In this proceeding the plaintiffs, led by the International Association of Plumbing and Mechanical Officials (IAPMO), contend that the State Building Standards Law (Health & Saf. Code, § 18901 et seq.) precludes the defendant California Building Standards Commission (Commission) from adopting the 1994 version of the Uniform Mechanical Code published by the real party in interest International Conference of Building Officials (ICBO), as the basis for the 1994 version of the part of the California Building Standards Code known as the California Mechanical Code. (Cal. Code Regs., tit. 24, pt. 4.)
The California Building Standards Code is contained in title 24 of the California Code of Regulations. Title 24 is divided into parts and includes, but is not limited to, such things as the California Building Code (pt. 2), the California Electrical Code (pt. 3), the California Mechanical Code (pt. 4), the California Plumbing Code (pt. 5), and the California Energy Code (pt. 6).
The adoption of the California Building Standards Code is a multiagency task presided over by the Commission. (§§ 18906, 18907.) Where a state agency is vested with authority to adopt building standards, the agency must do so in compliance with the procedures of the Administrative Procedure Act (APA) contained in the Government Code. (§ 18930, subd. (a); Gov. Code, § 11346 et seq.) After an agency adopts a building standard, the standard is submitted to the Commission for review in accordance with certain statutory criteria. (§ 18930.) The Commission may approve the standard, return the standard to the adopting agency with recommendations for amendment, or reject the standard. (§ 18931.) In certain instances the Commission is itself charged with the duty, or vested with the authority, to adopt, amend, or repeal building standards. (§§ 18928, subd. (c), 18933, 18934.5, 18934.6, 18934.7.) In those instances the Commission must comply with APA. (Ibid.)
In addition to the adoption or approval of building standards, the Commission is charged with overseeing the development of a centralized code of
Building standards that are adopted or approved by the Commission are filed with the Secretary of State and published in the California Building Standards Code and become effective 180 days after publication. (§ 18938, subds. (b) & (c).) All building standards adopted by the Commission or adopted by state agencies with approval of the Commission are collected and published in a centralized manner in the California Building Standards Code. (§§ 18910, 18938.) The code is accompanied by adoption tables that show users which agencies have adopted a particular standard or an amended version thereof. (§ 18932.)
As might be expected, the building standards field is not static. Such things as new or amended state or federal laws as well as technological inventions and discoveries make the subject dynamic. As a result, there is constant consideration of revisions to the various components of the California Building Standards Code. This is accomplished in part by the requirement that the Commission coordinate an annual code adoption cycle among the various state agencies that have the authority to adopt building standards. (§ 18929.1.) In addition, the California Building Standards Code is revised and republished in its entirety every three years, with annual supplements published in other years. (§ 18942, subd. (a).)
The process of adopting building standards into a centralized code is facilitated by the use of model codes. Model codes are drafted and published by private organizations such as ICBO and IAPMO. (§ 18916.) Model codes are typically subject to the copyright of the private organizations that draft and publish them and the state cannot reproduce the text of the model codes without reaching an agreement with the copyright holders. Consequently, unless the Commission and an organization that publishes a model code first enter into a written agreement concerning publication, a state building standard can adopt a provision of a model code only by reference, with appropriate additions or deletions. (§ 18928.1.) As a result, a person planning a project must have access to the applicable model code or codes as well as the California Building Standards Code in order to determine the standards that apply to the project. By reference to the adoption tables of the
Numerous provisions in the State Building Standards Law refer to and endorse the model code approach to the California Building Standards Code, although none expressly mandates the adoption of a model code. Section 18916 defines "model code" to include, but not be limited to, certain specifically named model codes. Section 18928, subdivision (a), provides: "Each state agency adopting a model code, national standard, or specification shall reference the most recent edition of applicable model codes, national standards, or specifications." Subdivision (b) of that section provides, in relevant part: "Each state agency adopting a model code, national standard, or specification shall adopt the most recent editions of the model codes, as amended by the adopting agency, within one year after the date of publication of the model codes, national standards, or specifications." Subdivision (c) of that section provides: "If the adopting agencies fail to comply with subdivision (b), the commission shall convene a committee to recommend to the commission the adoption, amendment, or repeal, on the agencies' behalf, of the most recent editions of the model codes, national standards, or specifications and necessary state standards."
As we have noted previously, in order to avoid infringement of copyright, a building standard approved by the Commission may adopt the text of a model code only by reference, with appropriate additions or deletions. (§ 18928.1.) In this respect section 18928.1 provides, in relevant part: "The commission may elect to adopt or approve standards which incorporate, in whole or in part, the text of these publications, with changes therein, or deletions therefrom, directly incorporated into the text of the California Building Standards Code, but no textual material contained in any of the model codes, as enumerated in Section 18916, may be included in the California Building Standards Code by means other than incorporation by reference, [unless a publication agreement is first reached]."
This brings us to section 18938, which forms the crux of this case. Subdivision (a) of section 18938 gives the Commission the exclusive authority to approve building standards and file them with the Secretary of State for publication in the California Building Standards Code. Subdivision (c) of that section establishes, with certain exceptions, a general effective date of 180 days after publication of an adoption, amendment, or repeal of a
IAPMO contends that by implication section 18938, subdivision (b), requires the Commission and various state agencies to adopt the listed model codes, including the "Uniform Mechanical Code of the International Conference of Building Officials and the International Association of Plumbing and Mechanical Officials." Until the 1994 code adoption cycle for the triennial publication of the California Building Standards Code, this was not a problem. A brief explanation will illustrate the manner in which the issue has now arisen.
ICBO and IAPMO are organizations with long-standing interests in model codes for the building industry. ICBO has developed, revised and published a Uniform Building Code since 1927. IAPMO published a Standard Plumbing Code in 1932, and since 1945 has developed, revised and published a Uniform Plumbing Code. These model codes serve as the basis for the California Building Code and the California Plumbing Code, respectively, and there is no issue presented here with respect to those publications.
Mechanical codes are concerned with the installation and maintenance of heating, ventilating, cooling, and refrigeration systems. Many years ago various aspects of mechanical systems were included in the Uniform Building Code of ICBO and later IAPMO produced a Uniform Heating and Comfort Cooling Code to address such matters. As mechanical systems became more common and complicated, ICBO and IAPMO devoted more of their work to them. Eventually ICBO and IAPMO got together to produce a Uniform Mechanical Code, with the first edition being published in 1967.
The 1991 version of the Uniform Mechanical Code was the last jointly published version of that work. The agreement between ICBO and IAPMO pursuant to which that work was published expired after 1993. In late 1993 IAPMO notified ICBO of the termination of the agreement and since that time the parties have been unable to come to another agreement. In 1994, ICBO published a Uniform Mechanical Code based upon an update and revision of the Uniform Mechanical Code that had been jointly developed. IAPMO produced and published a new Uniform Mechanical Code and urged the Commission to adopt its Uniform Mechanical Code as the basis for the California Mechanical Code.
Following administrative proceedings, the Commission determined to adopt the 1994 version of the Uniform Mechanical Code published by ICBO as the model code basis for the California Mechanical Code. IAPMO commenced this proceeding by filing a petition for a writ of mandate in the trial court. In its petition IAPMO alleged that the Commission failed to comply with requisite administrative procedures for adoption of a model code. That question was resolved adversely to IAPMO by the trial court and IAPMO does not press the claim on appeal. IAPMO also contended, and continues to contend, that pursuant to section 18938, subdivision (b), the Commission was required to adopt the Uniform Mechanical Code of ICBO and IAPMO as the basis for the California Mechanical Code. Since there was no jointly published Uniform Mechanical Code in 1994, IAPMO contends that for the 1994 adoption cycle for the triennial publication of the California Building Standards Code, the Commission was required to adopt the 1991 Uniform Mechanical Code, since that was the most recent Uniform Mechanical Code jointly published by ICBO and IAPMO.
The trial court rejected IAPMO's claim for two reasons. First, the court found nothing in section 18938, subdivision (b), that expressly or impliedly required the designation of a particular model code. The court concluded that the statute was intended to provide for statewide application and an effective date 180 days after publication to the extent the enumerated codes were adopted, but not to compel their adoption. The court found nothing in the
In order to achieve its purposes, the Legislature chose to walk a tight line between lawful and unlawful delegation of regulatory authority. To put it simply, the Legislature could not lawfully grant the power to make laws to a private entity such as IAPMO. For example, in Columbia Specialty Co. v. Breman (1949) 90 Cal.App.2d 372 [202 P.2d 1034], it was asserted that the defendant had violated the Uniform Plumbing Code. The Court of Appeal said, at page 378: "Manifestly, any association may adopt a `code' but the only code that constitutes the law is a code adopted by the people through the medium of their legislatures. The Plumbing Officials Association is purely private and in no sense represents the people." In Agnew v. City of Culver City, supra, 147 Cal. App.2d at pages 154 through 157, the court held that ordinances that required electrical equipment to carry a certain private laboratory approval label and to be installed in accordance with the privately formulated National Electrical Code were void. The court considered decisional authorities from other states and concluded that "[o]rdinance provisions similar to those challenged are universally condemned." (See also
In providing for state building standards the Legislature could have adopted a particular model code, either directly or by depriving the Commission of any discretion by specifically compelling it to adopt the model code. However, such an act could adopt only an existing version of the model code and could not take into account future revisions without improperly delegating lawmaking authority to the private entity that produced the code. Such a scheme would defeat the Legislature's purposes by nullifying the delegation of authority to an administrative body with expertise on the subject matter and by building in a measure of regulatory stasis since it would take an act of the Legislature to revise or repeal the existing code. Instead, the Legislature chose to grant discretion to the Commission and to permit and encourage, but without requiring, the Commission to use model codes with continuous reconsideration and revision of building standards that have the force of law in light of nonbinding revisions of those model codes.
In light of this background, the construction urged by IAPMO is neither compelled nor implied by the language of the statute. By its terms, subdivision (b) of section 18938 applies only to standards in the specified codes which are "referenced in the California Building Standards Code, ..." Thus, the Commission argues that "if the ICBO/IAPMO Uniform Mechanical Code is not referenced in the California Standards Code, section 18938(b) does not apply at all. If it is referenced, section 18938(b) requires only that the building standards in that version of the Uniform Mechanical Code apply throughout the state and that they become effective 180 days after publication of the Code."
ICBO echoes this reading. In its view, the statute requires the building standards to meet two criteria in order to "apply" and "become effective" in California. First, the standard must be "contained in" the listed model codes.
IAPMO counters that the statute lists only six model codes. As it reads the statute, the Legislature has mandated that the standards in the six listed model codes, which are incorporated by reference in the California Building Standards Code, shall apply in California. Any other interpretation would render the list of model codes in the statute meaningless. In its view, the Legislature has not given the Commission any authority to use other codes in place of these listed codes.
We find the argument advanced by IAPMO to be implausible. Under its construction, the six listed model codes must be used in California until the Legislature amends the statute, even if private entities publishing those codes ceased publication or otherwise became defunct. Thus, absent legislative action, the state would be saddled with outdated and unusable standards. Such a construction would deprive the Commission of the ability to update the standards on an ongoing basis, an ability which forms the linchpin of the statutory scheme. Further, such a construction is inconsistent with the statutory authority reposed in the Commission to approve or reject buildings standards for the state. (See, e.g., §§ 18928, subd. (c), 18931, 18933, 18934.5, 18934.6, 18934.7.) We therefore reject IAPMO's contention that section 18938, subdivision (b), freezes the six listed codes as the mandatory models and thus deprives the Commission of the ability to approve or reject them. It seems far more likely, given the statutory scheme, that the Legislature listed the six model codes only because they had historically been used in California. Nothing suggests that the Legislature intended to freeze those codes as the mandatory standards even when, as is the case here, they are no longer published.
Moreover, the interpretation of the State Building Standards Law urged by IAPMO would push the act over the line of unlawful delegation of the lawmaking power. Under that construction IAPMO could, by the simple act of withdrawing from joint publication of a model code, force the Commission and all state agencies interested in the subject matter to adopt an older, outdated model code as the basis for state regulation with the force of law. IAPMO could effectively veto any effort by the Commission and state
The judgment is affirmed.
Puglia, P.J., and Raye, J., concurred.
A petition for a rehearing was denied June 17, 1997, and appellant's petition for review by the Supreme Court was denied August 13, 1997.