Untitled California Attorney General Opinion ( 1991 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 90-305
of :
: January 3, 1991
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
___________________________________________________________________
_____________
THE CALIFORNIA BUILDING STANDARDS COMMISSION has requested
an opinion on the following question:
Does Health and Safety Code section 18941.5, subdivision
(a), apply the building standards as they appear in the model codes
that are named in that subdivision, or as they have been amended and
appear in the California Building Standards Code, to all occupancies
throughout the state?
CONCLUSION
Health and Safety Code section 18941.5, subdivision (a),
applies the building standards of the model codes named in the
subdivision as they have been amended and appear in the California
Building Standards Code to all occupancies throughout the state.
ANALYSIS
The State Building Standards Code (Tit. 24, Cal. Code
Regs.) is a composite of building standards of three different
backgrounds: some have been adopted directly by state agencies
without change from building standards contained in various model
industry codes; some have been adapted from the model codes'
standards to meet California conditions; and some constitute
extensive additions to the model codes that have been adopted to
address particular California concerns.
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Section 18941, subdivision (a), of the Health and Safety
Code1/ makes certain building standards applicable to all occupancies
throughout California. The subdivision provides as follows:
"The building standards contained in the Uniform Fire
Code of the International Conference of Building Officials
and the Western Fire Chiefs Association, Inc., the Uniform
Building Code of the International Conference of Building
Officials, the Uniform Plumbing Code of the International
Association of Plumbing and Mechanical Officials, the
National Electrical Code of the National Fire Protection
Association, the Uniform Mechanical Code of the
International Conference of Building Officials and the
International Association of Plumbing and Mechanical
Officials as referenced in the State Building Standards
Code shall apply to all occupancies throughout the state
and shall become effective 180 days after publication in
the State Building Standards Code by the State Building
Standards Commission or at a later date after publication
established by the commission."
The question presented asks which are the building standards that the
subdivision makes applicable to all occupancies throughout the state:
those that are contained in the uniform model codes themselves as
adopted by the various private organizations, or those that have been
adapted by state agencies, through additions and deletions to those
found in the model codes, and are published in the State Building
Standards Code. We conclude they are the latter.2/
1. Unidentified section references hereinafter refer to
sections of the Health and Safety Code. Also, all references to
the State Building Code, the State Building Standards Code, and
Title 24 of the California Administrative Code, mean the California
Building Standards Code. (§ 18902.)
2. Although subdivision (a) of section 19841.5 provides that
the building standards to which it refers are to be applicable to
all occupancies throughout the state, subdivisions (b) and (c) of
the section recognize that cities and counties might modify them
under certain circumstances. With respect to that authority, we
were also asked whether cities and counties have authority to amend
the building standards required by section 18941.5, subdivision
(a), and if so, if those amendments had to be based on local
climatic, geological, or topographical conditions. Subsequent to
entertaining the request, we were informed that the question of the
scope of local authority under section 18941.5 is an issue in
pending litigation in both federal and state court. This office
"has traditionally declined to provide opinions on such questions
while the litigation is pending." (66 Ops.Cal.Atty.Gen. i, iv
[Foreword] (1983).)
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In answering the question our primary task is to ascertain
the intention of the Legislature for enacting subdivision (a) of
section 18941.5 so that we may interpret it in such a way as to
further that intent. (Cf., Sand v. Superior Court (1983) 34 Cal.3d
567, 570; Great Lakes Properties, Inc v. City of El Segundo (1977) 19
Cal.3d 152, 153.) To do so we look to the words of the subdivision
itself (People v. Belleci (1979) 24 Cal.3d 879, 884; Moyer v.
Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230), "according
significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose." ( Dyna-Med, Inc. v. Fair
Employment & Housing Comm. (1987) 43 Cal.3d 1379, 1387). "A statute
must be construed 'in the context of the entire statutory scheme of
which it is a part, in order to achieve harmony among the parts.'"
(People v. Woodhead (1987) 43 Cal.3d 1002, 1009.)
The State Building Standards Law (§ 18901 et seq.) requires
state agencies responsible for the adoption of building standards to
submit them to the State Building Standards Commission for review and
approval (§§ 18929, 18930, 18931 subds. (a),(c)), after which they
are codified into the State Building Standards Code (§§ 18931, subd.
(b), 19839, 18940; cf. §§ 18910, 18911). The standards adopted by
the agencies are based in the main on standards contained in
"uniform" or "model" industry codes, which are developed by private
organizations through a consensual process among product
manufacturers, building industry representatives, and government
building officials to govern various aspects of building construction
within the industry's concern. (§§ 18930, subd. (a)(7); 18932, subd.
(c); 18941; cf. §§ 18916; 18928, 18939; see Danville Fire Protection
Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241,
249; 65 Ops.Cal.Atty.Gen. 397, 399, 401 (1982); 63 Ops.Cal.Atty.Gen.
566, 568-570 (1980); 60 Ops.Cal.Atty.Gen. 234, 237 (1977).)3/
But state agencies do not necessarily adopt building
standards contained in the model codes without change; to the
contrary, they are authorized and expected to amend them, with
appropriate additions or deletions, in order to tailor them to
particular California conditions and to address particular California
programs, interests, and public health and safety concerns. (Cf. §§
3. These would include, for example, the Uniform Housing Code
and the Uniform Building Code of the International Conference of
Building Officials, the Uniform Plumbing Code and Uniform
Mechanical Code of the International Association of Plumbers and
Mechanical Officials, the National Electrical Code of the National
Fire Protection Association, and the Uniform Fire Code of the
International Conference of Building Officials and the Western Fire
Chiefs Association, Inc. (Cf. § 18916 [definition of "model
code"].)
3. 90-305
18928, subd. (b), 18930, subd. (a)(7)(A), 18939.) 4/ Where such
changes are made, the building standards submitted to the State
Building Standards Commission for approval will contain them, and it
will be the standards as changed from their model code progenitors
that will appear in the State Building Standards Code. (Cf.
§§ 18938, 18939.) Thus a building standard of a model code that has
been amended by a state agency will not appear in the State Building
Standards Code in its original form, but rather as it has been
adapted by the agency for projects and programs under its
jurisdiction or to meet particular California building conditions.
(Ibid.; see also Matrix Adoption Appendices in Title 24.)
With this in mind, if we now return to subdivision (a) of
section 18941.5 and look to the clause following "as referenced in
the State Building Standards Code," the standards about which the
subdivision speaks become clear. It provides that those standards
"shall become effective 180 days after [their]
publication in the State Building Standards Code by the
State Building Standards Commission...."
As just seen, building standards, of whatever provenance, do not come
to be published in the State Building Standards Code without going
through the formal adoption process prescribed by the State Building
Standards Law. But in that process, building standards from model
codes that have been amended by state agencies are not published in
the State Building Standards Code in their original pre-amended form
at all, but only as they have been amended with appropriate additions
and deletions to meet particular California conditions or program
demands. Thus when subdivision (a) of section 18941.5 predicates the
effective date of the specified standards upon their publication in
the State Building Standards Code, it establishes beyond doubt that
it is referring to the building standards as they have been amended
4. By way of specific examples: under section 17922,
subdivision (a), the Department of Housing and Community
Development adopts building standards that "impose substantially
the same requirements as are contained in the most recent editions
of [certain enumerated] uniform industry codes" but with "additions
or deletions" as are appropriate to the needs of California. (See
63 Ops.Cal.Atty.Gen. 566, 578, supra; see also § 19990 [building
standards for factory built housing].) Under section 4450 of the
Government Code, the State Architect adopts building standards to
ensure that certain buildings and facilities are accessible to and
usable by the physically disabled; these standards are to be
"consistent with the standards for buildings and structures which
are contained in pertinent provisions of the latest edition of the
Uniform Building Code," but with "such additional requirements ...
as the State Architect determines are necessary to assure ...
access and usability...." (See also, § 19955 et seq.)
4. 90-305
by state agencies, for once a standard in a model code is amended, it
is only the amended version which appears in the State Building
Standards Code.5/
Furthermore, had the Legislature wished to have the
building standards as they appear in the model codes apply to the
state's occupancies, it need not have employed the language "as
referenced in the State Building Standards Code," but could have
simply stopped with the listing of the model codes in which they
appear. But the "as referenced in" language was used; thus, any
interpretation that the model codes' pre-amended standards were
nonetheless meant to apply would make it surplusage. However, it is
a principle of statutory interpretation that "[a] construction making
some words surplusage is to be avoided." ( Watkins v. Real Estate
Commissioner (1960) 182 Cal.App.2d 397, 400; accord, City and County
of San Francisco v. Farrell (1982) 32 Cal.3d 47, 55; California
Mfgrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)
For that reason too, the mention of "the building standards contained
[in the specified model codes] as referenced in the State Building
Standards Code" cannot be interpreted to refer to the standards as
they were contained in the model codes in their pre-amended form
before the California additions and deletions were made to them.
The phrase in question thus alludes to the standards
contained in the model code standards, not as they appeared therein,
but as they have been brought to appear in the State Building
Standards Code. This interpretation of the "as referenced in"
language in section 18941.5, subdivision (a), is consistent with the
use of the term "reference" in sections 18928 and 18939, other
provisions of the State Building Standards Law. There it is a term
of art which prescribes the way in which model code standards are
adopted in whole or in part for inclusion in the State Building
Standards Code without reproducing their text. 6/ When a model code
5. It should also be noted that if the Legislature intended
to have the original unadapted model code standards apply, and
establish a deadline for their implementation, it would not have
set a deadline upon their "publication in" the State Building
Standards Code because the 180-day period would never commence -­
since they are not published in the code. Rather the Legislature
would have set the deadline for their implementation "180 days
after publication of the State Building Standards Code," as it
originally did in subdivision (b) of section 18941.5 to set a date
when local standards which deviate from the Code, and which also do
not appear in it, become effective. (§ 18941.5, subd. (b) as added
by Stats. 1988, ch. 1302, § 1.) We note that the word "of" was
inadvertently deleted when subdivision (b) was amended last year
(Stats. 1989, ch. 952, § 5).
6. Section 18928, subdivision (a) provides that "Each state
agency adopting a model code, national standard, or specification
5. 90-305
standard is adopted for California without modification, that is done
by referencing the standard --i.e., citing and adopting the section
of the model code which contains it, but not reproducing the text.
When a model code standard is adapted for California purposes,
similar citation is made to it but with the appropriate additions and
deletions set forth, or a full text of the adapted California version
appears. (See Matrix Adoption Appendices in Title 24.) Hence, a
"referenced" model code may refer to something other than the entire,
unmodified model code.
Since it is reasonable to assume that the Legislature did
not intend to use a significant term in two different senses in the
same law (Stillwell v. State Bar (1946) 29 Cal.2d 119, 123; Rosemary
Properties, Inc. v. McColgan (1947) 29 Cal.2d 677, 686; Diachenko v.
State of California (1981) 123 Cal.App.3d 932, 928), we may safely
presume that when it used the past participle of "reference" in
section 18941.5, it had the same meaning for it as it had when it
used the term in sections 18928 and 18939. Hence, in the context of
section 18941.5, the citation to "the building standards contained in
the [various industry codes] as referenced in the State Building
Standards Code" means the standards contained in the model codes in
the way they have been made to appear in the State Building Standards
Code. So understood, that would include any "appropriate additions
and deletions" that were made to them by California agencies.
Finally it should be mentioned that some question has been
raised as to whether the application of the building standards in the
State Building Standards Code might not be limited by the
programmatic responsibilities of the adopting agencies. In other
words, it is suggested that a building standard should only apply to
the types of occupancies that are within the specific area(s) of
jurisdictional concern of the state agency which adopted it. We do
not accept such a limitation. Section 18941.5 does not direct the
application of the building standards in the State Building Standards
Code according to the areas of individual concern of the adopting
agencies, but states that they are to "apply to all occupancies
throughout the state. . . ." (Emphasis added.) Since the term
"occupancy" is defined as "the purpose for which a building . . . is
used or intended to be used" (§ 18917), that would mean that the
standards were meant to apply on a generalized basis to all uses. Of
course, where a standard specifically states that it is to only apply
shall reference the most recent edition of the applicable model
codes, national standards, or specifications." (Emphasis added.)
Section 18939 provides that "Building standards adopted or
approved by the [State Building Standards Commission] shall
incorporate the text of the model codes, applicable national
specifications, or published standards, in whole or in part, only
by reference, with appropriate additions or deletions therefrom."
(Emphasis added).)
6. 90-305
to a particular type of occupancy, only that occupancy would be
covered by it.
We therefore conclude that section 18941.5, subdivision
(a), requires the application of building standards as they have been
amended and appear in the State Building Standards Code to all
occupancies throughout the state.
* * * * *
7. 90-305