Request By:
Major Paul J. Long
Fire Prevention Bureau
Jeffersontown Fire Protection District
P.O. Box 99204
Jeffersontown, Kentucky 40299
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that during a routine fire inspection a question was raised as to the authority of a chief of a fire protection district or his designated representative to enter property, other than a private residence, to check for possible fire code violations.
You mention changes in the building codes and the safety standards and state that you are uncertain as to what sections permit or possibly require the fire chief to make such inspections. You maintain that the new "Fire Safety Standards" address the matter but you do not know when those standards take effect. Your letter also refers to National Fire Protection Association Pamphlet # 1 and the B.O.C.A. Basic Fire Prevention Code.
You conclude your letter with a request that this office cite those particular code sections which grant the chief of a fire district the power to enter upon property to check for possible violations and the penalties which may be imposed against those persons who interfere with the fire chief in his performance of such duties.
We assume that the chief of the fire protection district to whom you refer is a chief of a fire department organized and existing pursuant to KRS Chapter 75. KRS 75.100(5) states that "chief" means the chief of the fire department of a fire protection department organized under KRS Chapter 75 and of a volunteer fire department. KRS 75.180 sets forth the duties and powers of the fire chief and subsection (1) provides in part as follows:
"The chief, assistant chief, or highest officer present at the fires answered by his department shall investigate their causes. He may examine witnesses, compel the testimony of witnesses, administer oaths, compel production of evidence and make arrests as provided in KRS 75.160. He may enter any building at all reasonable times for the purpose of examining the building if, in his opinion the building is in danger of fire. He shall report his findings, when requested, to the board, Kentucky inspection bureau, and office of the state fire marshal. " (Emphasis supplied.)
As stated in OAG 78-494, copy enclosed, at page two, KRS 75.180 gives only a limited right of inspection to the fire chief. It does not provide "teeth" for enforcement as do KRS 227.370 to 227.390, which establish provisions for inspections and enforcement by city fire departments. Fire protection districts organized under KRS Chapter 75 are not included within the provisions of KRS 227.370 to 227.390. Therefore, the provisions of KRS 75.180, dealing in part with inspections by chiefs of fire protection districts, must be enforced through cooperation with the State Fire Marshal if the chiefs of fire protection districts intend to do anything more than merely inspect buildings suspected of being fire hazards.
KRS 227.320 requires that the authorities of any city, county or other political subdivision adopt and enforce the standards of safety promulgated by the Commissioner of Housing, Buildings and Construction. KRS 227.300 requires the Commissioner to 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. Pursuant to this legislative directive, rules and regulations known as the "Standards of Safety" were adopted. The "Standards of Safety" were formerly set forth in 815 KAR 10:015 but those provisions were recently repealed and replaced by the "Fire Safety Standards," set forth in 815 KAR 10:020, effective May 7, 1980.
Before dealing with the above-mentioned administrative regulations, we direct your attention to KRS 227.230. That statute provides in part that the chief of each fire department and the sheriff of each county shall be deemed deputies when ordered by the state fire marshal to act as such for their respective jurisdictions. The statute is not limited to any particular type of fire department. Furthermore, KRS 227.270(2) and (3) provide as follows:
"(2) The state fire marshal or his employer or appointee may without delay or advance notice and at all reasonable hours of the day or night, enter in or upon any property to make an inspection or investigation for the purpose of preventing fire loss or to determine the origin of any fire, but this subsection shall apply to the interior of private, occupied dwellings only when a fire has occurred therein or when the officer has reason to believe that unsafe fire conditions exist in the building.
(3) No person shall obstruct, hinder or delay such an officer in the performance of his duty."
In 815 KAR 10:020 (Fire Safety Standards), in section 14, dealing with the fire chiefs' authority over unsafe property, the regulations apparently intend to give all fire chiefs (including fire protection district fire chiefs) certain enforcement powers (authority to require owners to make specified repairs or improvements). KRS 227.330 gives such powers to the fire marshal and KRS 227.370 to 227.390 confer those powers upon the chiefs of city fire departments. However, neither KRS 75.180 nor any other statute grants such enforcement powers to chiefs of fire protection districts organized pursuant to KRS Chapter 75. As we said in OAG 78-185, copy enclosed, administrative regulations must be authorized by legislative enactments and powers cannot be granted through regulations when those powers have not been created by enactments of the General Assembly.
Thus, in our opinion, chiefs of fire protection districts organized pursuant to KRS Chapter 75 have, in their own right under the statutes, limited inspection powers and no enforcement powers in connection with examining buildings for fire hazards. Any effective program of inspection and enforcement must be coordinated with the State Fire Marshal's Office (in the Department of Housing, Buildings and Construction) which, pursuant to the applicable provisions of KRS Chapter 227, can give chiefs of fire protection districts the authority to act on its behalf to carry out a program of fire safety relying upon inspections and enforcement of violations.