The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION : No. 87-1202
:
of : MARCH 3, 1988
:
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
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JAMES F. McMULLEN, CHIEF, CALIFORNIA STATE FIRE MARSHAL,
has requested an opinion on the following questions:
1. In adopting regulations for roof covering pursuant to
Health and Safety Code section 13108.5, is it sufficient to state
the roof covering required for each category of fire severity zone
designated by the Director of Forestry or is it necessary to
identify the areas covered by such zones either by incorporating
maps of such zones directly in the regulations or by reference to
such maps in the regulations of the Director of Forestry?
2. Does the Fire Marshal have authority to enforce his roof
covering regulations in fire hazard severity zones?
CONCLUSIONS
1. In adopting regulations for roof covering pursuant to
Health and Safety Code section 13108.5, it is sufficient to state
the roof covering required for each category of fire severity zone
indicating such zones by the designations given them by the
Director of Forestry.
2. The Fire Marshal has authority to enforce his roof
covering regulations in those portions of fire hazard severity
zones which are outside the boundaries of incorporated cities or
districts providing fire protection services and within those
cities and districts whose chief fire official or governing body
has requested such enforcement by the Fire Marshal within their
respective boundaries.
ANALYSIS
Under the provisions of section 4125 et seq. of the
Public Resources Code, the State Board of Forestry designates
"state responsibility areas", that is, those areas of the state
where the prevention and suppression of fire is primarily the
responsibility of the state. Such lands generally are forest,
timber and brush lands which lie outside the corporate limits of
cities and outside the National Forests. (See, generally, 66
Ops.Cal.Atty.Gen. 512, 513-514 (1983).)
Under the provisions of sections 4201 through 4204 of the
Public Resources Code, the State Director of Forestry is required
to classify lands within "state responsibility areas" into fire
hazard severity zones. As stated in section 4203 of the Public
Resources Code: "(a) [t]he director shall, by regulation,
designate fire hazard severity zones and assign to each a rating
reflecting the degree of severity of fire hazard that is expected
to prevail in the zone." The Director of Forestry's duly adopted
regulations are to be found in section 1280 of Title 14 of the
California Code of Regulations. It provides:
"1280. Fire Hazard Severity Zones.
"The fire hazard severity zones and the rating
reflecting the degree of severity of fire hazard that is
expected to prevail in those zones, shall be designated
by the Director and delineated on a series of maps on
file in the Sacramento Office of the Department of
Forestry, 1419 Ninth Street, Room 1653-10. The maps are
entitled 'Maps of Fire Hazard Severity Zones in the State
Responsibility Area of California', dated August 1984."
Under the provisions of sections 13100 et seq. of the
Health and Safety Code1, particularly sections 13108 and 13143, the
State Fire Marshal adopts building standards, not inconsistent with
laws or ordinances, relating to state-owned or state occupied
buildings, and buildings used as an asylum, jail, mental hospital,
hospital, sanitarium, home for the aged, children's home, schools
and places of public assemblage such as theatres, dance halls,
auditoriums and other places where 50 or more persons may gather.
Section 13108.5 sets forth a special provision with respect to roof
coverings in "state responsibility areas". It states:
1
All future section references will be to the Health and
Safety Code unless otherwise indicated.
2. 87-1202
"The State Fire Marshal shall adopt, amend, and
repeal regulations for roof coverings and openings into
the attic areas of buildings in those fire hazard
severity zones designated by the Director of Forestry
pursuant to Article 9 (commencing with Section 4201) of
Chapter l of Part 2 of Division 4 of the Public Resources
Code.
"The regulations shall be consistent with the rules
and regulations adopted by the Commission of Housing and
Community Development pursuant to Section 17922 and shall
apply to buildings subject to this part located in fire
hazard severity zones within state responsibility areas.
The regulations shall be enforced by the agency
responsible for enforcement of this part within each
zone.
"The State Fire Marshal shall take into account the
rating, reflecting the degree of severity of fire hazard
assigned pursuant to Section 4203 of the Public Resources
Code for each of the fire hazard severity zones.
"The regulations adopted pursuant to this section
are applicable to new buildings constructed and to
existing buildings when 50 percent or more of the roof
area is reroofed pursuant to a building permit when the
application for the permit is filed after the effective
date of the regulations. When there is no building
permit, the regulations are applicable to buildings
constructed and to buildings where 50 percent or more of
the roof area is reroofed after the effective date of the
regulations."
The State Fire Marshal, in accordance with this
directive, has promulgated regulations adding subdivision (d) to
section 2-3202 of title 24 of the California Code of Regulations
with respect to "Roof Construction and Materials." These
regulations, set forth in full in the appendix, apply to the "fire
hazard severity zones" established by the Director of Forestry,
which are stated to be:
1. "Very high fire hazard severity zones;
2. "High fire hazard severity zones; and
3. "Moderate fire hazard severity zones."
They designate the type of materials which are to be used as roof
coverings in each of such zones. They, however, do not include
maps of such zones. Nor do they specifically incorporate by
reference such maps promulgated by the Director of Forestry, and to
3. 87-1202
be found as set forth in title 14 of the California Code of
Regulations. They, however, do include the following notes:
"NOTE NO. 1: For authority to establish Fire Hazard
Severity Zones, see section 1280, Title 14, California
Administrative Code, and Section 4203, Public Resources
Code.
"NOTE NO. 2: Copies of Fire Hazard Severity Zone
Maps may be reviewed at California Department of Forestry
and Fire Protection, Sacramento, Ranger Unit Offices, and
County Planning Commission Offices in those
countieshaving State Responsibility Lands."
1. Is Inclusion of or Specific Reference To
Maps Necessary?
The first question presented is whether, in adopting
these regulations, it was sufficient for the State Fire Marshal to
state the roof coverings required for each category of fire
severity zone, or whether it was also necessary to identify these
areas or zones by directly incorporating the Director of Forestry's
maps into the regulations, or by specifically incorporating such
maps by references. We conclude the regulations are sufficient in
their present form.
With respect to the adoption of administrative
regulations by state agencies, sections 11342.1 and 11342.2 of the
Government Code provide:
§ 11342.1:
"Except as provided in Section 11344, nothing in
this chapter confers authority upon or augments the
authority of any state agency to adopt, administer, or
enforce any regulation. Each regulation adopted, to be
effective, must be within the scope of authority
conferred and in accordance with standards prescribed by
other provisions of law."
§ 11342.2:
"Whenever by the express or implied terms of any
statute a state agency has authority to adopt regulations
to implement, interpret, make specific or otherwise carry
out the provisions of the statute, no regulation adopted
is valid or effective unless consistent and not in
conflict with the statute and reasonably necessary to
effectuate the purpose of the statute."
These general rules, as previously found in sections
11373 and 11374 of the Government Code, were discussed by the
4. 87-1202
California Supreme Court in relation to determining the validity of
an administrative regulation in Food Dealers Assn. v. Department of
Motor Vehicles (1982) 32 Cal.3d 347, 355-356 as follows:2
"The court's role in reviewing administrative
regulations adopted pursuant to the former Administrative
Procedure Act is a 3limited
'First, our tone.
ask is to inquire into the legality of the challenged
regulation, not its wisdom. (Morris v. Williams (1967) 67 Cal.2d
733, 737 [63 Cal.Rptr. 689, 433 P.2d 697].) Second, in reviewing
the legality of a regulation adopted pursuant to a delegation of
legislative power,
the judicial function is limited to determining whether
the regulation (1) is "within the scope of [the]
authority conferred" ([former] Gov. Code, § 11373) and
(2) is "reasonably necessary to effectuate the purpose of
the statute" ([former] Gov. Code, § 11374). Moreover,
"these issues do not represent a matter for the
independent judgment of an appellate tribunal; rather,
both come to this court freighted with the strong
presumption of regularity accorded administrative rules
and regulations." (Ralphs Grocery Co. v. Reimel (1968) 69
Cal.2d 172, 175 [70 Cal.Rptr. 407, 444 P.2d 79].) (2)
And in considering whether the regulation is "reasonably
necessary" under the foregoing standards, the court will
defer to the agency's expertise and will not "superimpose
its own policy judgment upon the agency in the absence of
an arbitrary and capricious decision." (Pitts v. Perluss
(1962) 58 Cal.2d 824, 832 [27 Cal.Rptr. 19, 377 P.2d
83].)' ( Agricultural Labor Relations Bd. v. Superior
Court (1976) 16 Cal.3d 392, 411 [128 Cal.Rptr. 183, 546
P.2d 687]; see also Pacific Legal Foundation v.
Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111
[172 Cal.Rptr. 194, 624 P.2d 244]; International Business
Machines v. State Bd. of Equalization (1980) 26 Cal.3d
923, 931, fn. 7 [163 Cal.Rptr. 782, 609 P.2d 1]).
"As the court noted in Agricultural Labor Relations
Bd. v. Superior Court, supra, 16 Cal.3d at page 411,
'although these rules have been often restated, it would
be well to remember that they are not merely empty
rhetoric.' Where the Legislature has delegated to an
2
In footnote 3, the court noted the recodification of
California Administrative Procedure Act:
"3 The former Administrative Procedure Act (see
former Gov. Code, §§ 11371-11445) was repealed and
reenacted in 1979, effective July 1, 1980. (Stats. 1979
ch. 567, §§ 1-9, pp. 1778-1795; see Gov. Code, §§ 11340
11370.5.)"
5. 87-1202
administrative agency the responsibility to implement a
statutory scheme through rules and regulations, the
courts will interfere only where the agency has clearly
overstepped its statutory authority or violated a
constitutional mandate." (Emphasis added.)
In short, so long as the State Fire Marshal did not
violate any statutory authority in adopting his roof covering
regulations, the courts will not interfere if the regulations are
otherwise reasonable.
"Generally, the same rules of construction and
interpretation which apply to statutes govern the construction and
interpretation of rules and regulations of administrative
agencies." ( Cal. Drive-In Restaurant Assn. v. Clark (1943) 22
Cal.2d 287, 292.) ". . . a statute '"'will be upheld if its terms
may be made reasonably certain by reference to other definable
sources.'"'" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 272.)
Thus in Burg the court countered the argument that the
statute prohibiting driving with a blood alcohol level of 0.10
percent or greater was void for vagueness by pointing out, inter
alia, that "[c]harts are readily available to the public to show
with reasonable certainty the number of alcoholic beverages
necessary for a particular individual to reach a blood-alcohol
level of 0.10 percent." ( Ibid.) Such charts are issued by the
Department of Motor Vehicles to drivers. And in Thirteen Committee
v. Weinreb (1985) 168 Cal.App.3d 528, 532, the court applied the
same rule to make specific the term "political purposes" in section
82025 of the financial disclosure provisions of the Political
Reform Act of 1974. The court said the term could be made certain
by reference to the administrative regulations of the Fair
Political Practices Commission.
In neither of the foregoing authorities did the court
require any specific incorporation by reference to the materials by
which the terms of the statute could be made certain. Accordingly,
with respect to the Fire Marshal's regulations, all that is
required is that the particular fire severity zones may be
ascertained by referring to other documents, that is, "other
definable sources." As noted in the State Fire Marshal's
regulations, these other defined sources are the maps which have
been prepared by the Department of Forestry which may be examined
at designated locations.
Furthermore, section 13108.5 itself, in its requirements
that the Fire Marshal adopt regulations, specifically refers to
"those fire hazard severity zones designated by the Director of
Forestry pursuant to article 9 (commencing with section 4201) of
chapter 18 part 2 of division 4 of the Public Resources Code."
6. 87-1202
We believe that this reference in the statute constitutes an
implied adoption by reference of the maps which designate those
zones both for purposes of section 13108.5 and any regulations
adopted pursuant thereto.
2. The Authority and Duty To Enforce The Roof
Covering Regulations
The second question presented is whether the State Fire
Marshal has the authority to enforce the roof covering regulations
he has adopted pursuant to section 13108.5 and who has the primary
enforcement authority for such regulations.
Building regulations such as those adopted by the State
Fire Marshal bring into play not only his statutory powers and
duties, but also the provisions of the State Housing Law (§ 17910
et seq.) and the State Building Standards Law (§ 18901 et seq.).
Since a fire regulation may also be a building regulation, certain
divisions of authority and overlaps in enforcement authority and
duties may arise between state and local officials under these
laws. (See generally 65 Ops.Cal.Atty.Gen. 397 (1982); 64
Ops.Cal.Atty. Gen. 386 (1981); 63 Ops.Cal.Atty.Gen. 773 (1980); 61
Ops.Cal.Atty.Gen. 256, 263-264 (1978); 58 Ops.Cal.Atty.Gen. 13
(1975); 20 Ops.Cal.Atty.Gen. 31 (1952); 15 Ops.Cal.Atty.Gen, 129
(1950); 7 Ops.Cal.Atty.Gen. 276 (1946).)
Such a division of or overlap of enforcement authority is
understandable when one considers the broad scope of the term
"enforcement". As defined in section 17920, subdivision (e) of the
State Housing Law:
"(e) 'Enforcement' means diligent effort to secure
compliance, including review of plans and permit
applications, response to complaints, citation of
violations, and other legal process. Except as otherwise
provided in this part, 'enforcement' may, but need not,
include inspections of existing buildings on which no
complaint or permit application has been filed, and
effort to secure compliance as to such existing
buildings."
As to the roof covering regulations promulgated pursuant
to section 13108.5, that section specifically provides for the
enforcement authority in paragraph two. That paragraph states:
"The regulations shall be enforced by the agency
responsible for enforcement of this part within each
zone."
This language refers to sections 13145 et seq.
Section 13145 provides:
7. 87-1202
"The State Fire Marshal, the chief of any city or
county fire department or district providing fire
protection services, and their authorized
representatives, shall enforce in their respective areas
building standards relating to fire and panic safety
adopted by the State Fire Marshal and published in the
State Building Standards Code and other regulations that
have been formally adopted by the State Fire Marshal for
the prevention of fire for the protection of life and
property against fire or panic.
Section 13146 provides:
"The division of authority for enforcement of
building standards adopted by the State Fire Marshal and
published in the State Building Standards Code relating
to fire and panic safety and other regulations of the
State Fire Marshal shall be as follows:
"(a) The chief of any city or county fire
department or district providing fire protection
services, and their authorized representatives, shall
enforce such building standards and other regulations of
the State Fire Marshal in their respective areas.
"(b) The State Fire Marshal shall have authority to
enforce such building standards and other regulations of
the State Fire Marshal in areas outside of corporate
cities and districts providing fire protection services.
"(c) The State Fire Marshal shall have authority to
enforce such building standards and other regulations of
the State Fire Marshal in corporate cities and districts
providing fire protection services upon request of the
chief fire official or the governing body."
Thus, the general authority of the State Fire Marshal to enforce
his roof covering regulations is set forth in subdivisions (b) and
(c) of section 13146. (See also § 13146.1, inspection of jails and
places of detention § 13146.3, inspection of schools.) 3 The Fire
Marshal is authorized to enforce his roof covering regulations "in
areas outside of corporate cities and districts providing fire
protection services" and "in corporate cities and districts
providing fire protection services upon request of the chief fire
official or the governing body." Of course, if a city or district
withdraws its request, the Fire Marshal would lose his enforcement
authority under section 13146 in those areas.
3
In the State Housing Law, see also sections 17920.7,
17921(b); 17960 et seq. In the State Building Standards Law, see
§ 18945 et seq.
8. 87-1202
The request for this opinion also asked who has the
"primary" enforcement authority for enforcing the Fire Marshal's
roof covering regulations. We have found nothing in the law to
suggest that one officer's law enforcement authority to enforce
such regulations is "primary " in the sense that it is superior to
the authority of another officer who has statutory authority to
enforce the same regulations. In short, the law does not
contemplate that one law enforcement authority is primary to
another in the sense that one's actions are superior to another's.
In this respect, we feel our advice in 15 Ops.Cal.Atty.Gen. 129,
130, supra, is still valid. We stated:
"In all of these situations we believe that both
regulatory bodies have jurisdiction to enforce the
statutes and rules falling particularly within their
province, that is, fire and panic regulations will be
enforced by the fire authorities and violations of the
building regulations dealing with health and safety will
be the responsibility of the Division of Housing, or the
local housing authority. Where some elements of rule or
statute involves both or where there is a borderline
question the matter of enforcement must be worked out by
the enforcement agencies involved.
"A good rule of procedure would be to have the
inspectors of both agencies call any violation to the
attention of the person in charge of the premises where
the violation occurs and at the same time notify the
other agency should the violation be particularly within
the province of the second agency."
* * * *
9. 87-1202
APPENDIX
The Fire Marshal's regulation referred to in this opinion
became effective January 1, 1988. It amends chapter 2-32 entitled
Roof Construction and Covering in the State Building Code set forth
in part 2, title 24 of the California Code of Regulations by adding
subdivision (d) to section 2-3202 thereof entitled Roof
Construction and Materials. (§ 2-3201 of said chapter provides
that the "quality, design and application of roofs shall comply
with the requirements and standards adopted by reference from
chapters 32 and 60, UBC [Uniform Building Code], and with the
modified references from UBC and other requirements set forth in
this chapter.") Subdivision (d) added to section 2-3202 by the
Fire Marshal's regulation reads as follows:
"(d) Roof Coverings Within Fire Hazard Severity
Zones. Unless prohibited by more stringent requirement
of this code, roofs on all buildings in fire hazard
severity zones established by the California Department
of Forestry and Fire Protection shall comply as follows:
"1. Very high fire hazard severity zone.
"A. Any Class A listed roof, or
"B. Any noncombustible roof.
"2. High fire hazard severity zone.
"A. Any roof complying with Section 3203(e),
fire retardant roofs, UBC, 1985 Edition.
"EXCEPTION: A Class C listed mineral surfaced
asphalt shingle roof covering as per Section 3203(e)5,
UBC, 1985 Edition, shall not be permitted.
"3. Moderate fire hazard severity zone.
"A. Any roof complying with Section 3202(e),
fire retardant Edition, or
"B. Any Class C listed roof.
"4. The installer of the roof covering shall
provide certification of roof covering classification to
the inspection authority having jurisdiction.
"5. Section 2-3202(d) is applicable to new
buildings constructed and to existing buildings when 50
percent or more of the roof is reroofed pursuant to a
building permit when the application for the permit if
filed after the effective date of this section. When
there is no building permit, this section is applicable
10. 87-1202
to buildings constructed and to buildings where 50
percent of more of the roof area is reroofed after the
effective date of this section.
"6. These building standards should not be
construed to preclude local authorities from adopting
more stringent roof covering requirements through their
local rulemaking process.
"Local enforcing authorities may reduce the roof
covering requirements of these building standards in
their respective area of jurisdiction by first appealing
to their local Boards of Appeals. Boards of Appeals
shall submit a written finding of fact and
recommendations to the State Fire Marshal for a reduction
of such roof covering building standards. The State Fire
Marshal shall respond with his/her decision of the State
Fire Marshal is binding.
"NOTE NO. 1: For authority to establish Fire Hazard
Severity Zones, see Section 1280, Title 14, California
Administrative Code, and Section 4203, Public Resources
Code.
"NOTE NO. 2: Copies of Fire Hazard Severity Zone
Maps may be reviewed at California Department of Forestry
and Fire Protection, Sacramento, Ranger Unit Offices, and
County Planning Commission Offices in those counties
having State Responsibility Lands.
11. 87-1202