STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA HOME BUILDERS ) ASSOCIATION, INC.; VOLUSIA HOME ) BUILDERS ASSOCIATION, INC.; and ) STAN SHIRAH, )
)
Petitioners, )
)
vs. )
) CITY OF DAYTONA BEACH, CITY OF ) SOUTH DAYTONA, and CITY OF PORT ) ORANGE, )
)
Respondents. )
Case No. 03-0131BC
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on February 26, 2003, in Daytona Beach, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Steve Pfeiffer, Esquire
Theriaque & Pfeiffer 1114 East Park Avenue
Tallahassee, Florida 32301 For Respondent City of Port Orange:
Jay Adams, Esquire Broad & Cassel
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
For Respondent City of South Daytona:
Scott Simpson, Esquire City of South Daytona
1020 International Speedway Boulevard Daytona Beach, Florida 32114
STATEMENT OF THE ISSUE
The issue is whether the local technical amendments to the Florida Building Code adopted by the City of Port Orange and the City of South Daytona comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001).
PRELIMINARY STATEMENT
On January 13, 2003, Petitioners filed an Amended Notice of Appeal and Petition for Formal Administrative Hearing (Amended Petition) with the Florida Building Commission (Commission) pursuant to Section 553.73(4)(b)8., Florida Statutes (2002).
The Amended Petition contests the "written determination" issued by the Volusia/Flagler Counties Code Compliance Review Board on or about January 3, 2003, which concluded that the local technical amendments to the Florida Building Code adopted by the Respondents complied with Section 557.73(4)(b), Florida Statutes (2001). On January 15, 2003, the Commission referred the Amended Petition to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing requested by Petitioners.
Because Section 553.73(4)(b)8., Florida Statutes (2002), mandates expedited consideration of cases such as this, a telephonic case management conference was held on January 21, 2003, to schedule the final hearing. At the case management conference, the parties agreed to waive the requirement that the final hearing be held within 30 days after the Amended Petition was referred to the Division. The case was set for final hearing on February 26 and 27, 2003.
On February 24, 2003, Petitioners voluntarily dismissed the Amended Petition as to the City of Daytona Beach. The dismissal was reaffirmed and approved at the final hearing. See Transcript, at 6-8. As a result, the City of Daytona Beach did not participate in the final hearing. Petitioners' challenge to the local technical amendments adopted by the other Respondents
-- the cities of Port Orange and South Daytona -- was not affected by the voluntary dismissal of the City of Daytona Beach. The City of Daytona Beach remains in the case style simply as a matter of administrative convenience.
At the hearing, Petitioners presented the testimony of Beth McGee, Stan Shirah, Clarance Tibbs, Larry Watkins, and Jack Glenn. Mr. Tibbs was accepted as an expert in electrical contracting, Mr. Watkins was accepted as an expert in electrical conductors, and Mr. Glenn was accepted as an expert in the promulgation and interpretation of building codes and in
analyzing fire damage. Petitioners' Exhibits P1 through P4, were received into evidence.
Respondent City of Port Orange presented the testimony of Bradley Giles and Will "Buck" Buchannan. At the hearing, the undersigned granted Petitioners' ore tenus motion to preclude Port Orange from presenting the testimony of Paul Haydt upon the authority of Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), since Mr. Haydt was not listed in Port Orange's discovery responses and he was not disclosed to counsel for Petitioners as a potential witness until a few days prior to the hearing. Port Orange was given the option of preserving Mr. Haydt's testimony through a post-hearing deposition and then making a formal proffer of his testimony, but it did not do so apparently as a result of the additional factual stipulation agreed to by the parties as reflected in Joint Exhibit 2. Port Orange's Exhibits R1 through R4 were received into evidence.1
Respondent City of South Daytona did not present the testimony of any witnesses or offer any exhibits.
The parties' pre-hearing stipulation was received into evidence as Joint Exhibit 1. An addendum to the pre-hearing stipulation was filed by the parties on March 17, 2003. The letter accompanying the filing requested that the addendum be accepted "as Joint Exhibit 2 in the record of this cause." That
request is hereby granted, and the addendum to the pre-hearing stipulation is received as Joint Exhibit 2.
The two-volume Transcript of the hearing was filed with the Division on March 26, 2003. At the conclusion of the hearing, the parties agreed to "construe" or, more accurately, to extend the deadline for the submittal of this Recommended Order to 30 days after the date the Transcript was filed with the Division instead of 30 days after the conclusion of the hearing. See Section 553.73(4)(b)8., Florida Statutes (2002).
The parties were initially given 10 days from the date the Transcript was filed to file their proposed recommended orders (PROs), but Respondent Port Orange subsequently requested and the parties received an extension of time through April 10, 2003, to file their PROs. Petitioners and Respondent Port Orange timely filed their PROs; Respondent South Daytona did not file a PRO. The parties' PROs were given due consideration by the undersigned in preparing this Recommended Order.
FINDINGS OF FACT
Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made:
Parties
Petitioner Florida Home Builders Association, Inc. (FHBA) is a Florida not-for-profit corporation.
FHBA's organizational purpose is to monitor government activity affecting the construction industry and to provide assistance to its local chapters on statewide issues.
The local technical amendments adopted by Respondents are within FHBA's general scope of interest and activity because they affect the construction industry and because they have the potential to undermine the statewide uniformity of the Florida Building Code.
FHBA has over 15,000 members statewide, including 553 members (approximately 3.69 percent) in Volusia County.
FHBA's Volusia County membership corresponds to the membership of the Volusia Home Builders Association, Inc. (VHBA), and includes only 20 members (approximately 0.13 percent) in South Daytona and only 50 members (approximately
0.33 percent) in Port Orange.
Petitioner VHBA is a Florida not-for-profit corporation. VHBA is a local chapter of the FHBA.
VHBA's organizational purpose is essentially the same as that of the FHBA, except that the scope of its interest is Volusia County and not statewide.
The local technical amendments adopted by Respondents are within VHBA's general scope of interest and activity.
VHBA has 553 members, all of whom are located in and conduct business in Volusia County. Of those members, 20 (or
3.62 percent) are located in South Daytona and 50 (or 9.04 percent) are located in Port Orange.
The members of FHBA and VHBA include all types of persons and businesses involved in the construction industry, including general contractors, sub-contractors (including electrical contractors), real estate professionals, lenders, and attorneys. The record does not reflect the precise number of electrical contractors in either organization.
FHBA and VHBA both initiate and participate in legal proceedings on behalf of their members that relate to regulatory issues affecting the home-building industry. Both organizations were duly authorized to initiate this proceeding, and the relief that they are seeking -- invalidation of the local technical amendments -- is the type of relief that is appropriate for them to receive on behalf of their members.
Petitioner Stan Shirah is a general contractor whose firm, Shirah Builders, is located in Volusia County. Mr. Shirah is a member of both FHBA and VHBA.
Mr. Shirah engages in new home construction, remodeling, commercial development, general construction, and land development throughout Volusia County and central Florida. He has undertaken these activities within the cities of Port Orange and South Daytona in the past, and intends to do so in
the future. As a result, he will be required to comply with the local technical amendments.
Neither Mr. Shirah nor his firm does electrical installations. That work is done by sub-contractors on projects that Mr. Shirah is the general contractor. However, as the general contractor (and president of his firm), Mr. Shirah is ultimately responsible to the owner for the building's compliance with the applicable regulatory requirements.
Mr. Shirah and the members of FHBA and VHBA are affected by the Florida Building Code on a daily basis. A uniform building code is important to them (and, with respect to FHBA and VHBA, their members) because it allows them to conduct their business in any jurisdiction under the same set of rules. Local amendments to the Florida Building Code undermine that uniformity and, potentially, make compliance with the Code more difficult and/or time consuming thereby causing delays in construction and increasing construction costs.
Each of the Petitioners participated in the challenge to Respondents' local technical amendments at the Volusia/Flagler Counties Code Compliance Review Board.
Respondents are incorporated municipalities located in eastern Volusia County.
Each municipality adopted the same nine technical amendments to the Florida Building Code which are at issue in
this proceeding. The amendments add more stringent requirements to the National Electric Code (NEC), which is incorporated by reference into the Florida Building Code.
Respondents are coastal communities. A small portion of Port Orange's boundary extends to the Atlantic Ocean. South Daytona's boundary does not extend to the Atlantic Ocean, but it abuts the Halifax River, which is a salt-water body. Port Orange also abuts the Halifax River.
Adoption of and Challenge to the Local Technical Amendments
Adoption of the Amendments
City of South Daytona
South Daytona adopted the local technical amendments at issue in this proceeding on or about December 11, 2001.
The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code.
The amendments were filed with the Commission on April 2, 2002, which is 112 days after their adoption and 32 days after they became effective.
The ordinance or resolution through which the amendments were adopted is not part of the record of this proceeding. Nor does the record include agenda items or meeting minutes which might reflect what information or evidence was
before South Daytona's City Council when the amendments were adopted.
Accordingly, there is no credible evidentiary support for the representation made by South Daytona's attorney at the hearing (and in the interrogatory responses received as Exhibit P2) that the City Council relied upon the findings and recommendations of the Volusia County Unified Code Committee (Volusia UCC) as the basis for adopting the local technical amendments.
City of Port Orange
Port Orange adopted the local technical amendments at issue in this proceeding on February 19, 2002, through Ordinance No. 2002-10. The first reading of the Ordinance occurred on January 29, 2002.
The Ordinance included determinations that "local conditions justify the local amendments"; that "the local amendments do not discriminate against products, materials and construction techniques"; "that the products, materials and techniques referred to and restricted in the local amendments do not have demonstrated capabilities"; and that "it is in the best interests of the citizens of the City of Port Orange to adopt the local technical amendments "
The Ordinance also included the following "findings of fact":
Port Orange is partially a coastal community and is more susceptible to the effects of corrosion than other non-coastal parts of Florida due to the close proximity of large bodies of salt water.
This corrosion has negative, unique, and possibly dangerous, local effects on the following materials rendering these materials unsafe for local use:
Aluminum or Copper Clad Aluminum conductors which are smaller than #1 [see NEC Table 310.16];
Service drop conductors and wiring [see NEC Section 336-4];
Ground fault circuit breakers [see NEC Section 680-20];
Swimming pool equipment rooms with wiring not suited for a coercive [sic] environment including galvanized and sheradized conduit [see NEC Section 680-11];
Electrical metallic tubing for protection above ground [see NEC Section 230-50]
The Ordinance made no specific findings or determinations with respect to the high wind conditions in Port Orange, nor did it make any specific findings or determinations with respect to the local amendments to NEC Sections 230-52, 230-70, 339-3, or 680-8.
The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code.
The agenda package for the City Council meeting at which the amendments were adopted included detailed information relating to the amendments. Specifically, the package included a report prepared by the Volusia Chapter of the Electrical Council of Florida (Volusia ECF) analyzing each of the amendments, the minutes of a meeting of Port Orange's Construction Regulation Board which recommended approval of the amendments after considerable debate, and a vote sheet indicating that the Volusia UCC recommended approval of the amendments.
The agenda package also included letters from various electrical engineering firms or consultants expressing their support for the amendments. None of those letters cited specific local conditions that necessitated the amendments. Instead, they focused on the greater protection to the public that would result from the amendments by exceeding the minimum standards in the NEC.
The Volusia ECF's report included a general analysis of the fiscal impact of each of the amendments and also included a justification for each of the amendments. In most instances, the justification listed was not a specific local condition such as high winds or the corrosive local environment. Instead, generalized public safety concerns were listed as justifications for the amendments.
The agenda package also included letters from the VHBA and the Florida Pool and Spa Association expressing opposition to the amendments upon the basis that they were not supported by any unique local conditions.
Also included in the agenda package was a report prepared by Alcan Cable which compared the performance and reliability of aluminum and copper conductors (wires) and concluded that there were no significant differences in the performance of the two types of wires. That study contradicts the justification set forth in the Volusia ECF report for the local technical amendment to NEC Table 310.16. The justification in the Volusia ECF report was apparently accepted by the City Council through its adoption of the amendment to that table.
A City of Port Orange staff report, dated January 18, 2002, recommended against approval of the ordinance containing the local technical amendments. The staff report stated:
Staff . . . has not contested the fact that certain proposed amendments may be more stringent and create a safer condition than provided in the Florida Building Code.
However, we do not feel they meet the criteria in the Florida Building Code, established by State Statute for local technical amendments. Specifically [sic] are not unique to Volusia County or the City of Port Orange as the same conditions exist throughout the State of Florida and are
discriminatory against a product. Therefore, staff cannot recommend approval of this ordinance.
(Emphasis supplied).
Despite that adverse staff report, the agenda for both City Council meetings at which the ordinance was considered -- January 29 and February 19, 2002 -- stated that staff recommended approval of the ordinance.
The amendments were sent to the Commission on September 26, 2002, which is 222 days after the adoption of the amendments and 210 days after the amendments became effective. The amendments were received by and filed with the Commission on October 3, 2002.
2. Petitioner's Challenge to the Amendments
On or about April 4, 2002, Petitioners initiated a challenge to Respondents' local technical amendments at the Volusia-Flagler Counties Code Compliance Review Board (Board).
The Board was established through an interlocal agreement between Respondents and other municipalities in Volusia and Flagler counties, and it serves as the "countywide compliance review board" for those counties in accordance with Section 553.73(4)(b)7., Florida Statutes (2001).
The Board conducted a hearing on Petitioners' challenge on November 19, 2002. At the conclusion of the
hearing, the Board adopted motions upholding the local technical amendments and finding them in compliance with Florida law.
On January 3, 2003, the Board memorialized its decision through a "Written Determination" which stated that the local technical amendments adopted by the Respondents "are hereby found to be in compliance with [Section] 553.73(4)(b), Florida Statutes."
Petitioners timely "appealed" the Board's decision by filing a petition with the Commission, and this proceeding followed.
Substance of and Respondents' Justification for the Local Technical Amendments
Generally
The local technical amendments modify Sections 210-52, 230-50, 230-70, 336-4, 339-3, 680-8, 680-11, 680-20, and Table
310.16 of the NEC.
The NEC was incorporated by reference into the Florida Building Code without modification.
Each of the local technical amendments was part of the Respondents' local building codes in effect prior to the adoption of the Florida Building Code. Accordingly, by adopting the amendments, Respondents sought to maintain the status quo within their jurisdictions, at least with respect to the subjects of the amendments.
Each of the local technical amendments impose more stringent requirements than the NEC.
The local technical amendments do not introduce new subjects into the Florida Building Code.
The electrical installations required by the local technical amendments are more costly than those which would be required under the NEC without the amendments. Thus, if the amendments were not part of the local building codes, the cost of electrical installations in Port Orange and South Daytona would be lower.
The Commission and the Commission's Electrical Technical Advisory Committee (TAC) considered revisions to the NEC similar to those in the local technical amendments when it adopted the NEC as part of the Florida Building Code. Those revisions were rejected by the Commission and the TAC because there was no Florida-specific justification for them.
Respondents contend that the local technical amendments are justified on account of corrosive conditions and/or high wind conditions which purportedly exist within South Daytona and Port Orange.
Salt is a corrosive agent, and corrosion can adversely affect electrical equipment. Corrosion also affects other materials, as reflected by the corroded metal pipe received into evidence as Exhibit R4.
Coastal communities, to varying degrees, have a higher level of atmospheric salt than inland communities.
This higher level of atmospheric salt is experienced by communities in proximity to either the Atlantic Ocean or the Gulf of Mexico, including 35 counties that border on the coast, and, to a lesser extent, other counties that are located close to the coast.
The evidence fails to establish that the corrosive conditions in Port Orange and South Daytona are more severe than in all other areas of Florida. Nor does the evidence establish that the corrosive conditions in Port Orange and South Daytona are more severe than in other coastal communities.
The Florida Building Code includes a map designating six different wind speed zones in Florida ranging from 90 miles per hour (mph) to 150 mph. Generally, the higher wind speed zones are located closer to the coast, and the lower wind speed zones are inland.
The Florida Building Code prescribes stricter construction standards for structures located in higher wind speed zones, but the electrical provisions of the Florida Building Code do not change based upon the wind speed zone designation.
The evidence does not establish that the wind conditions in Port Orange and South Daytona are more severe than
in all other areas of Florida, or even in all other coastal communities. To the extent that Port Orange and South Daytona experience higher winds than might be experienced in inland communities, they are no different than other coastal communities around the state, or at least those along the Atlantic Ocean.
Port Orange is located in the 120 mph wind speed zone, which is not even the highest wind speed zone. Other coastal communities are located in higher wind speed zones, such as Palm Beach (140 mph zone) and the Keys (150 mph zone).
2. NEC Section 210-52 (Separate Circuit for Certain Appliances)
NEC Section 210-52 requires certain kitchen appliances to be on dedicated (i.e., separate) circuit breakers, and allows some items to be placed on circuit breakers with other items.
The local technical amendment to this section requires more appliances -- dishwasher, refrigerator, freezer, microwave, and water pump systems -- to be on separate circuit breakers. The amendment allows the garbage disposal to be on the small appliance circuit breaker.
The circuit breakers are attached to a "bus bar" which is located behind the panel of the breaker box. The breaker box has multiple "bus bars."
The breaker box is typically (although not always) placed inside rather than outside where the corrosive conditions that might exist could impact the box.
Multiple circuit breakers can be attached to each "bus bar" depending upon its rating. For example, a 60-amp "bus bar" can accommodate four 15-amp circuit breakers or two 30-amp circuit breakers or one 60-amp circuit breaker.
The purpose of the amendment is to spread the electrical load from the listed appliances among more circuit breakers, rather than concentrating the load on one or two circuits breakers.
The effect of spreading the electrical load among more circuit breakers is to reduce the number of times that the breaker might "trip" on account of an overload.
The evidence fails to establish that the amendment would actually have its intended effect, i.e., reducing the possibility of a fire resulting from overloading a corroded "bus bar." Although the amendment prevents multiple appliances from being on a single circuit breaker attached to the "bus bar," it does not prevent those same appliances from being attached to the same "bus bar" on separate circuits breakers. As a result, the same electrical load would be placed on the "bus bar."
The evidence also fails to establish that "bus bar" corrosion is a common problem in Port Orange or South Daytona.
The burned "bus bar" received into evidence (Exhibit R2) was not in service in either municipality and it was not established that the burning was the result of corrosion.
Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not.
3. NEC Section 230-50
(Types of Conduit Allowed for Risers)
NEC Section 230-50 establishes requirements for protecting service entrance conductors from physical damage, and specifies five types of conduit which can be used to run the wires through. The conduit is also called a "riser" because the wires in the conduit rise from the meter to the overhead power lines.
The local technical amendment to this section eliminates two of the conduit alternatives -- EMT and "other approved means" -- which are comparably the "weakest" means of protecting the service entrance wires. The remaining options are rigid metal conduit, intermediate metal conduit, and rigid nonmetallic conduit (i.e., PVC pipe) suitable for the location.
Service entrance conductors are the wires that run from the electric meter at the building, up the side of the building, to the point at which the power company's overhead utility lines come to the building. That point is typically several feet from the structure itself. As a result, there is
typically several feet of exposed wire between the top of the conduit in which the service entrance wire is located and the point at which the power company's line is connected.
EMT is a metal pipe. The EMT's exterior wall is thinner than that of rigid metal conduit and the other remaining means of protecting the service entrance wires. EMT is commonly called "thin wall" by electricians.
"Other approved means" allows flexibility in meeting the requirements of the Florida Building Code. One example of "other approved means" is service entrance cable, which is a cable made up of individual wires wrapped with a copper braid and a protective plastic sheath.
Because of its relatively thinner wall, EMT may be more be more impacted by corrosive conditions than rigid metal conduit. However, the evidence does not establish whether the degree to which EMT is more affected is material or not.
It is possible that high winds can affect the conduit used to protect the service entrance wires. The winds typically do not blow the conduit itself because the power company and the NEC require the conduit to be securely attached to the wall of the structure.
However, if hurricane winds down a tree or some other large object onto the overhead power line, that line could pull on the attached service entrance wire which, in turn, could
crease, bend, or collapse the conduit. Under such extreme circumstances, EMT and rigid metal conduit would be similarly affected.
EMT and "other approved means" have proven to be effective and capable means of protecting service entrance wires in coastal communities and elsewhere.
This amendment discriminates against EMT by prohibiting it from being used as a riser for service entrance conductors.
4. NEC Section 230-70 (Location of Main Disconnect Switch)
NEC Section 230-70 prescribes standards for locating the "main disconnect" for the building's electrical power.
The NEC allows the "main disconnect" to be located within five feet of the point that electrical service enters the building. If electrical service enters the building underground, it is possible that the "main disconnect" could be located inside the building.
The NEC does not require a "shunt trip" even if the "main disconnect" is located inside the building.
The local amendment to NEC Section 230-70 requires the "main disconnect" for commercial or multi-family buildings to be located outside of the building or, alternatively, for such
buildings to have a "shunt trip" control located outside of the building.
The "main disconnect" is similar to a master on/off switch for all of the electric power to a building.
A "shunt trip" is an electronic device or button placed on the exterior of the building which can be used to turn off the power to the building from the outside when the "main disconnect" is located inside the building.
It can be important for firefighters to turn off the power to a building in the event of an emergency. If the "main disconnect" is located in the interior of the building, it may not be easily accessible.
Other alternatives are available to the firefighters in such circumstances, including contacting the power company to turn off the power to the building at the transformer or "pulling" (i.e., removing) the meter. "Pulling" the meter can be accomplished in virtually no time.
This amendment cannot be justified on account of any corrosive conditions that might exist within Port Orange or South Daytona. Indeed, by requiring the "main disconnect" to be located outside of the building, it is more subject to corrosion than it would be if it is located inside of the building.
The amendment is not justified by wind conditions in Port Orange or South Daytona. Indeed, there are any number of
circumstances unrelated to hurricanes or high wind which would make it desirable for there to be a means to turn the power to a building off from the outside, but those same circumstances exist throughout Florida.
5. NEC Table 310.16 (Minimum Size of Aluminum Wires)
NEC Table 310.16 is an ampacity chart for wires, and prescribes the size of wire that can be used for various purposes. The uses vary based upon the wire's size and its composition, i.e., copper or aluminum.
The NEC allows the use of aluminum wire as small as "number 12"; it allows the use of copper wires as small as "number 18."
The local technical amendment to NEC Table 310.16 prohibits the use of aluminum wire smaller than the "number 1" size.
Wire sizes are measured such that the smaller the number, the larger the wire. "Number 1" wire is relatively large, approximately one-half inch in diameter. (For sake of comparison, the wire received into evidence as Exhibit R3 is a "number 6" wire.)
The effect of the amendment is to require copper wire to be used in applications involving wire smaller than "number 1." This, in turn, has the effect of increasing construction
costs because aluminum wire is typically less expensive than copper wire of the same diameter.
Aluminum wire has a higher resistance than copper wire of equal size.
Corrosion of the wire increases its resistance, and because resistance creates heat, the chance of a fire is also increased.
Copper wire and aluminum wire are both susceptible to corrosion.
Aluminum wire has demonstrated capability. It is used in coastal communities throughout Florida and, more specifically, it is used by the power company within Port Orange and South Daytona in a variety of sizes (including smaller than "number 1") in outdoor environments. Aluminum wire functions effectively in those applications.
Moreover, data reflects that aluminum wire, when used with approved connectors (as the NEC requires), is more durable than copper wire.
The local amendment to NEC Table 310.16 discriminates against aluminum wire by prohibiting its use in a size smaller than "number 1."
Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not justified.
6. NEC Section 336-4 (Limitation on Use of NM Wires)
NEC Section 336-4 relates to the use of Type NM, NMC, and NMS wires. These non-metallic wires are typically referred to as Romex cable, which is a common brand name for the wires.
The local technical amendment to this section restricts the use of Romex cable to one- and two-family dwellings, and prohibits its use in other structures -- e.g., commercial and multi-family -- unless it is routed through conduit.
Romex cable typically consists of two to four wires wrapped in paper and all within a plastic sheath. It is used for internal wiring.
Because Romex cable is used indoors and because it is protected within a plastic sheath, it is not directly subject to corrosive conditions or wind conditions.
Respondents attempt to justify this local amendment upon safety concerns which, Respondents contend, are heightened in multi-family and commercial buildings since those buildings are typically not owner-occupied. To the extent those concerns are legitimate, they are certainly not unique to Port Orange and South Daytona.
Romex cable has been used extensively for more than
30 years, and has proven effective. There is no evidence that Romex cable has ever failed on account of corrosive conditions,
high wind conditions, or that its use in multi-family and commercial buildings is unsafe.
The local amendment discriminates against Romex cable by providing additional standards for its use in multi-family and commercial buildings.
7. NEC Section 339-3 (Limitation on Use of UF Cable)
NEC Section 339-3 relates to the use of underground feeder wire, which is also known as UF cable.
The local technical amendment to this section restricts the use of UF cable to single-family residential property.
UF cable is similar to Romex wire in that it is a group of wires inside a plastic sheath. UF cable is designed for use outside, and is most commonly used for wiring exterior lights.
UF cable is installed underground. As a result, it is not impacted by wind conditions.
UF cable is not subject to corrosion unless the plastic sheath is breached.
UF cable is sometimes nicked after installation. In such circumstances, a breach in the cable would likely result in the circuit breaker being "tripped" and the cable no longer being energized.
UF cable has demonstrated capabilities and has proven effective for external uses. There is no evidence that UF cable has failed on account of corrosive conditions.
The alternative to UF cable is running standard wires through conduit. The conduit might protect the wires from being nicked by a shovel, but it might not protect the wire from being cut altogether by a backhoe or similar piece of large equipment which could break the conduit.
The potential for damage to UF cable on account of digging by the property owner is a circumstance that can occur in any community in Florida.
This amendment discriminates against UF cable by restricting its use to single-family residences and thereby effectively prohibiting its use in connection with all other types of structures.
8. NEC Section 680-8 (Prohibition on Wires Over Pools)
NEC Section 680-8 is a table that establishes overhead clearances for wires. It provides height requirements for wires that run over swimming pools and surrounding areas.
The local technical amendment to this section eliminates the table and, as a result, prohibits the installation of wires above existing pools and prohibits the placement of new pools under existing wires.
Respondents have not attempted to justify this amendment based upon corrosive conditions, and it is not.
The justification for the amendment offered by Respondents is that the amendment will prevent the wires from falling into and energizing the pool in the event of a hurricane or other the high wind condition.
None of the witnesses who testified at the hearing, including those who testified for the Respondents, had ever heard of a situation where an overhead wire had fallen into and energized a pool.
As a practical matter, swimming pools are no longer (if they ever were) constructed under overhead wires and overhead wires are no longer (if they ever were) strung over swimming pools.
9. NEC Section 680-11
(Protection of Wires in Swimming Pool Equipment Rooms)
NEC Section 680-11 prescribes requirements for electrical wiring in swimming pool equipment rooms.
The local technical amendment to this section requires such wiring to be placed in PVC pipe or other conduit designed for use in the chlorine environment. The amendment specifically prohibits plain galvanized and sheradized conduit which are metal pipes that are susceptible to rust and corrosion.
The justification for the amendment offered by Respondents is that by requiring electrical wiring in the pool room to be placed in PVC or similar pipe, the risk of the wiring coming in contact with water (which is not uncommon in pool equipment rooms) is reduced. That requirement in turn, reduces the risk that a person in the pool room might be electrocuted by an ungrounded wire.
Pool equipment rooms are highly corrosive environments because of the presence of chlorine, not because of atmospheric conditions.
Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not.
10. NEC Section 680-20 (Underwater Pool Light Voltage)
NEC Section 688-20 allows underwater lights in swimming pools to carry as much as 150 volts.
The local technical amendment to that section reduces the maximum allowable voltage to 15 volts.
Underwater swimming pool lights are protected by glass and water-tight seals. If the pool water somehow comes into contact with the light bulb or its wiring, a ground fault interrupter (GFI) "trips" and shuts off the electrical current to the light.
A GFI measures the amount of current going to a device and returning from the device. If there is a difference
between the current going and coming, the GFI "trips" and stops electrical current from being delivered to the device on that circuit.
The GFI used in connection with a pool light has two components. One is the "push to test" button located in the breaker box, and the other is the "test" and "reset" buttons located on an outlet in a bathroom, garage, kitchen, or similar location. Because of their locations, neither component is exposed directly to the weather.
The purpose of the local technical amendment is to reduce the potential harm that a swimmer might suffer in the event that water came into contact with the pool light or its wiring and the GFI failed.
To the extent that GFIs are susceptible to corrosion (and because of their location they are not likely to be), they are no more so susceptible to corrosion in Port Orange and South Daytona than they are elsewhere.
In any event, if a GFI fails (because of corrosion or otherwise) it is not likely to fail in the "closed" position. Instead, it will fail in the "open" position and, in that position, no electricity is being delivered to the pool light.
It is also possible that the GFI will fail if it is installed backwards. To the extent that a safety hazard is created by that failure, it is the result of the incorrect
installation, not a local condition such as the corrosive environment or high winds.
The newer GFIs are designed in such a manner that if the GFI is installed backwards, it will not work.
Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not.
CONCLUSIONS OF LAW
Jurisdiction, Nature of Proceeding, and Burden of Proof
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 553.73(4)(b)8., Florida Statutes (2002).
The Legislature amended Section 553.73(4)(b)2 in 2002 through Chapter 2002-293, Section 14, Laws of Florida, but that act did not become effective until May 30, 2002, which is after the local amendments at issue in this proceeding were adopted. Accordingly, the determination as to whether Respondents' local amendments comply with the substantive criteria in Section 553.73(4)(b) must be based on the 2001 version of the statute. However, the procedural aspects of the 2002 version of the statute apply in this proceeding. See South West Florida Water Mgmt. Dist. v. Charlotte County, 774 So. 2d 903, 909 (Fla. 2nd DCA 2001).
The parties stipulated that this proceeding is de novo in nature even though Section 553.73(4)(b)8., Florida Statutes (2002), refers to the Commission's review of the countywide compliance review board's decision as an "appeal."
The parties' stipulation accurately characterizes the nature of this proceeding because Section 553.73(4)(b)8., Florida Statutes (2002), also provides that "[t]he provisions of Chapter 120 and the uniform rules of procedure apply."3 Proceedings under Chapter 120, Florida Statutes, are de novo proceedings whose purpose is to formulate final agency action, not to simply review preliminary agency action such as the countywide compliance review board's decision. See Section 120.57(1)(k) ("All proceedings conducted pursuant to this subsection shall be de novo."); Dept. of Transportation v.
J.W.C. Co., Inc., 396 So. 2d 778, 785-87 (Fla. 1st DCA 1981)
(citing McDonald v. Dept. of Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977)). But cf. Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, 808 So. 2d 243, 257 (Fla. 1st DCA 2002) (characterizing rule challenge proceedings as "technically" de novo, at least with respect to the determination as to whether the rule is supported by competent substantial evidence).
The parties further stipulated that Respondents have the burden to prove that the challenged amendments comply with
the requirements of Section 553.73(4)(b). This allocation of the burden of proof was specifically added to the statute in 2002. See Chapter 2002-293, Section 14, Laws of Florida (amending Section 553.73(4)(b)7. and re-designating the pertinent language as Section 553.73(4)(b)8.). Because statutory amendments affecting procedural matters such as the allocation of the burden of proof may be applied in pending cases, see South West Florida Water Mgmt. Dist., 774 So. 2d at 909, Respondents would have the burden of proof in this proceeding even without the parties' stipulation.
The standard of proof is a preponderance of the evidence. See Section 120.57(1)(j).
Standing
The record does not reflect whether Respondents contested Petitioners' standing before the Volusia/Flagler Counties' Code Compliance Review Board, and the issue was not identified on the parties' pre-hearing statement as an issue in dispute. However, in response to the undersigned's questions at the hearing, counsel for Port Orange indicated that he was not "conceding it [Petitioners' standing]" (Transcript, at 167), and Port Orange argues in its PRO that the Petitioners lack standing to challenge the local technical amendments.
The burden is on Petitioners to prove their standing where, as here, standing is resisted. See Department of Health
and Rehabilitative Services v Alice P., 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979).
Standing to challenge a local technical amendment and to appeal the countywide compliance review board's determination is afforded by statute to "any substantially affected party." See Section 553.73(4)(b)7., Florida Statutes (2001).
This language is similar to that in Section 120.56, Florida Statutes, which affords standing to "any substantially affected person" in rule challenge proceedings. The similarity is presumably based upon the fact that this proceeding is more akin to a rule challenge proceeding than it is to a
Section 120.57(1), Florida Statutes proceeding in which
the "substantial interests of a party" are determined. Indeed, like a rule challenge proceeding whose purpose is to determine whether the agency has implemented the authority delegated to it by the Legislature in accordance with the procedural and substantive criteria in Section 120.52(8), the purpose of the "appeal" to the Commission and, hence, this proceeding is to determine whether the local government complied with procedural and substantive requirements of Section 553.73(4)(b) in exercising the authority delegated to it by the Legislature.
See Section 553.73(4)(b), Florida Statutes, (authorizing local governments to adopt amendments to the technical provisions of the Code "subject to the limitations of this section").
Accordingly, case law discussing standing in rule challenge proceedings governs the determination as to whether a party has standing to challenge a local technical amendment.
Port Orange argues in its PRO that Mr. Shirah does not have standing because he does not do electrical contracting work and that VHBA and FHBA do not have standing because a substantial number of their members are not electrical contractors. As a result, Port Orange contends that Petitioners are not substantially affected by the local amendments since they impose more stringent requirements only with respect to electrical installations. This argument is rejected for the reasons that follow.
For an individual to have standing as a substantially affected party, he or she must establish: "(1) a real and sufficiently immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated." See, e.g., Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995) (internal quotations omitted).
Even though Mr. Shirah sub-contracts out the electrical contracting work for the buildings on which he is the general contractor, he is nevertheless "regulated" by the local technical amendments because he is required on a daily basis to comply with the Code to obtain building permits and undertake
construction (see, e.g., Section 553.79), and as a general contractor, he is ultimately responsible to the owner for the building's construction and, hence, Code compliance.
Moreover, Mr. Shirah regularly does construction work in Port Orange and South Daytona as a general contractor, and to be in compliance with the Code in those municipalities, his buildings must meet the requirements in the local technical amendments. Although Mr. Shirah is not as directly regulated by the local technical amendments as an electrical contractor might be, he is nevertheless substantially affected by the amendments. Therefore, he has standing to challenge the amendments. See, e.g., Ward, supra; Board of Medicine, 808 So. 2d at 250-51; Televisual Communications, Inc. v. Dept. of Labor and Employment Security, 667 So. 2d 372 (Fla. 1st DCA 1995); Coalition of
Mental Health Professions v. Dept. of Professional Regulation, 546 So. 2d 27 (Fla. 1st DCA 1989).
For an association to have standing as a substantially affected party, it must demonstrate that:
[1] a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule [, 2] the subject matter of the rule [is] within the association's general scope of interest and activity, and [3] the relief requested [is] of the type appropriate for a trade association to receive on behalf of its members.
Florida Home Builders Ass'n v. Dept. of Labor & Employment Security, 412 So. 2d 351, 353-54 (Fla. 1982). See also NAACP,
Inc. v. Florida Board of Regents, 822 So. 2d 1, 4 (Fla. 1st DCA 2002); Board of Medicine, 808 So. 2d at 250-51;
Dept. of Professional Reg. v. Florida Dental Hygienist Ass'n, Inc., 612 So. 2d 646, 649-52 (Fla. 1st DCA 1993).
Port Orange appears to concede that VHBA and FHBA satisfy the second and third prongs of the test in Florida Home Builders, and the preponderance of the evidence demonstrates that they do. As noted above, Port Orange's argument is focused on the first prong, i.e., that a substantial number of the associations' members are not substantially affected by the local technical amendments.
For the reasons discussed above in connection with Mr. Shirah, it is not necessary for the associations to demonstrate that a substantial number of their members are electrical contractors. However, the associations must demonstrate that a substantial number of their members are regulated by the local technical amendments by virtue of being engaging in the construction business in the cities of South Daytona and Port Orange.
VHBA met this burden, but FHBA did not.
All of VHBA's members are engaged in the construction business in Volusia County, and 20 (out of 553) are located in
South Daytona and 50 (out of 553) are located in Port Orange. Those are substantial enough numbers. Therefore, VHBA has standing to challenge the local technical amendments.
By contrast, only 553 (out of 15,000) of FHBA's members engage in business in Volusia County and even fewer are located in South Daytona (20 members, or approximately 0.13 percent) and Port Orange (50 members, or approximately 0.33 percent). FHBA's 553 members in Volusia County is not an insubstantial number and they might give FHBA standing to challenge amendments adopted by the county; however, FHBA has an insubstantial number of members in the municipalities in which the local amendments are in effect. Accordingly, FHBA does not have standing to challenge the local technical amendments at issue in this proceeding.
The undersigned has not overlooked the associations' argument that they have standing by virtue of their general interest in maintaining the uniformity of the Code. In light of the legislative intent underlying the Code (as reflected in Section 553.72 and Exhibit P44), that interest is shared by the public at large and therefore is insufficient basis upon which to confer standing. See NAACP, 822 So. 2d at 4-6 (discussing State Board of Optometry v. Florida Society of Opthalmology, 538 So. 2d 878, 881 (Fla. 1st DCA 1989)).
Florida Building Code 1. Generally
The enabling legislation for the Florida Building Code was enacted in 1998 based upon the recommendations of the Governor's Building Codes Study Commission (Study Commission). See generally Chapter 98-287, Laws of Florida (effective January 1, 2001).
The Study Commission found the State's existing system of building codes "to be particularly deficient in
the . . . large number of codes found around the State [and] the inconsistencies among and between them . . . ." See Exhibit P4, at 8.
To address that deficiency, the Study Commission recommended as its first "foundation" that:
Florida should have one building code for use statewide which governs all administrative and technical requirements applicable to Florida's public and private Built Environment. That building code should be called the Florida Building Code ("The Code") and should become effective for use statewide.
Id. at 17.
The Study Commission expanded on that recommendation as follows:
The Code should be a single set of documents and should apply to the design, construction, code enforcement, erection, alteration, modification, maintenance
(specifically related to code compliance), and demolition of Florida's public and private Built Environment. The Code should be organized so as to offer consistency and simplicity of use. It should be applied, administered, and enforced uniformly and consistently from jurisdiction to jurisdiction. It should allow flexibility that is exercised in a manner that meets minimum requirements, is affordable, does not inhibit competition, and promotes innovation and new technology.
Id. at 18.
Consistent with the Study Commission's recommendation, Section 553.72(1), provides that the Code is the "unified state building code . . . [and] consists of a single set of documents that apply to the design, construction, erection, alteration, modification, repair, or demolition of public or private buildings, structures, or facilities in this state and to the enforcement of such requirements . . . ." See
also Section 553.73(1)(a) (requiring the Code to "contain or incorporate by reference all laws and rules which pertain to and govern the design, construction, erection, alteration, modification, repair, and demolition" of all buildings and structures).
The Code is required to contain "provisions or requirements . . . relative to structural, mechanical,
electrical, plumbing, energy, and gas systems" in buildings and structures subject to the Code. See Section 553.73(2) (emphasis supplied).
The Code was adopted by the Commission through Rule 9B-3.047, and became effective on March 1, 2002.5
The Code incorporates by reference NFPA 70, the National Electric Code, as the standard with which electrical systems in buildings and structures subject to the Code must comply. See Florida Building Code, Sections 2701.1 through 2701.2. See also Rule 9B-3.049(1) (adopting NFPA 70 as the "State Minimum Electric Code"); Section 553.88(1) (same).
The Code preempts the building codes adopted by local governments. See Section 553.898. And cf. Section 553.72(1) ("The Florida Building Code shall be applied, administered, and enforced uniformly and consistently from jurisdiction to jurisdiction.").
The Florida Building Code is required to be reviewed and updated every three years. See Section 553.73(6).
2. Authorization for Local Technical Amendments
The Study Commission recommended that local governments be allowed to adopt amendments to the administrative requirements of the Code, but not to the technical provisions of the Code. See Exhibit P4, at 25-26. See also id. at 23 (recommending that the technical provisions of the Code could
only be amended by the Commission). The technical provisions of the Code are those provisions "related to the types of materials used and construction methods and standards employed in order to meet criteria specified in the Florida Building Code." See Section 553.73(2).
Despite the Study Commission's recommendation, the 1998 enabling legislation for the Code authorized local governments to adopt amendments to both the administrative requirements and technical provisions of the Code. See Chapter 98-287, Laws of Florida, at Section 40 (amending and renumbering Section 553.73(4)(a), Florida Statutes (1997), as Section 553.73(4)(b)). As discussed below, that authorization remains in the statutes.
Section 553.73(4)(b) and Rule 9B-3.051(1) authorize local governments to periodically adopt amendments to the technical provisions of the Code to address "local conditions."
Local technical amendments to the Code shall be effective only until the adoption of the new edition of the Code. See Section 553.73(4)(b)6. And cf. Rule 9B-3.051(4) (describing the process for review of local amendments during the triennial update of the Code).
Local technical amendments apply solely within the jurisdiction of the adopting local government and must provide for more stringent requirements than those specified in the
Florida Building Code. See Section 553.73(4)(b). It is undisputed that the amendments at issue in this proceeding impose more stringent requirements than the Code.
Local technical amendments to the Code must meet the requirements enumerated in Subparagraphs 553.73(4)(b)1. though (4)(b)9.,6 of which only the following are at issue in this proceeding7:
The local governing body determines, following a public hearing which has been advertised in a newspaper of general circulation at least 10 days before the hearing, that there is a need to strengthen the requirements of the Florida Building Code. The determination must be based upon a review of local conditions by the local governing body, which review demonstrates that local conditions justify more stringent requirements than those specified in the Florida Building Code for the protection of life and property.
Such additional requirements [may] not [be] discriminatory against materials, products, or construction techniques of demonstrated capabilities.
* * *
5. Any amendment to the Florida Building Code shall be transmitted within 30 days by the adopting local government to the commission. . . .
* * *
Section 553.73(4)(b). And cf. Rule 9B-3.051(1).
The Legislature amended Section 553.73(4)(b) in 2002 to provide that local technical amendments do not become
effective until 30 days after the amendments have been received and published by the Commission. See Chapter 2002-293,
Section 14, Laws of Florida (amending Section 553.73(4)(b)5.). The 2002 legislation further provided that if the amendment is challenged by a substantially affected party, the amendment does not become effective until after the Commission enters a final order determining the amendment to be in compliance with Section 553.73(4)(b). See id. (amending Section 553.73(4) (b)7.).
As noted above, the 2002 legislation did not become effective until May 30, 2002, which is after the local technical amendments at issue in this proceeding were adopted. Accordingly (and subject to the discussion in Part D.3. below), the local technical amendments at issue in this proceeding are currently in effect.
Validity of the Local Technical Amendments
The determination of the validity of each of the local technical amendments to the Code is independent of the determination of the validity of the others amendments.
1. Section 553.73(4)(b)1.:
(Local Conditions Justifying the Amendments)
Petitioners first allege that the local technical amendments are invalid because Respondents failed to demonstrate the existence of any "local conditions" justifying the
amendments as required by Section 553.73(4)(b)1. Petitioners' argument on this issue is twofold: (1) the conditions identified by Respondents are not "local conditions" as contemplated by Section 553.73(4)(b), and (2) even if such conditions were "local conditions" they do not "justify" the amendments at issue in this proceeding. With respect to Respondent South Daytona, Petitioners also contend that the governing body of that City failed to perform the review and make the determinations required by Section 553.73(4)(b)1. Each contention will be addressed in turn.
Review and Determinations by Local Governing Bodies
Section 553.73(4)(b)1. requires the local governing to hold a public hearing and determine that there is a need to strengthen the Code prior to adopting a local technical amendment. The statute further provides that the determination must be based upon a review of local conditions by the local governing body which demonstrates that the local conditions justify the more stringent requirements in the local technical amendments.
The record does not include any credible evidence demonstrating that South Daytona's City Council complied with any these requirements. Specifically, although counsel for South Daytona stated at the hearing and in response to Petitioners' Interrogatories (Exhibit P2, at 7) that the City
Council simply relied upon the recommendation of the Volusia UCC as the basis for adopting the local technical amendments, there is no evidence (e.g., agenda package for the meeting at which the amendments were adopted, minutes of that meeting) to corroborate that statement. Accordingly, it is unnecessary to determine whether a local governing body can delegate its responsibility of conducting a review and making findings to another entity, such as the Voluisa UCC.
The Port Orange City Council held a public hearing on its local technical amendments and made "findings of fact" in the ordinance through which the amendments were adopted. See Port Orange Ordinance No. 2002-10, page 1 (included in Exhibit R1). Those findings only related to the area's corrosive environment, and five of the local amendments which are purportedly justified by that "local condition" -- i.e., the amendments to NEC Sections 230-50, 336-4, 681-11, and 680-20, and Table 310.16. The findings in the ordinance did not refer to the other four amendments, or the area's high wind conditions.
Nevertheless, because this is a de novo proceeding (rather than a certiorari-type review of the local governing body's findings based upon the "evidence" before it), Port Orange was not precluded from putting on evidence which might show that the other amendments were justified by the "local
condition" of high winds, just as Petitioners were not precluded from putting on evidence to show that the findings and determinations made by the City Council were incorrect.
In sum, South Daytona's local technical amendments fail to comply with Section 553.73(4)(b)1. because the evidence fails to establish that the City Council conducted the required review and made the necessary determinations. By contrast, the evidence establishes that Port Orange's City Council conducted the required review and, at least as to the amendments based upon the area's corrosive conditions, made the required findings. However, because this is a de novo proceeding, those findings are not dispositive or determinative.
Existence of "Local Conditions"
Section 553.73(4)(b) does not define "local conditions" and the parties disagree as to the meaning of that phrase. The proper construction of that phrase is a significant threshold question because it determines the circumstances under which local technical amendments are permitted. Although the phrase "local conditions" has been part of the law since 1974,8 the meaning of that phrase appears to be a matter of first impression. The parties have cited no controlling authority on that issue, nor has the undersigned's research located any.9
Petitioners contend that a "local condition" is a condition that is unique to the local government adopting the
amendment. By contrast, Respondents contend that the condition need not be unique to the local government so long as the condition exists within the local government's boundaries and does not exist at all or to the same degree statewide.
Ultimately, the meaning of the phrase "local conditions" turns on the meaning word "local" because the parties appear to agree that environmental matters such as atmospheric salt and high winds are "conditions" for purposes of Section 553.73(4)(b). And cf. Exhibit P4, at 6, 47 (identifying "climatic conditions, soil types, termites, weather-related events, [and] risks associated with coastal development" as potential subjects of "local variations" which the Study Commission recommended be part of the Code).
Where, as here, the words used in a statute are not defined by statute, they should be given their plain and ordinary meaning as set forth in the dictionary. See Southwest Florida Water Management District v. Save the Manatee Club, 773 So. 2d 594, 599 (Fla. 1st DCA 2000).
Petitioners' construction is more consistent with the dictionary definitions of "local." See Mirriam-Webster's Online Dictionary, www.m-w.com (defining "local" to mean "of, relating to, or characteristic of a particular place: not general or
widespread") (emphasis supplied); Black's Law Dictionary, at 938 (6th ed. 1990) (defining "local" to mean "[r]elating to a place,
expressive of a place; belonging or confined to a particular place. Distinguished from 'general,' 'personal,' 'widespread,' and 'transitory.'") (emphasis supplied).
Petitioners' construction is also more consistent with the legislative intent of the Code, because a restrictive interpretation of the phrase "local conditions" serves to protect the uniformity of the Code. See Section 553.72(1).
Petitioners' construction is also more consistent with the amendments to Section 553.73(4)(b)1. adopted by the Legislature in 2002. See Chapter 2002-293, Section 14, Laws of Florida. Those amendments further illustrate the Legislature's intent to restrict local technical amendments to conditions which are local rather than regional. Even though the substantive criteria in the 2002 version of the statute do not apply in this proceeding because Respondents' local amendments were adopted prior to the 2002 amendments becoming effective, it is appropriate to consider those amendments in construing the existing law. See, e.g., Lowry v. Parole and Probation Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985).
The conditions Respondents cited as the justifying the local amendments -- corrosive environment resulting from atmospheric salt and high winds -- are not "local conditions" for purposes of Section 553.73(4)(b). Those conditions exist to varying degrees in all coastal communities, and portions of more
than half of Florida counties and a significant number of municipalities. As a result, those conditions are "general or widespread," and clearly not "confined to" Port Orange and South Daytona.
Indeed, if conditions which exist in more than half of the Florida counties can be considered "local conditions" then each local government within those counties could adopt amendments to the Code to address those conditions. Each of those local governments might address the local condition differently -- e.g., restricting aluminum wire to "number 2" or larger, or "number 3" or larger, rather than "number 1" or larger as Port Orange and South Daytona did. In such circumstances, the uniformity of the Code would be undermined and the Code would effectively be replaced with the patch-work building code system that existed prior to the Code which, according to the findings of the Study Commission (see Exhibit P4, at 6, 8, 39-48), contributed to the failure to enforce building codes and untold property damage.
"Justification" for the Amendments
Respondents not only have the burden of proving the existence of "local conditions," but also that the local conditions "justify" the more stringent requirements in the local technical amendments. See Section 553.73(4)(b)1. Stated another way, Respondents must demonstrate that the more
stringent requirements in the local amendments are necessary because of the cited local conditions, or that there is a direct nexus between the cited local conditions and the more stringent requirements. The 2002 amendments to the statute confirm as much. See Chapter 2002-293, Section 14, Laws of Florida (amending Section 553.73(4)(b)1. and clarifying that the local need to strengthen the Code must "beyond the needs or regional variation addressed by the [Code]" and that the local need must be addressed by an amendment which is no more stringent than necessary to address that need).
In light of the foregoing determination that Respondents failed to prove the existence of "local conditions," it is not necessary to determine whether such conditions justify their local technical amendments. However, in the event that the undersigned's construction of "local conditions" is rejected by the Commission in its final order or by an appellate court, the issue as to whether the conditions cited by Respondents -- corrosive environment caused by atmospheric salt and high winds
-- "justify" the amendments will be addressed below.
With respect to the local technical amendment to NEC Section 210-52, the preponderance of the evidence fails to demonstrate that "bus bar" corrosion is a significant problem (in Port Orange, South Daytona, or elsewhere), particularly since the "bus bar" is located behind the breaker box which is
typically not located outside. In any event, the amendment does not eliminate the potential problem created by a corroded, overloaded "bus bar" because even if the appliances listed in the amendment were on separate circuit breakers, they could still be placed on the same "bus bar" such that the "bus bar" would be subjected to the same amperage with or without the amendment. As a result, even if a saltier, corrosive environment was a "local condition" in Port Orange and South Daytona, that condition does not justify the local amendment to NEC Section 210-52.
With respect to the local technical amendment to NEC Section 230-50, the preponderance of the evidence fails to demonstrate that EMT is more susceptible to corrosion than the types of conduit which the amendment allows. Moreover, although the evidence establishes that EMT is a thinner-walled pipe than the types of conduit which the amendment still allows, the preponderance of the evidence fails to demonstrate that EMT is more susceptible to wind damage than other types of conduit since the conduit riser is required to be securely attached to the structure. As a result, even if a saltier, corrosive environment or high winds were "local conditions" in Port Orange and South Daytona, those conditions do not justify the local amendment to NEC Section 230-50.
The local technical amendment to NEC Section 230-70 may be desirable from a safety standpoint, but it is not justified by high wind conditions. Indeed, the fact that an outside "main disconnect" or "shunt trip" might make it easier for firefighters to turn off power to a building in case of an emergency is no more significant in the event of a hurricane than it is in the event of a fire or some other emergency. Accordingly, even if high winds were considered a "local condition" in Port Orange and South Daytona, that condition does not justify the local amendment to NEC Section 230-70.
With respect to the local technical amendment to NEC Table 310.16, although the evidence establishes that all metals are susceptible to corrosion, the preponderance of the evidence fails to establish that aluminum wires are more susceptible to corrosion than copper wires. Nor does the preponderance of the evidence establish that aluminum wires smaller than "number 1" are more susceptible to corrosion than larger aluminum wires. Accordingly, even if a saltier, corrosive environment was a "local condition" in Port Orange and South Daytona, that condition does not justify the prohibition on the use of aluminum wire smaller than "number 1."
With respect to the local technical amendment to NEC Section 336-4, the preponderance of the evidence fails to establish that NM wires are susceptible to corrosion since they
are not used outdoors, but rather are used for interior wiring. Moreover, the preponderance of the evidence fails to establish that the multi-family dwellings and other structures (where unprotected NM wires are prohibited) are more susceptible to corrosion due to a saltier environment than are one- and two- family dwellings (where unprotected NM wires are permitted). As a result, even if a saltier, corrosive environment was a "local condition" in Port Orange and South Daytona, that condition does not justify the local technical amendment to NEC Section 336-4.
The local amendment to 339-3 is not justified by a saltier, corrosive environment because the metal wires which make up the UF cable are protected in a plastic sheath. Moreover, the preponderance of the evidence fails to establish that damage to UF cables is less likely to occur on single- family residential property (where UF cable is permitted) than on other property (where UF cable is effectively prohibited). Even if damage to UF cable is more likely on non-single-family- residential property, that issue is unrelated to a corrosive salty environment. As a result, even if a saltier, corrosive environment was a "local condition" in Port Orange and South Daytona, that condition does not justify the local technical amendment to NEC Section 339-3.
Although the local technical amendment to NEC Section 680-8 is logically related to high wind conditions, it
is not justified by such conditions. Indeed, the evidence failed to identify any circumstance (in Port Orange, South Daytona, or elsewhere) where wires were run above a swimming pool or that an overhead wire has ever fallen into a swimming pool.
The local technical amendment to NEC Section 680-11 is justified by the potential for corrosion based upon the chlorine environment of the pool equipment room. That, however, is clearly not a local condition because it would exist no matter where the pool was located.
The local technical amendment to NEC Section 680-20 is not justified based upon a saltier, corrosive environment. The preponderance of the evidence failed to establish that there is a problem with ground fault interrupters failing because of corrosion (as compared to failures based upon improper installation). As a result, even if a corrosive salt environment or high winds were "local conditions" in Port Orange and South Daytona, those conditions do not justify the local technical amendment to NEC Section 680-20.
In sum, the none of the amendments are justified based upon corrosive conditions caused by atmospheric salt or high wind conditions. Therefore, even if those conditions were considered "local conditions" in Port Orange and/or South Daytona, they do not justify the local technical amendments.
Conclusion
In sum, the local technical amendments adopted by South Daytona fail to comply with Section 553.73(4)(b)1. because there is no credible evidence that South Daytona's local governing body conducted the review and made the determinations required by that section. The local technical amendments adopted by the City of Port Orange and South Daytona fail to comply with Section 553.73(4)(b)1. because Port Orange and South Daytona failed to meet its burden to prove that the conditions upon which the amendments were based -- corrosive salt environment and high winds -- are "local conditions" or that those conditions do, in fact, justify the more stringent requirements contained in the amendments.
Section 553.73(4)(b)2.: (Discrimination Against Products with Demonstrated Capabilities)
Petitioners next allege that several of the local technical amendments discriminate against materials or products of demonstrated capabilities in violation of Section 553.73(4)(b)2. Specifically, Petitioners contend that the amendments to NEC Sections 230-50 (EMT), 336-4 (Romex cable), 339-3 (UF cable), and Table 310.6 (aluminum wire smaller than "number 1") discriminate against proven materials and products.
The prohibition against discriminatory requirements has been in the law since 1974. See Section 553.73(3)(b),
Florida Statutes (1974 Supp.). However, there does not appear to be any appellate decisions construing that prohibition. The parties have cited no controlling authority on that issue, nor has the undersigned's research located any.
EMT has been effectively used in the electrical contracting industry for many purposes including the protection of service entrance conductors. It is a product with demonstrated capabilities. By prohibiting the use of EMT for that purpose, the local technical amendment to NEC Section 230-
50 discriminates against EMT. Accordingly, that amendment does not comply with Section 553.73(4)(b)2.
Aluminum wire of all sizes has been effectively used for many purposes for many years; it is a product with demonstrated capabilities, both in coastal and non-coastal communities. It has proven successful, and at least one study shows that aluminum wire outperforms copper wire when properly connected. The local technical amendment to NEC Table 301.16 discriminates against aluminum wire by prohibiting use of aluminum wire smaller than "number 1" size. Accordingly, that amendment does not comply with Section 553.73(4)(b)2.
Romex cable has been used for more than 30 years and has proven effective. It is a product with demonstrated capabilities for internal wiring of all types of dwellings. The local technical amendment to NEC Section 336-4 discriminates
against Romex cable by effectively restricting its use to one- and two-family residential dwellings. Accordingly, that amendment does not comply with Section 553.73(4)(b)2.
UF cable has been used effectively for many years.
It is a product with demonstrated capabilities for external wiring on all types of properties. The local technical amendment to NEC Section 339-3 discriminates against UF cable by limiting its use to single-family residential property.
Accordingly, that amendment does not comply with Section 553.73(4)(b)2.
3. Section 553.73(4)(b)5.:
(Transmittal of Amendments to the Commission Within 30 Days)
Finally, Petitioners allege that the local technical amendments are invalid because they were not transmitted to the Commission within 30 days as required by Section 553.73(4)(b)5.
Section 553.73(4)(b)5., as it existed at the time the amendments at issue in this proceeding were adopted, does not specify whether the amendments must be transmitted within 30 days of their adoption or, alternatively, within 30 days after the amendments become effective. However, the parties appear to agree that the statute requires transmittal of the amendments within 30 days after their adoption. See Petitioners' PRO, at 30-31; Respondent Port Orange's PRO, at paragraph 52.
That construction furthers the apparent purpose of the second sentence of Section 553.73(4)(b)5. which requires the Commission to "maintain copies of all such amendments in a format that is usable and obtainable by the public." That provision ensures that those who may be impacted by the local amendments know of their existence and that such amendments are available from a single source, the Commission, as part of the Code. And cf. Section 553.73(4)(b)4. (requiring the local government to "make readily available, in a usable format, all [local] amendments"). That purpose would be frustrated if the local government was not required to send the amendment to the Commission until 30 days after it became effective.
The local technical amendments adopted by Respondents failed to comply with Section 553.73(4)(b)5. because they were not transmitted to the Commission within 30 days after their adoption. Indeed, South Daytona did not transmit its amendments until 112 days after they were adopted and Port Orange did not transmit its amendments until 222 days after they were adopted.
Port Orange argues that the failure to comply with the transmittal requirement in Section 553.73(4)(b)5. does not render the amendments invalid. See Respondent Port Orange's PRO, at paragraph 52. Instead, Port Orange argues that the "late filing simply serves to delay the effective date of the local amendments." Id.
Port Orange's argument finds support in Section 553.73(4)(b)7. That statute provides that if an amendment is determined by the countywide compliance review board not to be in compliance with Section 553.73(4)(b), then the amendment is "unenforceable until the local government corrects the amendment to bring it into compliance."
The question then becomes how, if at all, can an amendment that was not transmitted within 30 days of its adoption be brought into compliance. Once that period expires, it is impossible to bring the amendment into compliance with the literal language of Section 553.73(4)(b)5., unless the local government readopts the amendment. However, nothing would be served by requiring the local government to readopt the amendment simply to allow it to meet the 30-day transmittal period particularly if, as Port Orange contends (and
Section 553.73(4)(b)7. clearly implies), the amendment is unenforceable until it is sent to the Commission.
Accordingly, Respondents' failure to transmit the amendments to the Commission within 30 days after their adoption does not independently render the amendments invalid. However, consistent with Section 553.73(4)(b)7., the amendments were unenforceable prior to the dates that they were sent to the Commission.
It should be noted that the current version of
Section 553.73(4)(b)5. eliminates this problem. As amended, the statute provides that "[l]ocal technical amendments shall not become effective until 30 days after the amendment has been received and published by the Commission." See
Section 553.73(4)(b)5., Florida Statutes (2002). Those amendments did not become effective until May 30, 2002, see
Chapter 2002-293, Section 14, Laws of Florida, and therefore do not apply to the amendments at issue in this proceeding.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Building Commission issue a final order which determines that:
Each of the local technical amendments adopted by the City of South Daytona fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001); and
Each of the local technical amendments adopted by the City of Port Orange fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001).
DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
ENDNOTES
1/ The court reporter's index in the Transcript reflects only three exhibits having been introduced by Respondent Port Orange and received by the undersigned. However, a fourth exhibit -- a piece of corroded metal pipe -- was also received. See Transcript, at 109-13. That exhibit is designated as Exhibit R4, and is being transmitted to the Commission with this Recommended Order as part of the record of this proceeding.
2/ All references to Sections are to the 2001 version of the Florida Statutes unless otherwise indicated. All references to Rules are to the current edition of the Florida Administrative Code.
3/ The 2001 version of the statute is in accord. See Section 553.73(4)(b)7., Florida Statutes (2001) (requiring the Commission to "conduct a hearing under chapter 120 and the uniform rules of procedure").
4/ Exhibit P4 is the Governor's Building Codes Study Commission's December 1997 final report titled "Five Foundations for a Better Built Environment."
5/ But see Florida Pool & Spa Ass'n v. Florida Building Comm'n, DOAH Case No. 02-2505RX, Final Order at 6, 33 n. 4 (Feb. 12, 2003) (stating that the Code's effective date was December 16, 2001).
6/ In 2002, the Legislature re-designated a portion of subparagraph (4)(b)7. as subparagraph (4)(b)8. and renumbered the remaining subparagraphs. See Chapter 2002-293, Section 14, Laws of Florida. Accordingly, there are now 10 subparagraphs rather than nine in Section 553.73(4)(b).
7/ The other requirements of Section 553.73(4)(b), which are not at issue in this proceeding, are subparagraphs (4)(b)3. (amendment must not introduce a new subject into the Code), (4)(b)4. (amendment must be made available to the public in a usable format), (4)(b)7. (countywide compliance review board must have been established to review amendments), and (4)(b)8. (amendment must include a fiscal impact statement).
8/ See, e.g., Section 557.73(3)(a), Florida Statutes (1974 Supp.) (authorizing local governments to adopt more stringent requirements than those in the Interim State Building Code if local conditions justify such requirements); Section 553.73(4)(a), Florida Statutes (1997) (authorizing local governments to adopt more stringent requirements than the State Minimum Building Codes if local conditions justify such requirements).
9/ Cf. Campbell v. Monroe County, 426 So. 2d 1158, 1161 (Fla. 3rd. DCA 1983)(invalidating local code requirement as inconsistent with Section 553.73, primarily because it discriminated against manufactured housing, but also noting that no local condition justified the requirement); Fla. Attn'y Gen. Op. 98-05 (Jan 27, 1998) (concluding that local governments could adopt more stringent standards for wind resistance by following the procedural requirements in Section 553.73(4), Florida Statutes (1997)); Exhibit P4, at 41, 45 (suggesting that local amendments were frequently adopted without regard to the statutory criteria because they were done through the ordinance process and because there was no routine review of the amendments for compliance with the statutory criteria).
COPIES FURNISHED:
Jay Adams, Esquire Broad & Cassel
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
Bob Brown, Esquire City of Daytona Beach
301 South Ridgewood Avenue Daytona Beach, Florida 32114
Timothy E. Dennis, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Steve Pfeiffer, Esquire Theriaque & Pfeiffer, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100
Tallahassee, Florida 32399-2100
Roy Schleicher
Volusia County of Governments 1190 Pelican Bay Drive Daytona Beach, Florida 32119
Scott Simpson, Esquire City of South Daytona
1020 International Speedway Boulevard Daytona Beach, Florida 32114
Ila Jones, Administrator Florida Building Commission Department of Community Affairs Codes & Standards
2555 Shumard Oak Boulevard, Suite 210
Tallahassee, Florida 32399-2100
Colleen M. Castillo, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 23, 2003 | Agency Final Order | |
| Apr. 29, 2003 | Recommended Order | The local technical amendments to the Florida Building Code adopted by Respondents failed to comply with the requirements of Section 553.73(4)(b), Florida Statutes. |
