             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

