Request By:
Mr. John A. Hill
Counsel
State Fire Marshal's Office
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Victor Fox, Assistant Attorney General
You requested an opinion from this office on the following questions:
"1. May the state fire marshal require building owners to update, remodel or renovate their buildings, installations and equipment, or correct conditions therein, to comply with 806 KAR 50:015 and the therein referenced codes and standards, even if such buildings, installations, equipment or conditions were shown by proper state fire marshal's office inspection and/or permit, prior to April 7, 1977, to be in compliance with the then existing laws, regulations and codes?
"2. As written, does Section 2(4) of 806 KAR 50:015, read in conjunction with KRS Chapter 227, meet the test for a proper and constitutional delegation of legislative power to the State Fire Marshal under current case law?
"3. By virtue of KRS 227.320, do local political subdivisions have the authority, at their discretion, to require such retroactive application of minimum safety standards contained in Section 2(4), 806 KAR 50:015 or other such regulations? "
The subject regulation, 806 KAR 50:015, purports to relate to KRS 227.220, section (2)(c) of which reads:
"(2) The commissioner is authorized to:
* * *
"(c) Make and enforce reasonable rules and orders for the prevention of fire loss, and for the adoption, approval, and installation of such safety equipment as will minimize fire loss; "
The regulation also purports to be pursuant to KRS 227.300, which reads in part as follows:
"(1) The commissioner shall promulgate reasonable rules and regulations based upon good engineering practice and principles as embodied in recognized standards of fire prevention and protection, providing for a reasonable degree of safety for human life against the exigencies of fire and panic, and insuring as far as is practicable against fire loss. Such rules and regulations shall be known as the standards of safety."
For the fire marshal to require retroactive application of any new standards of safety to existing structures, he must have some semblance of lawful authority. 806 KAR 50:015 section 2(4) would appear to grant that authority. However, for that authority to exist there must have been a lawful delegation of such authority from the legislature.
The above statutes do not, in our opinion, grant such authority. They are completely silent on the question. The source material referenced by your letter is both supportive of this opinion and easily distinguished from the instant fact situation.
Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946) dealt with a legislative enactment of a retroactive application of fire codes. The rationale involved the exercise of the state's police power. Similarly,
City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960) concerned the exercise of municipal police power. Neither of these cases involved an attempt to exercise police power by an administrative agency without legislative enactment.
As the Supreme Court stated in
McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977) at 413:
"The police power does have limits.
'It is fundamental that such [an] extraordinary power is not without limitation, for it may not operate unreasonably beyond the occasion or necessity of the case. It may not unreasonably invade private rights and thus violate those rights guaranteed under either the Federal or the State Constitution. . . . The exercise of the power must have a substantial basis and cannot be made a mere pretext for actions that do not come within its scope. To state it another way, the action of the government may not arbitrarily invade liberty or property rights under the guise of police regulation. ' (citation omitted)
'It is true that legislative bodies possess what the opinions designate as "the primary authority" to determine whether or not the particular enactment is justified under authority conferred by the Police Power. '" (citation omitted)
The legislature has not determined that standards of safety shall be given retroactive application. Absent that legislative expression, 806 KAR 50:015 section 2(4), insofar as retroactive application, is an unlawful expression of police power. Since the purported authority to require retroactive application is unlawful, the fire marshal, in our opinion, cannot require retroactive application of new standards of safety where such buildings, installations, equipment or conditions were shown by proper inspection or permit to be in compliance with the then existing laws, regulations and codes.
If the fire marshal had the authority to require retroactive application of new standards of safety, local political subdivisions would not have any discretion as to the application of subject standards. KRS 227.320 reads in part:
"Whenever the commissioner, by rules and regulations prescribes a standard of safety from fire loss, such rules and regulations shall establish a minimum requirement concerning the matters covered thereby and shall be so construed in relation to any local rules and regulations. "
See also 806 KAR 50:015 section 2(5) and OAG 42,311 (1958) (copy attached). It is noted, however, that following the rationale of Thompson, supra, a local legislative exercise of municipal police power could require retroactive application of new standards of safety.
In summation, it is the opinion of this office that the fire marshal cannot, absent expressed legislative authority, require retroactive application of stricter standards of safety where buildings, etc., were shown by proper inspection or permit to be in compliance with the then existing laws, regulations and codes. Further, that as written § 2(4) in part does not meet the test for a proper and constitutional delegation of legislative power. Finally, a political subdivision has the discretion to legislatively require retroactive application of stricter minimum requirements.