STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA HOME BUILDERS ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1443RP

) DEPARTMENT OF ADMINISTRATION, STATE ) ENERGY OFFICE, )

)

Respondent. )

) BUILDERS ASSOCIATION OF SOUTH FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1482RX

)

DEPARTMENT OF ADMINISTRATION, )

)

)

Respondent. )

)

FINAL ORDER

The Petitioner, Florida Home Builders Association, filed a petition for determination of invalidity of a proposed rule pursuant to Section 120.54(4) , Florida Statutes (1977). Through its petition the Florida Home Builders Association is seeking a determination that the "State of Florida Model Energy Efficiency Building Code" which is being developed by the State Energy Office, a division of the Department of Administration, constitutes an invalid exercise of delegated legislative authority. The case was assigned to the undersigned Hearing Officer by order entered August 23, 1978. The final hearing was scheduled to be conducted on September 22, by notice dated August 29, 1978.

APPEARANCES

For Petitioners: Stephen W. Metz

Tallahassee, Florida

For Respondent: David V. Ferns

Tallahassee, Florida

The Petitioner, Builders Association of South Florida, filed a petition for determination of invalidity of a rule pursuant to Section 120.56, Florida Statutes (1977). Through its petition the Builders Association of South Florida is seeking a determination that the Model Energy Efficiency Building Code constitutes an invalid exercise of delegated legislative authority. The case was assigned to the undersigned Hearing Officer by order entered August 28, 1978. The final hearing was scheduled to be conducted on September 22, by

notice dated August 29, 1978. Petitioners moved to consolidate the cases. The motion was granted at the hearing.

The Petitioners contend that the Model Energy Code constitutes a rule, but was not properly promulgated as a rule. They allege that no economic impact statement was prepared in connection with the Code, that the Code was not properly noticed in the Florida Administrative Weekly, and that it is not to be published in the Florida Administrative Code. Petitioners further assert that even if the Code were properly promulgated it constitutes an invalid exercise of delegated legislative authority because the Legislature has not authorized the State Energy Office to adopt such a rule. The State Energy Office has admitted that it does not have the authority to adopt the Code as a rule, and that the Code was not adopted as a rule. The Energy Office contends that the Petitioners lack standing to maintain rule challenges against the Code, and that the Code is not a rule.

FINDINGS OF FACT

1. The State Energy Office of the Department of Administration is seeking to promulgate a Model Energy Efficiency Building Code. The proposed Code could have no enforcement provisions, and would not, on its own, apply to anyone. It is intended to set up proposed minimum standards to achieve a degree of energy efficiency in the construction of new hones. It is being offered to county and municipal governments far their consideration and possible adoption. Under the provisions of the Florida Lighting Efficiency Code, Section 553.89, Florida Statutes (1977), county and municipal governmental units which serve as building code enforcement agencies will be required to implement and enforce energy efficiency standards which are no less stringent than standards set by the American Society of Heating, Refrigeration, and Air Conditioning Engineers Standard 90-75. In developing its Model Code, the Energy Office is seeking to offer local governments a Code which would in some respects be more stringent than required by statute, and which would, in the Energy Office's opinion, be more relevant to climactic conditions in Florida.

   
   

2. In developing the Model Energy Code, the Energy Office has not undertaken any of the steps required for rulemaking. The Energy Office has not prepared an economic impact statement, has not noticed the Code as proposed rules must be noticed, and has not published it as rules must be published. The Energy Office contends that the Model Code is not a rule, and that it is therefore not necessary to adopt the Code through rulemaking procedures. Generally the Code is more stringent than the requirements set out in American Society of Heating, Refrigeration, and Air Conditioning Engineers Standard 90- 75, but in other respects it contains identical provisions.

   
   

3. The Code which was offered into evidence is actually a first draft and is not complete. At several junctures there are blanks which remain to be completed. The first draft of the Code was prepared by consulting engineering and planning firms which were retained by the Energy Office.

   
   

4. The Petitioner, Florida Home Builders Association (FHBA), is a trade organization made up of builders, contractors, and suppliers in the construction industry. It has nine thousand members who come from every county in Florida. The FHBA has been authorized by its Directors to maintain this action. If the Model Energy Code is adopted by any counties or municipalities in its present form, it would have an impact upon members of the FHBA. Since the Code's provisions are in some respects more stringent than those required by the statutes, the cost of construction would undoubtedly increase. The Model Energy

   Code will not have any impact upon FHBA members, however, unless it is adopted by local enforcement agencies.

   
   

5. The FHBA is itself planning to construct a new building beginning in February. If the Code were adopted by the local government in the place where the FHBA constructs its new building, then the FHBA would be impacted by the Code.

   
   

6. The Building Association of South Florida is an association of home builders and apartment builders. It has been authorized by its membership to bring this action on behalf of the members. The Association has more than eight hundred members in Broward, Dade, and Monroe counties. If local government enforcement agencies in any of these counties adopted the Model Energy Code in its present form then the Model Energy Code would impact the members by increasing the cost of construction.

   
   

7. The Model Energy Efficiency Code will have no effect upon anyone unless it is adopted by local governments. The State Energy Office intends to encourage local governments to adopt the Code through its consulting engineers and planners. Whether any local governments will adopt the Code, and whether they will adopt it in the present form or with modification is, however, a matter of conjecture.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings, and over the parties. Sections 120.54(4), 120.56, Florida Statutes (1977).

   
   

9. The term "rule" is defined at Section 120.52(14), Florida Statutes (1977) as follows:

   
   

   "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy...

   
   

   The Model Energy Code does not fit the definition. The Code is an effort by the Energy Office to implement its statutory responsibilities to develop energy conservation measures, and to assist counties and municipalities as provided by Section 377.703, Florida Statutes (1977) as amended by Chapter 78-25, Laws of Florida. The Code will have no effect upon any person unless it is adopted by counties or municipalities. It therefore not only lacks general applicability, it lacks any applicability whatever.

   
   

10. If the Model Energy Code were a rule, the Petitioners lack the requisite standing required to challenge it. In order to seek an administrative determination of the invalidity of a proposed rule, or of an existing rule, a person must be substantially affected by it. Sections 120.54(4)(a), 120.56(1). The Petitioners have failed to show that they would have any continuing, present adverse effects from the Model Energy Code, assuming that a final draft is adopted by the State Energy Office. Whether the Code will have any impact upon Petitioners or their members is a matter of speculation. Petitioners have also not shown that the Model Code is unconstitutional. Petitioners therefore are not substantially affected by the Code. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1 DCA Fla. 1978).

11. The Respondent has requested that a reasonable attorney's fee be assessed against the Petitioners in favor of the Respondent for its defense of these actions, together with its costs. The Respondent contends that Petitioners have failed to raise a justiciable issue of either law or fact in this proceeding, that the Division of Administrative Hearings is a tribunal authorized to assess attorney's fees under the provisions of Chapter 78-275, Laws of Florida, and that the Respondent is entitled to such an assessment. Assuming that the Division has the authority to assess fees, this would not be an appropriate case for it. While it has been concluded that Petitioners should not prevail in this action, they have raised substantial justiciable issues.

The request for attorney's fees and costs will be denied.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, ORDERED:

1. The Petition for Determination of Invalidity of a Proposed Rule filed by the Florida Home Builders Association, and the Petition for Determination of Invalidity of Rule filed by the Builders Association of South Florida are hereby dismissed.

   
   

2. The Respondent's prayer for the assessment of costs and attorney's fees is hereby denied.

ENTERED this 19th day of October, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Stephen W. Metz, Esquire Post Office Box 1259 Tallahassee, Florida 32302

David V Kerns, Esquire Department of Administration Carlton Building Tallahassee, Florida 32304

Mr. Carroll Webb Executive Director

Administrative Procedure Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State Room 1802, The Capitol

Tallahassee, Florida 32304

Docket for Case No: 78-001443RP

Orders for Case No: 78-001443RP