EFFECT OF STATE BUILDING CODE UPON INSTALLATION OF SAFETY GLASS

COUNTIES ‑- CITIES AND TOWNS ‑- BUILDINGS ‑- EFFECT OF STATE BUILDING CODE UPON INSTALLATION OF SAFETY GLASS

The state building code, chapter 96, Laws of 1974, 1st Ex. Sess., supersedes the provisions of chapter 2, Laws of 1973, 1st Ex. Sess., to the extent that the two acts are in conflict.

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                                                                February 28, 1975

Honorable William C. Jacobs
Director, Department of Labor and Industries
General Administration Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 19

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            To what extent, if at all, does the State Building Code, chapter 96, Laws of 1974, 1st ex. sess., supersede the previously enacted State Safety Glazing Material Act, chapter 2, Laws of 1973, 1st ex. sess.?

            We answer this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The Safety Glazing Material Act, now codified in chapter 70.89 RCW, was enacted in 1973 to protect the public through comprehensive safety regulations.  Chapter 2, Laws of 1973, 1st ex. sess.  In particular it prescribed "the labeling and use of safety glazing material in hazardous locations in residential, commercial, industrial, and public buildings."  RCW 70.89.005.  "Safety glazing material" was defined in part to include those "glazing materials, such as tempered glass, laminated glass, or wire glass which meet the test requirements of the American national standards institute standard ANSI-97.1-1972 and such additional requirements as may be prescribed by the director of the department of labor and industries . . ."  RCW 70.89.010(1).  This chapter expressly superseded all local ordinances or parts thereof relating to the subject matter.  RCW 70.89.060.  The responsibility for enforcement of the Safety Glazing Material Act and any regulations made pursuant thereto was placed upon each city, county, or department, agency, or other authority of the state which inspects new construction or remodeling of residential, commercial, industrial, or public structures.  RCW 70.89.070.

            Later in the same Forty-third Legislative Session the State Building Code, chapter 96, Laws of 1974, 1st ex. sess., now  [[Orig. Op. Page 2]] codified in chapter 19.27 RCW, was enacted, requiring nationally accepted building standards throughout the state in order to protect the health, safety and welfare of the public.  RCW 19.27.020.  Generally, all local building regulations containing less than the minimum performance standards and objectives contained in the State Building Code were superseded.  RCW 19.27.060(1).  The governing body of each city, town, or county was authorized, however, to amend the State Building Code as applicable within its jurisdiction in all such respects as shall not be less than the minimum standards and objectives of chapter 19.27 RCW.  RCW 19.27.040.  The state code is to be administered and enforced by the respective governmental authorities.  RCW 19.27.050.

            RCW 19.27.030 specifically provides that certain national codes and standards shall be in effect in all cities, towns, and counties.  Among those national standards adopted by reference is the Uniform Building Code and Related Standards (1973 ed.).  Chapter 54 of the Uniform Building Code contains certain provisions and prescribes standards for glass and glazing.  To the extent that chapter 54 and the provisions of the previously enacted Safety Glazing Material Act (chapter 70.89 RCW) are inconsistent, we are faced with conflicting standards, each purporting to govern the same subject matter.

            Neither statute refers to the other in any manner.  Any repeal, thus, will of necessity be by implication only.  It is a well-established principle in our state that:

            [R]epeal by implication is not favored.  Before a legislative enactment will be found to have been impliedly repealed by a subsequent act, the later legislation must clearly be intended to supersede the prior act.  Copeland Lumber Co. v. Wilkins, 75 Wn.2d 940, 454 P.2d 821 (1969). . . . [I]f there is to be an implied repeal, the implication must be clear and necessary and the two acts must be so inconsistent with and repugnant to each other that they are irreconcilable and cannot both be given effect.  State v. Cross, 22 Wn.2d 402, 156 P.2d 416 (1945); Copeland Lumber Co. v. Wilkins, supra.

            State v. J-R Distributors, Inc., 82 Wn.2d 584, 604, 512 P.2d 1049 (1973),cert. denied, 41 L. Ed. 2d 1166 (1974).  Of course, when the subsequent enactment cannot by any reasonable construction be given effect while the prior law remains in operative existence because of such irreconcilable conflicts between the two acts,  [[Orig. Op. Page 3]] the latest legislative expression prevails and theprior law yields to the extent of the conflict.  1A Sands,Sutherland Statutory Construction, § 23.09, pages 223-24 (4th ed. 1972).  SeeRichland Irrigation Dist. v. DeBow, 149 Wash. 242, 245, 270 P. 816 (1928).

            If, for the sake of argument, one considers the Safety Glazing Material Act as a specific act and the State Building Code Act to be more general, another but quite similar rule of construction is applicable.  Our Court has recently stated that a general statutory provision may not repeal by implication an earlier specific statutory provision unless the two acts are so clearly inconsistent that they cannot both be given effect or there is a clear legislative intent that the later general provision be given universal application.  State v. Lacey, 84 Wn.2d 33, 38, 524 P.2d 1351 (1974).  However, chapter 54 of the Uniform Building Code dealing with glass and glazing is in itself quite specific.  In essence, then, we have two rather specific provisions dealing with the same subject matter, those of chapter 54 and those of the earlier chapter 70.89 RCW.

            While neither the Safety Glazing Material Act nor the State Building Code Act refers to the other, the building code does specifically mention other prior legislation.  RCW 19.27.080 enumerates the provisions of five previously enacted statutes, chapters 19.28, 43.22, 70.77, 70.79, and 70.87 RCW, which are not affected by the State Building Code.  The earlier Safety Glazing Material Act is not similarly exempted.  Further, chapter 54 of the Uniform Building Code was not expressly exempted from inclusion in chapter 19.27 RCW as was, for example, chapter 11 of the Uniform Plumbing Code.  RCW 19.27.030(4).  Thus, the legislature apparently intended to and did exclude some existing statutes from the effect of the building code.  This permitted those statutes to continue to govern.  Likewise, one chapter of a national code adopted by reference in the State Building Code was expressly excluded.  The legislature, had it so intended, could easily have taken either approach with safety glass.  It could have deemed chapter 70.89 RCW to be unaffected by the State Building Codeor have excluded chapter 19.27 RCW.  The fact that the legislature did neither as to safety glazing material is quite significant and is controlling in this instance.  Our court has long adhered to the basic rule of statutory construction that where there is an express exception in a statute the statute applies to all other cases not excepted, and no other exceptions can be read into it.  SeeJeanneret v. Rees, 82 Wn.2d 404, 408, 511 P.2d 60 (1973).  The legislature by expressly providing for  [[Orig. Op. Page 4]] some exceptions from the provisions of the State Building Code but failing to do so with regard to chapter 70.89 RCW has evidenced a clear intent that chapter 54 (glass and glazing) supersedes, to the extent inconsistencies exist, the earlier Safety Glazing Material Act wherever they cannot by fair and reasonable construction be reconciled.

            We note further that RCW 19.27.040 authorizes local governing bodies to amend the State Building Code as it applies within their jurisdictions to reflect more stringent standards.  The previously enacted Safety Glazing Material Act superseded all local ordinances relating to the same subject matter.  RCW 19.27.060(1).  Since the later State Building Code overrides this inconsistent provision in the Safety Glazing Act, each city, town, or county may, consistent with the required minimum nationally accepted standards, revise the glass and glazing regulations of chapter 54 of the Uniform Building Code.  To the extent that additional conflicts may thus develop in relation to the Safety Glazing Material Act, the provisions of the earlier law will be superseded.

            Our conclusion that the State Building Code has impliedly repealed the Safety Glazing Material Act to the extent that the two statutes are inconsistent does in itself suggest a possible solution to this problem.  For while the State Building Code, and thus chapter 54 of the Uniform Building Code, controls where inconsistencies exist, both statutes otherwise remain in effect, creating possible additional confusion for manufacturers, builders, administrators, and others.  If it is deemed appropriate, recourse to the legislature may alleviate this confusion.  The legislature may wish to expressly repeal the Safety Glazing Material Act, in which case only the State Building Code would govern glass and glazing.  It may, conversely, exempt the safety glass law from the effects of chapter 19.27 RCW or exclude chapter 54 of the Uniform Building Code from the State Building Code.  Either of these latter approaches would clearly result in chapter 70.89 RCW being the controlling safety glass statute.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

DAVID W. ROBINSON
Assistant Attorney General