Request By:
Mr. J. Pryor Wise
Treasurer and Trustee
Beargrass Christian Church
4100 Shelbyville Road
Louisville, Kentucky 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question about fire protection for churches, schools and charitable organizations.
The St. Matthews Volunteer Fire Department is not a fire protection district and, therefore, has no taxing power. It contracts with individuals and cities for fire protection services. In an attempt to increase its revenue it is proposing that its contract with a city exclude fire protection services for churches, schools and charitable organizations who would then be billed separately for such services by the fire department.
Your specific question is whether a city may legally sign a contract with a fire department for fire protection services in the city which excludes fire protection services for churches, schools and charitable organizations located within the city limits.
A city may, of course, provide fire protection services to the inhabitants of a city directly or it may, pursuant to KRS 75.050, provide such services by contracting with organizations such as fire protection districts and volunteer fire departments. In the situation you have set forth the city would be contracting for fire protection services but those services would only be extended to certain segments of the municipal population with the noncovered elements having to pay a private entity for fire protection services. If the city made no effort to furnish fire protection services either directly or by contractual arrangements then all persons or organizations would have to seek these services from another source. Under the proposed contract, however, certain persons and organizations are covered and others are excluded from coverage.
The furnishing by a city of fire and police services involves different concepts than the furnishing of most other municipal services. Municipal utilities such as electricity, gas and water are operated much like a commercial business with each customer contracting individually for the specific service actually used. Where the city itself furnishes fire protection services it does not do so on a contractual basis with the residents of the city but it furnishes those services to all persons and entities located within the municipal limits. See
Reedy v. Mullins, 456 F.Supp. 955 (W.D. Va. 1978) and
Phillips v. Kentucky Utilities Co., 206 Ky. 151, 266 S.W. 1064 (1924). Furthermore, municipal fire services, in our opinion, are as broad in scope and coverage as the municipal fire safety ordinances dealt with in
Buren v. Midwest Industries, Inc., Ky., 380 S.W.2d 96, 98 (1964) where the court said in part as follows:
". . . It is our opinion that such laws are for the protection of the lives and property of all persons who in their rightful pursuits may be affected involuntarily by a fire in or spreading from the premises to which the laws apply . . ."
Since if the city was directly providing the fire protection services to municipal residents it would have to make them available to all residents, it is only logical for the city in contracting for fire protection services to make them available to all residents. Furthermore, selective availability of fire protection services may raise constitutional problems and subject the city to a greater degree of liability than would otherwise be the case. The court alluded to improper classification or discrimination in connection with receiving fire protection services when it said in part in
Shortino v. Wheeler, 531 F.2d 938 (8th Cir. 1976) as follows:
"In their complaint, the appellants have failed to allege discrimination against any group or geographical area in providing fire protection for the city. Instead, they allege inadequacies in fire protection throughout the city. Absent any allegation of improper classification or discrimination among citizens, there is no judicially cognizable equal protection cause of action."
In addition, by holding out churches, schools and charitable organizations as excluded from the provisions of the city's contract for fire protection services, the city might remove itself from the protection afforded to a municipality in
Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977). In that case a city engaged in a municipal function (providing fire protection services) which affected all members of the general public. The city owed no duty to a particular property owner who sustained a loss because of a fire as that person was not dealt with on an individual basis and he did not sustain a loss isolated from any loss occasioned by the general public.
Thus, in conclusion, it is our opinion that a municipality, in contracting for fire protection services for the city, may not exclude from the coverage of such fire protection services any churches, schools, charitable organizations and other buildings located within the city limits.