 . Petitioner Ós challenge is directed to two aspects of

prop osed rule 61G20 - 2.002(2), providing as follows:

(2) The Florida Building Commission may

amend the Florida Building Code for the

following purposes:

(a) To update the Florida Building Code

every three years pursuant to Subsection

553.73(7), Florida Statu tes. When updating

the code, the Commission shall review the

most current updates to the model codes

including but not limited to the

International Building Code, the

International Fuel Gas Code, the

International Existing Building Code, the

International Mechanical Code, the

International Plumbing Code, the

International Residential Code, the

International Energy Conservation Code, and

the National Electrical Code (NEC) for the

purpose of determining whether the latest

changes to the model codes are neede d to

accommodate the specific needs of this

state . The Commission shall also consider

its own interpretations, declaratory

statements, appellate decisions, and local

technical amendments. For the purpose of

conducting this review, the following steps

wil l be undertaken:

1. The Commission shall select the model

codes that will be used to conduct its

review.

2. No sooner than ninety days after the

latest updates of the model codes are

published, a complete listing of the changes

to the model codes will b e posted and made

available for public review on the

CommissionÓs website.

3. No sooner than one hundred fifty days

after the listing of the changes to the model

codes is posted, the CommissionÓs Technical

Advisory Committees (TACs) will meet to

review t he changes to the model codes and

make recommendations to the Commission

regarding those changes that are needed to

accommodate the specific needs of this

state. The TACsÓ recommendations will be

posted on the CommissionÓs website for

further public revie w.

4. No sooner than ninety days after posting

the TACsÓ recommendations, the Commission

will meet to vote whether to approve the

TACsÓ recommendations regarding the latest

changes to the model codes that are needed to

accommodate the specific needs of t his

state. After Commission approval, the

approved changes to the Florida Building Code

needed to accommodate the specific needs of

this state will be made available on the

CommissionÓs website. The public will then

have the opportunity to submit amendme nts to

the Florida Building Code and the approved

changes to the Florida Building Code pursuant

to Subsection (3) of this rule.

(b) To amend the Florida Building Code

pursuant to Subsection 553.73(8), F.S.

(c) To amend the Florida Building Code, once

e ach year, pursuant to Subsection 553.73(9),

F.S.

3 8 . FAAIAÓs first objection is that the proposed rule

provides that during the triennial update process , the Commission

is only authorized to adopt portion s of the most current updates

to the Model Codes t hat are determined to be Ðneeded to

accommodate the specific needs of this state.Ñ FAAIA contends

that th is standard is not found in the 2017 law with regard to

the triennial update of the Florida Building Code .

39 . FAAIAÓs contention is rejected. As th e Commission

points out, the amendment to section 55 3.73(7)(c) specifically

provides for this standard: ÐThe commission may adopt as a

technical amendment to the Florida Building Code any portions of

the codes identified in paragraph (a), but only as need ed to

accommodate the specific needs of this state.Ñ

40 . FAAIA seizes on the use of the phrase Ðtechnical

amendmentÑ in the above - quoted sentence to argue that this entire

paragraph is a misplaced reference to the interim annual

technical amendments aut horized in section 5 5 3.73(9) . FAAIAÓs

argument is belied by a comparison of the 2016 and 20 1 7 versions

of section 553.73(7)(c). The statutory amendment in bill format

in paragraph 34 above demonstrates that this provision represents

the inverse of the pr ior law whereby as part of the triennial

update process, specific provisions in the updated Model Codes

could be changed, but only as needed to accommodate the specific

needs of the state. FAAIA concedes that under the 2016 law, the

CommissionÓs authority in section 553.73(7)(c) to modify Model

Code provisions as needed to accommodate Florida - specific needs

was part of the triennial update process. The 2017 law amended

this part of the triennial update process , to authorize the

Commission to adopt Model C ode updates as technical amendments to

the existing Florida Building Code, but only as needed to

accommodate the specific needs of this state. The new law simply

refl ects the inverted priorities, with Model Code update s no

longer occupying the preferred f oundational position. The new

law also reflects the change, not disputed by FAAIA, from re -

adoption of a new Florida Building Code at each tr iennial update,

to a process of considering amendments to the existing Florida

Building Code to update the code .

4 1 . FAAIAÓs argument also cannot be squared with the

organizat ional structure of the statute . S ubsection (7)

addresses the triennial update process , as made clear in the

first sentence of proposed rule 61G20 - 2.002(2)(a) (ÐTo update

the Florida Building Co de every three years pursuant to

Subsection 553.73(7), Florida StatutesÑ) , which was not

challenged by FAAIA . T he technical amendments authorized by

paragraph (c) are part of the triennial update process addressed

by subsection (7).

4 2 . It bears noting that the last sentence of section

553.73(7)(c) now provides: ÐAmendments that are adopted in

accordance with this subsection shall be clearly marked in

printed versions of the Florida Building Code so that the fact

that the provisions are amendments is r eadily apparent.Ñ

(emphasis added). By virtue of the numbering system used in the

Florida Statutes, ÐsubsectionÑ means all of section 553.73(7).

Section 553.73(7)(c) is a paragraph, not a subsection. See

Preface to Florida Statutes, Number ing system (Ð Chapters are

identified by whole Arabic numbers; sections, by numbers

containing a decimal point; subsections, by whole Arabic numbers

enclosed by parentheses; paragraphs, by lowercase letters

enclosed by parentheses ; subparagraphs, by whole Arabic numbers

followed by a period; sub - subparagraphs, by lowercase letters

followed by a periodÑ and so forth).

4 3 . This same s entence read as follows in the 2016 law:

ÐAmendments to the foundation codes which are adopted in

accordance with this subsection shall be clearly marked in

printed versions of the Florida Building Code so that the fact

that the provisions are Florida - specific amendments to the

foundation codes is readily apparent.Ñ § 5 5 3.73(7)(c), Fla.

Stat. (2016). The contrast betwe en the 2 016 and 2017 v ersions of

this sentence makes plain the legislative intent to shift from a

Model - Code - first approach, with Model Code provisions amended

only as needed for Florida - specific needs , t o a Florida - specific

Florida Building Code , amended to incorporate Model C ode updates

only to the extent needed to a ccommodate specific Florida needs. 4/

4 4 . FAAIAÓs argument that section 553.73(7)(c) is a

misplaced reference to the interim annual technical amendments

authorized by section 553.73(9) would render section 553.73(7 )(c)

meaningless , because interim annual technical amendments are

already fully addressed in section 553.73(9). Indeed, FAAIAÓs

argument, if accepted, would create conflict between the existing

standards for interim annual technical amendments in section

553.73(9) and the standards in section 553.73(7)(c) for technical

amendments to adopt Model Code updates as part of the triennial

review and update process.

4 5 . Although FAAIA argues that section 5 5 3.73(7)(c) does

not apply to the triennial update process , FAAIA does not

identify any other statutory authority or standards that address

whether and when t he Commission may adopt Model Code updates that

are not required to maintain eligibility for federal funding and

discounts. Section 553.73(7)(a) used to pr ovide the statutory

authority to adopt all of the updated Model Codes as the

foundation code s, but the 2017 amendment removed that blanket

authority. Now, s ection 553.73(7)(a) only authorizes the

Commission to review updates to the Model Codes, and direct s the

Commission to, Ðat a minimum , Ñ adopt updates of Model Code s or

any other code necessary to maintain eligibility for specified

federal funding and discounts. Section 553.73(7)(c) completes

the delegation by providing the authority, the standard s, and the

procedures 5/ by which the Commission ÐmayÑ go beyond the ÐminimumÑ

to adopt other Model Code updates . Unless construed this way, as

it should be, there would be no standards and no authority to

adopt Model Code updates as part of the triennial update process

outside of the limited parameters specified in paragraph (a)

(i.e . , when necessary to maintain eligibility for certain funding

and discounts ) . FAAIAÓs argument would remove an integral part

of the inverted triennial update process called for b y t he 2017

legislative chan ges, whereby Model Code updates can find their

way into the Florida Building Code, but only if they are

demonstrably needed to accommodate Florida needs.

4 6 . The standard in p roposed rule 61G20 - 2.002 for adopting

updat es to Model C odes as part of the triennial update process

does not modify, enlar ge, or contravene the cited law s

implemented . Rather, the standard carries out, and is consistent

with, the CommissionÓs specific powers and duties, particularly

those set forth in section 533.73(7)(c) . The proposed rule is

not an invalid exercise of delegated legislative authority as to

this FAAIA objection.

4 7 . FAAIAÓs other o bjection raised in this challenge is

directed to proposed rule 61G20 - 2.002( 2)(a)1. , part of th e

triennial update process , providing : ÐThe Commission shall

select the model codes that will be used to conduct its review.Ñ

4 8 . There is no dispute that section 553.73(7) (a) requires

the Commission to review updates to specifically named codes,

which have been collectiv ely identified throughout this Final

Order as the Model Codes, as part of the triennial update

process . The statute directs the Commission to review Ð the most

current updates of the International Building Code, the

International Fuel Gas Code, Internation al Existing Building

Code, the International Mechanical Code, the International

Plumbing Code, . . . the International Residential Code, . . .

the National Electric Code, . . . and . . . the International

Energy Conservation Code . Ñ § 553.73(7)(a), Fla. St at.

49 . FAAIAÓs object s to proposed rule 61G20 - 2.002(2)(a)1. on

the grounds that it would allow the Commission to select which

Model Codes it will review, and which to exclude from review , as

the first step of the triennial update process. FAAIAÓs

objec tion would be well - founded if the rule stood alone and were

considered in isolation from the lead - in language preceding it.

5 0 . Proposed rule 61G20 - 2.002(2)(a) , preceding and leading

into the challenged subparagraph 1., however, sets forth the

actual fi rst step of the triennial update process pursuant to

section 553.73(7): ÐWhen updating the code, the Commission shall

review the most current updates to the model codes, including but

not limited to [the Model Codes] for the purpose of determining

whether the latest changes to the model codes are needed to

accommodate the specific needs of this state.Ñ Each Model Code

enumerated in the statute is listed in proposed rule 61G20 -

2.002(2)(a) . This part of the proposed rule clearly incorporates

the statutoril y - mandate d review of updates to all Model Codes .

5 1 . The last sentence of paragraph (2)(a) serves as the

lead - in to subparagraphs 1. t hrough 4., providing: Ð F or the

purpose of conducting this review, the following steps will be

undertaken [.] Ñ

5 2 . In arguing for the validity of this challenged proposed

rule provision, the Commission first contends that the seemingly

broad language i s not intended to give the Commission carte

blanche to exclude any of the Model Codes, which are specifically

designated in the statute , nor could it be read to give that

authority, because the obligation to review the most recent

updates to all of the Model Codes named in the statute is

repeated in proposed rule 61G20 - 2.002(2) (a) , and all of those

Model Codes are listed . T he undersigned agrees that proposed

rule 61G20 - 2.002(2)( a )1. must be read in conjunction with the

lead - in paragraph (2)(a), and that the proposed rule provision

for the Commission to select model codes to review is reasonably

interpreted to authorize a sel ection of model codes in addition

t o the listed Model Codes in paragraph (2)(a) , which must be

reviewed . Indeed, paragraph (2)(a) says that the Commission will

review updates to model codes, Ðincluding but not limited toÑ the

Model Codes listed in the sta tute. Subparagraph 1., then,

addresses the Ðnot limited toÑ part of paragraph (2)(a), while

not undermining the ÐincludingÑ part of paragraph (2)(a) , which

is the obligation, consistent with the statute, to review updates

to all of the named Model Codes .

5 3 . FAAIA does not object to the proposed rule insofar as

it might be read to authorize the Commission to review additional

model codes beyond the Model Codes enume rated in the statute, as

part of the triennial review process. In this regard, the

C ommiss ion notes that it is required to adopt updates to Model

Codes Ð or any other code necessary to maintain eligibility Ñ for

certain federal funding and discounts. § 553.73(7)(a), Fla.

Stat. (emphasis added). The Commission maintains that proposed

rule 61G20 - 2.002(2)(a)1. is directed to this statutory provision,

to allow the Commission to select additional codes to review for

purposes of identifying provisions necessary to maintain

eligibility for the specified funding and discounts. While the

proposed rule i s not worded in a way to limit the CommissionÓs

selection of additional codes for review to only those codes that

could arguably trigger the statutory mandate referred to in

section 553.73(7)(a), this concern is beyond the scope of the

objection raised by FAAIA. FAAIA Ós objection is only that the

proposed rule could authorize the Commission to exclude specified

Model Codes .

5 4 . For these reasons, proposed rule 61G20 - 2.002(2)(a)1. is

determined to be a valid exercise of delegated legislative

authority as t o the objection raised . The proposed rule , when

properly read in conjunction with the lead - in paragraph (2)(a),

does not modify, enlarge, or contravene the cited laws

implemented by allowing the Commission to exclude review of

updates to the Model Codes n amed in section 553.73(7)(a).

Instead, the Commission is obligated to review updates to all of

the Model Codes , pursuant to proposed rule 61G20 - 2.002(2)(a).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the chall enged provisions of proposed

rule 61G 20 - 2.002(2) are valid exercise s of delegated legislative

authority as to the objections raised , and the Petition is

dismissed.

DONE AND ORDERED this 15th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February , 2018 .

ENDNOTE S

1/ References to Florida Statutes are to the 2017 codification,

unless otherwise indicated .

2/ By expressly providing that a challenged propos ed rule is

not entitled to a presumption of validity, and by allocating

the burden of proving the validity of a proposed rule on the

agency, sec tion 120.56(2) dictates against according deference

to an agencyÓs interpretation of a statute that it administe rs ,

at least where, as here, the sole evidence of the agencyÓs

interpretation of the statute is the proposed rule itself. The

CommissionÓs argument that it should be accorded such deference

by judging the validity of its proposed rule under a Ðclearly

err oneousÑ standard mus t be rejected as contrary to

section 120.56(2) .

3/ As reasonably interpreted by the Commission in the proposed

rule and not challenged by FAAIA , the existing Florida Building

Code remains in place, b ut may be amended by the Commission for

the purpose of updating the code every three years, pursuant to

section 553.73(7) . See proposed rule 61G20 - 2.002(2) and (2)(a)

( ÐThe Florida Building Commission may amend the Florida Bui l ding

Code for the following purposes: (a) To update the Flori da

Building Code every three years pursuant to Subsection 553.73(7),

Florida Statutes.Ñ ) (emphasis added). T he 2017 law could have

been clearer in this regard, but the CommissionÓs interpretation

is the reasonable, logical, and necessary result of elimina ting

the requirement to start anew with the most recent versions of

the Model Codes serving as the foundation code s , and also

eliminating the automatic expiration of prior amendments or

modifications to the foundation code s .

4/ FAAIA does not contend t hat the standard in the proposed rule

for adopt ing Model Code updates -- that the y are needed to

accommodate the specific needs of this state -- is inconsistent

with the statutory mandate that the Commission adopt any code

provisions necessary to maintain elig ibility for certain federal

funding and discounts. Th at is perhaps because the proposed rule

standard allows for the Commission to comply with that statutory

mandate. See proposed rule 61G20 - 2.002(1)(a)2.c. (defining

technical amendments Ð needed to accom modate the specific needs of

this state Ñ to include amendments that Ð[m]aintain eligibility

for federal funding and discounts f rom the National Flood

Insurance Program, the Federal Emergency Management Agency, and

the United States Department of Housing an d Urban Development.Ñ ).

5/ Apparently as part of FAAIAÓs o bjection to the standard for

adopting Model Code updates as technical amendments in the

triennial update process , FAAIA notes with disapproval that along

with this standard, the proposed rule set s forth a four - step

process for determining wh ether the standard is met. FAAIA does

not appear to lodge a distinct challenge t o this four - step

process , but if it had, such a challenge would meet the same

result as the challenge to the standard . S ection 5 53.73(7)(c) ,

which is the source of the standard to which FAAIA ob jects, also

references the procedure , by providing that technical amendments

cannot be approved until Ðafter the amendments have been subject

to the conditions set forth in paragraphs (3)(a) - (d).Ñ

Section 553.73( 3)(a) through (d) contains the requirements for

notice of proposed amendments, consideration by a technical

advisory committee, recommendation to the Commission , and public

input, leading to the CommissionÓs determination . Ap art fro m

section 553.73(7)(c), the procedures in section 553.73(3)

exp ressly appl y to technical amendments under section 553.73(8)

( authorizing amendments at any time to resolve conflicts and

similar issues) and (9) (authorizing annual technical amendments

based on specified standards) . Section 553.73(7)(c) makes these

same procedures appl icable to technical amendment proposals to

adopt Model Code updates as part of the triennial update process ,

to determine if the applicable standard -- different from the

standard s in 553.73(8) and (9) -- is met . The proposed rule s imply

lays out the procedures in section 553 .73(3) (a) through (d) , a s

part of the process t o consider whether to adopt Model Code

updates as technical amendments pursuant to section 553.73(7)(c),

since th e statute only incorporates the procedures by reference.

COPIES FURNISHED:

W. Justin Vogel, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 22 0 2

(eServed)

J. Michae l Huey, Esquire

D. Ty Jackson, Esquire

Allison G. Mawhinney, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302

(eServed)

Ila Jones, Administrator

Florida Building Codes and Standards

Florida Building Commission

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Flor ida 32399 - 2202

(eServed)

Jonathan Zachem, Secretary

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

NOTICE OF RIGH T 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 com menced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by l aw, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.