Request By:
Perry R. Arnold, Esq.
Bedford, Kentucky 40006
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning a proposed ordinance for a sixth class city pertaining to various buildings which constitute fire hazards. There are a number of buildings in the city which the city commission believes are fire hazards. The commission has attempted to determine whether the buildings can be rehabilitated but it has been unable to answer the question with any degree of certainty.
You state that you have prepared an ordinance for consideration by the city commission relative to fire hazards in the city. The proposed ordinance utilizes in part the language of various sections of KRS Chapter 227. You ask this Office for an opinion regarding the legality and validity of the proposed ordinance.
The ordinance in question provides in part that the city commission shall request the fire chief, or any officer or member of the department designated for that purpose, to go onto or into any property or structure which is believed to be "not reasonably safe from fire loss and inspect the same for fire hazards. " If a report is made that a given property or structure is "not reasonably safe from fire loss" the city commission shall give the property owner written notice of the reasons why the property or building has been considered to be not reasonably safe from fire loss. The property owner has 20 days to correct the problems and failure to do so subjects him to a fine. Upon receipt of the written notice from the city the property owner shall be entitled to request a hearing before the city commission in order to inquire as to the exact nature of the fire hazards found.
KRS 227.370 provides in part that the chief of the fire department of a city, or any officer or member of his department designated by him for that purpose, is authorized to inspect all property to discover and to correct any conditions likely to cause fire loss, to determine the cause of any fire and to discover any violation of a law or ordinance relating to fire protection. A written report of each inspection is to be made and kept on file.
KRS 227.380 states in part, that whenever the fire chief or his designated representative finds any property which for want of repairs, lack of sufficient fire escapes, age, dilapidated condition or any other cause is liable to fire loss, he shall order it remedied. The order shall be adherred to by the property owner. The statute also provides that the property owner may appeal to the Commissioner of the Department of Housing, Buildings and Construction within 10 days of the receipt of the order. The Commissioner is required to review the order and file his decision. We have discussed these particular statutory provisions with the State Fire Marshal's Office and have been advised that a procedure is in place to handle such appeals.
The primary difference between the proposed ordinance and the existing statute is that the ordinance provides for a request for a hearing before the city commission while the statute provides for an appeal to the Commissioner of the Department of Housing, Buildings and Construction. As an examination of KRS Chapter 227 will reveal, the state, through enactments of the General Assembly, has adopted a comprehensive scheme of legislation relative to fire prevention and protection. See, for example, in addition to the statutes already mentioned, KRS 227.390 (remedying a fire hazard when the property owner fails to do so) and KRS 227.400 (owner is required to keep property safe from fire). Furthermore, KRS 227.300 provides for the enactment of Standards of Safety by the Commissioner and KRS 227.320 requires municipal authorities to adopt and enforce those standards.
While the enactment of the so-called municipal home rule provisions (KRS 82.082) has significantly broadened a city's ability to deal with various local problems, the statute does state in part that a municipal power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes. KRS Chapter 227 represents a comprehensive scheme of legislation on the same general subject as is covered by the proposed ordinance.
Thus, it is the opinion of this Office that the proposed municipal ordinance relative to keeping property safe from fire is invalid as it conflicts with the comprehensive scheme of legislation on the same general subject set forth in KRS Chapter 227.