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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION : No. 87-1202
 

:


 of : MARCH 3, 1988
 

:
 

JOHN K. VAN DE KAMP :


 Attorney General :
 

:


 CLAYTON P. ROCHE :
 

Deputy Attorney General :


 :
 

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 limited one.
 3 'First, our task 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