# Adopting codes/standards as Current Edition...Unlawful



## FyrBldgGuy (Jun 30, 2010)

Can any legislative body write a law that mandates the "Current Edition" of a code or standard?  NO>

*14th Amendment*

*Section 1.* All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

*Judicial review of substantive due process violations  *Wikipedia

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used.[33] In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.

When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.[34]

There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”[35]


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## Dr. J (Jun 30, 2010)

A twist on the "current edition" is the continuous maintenance ASHRAE standards.  These continuous maintenance standards have multiple addenda which are incorporated into the original standard immediately upon adoption by ASHRAE.  The amended standard is then considered the standard as if it were always written that way.  For example, the 2006 IECC references ASHRAE Standard 90.1 - 2004.  This standard started with addendum "a" and is now up to addendum "at" (they have gone through the alphabet almost 2 times).  To comply with the IECC reference of ASHRAE 90.1 - 2004, one has to comply with all adopted addenda as of the submittal date.  There is also a cycle of new standard publication of 3 years(ish) which incorporates all previous addenda into the new standard.  Only upon the publication of the new standard is the previous standard considered to be fixed.  Thus, in 2010, ASHRAE 90.1 - 2004 is essentially the same as the un-amended ASHRAE 90.1 2007.

ASHRAE continuous maintenance standards that are referenced by ICC include 15, 34, and 90.1.


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## peach (Jun 30, 2010)

I believe your enabling legislation would stand scrutiny even with the due process glasses on.

However, why would any jurisdiction WANT to adopt the current edition without any local amendments?  The local amendments would still need to go thru the public comment process.


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## Mark K (Jun 30, 2010)

As I understand it a governmental body cannot adopt an ordinance that mandates the "current edition" of a standard.  Thus the proper adoption of the ASHRAE standard must be specific as to the date or the specific addendum.

Similarly the right to ammend the code cannot be delegated to a non-governmental body or to an individual, such as the building official, who is a government employe.  While the building codes give the building official flexibility in adopting alternate means of compliance or non0conforming situtations the building official needs to use care so that he doesn't effectively create a defacto code change by approving alternates.

State laws may also limit the ability of the counties and cities to adopt building codes.

These limitations are a function of our system of what is called administrative law.


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## peach (Jun 30, 2010)

standard.. no.. code.. I believe a jurisdiction can do it...

again, WHY would you want to do it?


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## Gene Boecker (Jul 1, 2010)

The "current edition" language is clearly not in keeping with due process and is therefore a violation of civil rights.  Usually the states have similar language in their constitutions.

Each state can address this as they see fit.

Some have no statewide law on any building or construction law and place the burden on the local jurisdiction.

Some pass statewide laws that specifically identify a code and an edition.  This requires a new law to be passed each time a new edition becomes available.  It makes things very specific but removes latitude from local jurisdictions.

Some states have enabling legislation instead.  This enabling legislation grants adoption powers to specific entities - local jurisdictions or state agencies.  The state agencies then can adopt "rules" that identify the code and edition.

Even if the state has no laws regarding it, the local jurisdiction can adopt a year and edition either directly or use enabling legislation to permit rule making by a local board.

In each case there is the opportunity for the public to comment on the proposed actions of their public servants.  These are sunshine rules that apply in most states and local jurisdictions.  You can't make new rules behind closed doors.  Saying "current edition" effectively does that because nobody knows when the new edition becomes effective - when the new year comes?  When the book is in publication?  After the third full moon subsequent to the ink drying on the last code hearing?

As to why some do it that way?  They're lazy.  It makes it easier to simply jump to the new book when they feel like it then jump through the hoops of the due process system.


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## Mark K (Jul 1, 2010)

Building on what Gene said we ask why do these practices persist?  In many cases design professionals and applicants do not understand the legal issues and think that the building department has the right to do this.  More often I believe it is because it is cheaper and faster for the permit applicant to do what the building official tells them to do than to fight it.  There is also a fear that if they fight it that the plan checkers/inspectors will give them a hard time on other issues.  Thus because nobody calls their bluff the building official comes to believe that he has a right to do it this way.


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## peach (Jul 3, 2010)

the problem, I think, is that some of the current standards (like ASHRAE 189) may be good to incorporate some way, but the Code doesn't necessarily recognize it (depending on how far in the dark ages you are).

The standards making process is easier than the code making process since standards are more likely to keep up with the current technology.

The plan checker is the fire line of defense.. it's up to them (and the building official) whether or not they want to see "new practices" by exception based on the standards.

With codes.. if your jurisdiction is acceptable to just accept the current version without amendments, they just need to publish a policy that as of July 1 (or Dec 1, or May 5), the current code goes into affect.

"Policies" are as effective as enabling legislation if that's the way you want to go..

Why would you want to, is still my question?  You will end up with baggage you may not want.


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## Uncle Bob (Jul 3, 2010)

Original Question: "Can any legislative body write a law that mandates the "Current Edition" of a code or standard?"

Unfortunately, many (mostly small) communities; adopt "The International Codes" without providing the Edition (date). Sometimes they even add that all future editions are adopted.

They can; but it's not legally binding.  The answer is no.

Uncle Bob


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## fireguy (Jul 3, 2010)

Have any of you read the "The Referenced Publications" in the NFPA Standards?  NFPA 10-2007 2.1 "General. The documents or portions thereof listed  in this chapter are referenced within this standard adn shall be considered part of the requirements of this document."  2.2 NFPA Publications,  lists other NFPA Standards.  2.3 Other Publications lists ASTM, CGA, NPCA, UL, ULC, US Government Publications, and even Merriam-Websters Collegiate Dictionary.   Other NFPA Standards also have the same or similar language.

While I understand the concerns, it is much easier for me to know that a  17 # extinguisher is required for a propane tank refill dispenser when I can find the information in  the Oregon Fire Code 2010, based upon IFC-2009,  which references the NFPA Standards 10 and 58.


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## peach (Jul 5, 2010)

The referenced standards only apply specifically as incorporated in the Codes... meaning.. if NFPA (let's just say 58) is incorporated in the IBC, (which it isn't in IBC 2006, and neither is 10).. so those aren't good examples..

Let's say NFPA 30 .. it can only be applied to 415.3 of the IBC.. period. That's the only reference to it.

The due process for Code adoption is easy.. the legislative body meets and drafts legislation to the effect of "on July 1 of each third year, this jurisdiction will start enforcing the ICC codes published the previous year".  That's the due process. (and I'd have a problem with it).

The standard making process never really stops.  ASHRAE, for example will get a bunch of smart people together to decide on changes to ASHRAE 90 or 189.

If that standard isn't adopted in the "newest" version of the adopted Code.. you can't use it, unless you seek a code modification.  It's not really rocket science.


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