Untitled California Attorney General Opinion

• Court: California Attorney General Reports
• Decided: January 3, 1991
• Docket: 90-305
• Status: Published

Opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

______________________________________

OPINION :

: No. 90-305

of :

: January 3, 1991

JOHN K. VAN DE KAMP :

Attorney General :

:

RONALD M. WEISKOPF :

Deputy Attorney General :

___________________________________________________________________ _____________

THE CALIFORNIA BUILDING STANDARDS COMMISSION has requested

an opinion on the following question:

Does Health and Safety Code section 18941.5, subdivision

(a), apply the building standards as they appear in the model codes

that are named in that subdivision, or as they have been amended and

appear in the California Building Standards Code, to all occupancies

throughout the state?

CONCLUSION

Health and Safety Code section 18941.5, subdivision (a),

applies the building standards of the model codes named in the

subdivision as they have been amended and appear in the California

Building Standards Code to all occupancies throughout the state.

ANALYSIS

The State Building Standards Code (Tit. 24, Cal. Code

Regs.) is a composite of building standards of three different

backgrounds: some have been adopted directly by state agencies

without change from building standards contained in various model

industry codes; some have been adapted from the model codes'

standards to meet California conditions; and some constitute

extensive additions to the model codes that have been adopted to

address particular California concerns.

1. 90-305

Section 18941, subdivision (a), of the Health and Safety

Code1/ makes certain building standards applicable to all occupancies

throughout California. The subdivision provides as follows:

"The building standards contained in the Uniform Fire

Code of the International Conference of Building Officials

and the Western Fire Chiefs Association, Inc., the Uniform

Building Code of the International Conference of Building

Officials, the Uniform Plumbing Code of the International

Association of Plumbing and Mechanical Officials, the

National Electrical Code of the National Fire Protection

Association, the Uniform Mechanical Code of the

International Conference of Building Officials and the

International Association of Plumbing and Mechanical

Officials as referenced in the State Building Standards

Code shall apply to all occupancies throughout the state

and shall become effective 180 days after publication in

the State Building Standards Code by the State Building

Standards Commission or at a later date after publication

established by the commission."

The question presented asks which are the building standards that the

subdivision makes applicable to all occupancies throughout the state:

those that are contained in the uniform model codes themselves as

adopted by the various private organizations, or those that have been

adapted by state agencies, through additions and deletions to those

found in the model codes, and are published in the State Building

Standards Code. We conclude they are the latter.2/

1. Unidentified section references hereinafter refer to

sections of the Health and Safety Code. Also, all references to

the State Building Code, the State Building Standards Code, and

Title 24 of the California Administrative Code, mean the California

Building Standards Code. (§ 18902.)

2. Although subdivision (a) of section 19841.5 provides that

the building standards to which it refers are to be applicable to

all occupancies throughout the state, subdivisions (b) and (c) of

the section recognize that cities and counties might modify them

under certain circumstances. With respect to that authority, we

were also asked whether cities and counties have authority to amend

the building standards required by section 18941.5, subdivision

(a), and if so, if those amendments had to be based on local

climatic, geological, or topographical conditions. Subsequent to

entertaining the request, we were informed that the question of the

scope of local authority under section 18941.5 is an issue in

pending litigation in both federal and state court. This office

"has traditionally declined to provide opinions on such questions

while the litigation is pending." (66 Ops.Cal.Atty.Gen. i, iv

[Foreword] (1983).)

2. 90-305

In answering the question our primary task is to ascertain

the intention of the Legislature for enacting subdivision (a) of

section 18941.5 so that we may interpret it in such a way as to

further that intent. (Cf., Sand v. Superior Court (1983) 34 Cal.3d

567, 570; Great Lakes Properties, Inc v. City of El Segundo (1977) 19

Cal.3d 152, 153.) To do so we look to the words of the subdivision

itself (People v. Belleci (1979) 24 Cal.3d 879, 884; Moyer v.

Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230), "according

significance, if possible, to every word, phrase and sentence in

pursuance of the legislative purpose." ( Dyna-Med, Inc. v. Fair

Employment & Housing Comm. (1987) 43 Cal.3d 1379, 1387). "A statute

must be construed 'in the context of the entire statutory scheme of

which it is a part, in order to achieve harmony among the parts.'"

(People v. Woodhead (1987) 43 Cal.3d 1002, 1009.)

The State Building Standards Law (§ 18901 et seq.) requires

state agencies responsible for the adoption of building standards to

submit them to the State Building Standards Commission for review and

approval (§§ 18929, 18930, 18931 subds. (a),(c)), after which they

are codified into the State Building Standards Code (§§ 18931, subd.

(b), 19839, 18940; cf. §§ 18910, 18911). The standards adopted by

the agencies are based in the main on standards contained in

"uniform" or "model" industry codes, which are developed by private

organizations through a consensual process among product

manufacturers, building industry representatives, and government

building officials to govern various aspects of building construction

within the industry's concern. (§§ 18930, subd. (a)(7); 18932, subd.

(c); 18941; cf. §§ 18916; 18928, 18939; see Danville Fire Protection

Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241,

249; 65 Ops.Cal.Atty.Gen. 397, 399, 401 (1982); 63 Ops.Cal.Atty.Gen.

566, 568-570 (1980); 60 Ops.Cal.Atty.Gen. 234, 237 (1977).)3/

But state agencies do not necessarily adopt building

standards contained in the model codes without change; to the

contrary, they are authorized and expected to amend them, with

appropriate additions or deletions, in order to tailor them to

particular California conditions and to address particular California

programs, interests, and public health and safety concerns. (Cf. §§

3. These would include, for example, the Uniform Housing Code

and the Uniform Building Code of the International Conference of

Building Officials, the Uniform Plumbing Code and Uniform

Mechanical Code of the International Association of Plumbers and

Mechanical Officials, the National Electrical Code of the National

Fire Protection Association, and the Uniform Fire Code of the

International Conference of Building Officials and the Western Fire

Chiefs Association, Inc. (Cf. § 18916 [definition of "model

code"].)

3. 90-305

18928, subd. (b), 18930, subd. (a)(7)(A), 18939.) 4/ Where such

changes are made, the building standards submitted to the State

Building Standards Commission for approval will contain them, and it

will be the standards as changed from their model code progenitors

that will appear in the State Building Standards Code. (Cf.

§§ 18938, 18939.) Thus a building standard of a model code that has

been amended by a state agency will not appear in the State Building

Standards Code in its original form, but rather as it has been

adapted by the agency for projects and programs under its

jurisdiction or to meet particular California building conditions.

(Ibid.; see also Matrix Adoption Appendices in Title 24.)

With this in mind, if we now return to subdivision (a) of

section 18941.5 and look to the clause following "as referenced in

the State Building Standards Code," the standards about which the

subdivision speaks become clear. It provides that those standards

"shall become effective 180 days after [their]

publication in the State Building Standards Code by the

State Building Standards Commission...."

As just seen, building standards, of whatever provenance, do not come

to be published in the State Building Standards Code without going

through the formal adoption process prescribed by the State Building

Standards Law. But in that process, building standards from model

codes that have been amended by state agencies are not published in

the State Building Standards Code in their original pre-amended form

at all, but only as they have been amended with appropriate additions

and deletions to meet particular California conditions or program

demands. Thus when subdivision (a) of section 18941.5 predicates the

effective date of the specified standards upon their publication in

the State Building Standards Code, it establishes beyond doubt that

it is referring to the building standards as they have been amended

4. By way of specific examples: under section 17922,

subdivision (a), the Department of Housing and Community

Development adopts building standards that "impose substantially

the same requirements as are contained in the most recent editions

of [certain enumerated] uniform industry codes" but with "additions

or deletions" as are appropriate to the needs of California. (See

63 Ops.Cal.Atty.Gen. 566, 578, supra; see also § 19990 [building

standards for factory built housing].) Under section 4450 of the

Government Code, the State Architect adopts building standards to

ensure that certain buildings and facilities are accessible to and

usable by the physically disabled; these standards are to be

"consistent with the standards for buildings and structures which

are contained in pertinent provisions of the latest edition of the

Uniform Building Code," but with "such additional requirements ...

as the State Architect determines are necessary to assure ...

access and usability...." (See also, § 19955 et seq.)

4. 90-305

by state agencies, for once a standard in a model code is amended, it

is only the amended version which appears in the State Building

Standards Code.5/

Furthermore, had the Legislature wished to have the

building standards as they appear in the model codes apply to the

state's occupancies, it need not have employed the language "as

referenced in the State Building Standards Code," but could have

simply stopped with the listing of the model codes in which they

appear. But the "as referenced in" language was used; thus, any

interpretation that the model codes' pre-amended standards were

nonetheless meant to apply would make it surplusage. However, it is

a principle of statutory interpretation that "[a] construction making

some words surplusage is to be avoided." ( Watkins v. Real Estate

Commissioner (1960) 182 Cal.App.2d 397, 400; accord, City and County

of San Francisco v. Farrell (1982) 32 Cal.3d 47, 55; California

Mfgrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)

For that reason too, the mention of "the building standards contained

[in the specified model codes] as referenced in the State Building

Standards Code" cannot be interpreted to refer to the standards as

they were contained in the model codes in their pre-amended form

before the California additions and deletions were made to them.

The phrase in question thus alludes to the standards

contained in the model code standards, not as they appeared therein,

but as they have been brought to appear in the State Building

Standards Code. This interpretation of the "as referenced in"

language in section 18941.5, subdivision (a), is consistent with the

use of the term "reference" in sections 18928 and 18939, other

provisions of the State Building Standards Law. There it is a term

of art which prescribes the way in which model code standards are

adopted in whole or in part for inclusion in the State Building

Standards Code without reproducing their text. 6/ When a model code

5. It should also be noted that if the Legislature intended

to have the original unadapted model code standards apply, and

establish a deadline for their implementation, it would not have

set a deadline upon their "publication in" the State Building

Standards Code because the 180-day period would never commence -­ since they are not published in the code. Rather the Legislature

would have set the deadline for their implementation "180 days

after publication of the State Building Standards Code," as it

originally did in subdivision (b) of section 18941.5 to set a date

when local standards which deviate from the Code, and which also do

not appear in it, become effective. (§ 18941.5, subd. (b) as added

by Stats. 1988, ch. 1302, § 1.) We note that the word "of" was

inadvertently deleted when subdivision (b) was amended last year

(Stats. 1989, ch. 952, § 5).

6. Section 18928, subdivision (a) provides that "Each state

agency adopting a model code, national standard, or specification

5. 90-305 standard is adopted for California without modification, that is done

by referencing the standard --i.e., citing and adopting the section

of the model code which contains it, but not reproducing the text.

When a model code standard is adapted for California purposes,

similar citation is made to it but with the appropriate additions and

deletions set forth, or a full text of the adapted California version

appears. (See Matrix Adoption Appendices in Title 24.) Hence, a

"referenced" model code may refer to something other than the entire,

unmodified model code.

Since it is reasonable to assume that the Legislature did

not intend to use a significant term in two different senses in the

same law (Stillwell v. State Bar (1946) 29 Cal.2d 119, 123; Rosemary

Properties, Inc. v. McColgan (1947) 29 Cal.2d 677, 686; Diachenko v.

State of California (1981) 123 Cal.App.3d 932, 928), we may safely

presume that when it used the past participle of "reference" in

section 18941.5, it had the same meaning for it as it had when it

used the term in sections 18928 and 18939. Hence, in the context of

section 18941.5, the citation to "the building standards contained in

the [various industry codes] as referenced in the State Building

Standards Code" means the standards contained in the model codes in

the way they have been made to appear in the State Building Standards

Code. So understood, that would include any "appropriate additions

and deletions" that were made to them by California agencies.

Finally it should be mentioned that some question has been

raised as to whether the application of the building standards in the

State Building Standards Code might not be limited by the

programmatic responsibilities of the adopting agencies. In other

words, it is suggested that a building standard should only apply to

the types of occupancies that are within the specific area(s) of

jurisdictional concern of the state agency which adopted it. We do

not accept such a limitation. Section 18941.5 does not direct the

application of the building standards in the State Building Standards

Code according to the areas of individual concern of the adopting

agencies, but states that they are to "apply to all occupancies

throughout the state. . . ." (Emphasis added.) Since the term

"occupancy" is defined as "the purpose for which a building . . . is

used or intended to be used" (§ 18917), that would mean that the

standards were meant to apply on a generalized basis to all uses. Of

course, where a standard specifically states that it is to only apply

shall reference the most recent edition of the applicable model

codes, national standards, or specifications." (Emphasis added.)

Section 18939 provides that "Building standards adopted or

approved by the [State Building Standards Commission] shall

incorporate the text of the model codes, applicable national

specifications, or published standards, in whole or in part, only

by reference, with appropriate additions or deletions therefrom."

(Emphasis added).)

6. 90-305

to a particular type of occupancy, only that occupancy would be

covered by it.

We therefore conclude that section 18941.5, subdivision

(a), requires the application of building standards as they have been

amended and appear in the State Building Standards Code to all

occupancies throughout the state.

* * * * *

7. 90-305