Request By:
Mr. James L. Cherry
Action League for Physically Handicapped Adults
3901 Atkinson Drive
Louisville, Kentucky 40218
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions relating to KRS 227.305 which provides as follows:
"(1) The state fire marshal shall issue regulations relating to the minimum requirements for facilities for physically handicapped persons in all public buildings and public accomodations to be constructed or remodeled after June 21, 1974. In doing so, he shall adopt those standards known as the American national standard institute specifications.
(2) After June 21, 1974, no building permit or other official authorization for construction or remodeling of a public building or public accomodation by any person is valid unless the plans and specifications are in compliance with the regulations issued by the state fire marshal pursuant to this section and KRS 227.200."
You allege that the above-mentioned statute is not being effectively enforced. While you recognize the responsibility of the State Fire Marshal's Office in this area you maintain that KRS 227.305(2) places responsibility for enforcement of the Fire Marshal's regulations (806 KRS 50:020) upon local building and housing departments as well. You also refer to KRS 227.990, a penalty section, and ask how it relates to KRS 227.305.
Your first question is stated as follows:
"Does KRS 227.305(2) impose a duty upon local building and housing departments to make their own review of building plans and specifications, independent of, or in conjunction with the State Fire Marshal's Office to insure compliance with 806 KAR 50:020?"
In absence of a local ordinance adopting the regulations promulgated by the state fire marshal pursuant to KRS 227.305, the responsibility for the enforcement of those regulations rests with the state fire marshal. KRS 227.230 states in part that, "The state fire marshal, under the general direction of the commissioner, shall enforce and administer the provisions of KRS 227.200 to 227.400 and rules and regulations issued here-under," which, of course, includes the provisions of KRS 227.305 and the rules and regulations adopted pursuant thereto. In addition, the administrative regulations, 806 KAR 50:020, state in part that, "This regulation sets out the standards to be enforced by the State Fire Marshal's Office." Note also that KRS 227.305(2) mandatorily imposes upon the state fire marshal the authority and responsibility for the adoption of regulations relating to minimum standards for facilities for physically handicapped persons in all public buildings and public accomodations constructed or remodeled after June 21, 1974.
While responsibility for the enforcement of the regulations adopted pursuant to KRS 227.305 rests with the state fire marshal, local building and housing departments would want to be aware of those regulations and would probably want to review proposed plans and specifications submitted to them in regard to the fire marshal's regulations. KRS 227.305(2) provides that no building permit or other official authorization for construction or remodeling of a public building or public accomodation by any person is valid unless the plans and specifications comply with the state fire marshal's regulations. Presumably a building and housing department would not want to issue an invalid permit or it would at least want to direct the applicant's attention to the fire marshal's regulations.
Your second questions asks:
"Does a criminal penalty attach to KRS 227.305, and if so, against whom may the penalty be enforced?"
We first direct your attention to KRS 227.990 which states:
"Any person who violates any provision of KRS 227.200 to 227.400 or any provision of a lawful order, rule or regulation made under the provisions of KRS 227.200 to 227.400, or who induces another to violate any provisions of KRS 227.200 to 227.400 or of any lawful order, rule or regulation made thereunder, shall be fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00), or confined in the county jail for not more than sixty (60) days, or both. Each day such violations exist shall, in the discretion of the courts, be considered as a separate offense."
Thus the penalty provisions of KRS 227.990 do apply to KRS 227.305. Any person who violates the regulations adopted by the fire marshal's office pursuant to KRS 227.305 may be subjected to the penalties set forth in KRS 227.990. For example, if a building was constructed or remodeled in violation of the fire marshal's regulations, an action could be maintained against the owner of that building.
The concept of sovereign immunity would generally preclude an action from being brought against the Commonwealth, a city or a county. However, it may be that a mandamus action could be maintained against the governmental entity and those officers responsible for the operation and maintenance of the building to compel them to conform to the requirements of the statutes and the regulations adopted pursuant thereto. In many instances the state fire marshal has obtained compliance with the regulations after discussing the problem with those responsible for the operation of the building or the owners of the building.