Request By:
Mr. Stephen P. Huddleston
Attorney at Law
P.O. Box 807
Warsaw, Kentucky 41095
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As attorney for the Ghent Fire Protection District you relate the following facts and question:
"In May, 1982, the Ghent Fire Protection District answered, with personnel and equipment, a call from the owner of an automobile service station located within the district's boundaries. Due to heavy rains, two large gasoline holding tanks, which were in the process of being implanted in the ground, had floated to the surface during the night, creating a hazardous situation with potential for fire and explosion. The district was able to return the tanks to their position within the earth, by pumping the accumulated water from the pits wherein had rested the tanks. No fire occurred.
The district is considering the propriety of charging a fee for man-hours, and foam expended in connection with this service. No rules or regulations establishing such charges have been heretofore promulgated by the district.
May a fire protection district, organized under KRS Chapter 75, charge a fee for services rendered in behalf of property located within the district's boundaries, when such services were rendered in response to a call by the owner, and were of an emergency nature not in connection with a fire?"
Our response to your question would be in the negative. The fire protection district was of course organized pursuant to KRS 75.010 as a special separate taxing district with the power to levy tax on all real and personal property pursuant to KRS 75.040. The authorized tax levy is of course for the maintenance and operation of the fire department for the purpose of protecting the property owners within the district from fires or fire-related conditions. We believe this protection includes not only the fighting of fires in progress but also includes the duty to prevent a dangerous and inflammatory condition from developing into a possible explosion and subsequent fire. In other words, the fire department owes a duty to the property owners who must pay the tax, not only to fight fires in progress, as we mentioned, but also to diffuse a highly hazardous condition involving inflammatory leaks, such as gasoline, mentioned in your factual situation that could at any time explode into a dangerous fire, endangering the safety and lives of adjacent individuals as well as their property.
Referring to McQuillin, Municipal Corporations, Vol. 7, § 24.457, it mentions in connection with fire protection, which is one of the oldest functions of American local government, that such protection includes explosions that are potential fire hazards. Municipal competency with respect to explosions and fires is considered a phase of police power to protect the safety, lives and property of persons within its jurisdiction.
Under the circumstances, we believe that the fire department of the district should, as part of its purpose and obligation in fighting fires and fire-related conditions, alleviate when possible any hazardous situation involving explosive materials such as gasoline which is, without question, a fire hazard affecting the safety and welfare of the property owners who are paying taxes for such protection. As a consequence, we do not believe the district can legally levy an extra charge or fee for the man-hours and equipment-hours deemed necessary to alleviate the hazardous condition in question.