Billy Atkins
Atkins & O'Black, PLLC
Morgantown, West Virginia
Jay N. Varon
Melinda F. Levitt
Akita N. Adkins (Pro Hac Vice)
Foley & Lardner, LLP
Washington, D.C.
Attorneys for the Appellants
Ancil G. Ramey
Steptoe & Johnson, PLLC
Charleston, West Virginia
Attorney for Amicus Curiae,
NiSource, Inc. and
West Virginia Propane Gas Association
Darrell V. McGraw, Jr.
Attorney General
Silas B. Taylor
Senior Deputy Attorney General
Charleston, West Virginia
Amicus Curiae
Paul T. Farrell, Jr.
Wilson, Frame, Benninger & Metheney, PLLC
Morgantown, West Virginia
Attorney for Amicus Curiae,
West Virginia Trial Lawyers Association
CHIEF JUSTICE ALBRIGHT delivered the Opinion of the Court.
Albright, Chief Justice:
This case is before us on certified questions
from the Circuit Court of Monongalia County and presents issues concerning application
of certain regulatory provisions of the state fire code to a commercial vendor.
At the center of this case is both the validity of a legislative rule which exempts
one- and two-family dwellings from compliance with the provisions of the state
fire code (See footnote 1) and
the case-specific issue of whether this exemption can be invoked by a commercial
vendor such as Appellant AmeriGas Propane, Inc. (“AmeriGas”). When
presented with these issues, the Circuit Court of Monongalia County held that
the exemption at issue was both contrary to the intent and purpose of the enabling
legislation set forth in the West Virginia State Fire Prevention and Control
Act (the “Act”) (See
footnote 2) and inapplicable based on the facts of this case. Upon
our determination that the exemption for one- and two-family dwellings was validly
promulgated and enacted into law, we find no basis for the lower court's determination
that the exemption cannot be asserted by a commercial entity such as AmeriGas
who performs work on the situs where a one- and two-family dwelling is located.
Accordingly, we determine that the regulatory exemption from compliance with
the state fire code provided
for one- and two-family dwellings is applicable to commercial suppliers of
liquid propane gas in connection with their installation of gas lines to one-
and two-family dwellings.
1. Does 87 C.S.R. 1, § 1.5,
which exempts application of the Fire Code's provisions to buildings used wholly
as dwelling homes for no more than two families, violate the intent and purpose
of the West Virginia State Fire Code, and the public policy of this State?
2. Was 87 C.S.R. 1, § 1.5
intended to be applicable to commercial suppliers of liquid propane gas, such
as Defendant AmeriGas, when such commercial vendors install or supply liquid
propane gas to one- and two-family dwellings in this State?
3. Even if the express exemption
in Section 1.5 is found to be invalid against third-party service providers,
is it proper to impose on a retrospective basis negligence per se liability
against such service providers for violations of the State Fire Code with respect
to one and two family dwellings?
This Court, by order entered on June 29, 2004, accepted the certified questions
and docketed the matter for resolution.
If
there is a reasonable basis for the grouping of various matters in a legislative
bill, and if the grouping will not lead to logrolling or other deceiving tactics,
then the one-object rule in W.Va. Const. art. VI, § 30 is not violated;
however, the use of an omnibus bill to authorize legislative rules violates the
one- object rule found in W.Va. Const. art. VI, § 30 because the
use of the omnibus bill to authorize legislative rules can lead to logrolling
or other deceiving tactics.
189 W.Va. at 405, 432 S.E.2d at 75, syl. pt. 2.
Based on the articulated reason that “chaos would result if we h[e]ld that all of the legislative rules are void since the omnibus bills authorizing the rules violate the one- object rule of our constitution,” we limited the ruling announced in syllabus point two of Kincaid to prospective application only. Id. at 412, 416, 432 S.E.2d at 82, 86. Later, upon reevaluation of the effects of our ruling in Kincaid, we modified our rulings in that decision to hold that:
in future cases, unless specific
procedural or substantive infirmities are brought to our attention, we will no
longer presume invalid legislative rules adopted prior to Kincaid merely
because they were enacted as part of omnibus legislation. What we suggested in Appalachian
Power Co., 195 W.Va. at 585, 466 S.E.2d at 436, we now hold:
“[o]nce
a disputed regulation is legislatively approved, it has the force of a statute
itself . . . . Being an act of the West Virginia Legislature, it is entitled
to more than mere deference; it is entitled to controlling weight. As authorized
by legislation, a legislative rule should be ignored only if the agency has exceeded
its constitutional or statutory authority or is arbitrary or capricious.”
West Virginia Health Care Cost Rev. Auth. v. Boone Meml. Hosp., 196
W.Va. 326, 335-36, 472 S.E.2d 411, 420-21 (1996).
In explanation of our ruling in Boone
Memorial, we stated:
While
we recognize interpretative analysis of omnibus legislation is to be conducted
with great caution, unless specific procedural or substantive infirmities are
proven, the case-by-
case “careful scrutiny” standard cannot justify the expense of judicial
resources required for its implementation. . . . If the language of an enactment
is clear and within the constitutional authority of the law-making body which
passed it, courts must read the relevant law according to its unvarnished meaning,
without any judicial embroidery. Even where there is conflict between the legislative
rule and the initial statute, that conflict will be resolved using ordinary
canons of interpretation.
Id. at 336, 472 S.E.2d at 421.
In response to Appellees' contention
that the exemption is invalid based on its manner of enactment, Amerigas remonstrates
with the fact that while the subject legislation was initially included in an
omnibus bill, it has been reenacted at least three times since this Court's rulings
in Kincaid. (See
footnote 18) Amerigas maintains that even if the initial manner of
passage was constitutionally deficient, the subsequent reenactments of legislation
including the subject exemption, which post-dated Kincaid and were in
accord with the dictates of that ruling, have eliminated the procedural infirmities
raised by Appellees. We agree.
Beginning in 1994, the Legislature, in response
to this Court's mandate in Kincaid, began combining various bills authorizing
the promulgation of legislative rules based on subject matter. This change resulted
in the submission of all legislative rule
amendments for consideration in groupings suggested by the identity of the
state agency or department charged with administerial responsibility for the
matters to which the rules pertained. In terms of the Fire Commission and changes
made to the state fire code from 1994 forward, all amendments and reenactments
were adopted as part of specific legislation pertaining solely to matters involving
Military Affairs and Public Safety, (See
footnote 19) as this agency is charged with administering the state
fire commission, or to the Fire Commission, Protective Services, and Police. (See
footnote 20) In the event there is any lingering confusion over
the rulings of this Court which address legislative rule-making, we hold that
the inclusion in a bill which authorizes the promulgation of legislative rules
pertaining to multiple agencies within one executive department does not violate
the one object rule of article VI, section 30 of the West Virginia Constitution
nor does it violate the holdings of this Court in Kincaid.
Given the manner in which § 1.5 was
properly reenacted post-Kincaid, we find Appellees' arguments that the
exemption is invalid based on its earlier adoption as part of an omnibus bill
and that special scrutiny is required due to its manner of enactment both to
be without merit. Simply put, § 1.5 is a valid legislative rule that was
enacted in compliance with both statutory (See
footnote 21) and case law requirements.
In making these arguments, Appellees seek to have this Court make a determination that the exemption is unenforceable because it is contrary to the intent and purpose of the enabling legislation. See Boone Meml., 196 W.Va. at 335, 472 S.E.2d at 420 (observing that courts are required to “reject administrative orders and rules that are contrary to legislative intent”). To support their position, Appellees argue that the absence of any language within the provisions of the Act expressly exempting the entirety of the Act's provisions from one- and two-family dwellings is significant. Their argument is essentially that the Legislature, had it intended to except certain types of residential structures from compliance with the Act's provisions, could have included a provision to accomplish these objectives. Appellees cite to specific statutory provisions where one- and two-family dwellings are expressly excused from compliance with the Act as evidence that the Legislature intended that non-compliance was intended to apply only in limited and specifically defined instances. (See footnote 22) Invoking principles of common sense, Appellees further contend that the Act cannot achieve its desired objectives of promoting fire and explosion safety for the citizenry of this state if the exemption is upheld.
In discussing issues concerning administrative rules and regulations in Appalachian Power Co. v. State Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), we held in syllabus point four:
If
legislative intent is not clear, a reviewing court may not simply impose its
own construction of the statute in reviewing a legislative rule. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency's answer is based on a permissible construction
of the statute. A valid legislative rule is entitled to substantial deference
by the reviewing court. As a properly promulgated legislative rule, the rule
can be ignored only if the agency has exceeded its constitutional or statutory
authority or is arbitrary or capricious. W.Va.Code, 29A-4-2 (1982).
195 W.Va. at 579, 466 S.E.2d at 430 (emphasis supplied). Having concluded above
that the exemption is a valid legislative enactment, the legislative rule under
discussion can only be deemed unenforceable if the regulation was beyond the
constitutional or statutory authority extended to the agency involved or if
the rule is determined to be arbitrary or capricious. See id.
What Appellees overlook in advocating the
invalidity of the exemption is the legal effect of a validly enacted legislative
rule. In syllabus point five of Smith v. West Virginia Human Rights Commission, 216
W.Va. 2, 602 S.E.2d 445 (2004), we held that “[a] regulation that is proposed
by an agency and approved by the Legislature is a “legislative rule” as
defined by the State Administrative Procedures Act, W.Va.Code, 29A-1-2(d)
[1982], and such a legislative rule has the force and effect of law.” Moreover,
it is not for this Court to second guess the legislative wisdom of adopting
an exemption that limits the ambit of a specific enactment. As Justice Cleckley
explained in Boone Memorial,
Our job is not to weigh the
wisdom of, nor to resolve any struggle between, competing views of the public
interest, but rather to respect legitimate policy choices made by an agency in
interpreting and applying a statute. Moreover, it is not necessary for us to
find that the regulation is the only reasonable one or even that it is the result
we would have reached had the question arisen in the first instance in this Court.
196 W.Va. at 339, 472 S.E.2d at 424.
This is not the first time that the validity
of § 1.5 has been questioned. In Redden v. Comer, 200 W.Va. 209,
488 S.E.2d 484 (1997), arguments identical to those raised in this case were
advanced by a litigant who brought a negligence cause of action based on the
absence of smoke detectors in a single family dwelling in which a fire caused
the death of his son. This Court affirmed the trial court's decision that the
regulatory exemption from compliance with the state fire code provisions for
one- and two-family dwellings was controlling and consequently dispositive of
the father's right to bring a cause of action predicated on negligence arising
from a statutory violation. (See
footnote 23) 200 W.Va. at 213,
488 S.E.2d at 488. Squarely addressing both the validity of the exemption and
its effects, this Court opined in Redden, “[c]learly, the State
Fire Commission was authorized, by statute, to create a State Fire Code. That
Code, as adopted, contained a clear exemption regarding 'buildings used wholly
as dwelling houses for no more than two families[.]' Under the circumstances
of this action, that exemption is dispositive.” 200 W.Va. at 213, 488
S.E.2d at 488.
In their attempt to distinguish Redden,
Appellees contend that the decision cannot be viewed as dispositive because this
Court did not directly address the issue of whether the exemption violated the
purpose of the enabling statute. (See
footnote 24) In addition, Appellees call into question the weight
that Redden should be accorded based on its issuance as a per curiam,
rather than as a signed opinion. In Walker v. Doe, 210 W.Va. 490, 558
S.E.2d 290 (2001), we put to rest the much-debated and previously unresolved
issue regarding the precedential value of per curiam decisions. See id.
at 491, 558 S.E.2d at 291, syl. pt. 3, in part, (holding that “[p]er curiam
decisions have precedential value as an application of settled principles of
law to facts necessarily differing from those at issue in signed opinions”).
Consequently, we wholly reject Appellees' suggestion that this Court's discussion in Redden of
the exemption set forth in § 1.5 should be disregarded as mere dicta.
Without question, this Court's holding in Redden is
controlling with respect to our recognition that the exemption contained in § 1.5,
when applicable and properly invoked, operates to prevent the provisions of the
state fire code from applying to one- and two-family dwellings. The absence of
the specific permutations raised in this case _ the application of the exemption
to a commercial vendor _ does not vitiate the controlling effect of that decision
with regard to this case. It merely requires further application of the principles
announced in Redden to resolve the unique factual and legal issues presented
here.
Before reaching the ultimate issue concerning
the exemption's applicability to Amerigas, we must rule upon Appellees' premise
that the exemption is unenforceable because it conflicts with the enabling legislation.
As mentioned above, Appellees suggest that by carving out a significant segment
of this state's citizenry through application of the exemption, the Legislature's
objective of implementing a state fire code for the protection of this state's
citizenry is thwarted. Rather than presenting a true conflict between a statutory
provision and a regulation promulgated by an administrative agency, however,
the issue framed by Appellees is in actuality a disagreement with the legislatively-approved
decision to omit one class of structures from the state fire code's requirements.
And, as Justice Cleckley expounded in Boone Memorial, the limited role
of this Court does not permit us to engage in the kind of armchair legislating
that Appellees wish us to undertake. See 196 W.Va. at 339, 472 S.E.2d
at 424. There are certainly valid reasons
for exempting one- and two-family dwellings from the state fire code. Two such
reasons that quickly come to mind are grounded in privacy and enforcement related
concerns. Whatever the bases for the decision to exempt one- and two-family dwellings,
it was within the drafting agency's prerogative to suggest that particular exemption
and it was within the Legislature's authority to adopt that limitation on the
reach of the state fire code each and every time this exemption was included
in a bill of authorization beginning with 1979 and up to the present time. The
fact that Appellees think the Legislature was acting imprudently in limiting
the scope of the state fire code is not the issue before this Court. Moreover, “[i]n
the absence of . . . [legislative] direction as to what elements are to be considered
in promulgating . . . [a] rule, the presumption is that . . . [the Legislature]
is entrusting the decision as to what to consider to the hands of the agency
in deference to agency expertise.” 195 W.Va. at 589, 466 S.E.2d at 440 (quoting Kennedy
v. Block, 606 F.Supp. 1397, 1403 (W.D. Va.1985)).
Appellees have simply failed to convince
this Court that the Legislature, in authorizing the creation of a state fire
code, was not also giving the fire commission authority to define the parameters
of what property would be subject to the code's provisions. As we explained in Appalachian
Power, “[w]e will not set aside a formally adopted legislative rule
without clearcut evidence of an inconsistency between the rule and the authorizing
statute.” 195 W.Va. at 588, 466 S.E.2d at 439. The mere fact that the
objective underlying the state fire code was to promote fire protection for
this state's citizens on its own does not suggest to this judicial body that
there could be no limiting provisions with regard to the application of the
fire code. And, as Justice Cleckley noted in Boone Memorial, “legislative
acquiescence . . . where the Legislature has revisited the language in . .
. authorizing . . .[a rule's] promulgation as a legislative rule,” weighs
strongly in favor of the validity of a legislative rule. (See
footnote 25) 196 W.Va. at 340, 472 S.E.2d at 425. In this case,
such “legislative acquiescence” has extended over the course of twenty-five
years. Consequently, we respond to the first of the certified questions by
holding that the legislative rule found in § 1.5 that expressly exempts
one- and two-family dwellings from compliance with the state fire code does
not violate the intent and purpose of the West Virginia State Fire Code or
the public policy of this state.
The trial court ruled below that “the
one- and two-family dwelling exemption contained in the Fire Code regulations
was never intended to apply to an entity such as Amerigas, a sophisticated commercial
business entity which installs and delivers a hazardous substance such as propane.” The
trial court further opined that the Legislature intended that
the subject exemption could only be asserted by the residents of a one- or
two-family dwelling. We find no support for either of these conclusions.
By its terms, the exemption is written in
terms of the dwelling and not with reference to a particular entity, such as
the residents of the dwelling. Logic suggests that by defining the exemption
in terms of the physical locale _ the dwelling _ the intention was to include
both the structural dwelling and the property on which the dwelling is located.
Contrary to the reasoning employed by the trial court and advanced by Appellees,
there is nothing which suggests that the applicability of the exemption is dependent
upon the nature of the entity performing work that comes under the protection
of the state fire code. The exemption is simply not written in terms of hinging
its application based upon the identity of the entity performing work on the
property at issue. Consequently, if we were to hold that the exemption was not
intended to apply to commercial vendors, such as Amerigas, we would be limiting
the scope of the exemption with absolutely no legislative or regulatory reference
point upon which to base such a conclusion. See Dunlap v. Friedman's, Inc., 213
W.Va. 394, 398, 582 S.E.2d 841, 845 (2003) (stating that “'[i]t is not for
[courts] arbitrarily to read into [a statute] that which it does not say[;] .
. . we are obliged not to add to statutes something the Legislature purposely
omitted'”) (citation omitted). Moreover, if we reached the same conclusion
as the trial court and held that the exemption cannot be extended to one- and
two-family dwellings where commercial vendors have performed services that fall
within the aegis of the state fire commission, we would be engaging in outright
policy making.
Amerigas points out the inherent limitations
of defining the exemption in terms of the identity of the entity that performs
covered services at one- and two-family dwellings. While the trial court sought
to exclude sophisticated commercial vendors from the protections of the exemption,
this only raises additional questions concerning who qualifies as a sophisticated
commercial vendor. Because there is no proviso language which seeks to limit
in any fashion the application of the exemption, we find no basis for concluding
that invocation of the exemption is dependent upon the identity of the entity
performing work on qualifying property. Accordingly, we respond to the second
certified question by holding that the legislative rule found in § 1.5 is
applicable to commercial suppliers of liquid propane gas when such commercial
vendors install or supply liquid propane gas to one- and two-family dwellings
in this state.
In crafting its ruling against Amerigas,
the circuit court appears to have been concerned that the consequences of upholding
the application of § 1.5 under the facts of the underlying case would be
dire, at best. We wish to stress that our ruling in this case should not be construed
as sanctioning the installation of propane tanks or gas lines by Amerigas, or
other similar entities, in a fashion that conflicts with applicable safety regulations
and
laws or prudent industry practices suggested by the particular circumstances
of each case. (See footnote
26) There are other codes besides the state fire code that govern
the conduct of entities such as Amerigas. For example, the state building code,
which has been adopted by three counties and forty-nine cities and towns has
controlling provisions addressing the depth at which propane lines are to be
buried. (See footnote
27) We note additionally that Amerigas' own internal operating
procedures required compliance with the state fire code.
Based on the above discussion, we answer
the first certified question in the negative; the second certified question in
the positive; and based on our response to the second certified question, we
do not answer the third certified question.
Certified
questions answered.