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Mechanical Contractors of Alaska, Inc. v. State (05/07/2004) sp-5805
Mechanical Contractors of Alaska, Inc. v. State (05/07/2004) sp-5805
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MECHANICAL CONTRACTORS )
OF ALASKA, INC., )
) Supreme Court No. S-10823
Appellant, )
) Superior Court No.
v. ) 3AN-01-10347 CI
)
STATE OF ALASKA, DEPARTMENT) O P I N I O N
OF PUBLIC SAFETY, STATE OF )
ALASKA, DEPARTMENT OF ) [No. 5805 - May 7,
2004]
COMMUNITY and ECONOMIC )
DEVELOPMENT, COLONEL )
GLENN G. GODFREY, )
Commissioner, and DEBBIE B. )
SEDWICK, Commissioner, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Joseph W. Geldhof, Law Office
of Joseph W. Geldhof, Juneau, for Appellant.
Dean J. Guaneli, Assistant Attorney General,
and Gregg D. Renkes, Attorney General,
Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Mechanical Contractors of Alaska, Inc. appeals the
superior courts grant of summary judgment in favor of the
Department of Public Safety and the Department of Community and
Economic Development that upheld the departments adoption of the
International Mechanical Code. Mechanical Contractors argues
that the departments exceeded their statutory authority and
violated the Administrative Procedures Act when they adopted the
International Mechanical Code in 2001. Because the two
departments have authority to adopt the code, and because they
substantially complied with the Administrative Procedures Act, we
affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
The Department of Public Safety (DPS) has a broad
statutory mandate to adopt regulations for the purpose of
protecting life and property from fire and explosion by
establishing minimum standards . . . for fire and life safety
criteria in . . . public buildings and residential buildings of
four or more units.1 For more than two decades, DPS has adopted
the building, mechanical, and fire codes for the state. These
integrated codes govern construction standards in all buildings
under DPSs jurisdiction and are typically updated every three
years as new model codes are published by the nations model
building code organizations. The building code is the primary
tool for regulating construction standards, and all other codes
must integrate with the building code. In 2001 DPS adopted the
International Building, Fire, and Mechanical Codes. Only the
mechanical code is the subject of this litigation.
This lawsuit arose due to changes in the way the
nations three model building code organizations publish the model
codes. Until the mid-1990s three organizations Building
Officials and Code Administrators, International Conference of
Building Officials, and Southern Building Code Congress
International each published regional building codes. Until
1997 the International Conference of Building Officials jointly
published the Uniform Mechanical Code with the International
Association of Plumbing and Mechanical Officials. In 1994 the
three building code organizations formed the International Code
Council, which now publishes one national building code rather
than three separate regional codes.2 Consequently, the
International Building Code is the only model building code
published in the United States. Only the International Fire Code
and International Mechanical Code are designed to correlate fully
with this code.
When DPS began its periodic update of the construction
codes in 1999, the 2000 International Building Code was the most
current code available and the only national code. Because
Alaskas existing fire and mechanical codes did not fully
integrate with the International Building Code, DPS began a two-
year process to adopt the International Fire and Mechanical
Codes. DPS notified the Department of Community and Economic
Development and the Department of Labor about this process
because these agencies also regulate the construction industry.
The legislature allocated $98,100 in fiscal year 2001 for
adoption of the new codes, a process that would entail extensive
review of the current codes, expanded public hearings, statewide
meetings with trade organizations, and a complete revision of
Alaska Administrative Code (AAC) Title 13, chapters 50, 52, and
55.
In August 2000 DPS hired Ross Fosberg to coordinate
adoption of the International Codes. Fosberg formerly served as
the chief of the Anchorage Fire Department and as the Anchorage
Fire Marshal, and he had thirteen years of experience as a fire
protection consultant. He contacted a broad range of
organizations impacted by the states building codes and asked
them to send representatives to participate in working group
meetings to draft proposed regulations adopting the 2000 version
of the International Building, Fire, and Mechanical Codes. These
meetings were held in Fairbanks, Soldotna, Juneau, and Anchorage.
Pursuant to the Alaska Administrative Procedures Act,3
DPS arranged for statewide public notice of the proposed
regulations. After notice was published, DPS discovered a
typographical error: The notice mistakenly stated that DPS
proposed to repeal the Uniform Mechanical Code and re-adopt the
International Fire Code (rather than the International Mechanical
Code (IMC)). A corrected notice was sent to the individuals and
organizations on the list of interested persons, but Mechanical
Contractors was not notified due to an oversight. Additionally,
the incorrect notice was published in some newspapers.
After considering public comment, DPS adopted the
regulations in March 2001. Because Mechanical Contractors
complained that it did not receive notice of the proposed changes
and that incorrect notice was published in some newspapers, DPS
re-opened the public comment period and published a corrected
public notice. DPS also mailed notice to each licensed mechanical
administrator in Alaska. DPS received significant public comment
both in favor of the proposed adoption and in opposition to it.
The Chair of the legislatures Administrative Regulation Review
Committee recommended delaying adoption of the IMC to allow the
legislature an opportunity to address the issue, and the
legislatures Division of Legal and Research Services opined that
adoption of the IMC might exceed DPSs statutory authority. Based
upon public comment, DPS made additional changes to the proposed
regulations and agreed to delay implementation by several months.
DPS re-adopted the regulations in June 2001 with an effective
date of September 15, 2001.
Because the Department of Community and Economic
Development (DCED) is responsible for testing and licensing
mechanical administrators, it updated its examinations to reflect
the IMC as the states testing standard rather than the Uniform
Mechanical Code, which it had used since 1988. This required an
amendment to DCED regulations to allow the department to base the
examinations on the mechanical code adopted by DPS.4 Existing
statutes relating to DCEDs testing and licensing authority
referred to the Uniform Mechanical Code.5
After the regulations took effect, Mechanical
Contractors moved for a preliminary injunction to block
implementation of the IMC on the grounds that its adoption
violated the Administrative Procedures Act and conflicted with
statutes that specifically referenced the Uniform Mechanical
Code. The superior court denied the preliminary injunction. The
state then moved for summary judgment and Mechanical Contractors
cross-moved for summary judgment. The superior court granted
summary judgment to the state, finding that adoption of the
International Mechanical Code was within the departments
statutory authority and that the agencies substantially complied
with the requirements of the Administrative Procedures Act.
Mechanical Contractors now appeals.
III. STANDARD OF REVIEW
I. We review a grant of summary judgment de novo and will
affirm if there are no genuine issues of material fact and if the
moving party is entitled to judgment as a matter of law.6 We
review questions of law, including the interpretation of statutes
and regulations, using our independent judgment.7 As we
discussed in OCallaghan v. Rue, we apply a three-part analysis to
assess the validity of administrative regulations.8
First we must determine whether the agency has
statutory authority to promulgate regulations.9 If an agency has
acted within its authority, we then consider whether the
regulation is consistent with and reasonably necessary to
implement the statutes authorizing its adoption, and whether it
is reasonable and not arbitrary.10 In making the consistency
determination, we use our independent judgment unless the issue
involves agency expertise or the determination of fundamental
policy questions on subjects committed to an agencys discretion,
in which case we employ a rational basis standard and defer to an
agencys determination so long as it is reasonable and not
arbitrary.11 Whether a regulation is reasonably necessary to
implement a statute is a fundamental policy determination which
will be reviewed using a rational basis standard.12 We also use a
deferential standard to conduct the reasonable and not arbitrary
review.13 Finally, we will consider whether the regulation
conflicts with any other statutes.14 This is a legal question to
which we apply our independent judgment.15
IV. DISCUSSION
A. DPS and DCED Acted Within Their Statutory Authority When
They Adopted the IMC.
Mechanical Contractors first claims that the
departments exceeded their statutory authority by adopting the
IMC in violation of four express statutory provisions referencing
the Uniform Mechanical Code. Although none of these statutes
relates to the authority of the Department of Public Safety to
adopt fire and life safety codes, Mechanical Contractors argues
that DPS cannot use its general grant of statutory authority to
adopt a mechanical code that conflicts with specific references
to the Uniform Mechanical Code in other sections of the Alaska
Statutes. These statutes include: AS 08.18.171(7)(D) and AS
08.40.490(3)(A), which define a mechanical administrator and
mechanical contractor as persons who install[] or modify[]
mechanical piping and systems . . . subject to . . . the Uniform
Mechanical Code; AS 08.40.270(a)(3), which requires familiarity
with the Uniform Mechanical Code in order to be licensed as a
mechanical administrator; and AS 18.56.300(e)(3)(B), which
governs construction standards for homes financed through the
Alaska Housing Finance Corporation.
To determine whether the departments exceeded their
statutory authority, we apply the three-part OCallaghan test
described above. Mechanical Contractorss argument is most
relevant to the third part of this analysis, whether the
regulations conflict with other statutes.
1. DPS and DCED have authority to issue regulations.
The first question is whether DPS and DCED have
authority to issue regulations. Even Mechanical Contractors
acknowledges that DPS has a fantastically broad authority to
adopt regulations. Indeed, DPS not only can issue regulations,
but it must do so: The Department of Public Safety shall adopt
regulations for the purpose of protecting life and property from
fire and explosion by establishing minimum standards for . . .
fire and life safety criteria in . . . public buildings and
residential buildings with four or more dwelling units.16 DCED
likewise has express statutory authority and responsibility to
adopt regulations: The department shall adopt regulations under
AS 44.62 (Administrative Procedure Act) relating to the
examination and licensing of mechanical administrators.17
2. Adoption of the IMC was consistent with and
reasonably necessary to implement the statutes
authorizing its adoption and was reasonable and
not arbitrary.
a. Adoption of the IMC was consistent with the
statutes authorizing its adoption.
The next question is whether adoption of the IMC was
consistent with the statutes authorizing its adoption. In
determining whether a regulation is consistent with an agencys
statutory authority, we exercise our independent judgment unless
the issue involves agency expertise or fundamental policy
considerations, in which case we use a rational basis standard.18
The superior court found that adoption of a mechanical code
involves fundamental policy questions and it thus applied the
more deferential standard of review. Mechanical Contractors
argues that the superior court erred in applying this deferential
standard. But in our view, the superior courts consistency
determination withstands scrutiny even under the independent
judgment test.
As discussed above, DPS is required to adopt
regulations to establish minimum standards for fire and life
safety in commercial and some residential buildings.19 Mechanical
codes cover air flow systems, and these systems impact upon fire
and life safety. Thus, adoption of a mechanical code by DPS is
consistent with the statutes authorizing its adoption, and not
even Mechanical Contractors challenges DPSs authority to adopt
the Uniform Mechanical Code. At issue is whether adoption of the
IMC is consistent with the same grant of statutory authority
under which DPS previously adopted the Uniform Mechanical Code.
Because nothing in AS 18.70.080 requires adoption of a particular
mechanical code, and because DPSs decision was reasonable, we
conclude that adoption of the IMC was consistent with the
statutes authorizing its adoption.
We likewise conclude that DCEDs adoption of the IMC as
a testing standard is consistent with its statutory authority.
DCED is required to conduct licensing examinations for mechanical
administrators and to establish standards for license renewal.20
Alaska Statute 08.40.270(a)(3) requires DCED to administer
examinations that assess an applicants familiarity with the
Uniform Mechanical Code currently in effect in the state. When
DPS repealed the Uniform Mechanical Code and replaced it with the
IMC, the IMC became the mechanical code currently in effect in
the state, and DCED was left with the choice of testing
applicants on an obsolete code or amending its regulations to
require competency in the code currently in effect. DCEDs
decision to adopt the IMC as the licensing standard is consistent
with the legislatures intent when it established testing and
licensing requirements for mechanical administrators.
The legislature established these requirements in 1988
to protect the public from shoddy workmanship and to establish
uniform standards to govern the industry.21 Testimony from
committee meetings held to discuss establishment of licensing
requirements for this trade focused on the lack of uniform
standards and the problems that arise from improperly installed
water, sewer, and heating systems.22 For example, Eugene R.
Rutland, the Executive Director of Mechanical Contractors of
Fairbanks, testified in support of the licensing requirements and
said that licensing should ensure basic competence to perform a
specific service.23 The state would ensure basic competence by
testing mechanical administrators for familiarity with the codes
under which they work; and because the Uniform Mechanical Code
was the mechanical code adopted by DPS at that time24 it became
one of the standards for professional competence in this trade.
Once the IMC was adopted as the states construction standard it
was consistent for DCED to adopt this code as the standard for
licensing.
b. Adoption of the IMC was reasonably necessary to implement
the statutes authorizing its adoption.
The next question is whether adoption of the IMC was
reasonably necessary to implement the statutes authorizing its
adoption. If we find that a regulation is consistent with the
statutory purpose, we will not generally require a separate
showing of reasonable necessity. As we stated in State,
Department of Revenue, Permanent Fund Dividend Division v. Cosio:
Strictly applied, inquiry into whether a
regulation is necessary as a means to a
legislative end would mire this court in
questions of public policy and the
advisability of possible alternatives. Such
a searching inquiry is beyond our authority
and expertise. It is a rare case where a
regulation, although not inconsistent with
the purpose of the statute, is wholly
superfluous to the achievement of that
purpose.[25]
The record indicates that DPS adopted the International
Building Code because it was the most current building code
available and the only national building code in existence.
Additionally, DPS was concerned that a failure to adopt the most
recent building code could jeopardize federal disaster relief
funding because the Federal Emergency Management Agency provides
full disaster relief funding only to states with fully updated
building codes. DPS also adopted the IMC because it wanted a
mechanical code that was consistent with both the International
Building and Fire Codes and because it believed that the IMC was
superior to the Uniform Mechanical Code. Finally, DPS projected
substantial cost savings in construction projects that used the
IMC rather than the Uniform Mechanical Code.
Likewise, DCED adopted the IMC as the testing standard
for mechanical administrators because DPS repealed the Uniform
Mechanical Code and replaced it with the IMC. DCED updates its
licensing examinations when DPS updates the model codes, and it
amended its regulations to use the IMC as the testing standard
when DPS adopted that code. If the IMC is the standard used by
the construction industry in Alaska, requiring proficiency in
this code is reasonably necessary to implement the examination
standards of AS 08.40.270.
c. Adoption of the IMC was reasonable and not
arbitrary.
To determine if a regulation is reasonable, we examine
whether the agency has taken a hard look at the salient problems
and has genuinely engaged in reasoned decision making. 26
Mechanical Contractors argues that DPS failed to engage in
reasoned decision making before adopting the IMC and that the fix
was in from the beginning. According to Mechanical Contractors,
DPS harbored a pre-conceived agenda to adopt various
international codes and demonstrated a complete lack of
objectivity in adopting the IMC. As evidence that adoption was
arbitrary, Mechanical Contractors claims that DPS adopted the new
code standard without fully considering the impact on other
agencies that use the Uniform Mechanical Code.
DPS responds that it was reasonable to adopt the most
current building code available, and that its decision to do so
necessitated adoption of the corresponding fire and mechanical
codes. DPS adopted the International Codes after a two-year
process that included notification of other agencies, work
sessions throughout the state, and two public notice and comment
periods. This process was funded by a specific appropriation
from the legislature. The record documents substantial public
interest in the new proposed code, and it shows that DPS revised
the proposed regulations after each comment period.
The record is unclear when DPS became aware that
adoption of the IMC would run up against other statutory
references to the Uniform Mechanical Code. A letter from the
Department of Labor, dated May 29, 2001, indicated its belief
that the IMC would conflict with other statutes, and a June 7,
2001 letter from DCED raised the concern that adoption of the IMC
would conflict with testing standards requiring use of the
Uniform Mechanical Code. DPS received these letters before the
expiration of the public comment periods on the proposed changes.
DPS made specific exceptions in the IMC to accommodate use of
other codes, such as the Uniform Plumbing Code, which is used by
the Department of Labor. Additionally, it entered into a
reimbursable services agreement with DCED to pay for the cost of
updating the licensing examinations. As it developed, no
reimbursement was necessary.
The record does not support the conclusion that
adoption of the IMC was arbitrary and not reasonable,
particularly given the deferential standard of review we use to
make this determination.27 The International Building Code was
the most current building code available and represented the
combined efforts of the three national building code
organizations. The International Fire Code and IMC were
developed for use with this code. DPS developed the new
regulations adopting these codes over a two-year period, and it
amended the proposed regulations based upon public comment. DPS
made efforts to ensure that adoption of the code was consistent
with the statutory requirements of other agencies. Accordingly,
adoption of the IMC was not arbitrary.
3. Adoption of the IMC does not conflict with other
statutes.
Mechanical Contractors argues that adoption of the IMC
is per se invalid because DPS cannot use a general grant of
authority to adopt a fire life safety code that conflicts with
statutes that specifically refer to another model code.28 DPS
responds both that these statutes do not limit DPSs authority
under AS 18.70.080 and that adoption of the IMC can be harmonized
with the intent of these apparently conflicting statutory
references to the Uniform Mechanical Code.
Whether adoption of the IMC conflicts with other
statutes is a question of law to which this court will apply its
independent judgment.29 When we engage in statutory construction
we will presume that the legislature intended every word,
sentence, or provision of a statute to have some purpose, force,
and effect, and that no words or provisions are superfluous.30 At
the same time,
[s]trict construction does not require that
statutes be given the narrowest meaning
allowed by their language; rather, the
language should be given a reasonable or
common sense construction, consonant with the
objectives of the legislature. The intent of
the legislature must govern and the policies
and purposes of the statute should not be
defeated.[31]
Determination of whether adoption of the IMC conflicts with other
statutes requires examination of the specific statutory language
and the intent behind this language.
Three of the four statutory references to the Uniform
Mechanical Code were enacted in legislation that created
licensing requirements for mechanical administrators.32 This
legislation amended AS 08.40 to require a state license in order
to work as a mechanical administrator.33 It enacted section .270
of AS 08.40 to require DCED to test applicants on their
familiarity with the Uniform Plumbing Code, Uniform Swimming
Pool, Spa, and Hot Tub Code, Uniform Solar Energy Code, and the
Uniform Mechanical Code currently in effect in the state.34 And
it added subsection .490(3)(A) to define a mechanical
administrator as one
responsible for . . . installing or modifying
mechanical piping and systems, devices,
fixtures, equipment, or other mechanical
materials subject to the Uniform Plumbing
Code, Uniform Swimming Pool, Spa, and Hot Tub
Code, Uniform Solar Energy Code, and the
Uniform Mechanical Code as published by the
International Association of Plumbing and
Mechanical Officials and the International
Conference of Building Officials.[35]
The same legislation amended AS 08.18 to require, as a condition
of state registration, that mechanical contractors be licensed as
a mechanical administrator or employ someone who is so licensed.36
Section .171(8)37 of this chapter defines a mechanical contractor
as a:
contractor whose business operations involve
install[ing] or modify[ing] mechanical piping
and systems . . . subject to the following
codes as published by the International
Association of Plumbing and Mechanical
Officials or the International Conference of
Building Officials:
(A) Uniform Plumbing Code;
(B) Uniform Swimming Pool, Spa, and Hot
Tub Code;
(C) Uniform Solar Energy Code;
(D) Uniform Mechanical Code.
Collectively, these statutes create professional
licensing requirements for mechanical administrators and
contractors, and they require DCED to administer an examination
to ensure applicants familiarity with a number of codes,
including the Uniform Mechanical Code currently in effect in the
state. Mechanical administrators and contractors are defined in
reference to four codes that govern their trades. Mechanical
Contractors argues that since these statutes specifically refer
to the Uniform Mechanical Code rather than some generic
mechanical code, this court should accord the language its plain
meaning and require DCED to continue using the Uniform Mechanical
Code. Because we will give the language a common sense
construction consistent with the objectives of the legislature,
we must examine the history of House Bill 472.38
Until 1988 mechanical contractors and administrators
were not licensed by the state, and anyone able to purchase the
required bonds and insurance could become a registered
contractor.39 House Bill 472 sought to solve two problems facing
the construction industry at that time. The first purpose was to
make it easier for mechanical contractors to obtain construction
bonds by defining their trade so that they were not treated as
general contractors, whose bonds are much more expensive.40 The
second purpose was to protect the public from substandard
workmanship by establishing minimum competency requirements for
mechanical contractors.41 One of the biggest challenges in
drafting this legislation was determining how to distinguish a
specialty contractor, which is defined as a contractor whose work
requires use of up to three trades, from a mechanical contractor,
which is defined by reference to the codes under which he works.42
The legislative counsel who assisted in drafting this bill wrote
to Representative Mark Boyer, the bills sponsor, that counsels
lack of knowledge of the industry made it difficult for him to
define the term mechanical administrator to include all who
should be subject to the legislation.43 Eugene R. Rutland of
Mechanical Contractors assisted in drafting this legislation, and
he also struggled with how to define a mechanical administrator.
In a letter to Representative Boyer, Rutland wrote that:
The definition of a mechanical administrator
is meant to encompass persons who work
covered under the referenced codes. It is
the best definition I am capable of at the
present time without going into detail
mentioning Plumbing, Pipefitting, Sprinklers,
Ventilation, Air-conditioning, Refrigeration,
etc. The thought is that by being detailed
someone may be exempt who should have been
covered because they were not specifically
mentioned.[44]
Ultimately, the legislature opted to define mechanical
contractors and administrators as persons who perform work
subject to the four separate codes, and it required competency in
these codes as a condition of licensing and registration.45 The
Uniform Mechanical Code was used in Alaska at that time so it was
included in the definition. While it is clear that the
legislature intended these codes to serve as standards for
professional competence, there is no indication that the
legislature sought to limit the discretion of DCED to establish
licensing requirements for mechanical administrators. There is
every reason to believe that H.B. 472 would have referred to the
IMC had that code been used by DPS in 1988.
The final statutory reference to the Uniform Mechanical
Code is found in AS 18.56.300, which governs construction
standards for housing eligible for loans from the Alaska Housing
Finance Corporation. In 1990 Representative C.E. Swackhammer
proposed H.B. 368 to insure that houses financed by AHFC are
properly constructed, thereby protecting consumers from buying a
house that has deficiencies which pertain to life safety.46 This
legislation implemented various requirements to obtain a home
loan from the AHFC, the most important of which was that new
homes must meet the requirements of the state building code.47
This section defines the state building code for mechanical
standards as the standards set out in the version of the Uniform
Mechanical Code adopted by the Department of Public Safety under
AS 18.70.080.48 Mechanical Contractors claims that the specific
reference to the Uniform Mechanical Code curtails DPSs discretion
to adopt the IMC. The legislative history contradicts this
assertion.
Swackhammers own sectional analysis of H.B. 368
explains that the [s]tate building code refers to the minimum
building and mechanical code adopted by regulation by the
Department of Public Safety under AS 18.70.080.49 There is no
indication that the legislature sought to require DPS to adopt a
particular code. In fact, this suggestion was specifically
addressed, and ultimately rejected, after a trade organization
recommended drafting the legislation to require DPS to adopt
specific provisions of the Uniform Building Code that the
department had not previously adopted.50 The legislative counsel
who helped draft this legislation strongly recommended against
such an approach, noting that, unlike the National Electric Code
and the Uniform Plumbing Code, both of which were specifically
adopted by statute, the legislature has merely said to the
commissioner of public safety [that] it is that officials
responsibility to determine minimum fire safety provisions.51 The
legislation ultimately defined the state building code as: the
version of the Uniform Building Code adopted by the Department of
Public Safety under 18.70.080; the version of the Uniform
Mechanical Code adopted by the Department of Public Safety under
AS 18.70.080; the minimum plumbing code adopted for the state
under AS 18.60.705; and the minimum electrical standards
prescribed by AS 18.60.580.52 This wording preserves DPSs
discretion. The Alaska Housing Finance Corporations use of the
International Codes as a minimum standard for quality is
consistent with the legislatures intent.
Mechanical Contractorss primary argument, that the
specific statutory references to the Uniform Mechanical Code
should control over the general grant of authority given to DPS,
has limited application in Alaska and should not be applied where
the specific and general provisions may be harmonized.53 None of
the statutory references to the Uniform Mechanical Code
specifically relates to the authority of DPS to adopt a
particular mechanical code. Nothing in the legislative history
supports the assertion that these four statutes should be
interpreted to limit DPSs discretion under AS 18.70.080 and
require it to re-adopt the Uniform Mechanical Code. To the
contrary, these statutes are best understood as creating minimum
standards for professional competency and construction quality,
both of which can be achieved by the IMC. DPSs adoption of the
IMC is consistent with its statutory authority. DCEDs adoption
of the states mechanical code is consistent with the legislatures
intent to ensure professional competency in the construction
industry.
B. Adoption of the IMC Did Not Violate the Administrative
Procedures Act.
A. Mechanical Contractors also argues that the IMC was adopted
in violation of the Administrative Procedures Act because the
decision to adopt the code was arbitrary and because the
departments failed to prepare a fiscal note. Regulations are
presumed procedurally valid once a certified copy has been filed,
and Mechanical Contractors must show a substantial failure to
comply with the Administrative Procedures Act to rebut this
presumption.54 We discussed whether adoption of the IMC was
reasonable in Part IV.A.2., so here we address only whether the
departments failed to provide a fiscal note as required by AS
44.62.195.
1. Were DPS and DCED required to prepare a fiscal note?
Alaska Statute 44.62.195 provides:
[i]f the adoption, amendment, or repeal of a
regulation will require increased
appropriations by the state, the department
or agency affected shall prepare an estimate
of the appropriation increase for the fiscal
year following adoption, amendment, or repeal
of the regulation and for at least two
succeeding fiscal years.
DPS and DCED both claim that no fiscal note was
necessary because adoption of the IMC did not require additional
appropriations in the year following adoption or thereafter. The
state argues that the only appropriation required to implement
the IMC was the legislatures 2001 appropriation of $98,100 for
code adoption efforts, which was made before adoption of the new
model code. Because any code implementation expenses were to be
paid from these funds, the state argues that adoption of the new
code did not lead to increased appropriations by the state. The
record indicates that while DCED expected costs of $16,000 to
prepare new testing materials, DPS agreed to pay this cost from
the existing $98,100 allocation from the legislature if that
became necessary. But the expenditure never became necessary.
DPS and DCED acknowledge that this court will
invalidate regulations adopted without a fiscal note if there is
convincing evidence that any state department anticipated a need
for additional appropriations due to adoption of the regulations.55
In Turpin v. North Slope Borough,56 we held that a fiscal note is
required if any additional appropriation is required, regardless
of the source, and we invalidated a regulation adopted without a
fiscal note based on evidence that several state agencies
anticipated a need for additional funds.57 Mechanical Contractors
argues that implementation of the IMC will require additional
appropriations. To support this claim, Mechanical Contractors
points to DCEDs anticipated need for funding to revise licensing
examinations and to an alleged threat by the state to take over
the Anchorage building review process. Mechanical Contractors
also argues that DPS and DCED are trying to thwart the intent of
the fiscal note requirement by slid[ing] funds around and
cobbl[ing] together funding sources from disparate agency sources
to avoid having to seek additional appropriations for code
implementation.
The record does not support these claims. DPS agreed
to use existing funding sources to pay for testing changes, and
there is no evidence that any state agency anticipated any
additional expenses in the year of implementation or in
subsequent years. There is no evidence that the state threatened
to take over the Anchorage building review process.58
Neither DPS nor DCED anticipated a need for additional
appropriations to adopt the IMC, and no additional funding was
necessary in the two years after its adoption in September 2001.
No fiscal note was required.
V. CONCLUSION
The Department of Public Safety and the Department of
Community and Economic Development acted within the scope of
their delegated authority when they adopted the International
Mechanical Code and they substantially complied with the
requirements of the Administrative Procedures Act. Accordingly,
we AFFIRM the judgment of the superior court.
_______________________________
1 AS 18.70.080(a)(2).
2 These organizations merged in 2002. Press Release,
International Code Council, Building safety groups vote to
approve ICC consolidation (Oct. 1, 2002), at
http://www.iccsafe.org/news/nr/021001consolidation.htm (last
visited Mar. 1, 2004).
3 AS 44.62.190
4 12 AAC 39.992(b); 12 AAC 21.990(7).
5 AS 08.40.270(a)(3); AS 08.40.490(3)(A).
6 Therchik v. Grant Aviation, 74 P.3d 191, 193 (Alaska
2003).
7 Id.
8 996 P.2d 88, 94 (Alaska 2000).
9 Id. (citing Warner v. State, 819 P.2d 28, 30-31 (Alaska
1991)).
10 Id. (quoting Chevron U.S.A., Inc. v. LeResche, 663 P.2d
923, 927 (Alaska 1983)).
11 Id. at 94-95.
12 Id.
13 Id. at 95.
14 Id.
15 Id.
16 AS 18.70.080(a)(2).
17 AS 08.40.240.
18 OCallaghan, 996 P.2d at 94.
19 AS 18.70.080.
20 AS 08.40.240-.250.
21 See AS 08.40.210; Ch. 132, 9, SLA 1988.
22 See H. Fin. Comm. Minutes (March 22, 1988) (comments of
Eugene R. Rutland, Executive Director, Mechanical Contractors of
Fairbanks).
23 Id.
24 See 13 AAC 50.020(12)(b) (1988) (adopting Uniform
Mechanical Code by reference to Uniform Building Code).
25 858 P.2d 621, 624 n.1 (Alaska 1993).
26 Stepovak-Shumagin Set Net Assn v. State, Bd. of
Fisheries, 886 P.2d 632, 637 (Alaska 1994) (quoting Gilbert v.
State, Dept of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).
27 OCallaghan v. Rue, 996 P.2d 88, 94-95 (Alaska 2000).
See also Gilbert, 803 P.2d at 397 (holding that perfection not
required for regulation to be reasonable; courts task is simply
to determine whether regulation is reasonably related to agencys
statutory mandate).
28 Mechanical Contractors also claims that adoption by
regulation violates the doctrine of separation of powers. There
is no separation of powers problem because the departments acted
within the scope of their delegated authority. See supra Part
IV.A.2.
29 See Church v. State, Dept of Revenue, 973 P.2d 1125,
1127 (Alaska 1999).
30 See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,
761 (Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864
P.2d 526, 530-31 (Alaska 1993)).
31 Mack v. State, 900 P.2d 1202, 1205 (Alaska App. 1995)
(quoting Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.
1981)).
32 See ch. 132, 9, SLA 1988.
33 See id. (adding section .260).
34 See id. (adding subsection .270(a)(3)).
35 See id. (adding subsection .490(3)).
36 See ch. 132, 3, SLA 1988 (adding AS 08.18.028(a)).
37 See ch. 132, 8, SLA 1988 (amending AS 08.18.171 to
define a mechanical contractor). Alaska Statute 08.18.171(8) was
renumbered as AS 08.18.171(7) in 1988 to maintain alphabetical
order throughout the statutes.
38 Ch. 132, SLA 1988.
39 See S. Labor and Commerce Comm. Minutes, 15th Leg. 2d.
Sess. (March 21, 1988) (comments of Randall Burns, Director,
Division of Occupational Licensing, Department of Commerce).
40 Id.
41 See H. Fin. Comm. Minutes, 15th Leg. 2d. Sess. (March
22, 1988) (comments of Eugene R. Rutland, Executive Director,
Mechanical Contractors of Fairbanks).
42 See Letter from Rep. Mark Boyer to All Members of the
House of Representatives, in H. Fin. Comm. File for H.B. 472
(April 28, 1988); Position Paper, Department of Commerce and
Economic Development, in H. Labor and Commerce Comm. File for
H.B. 472 (March 22, 1988).
43 Letter from George Utermohle, Legislative Counsel to
Rep. Mark Boyer, in S. Labor and Commerce Comm. File for S.B. 487
(Dec. 8, 1987). S.B. 487 was the companion bill to H.B. 472.
44 Letter from Eugene R. Rutland, Executive Director,
Mechanical Contractors of Fairbanks, to Rep. Mark Boyer, in S.
Labor and Commerce Comm. File for S.B. 487 (Dec. 28, 1987).
45 AS 08.40.490; AS 08.18.171(7).
46 Letter from Rep. C.E. Swackhammer to Rep. Dave Donley,
H. Labor and Commerce Comm., Request for a House Bill 368
Hearing, in H. Jud. Comm. File for H.B. 368 (Jan. 12, 1990).
47 AS 18.56.300(b).
48 AS 18.56.300(e)(3)(B).
49 Rep. C.E. Swackhammer, Sectional Analysis for House
Bill 368, in H. Jud. Comm. File for H.B. 368 (Jan. 12, 1990).
50 Letter from Alaska Northern Chapter of International
Conference of Building Officials to Rep. C.E. Swackhammer, Ref.
An Act relating to residential housing assistance provided by the
Alaska Housing Finance Corporation, in H. Jud. Comm. File for
H.B. 368 (Dec. 6, 1989).
51 Letter from Jack Chenoweth, Legislative Counsel, to
Rep. C.E. Swackhammer, in H. Jud. Comm. File for H.B. 368 (Jan.
20, 1990).
52 AS 18.56.300(e)(3)(A)-(D).
53 See Chevron U.S.A., Inc. v. LeResche, 663 P.2d 923, 931
(Alaska 1983) (holding that rule of construction that specific
statutory provisions control general ones should not be applied
where provisions can be harmonized).
54 AS 44.62.100; Chevron U.S.A., 663 P.2d at 929.
55 See Turpin v. North Slope Borough, 879 P.2d 1009, 1013
(Alaska 1994).
56 Id.
57 Id. at 1013-14.
58 The state did send a letter to the Municipality of
Anchorage to clarify that the International Codes are the minimum
standards for code compliance statewide, and it reiterated that
under 13 AAC 50.075(a)(2) the state can delegate code compliance
authority to municipalities only if local code standards meet[]
or exceed[] the states regulations. We rejected Mechanical
Contractorss motion to supplement the record with this letter, as
it was not before the superior court when the court decided the
case. But even were the letter before us, it provides no support
for Mechanical Contractorss claim. This letter is dated November
6, 2002, more than a month after the trial court entered final
judgment in favor of the state. The Municipality of Anchorage
had already indicated in June 2000 that it intended to adopt the
IMC if the state moved to that standard. The state did adopt the
IMC in 2001, and the municipality followed suit in January 2003.
