Request By:
Frankie Scott Hager, Esq.
City Attorney
City of Owensboro
P.O. Box 847
Owensboro, Kentucky 42302
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions relative to the responsibilities and authority of the local building inspector and a state building inspector in connection with the inspection of a project where plan review by the state is required.
You ask whether the city or the state has legal inspection and enforcement responsibilities on a state approved project concerning construction techniques. You also ask who has authority on such a project to issue a "stop work" order and to approve "in the field" changes. Your final question relates to who is liable should there be an accident due to faulty construction or unapproved plan changes during construction.
KRS 198B.060(4) provides in part that the Department of Housing, Buildings and Construction shall be responsible for the examination and approval or disapproval of plans and specifications for all buildings which are not the responsibility of local governments. The Department may issue and revoke permits, licenses, certificates and similar documents within its area of responsibility, and shall have concurrent jurisdiction with local governments for the inspection of all buildings pursuant to the provisions of KRS Chapter 198B and the Uniform State Building Code.
KRS 198B.060(8) states in part that the applicant for a building permit, by the act of applying for the permit, is deemed to have consented to inspection, by the local government or the Department, of such building during construction and upon the completion of construction for the purposes of determining that such building is constructed in compliance with the Uniform State Building Code.
KRS 198B.120 provides that the Department or any local government agency enforcing the Uniform State Building Code may obtain injunctive relief from any court of competent jurisdiction to enjoin the offering for sale, delivery, use, occupancy or construction of any building on which construction was begun after the effective date of the Code, upon an affidavit of the Department or the local government agency specifying the manner in which the construction does not conform to the requirements of the Code or KRS Chapter 198B. KRS 198B.130 states that any person or party damaged as a result of a violation of KRS Chapter 198B or the Uniform State Building Code has a cause of action against the person or party who committed the violation.
Section 111.0 of the Kentucky Building Code, dealing with inspections, states in part that after issuing a building permit or letter for a building over which he has plan review responsibility, the building official shall conduct inspections from time to time during and upon completion of work.
The Kentucky Administrative Regulations in 815 KAR 7.010 Section 9(3) provide that the appropriate official shall make all the required inspections or he may accept reports of inspections by authoritative and recognized services or individuals. 815 KAR 7.010 Section 11(2) states that after issuing a building permit for a building over which he has plan review responsibility, the building official shall conduct inspections from time to time during and upon completion of work. 815 KAR 7.010 Section 12 provides that applicants for building permits shall be deemed to consent to inspection during construction and upon completion of construction for the purpose of determining that such building is constructed in compliance with the Kentucky Building Code.
In connection with violations 815 KAR 7:010 Section 19(2) states that the building official shall serve a notice of violation or order on the person responsible for the construction of a building or structure in violation of the Code, in violation of a detail statement or a plan approval thereunder, or in violation of a permit or certificate issued under the Code; and such order shall direct the discontinuance of the illegal action or condition and the abatement of the violation. Penalties are dealt with in 815 KAR 7:010 Section 19(4) while the obtaining of injunctive relief by the Department or any local agency is discussed in 815 KAR 7.010 Section 19(5).
815 KAR 7.010 Section 20(1) provides that upon notice from the building official that work on any building or structure is being prosecuted contrary to the provisions of the Code or in any unsafe and dangerous manner, such work shall be stopped. The stop work order shall be in writing and shall be given to the property owner, his agent or the person doing the work and shall state the conditions under which work may be resumed.
Generally, the statutes and regulations establishing the plan review - permit - inspection - certification process have created two categories of buildings; buildings which are the responsibility of the local governments and buildings which are the responsibility of the State through its Department of Housing, Buildings and Construction. However, KRS 198B.060(4) provides in part that the Department shall have concurrent jurisdiction with local governments for the inspection of all buildings pursuant to the provisions of KRS Chapter 198B and the Uniform State Building Code.
Thus in the area of inspections the local government's inspectors could inspect a building over which the State has the plan review responsibility. It would appear that the concurrent jurisdiction concept with regard to inspections is an attempt by the General Assembly to protect lives and property in that any qualified state or local inspector may inspect a building, particularly where a serious problem has been reported or where a serious problem is suspected. In this way the problem can be corrected and difficulties prevented as soon as a qualified inspector arrives rather than having to wait for a particular inspector to arrive.
While concurrent jurisdiction relative to inspections exists, neither State nor local inspectors should utilize the right and responsibility indiscriminately. As often as is practicable, inspectors should confine their inspections to those buildings over which their employing governments have the plan review responsibility. However, in those situations where serious problems exist or where it is thought that serious problems might exist an inspector of a local government could inspect a building over which the State has the plan review responsibility rather than waiting for the State inspector to address the matter.
If an inspector for a local government has utilized the concurrent jurisdiction concept relative to inspections [KRS 198B.060(4)], and has uncovered a problem serious enough to warrant the use of a stop work order, that inspector should proceed in the same manner as a state inspector would have had the State inspector decided such course of action was appropriate. See 815 KAR 7:010 Sections 19 and 20.
As far as "in the field" changes are concerned, we can find no authority for an inspector to make such changes. See, for example, 815 KAR 7:010 Section 15(2) providing in part that all work shall conform to the appropriate application and plans for which the permit has been issued and any approved amendments thereto.
Your final question as to potential liability in the event of faulty construction or unapproved plan changes is somewhat broad in scope and difficult to answer specifically. Probably the construction company and its personnel would be defendents in an action for injury, death or damages. As far as the potential liability of the city relative to what its building inspectors did or did not do, we can only refer you to OAG 83-93, copy enclosed, which collects many of the cases dealing with municipal liability in this state. You can apply those principles and concepts to the particular fact situation you have in mind.