Opinion No.

The Honorable Joe Molinaro State Representative 204 Amber Oaks Drive Sherwood, Arkansas 72120

Dear Representative Molinaro:

This opinion is being issued in response to your recent question regarding the enforcement of fire codes and laws. You have asked:

Can a state fire protection district enforce fire codes and laws?

It is my opinion that state fire protection districts are authorized to enforce state fire codes and laws within their jurisdictions. They are not, however, expressly authorized by state law to enforce municipal fire codes.

The Director of the Arkansas State Police is given the primary responsibility for enforcing the state fire codes. See A.C.A. §12-13-107. That authority is then extended to the Director's deputies, as follows:

All mayors, members of fire departments, and peace officers shall be ex officio deputies to the Director of the Department of Arkansas State Police. They shall be subject to the duties and obligations imposed by this subchapter in fire prevention and in the investigation of the cause, origin, and circumstances of fires within their jurisdiction.

A.C.A. § 12-13-108.

The phrase "members of fire departments," as used in the above-quoted section, is defined to include "the personnel of all departments supported wholly or partially by public funds." A.C.A. § 12-13-102(8). Although the statute does not define the phrase "fire department," other provisions of Arkansas law indicate that a fire protection district is one variety of "fire department." This conclusion is evident from the fact that fire protection districts serve the same purpose as fire departments, see A.C.A. § 14-284-102, they can receive state funding as fire departments, see A.C.A. § 14-284-305, and they can be certified as fire departments by the fire protection services board, see A.C.A. §20-22-801 et seq. Particularly indicative is the fact that the fire protection services act defines the phrase "fire department" as follows: "[A]ny organization established for the prevention or extinguishment of fires including, but not limited to, fire departments organized under improvement districts, private fire departments, and volunteer fire departments." A.C.A. § 20-22-802(3).

It is my opinion that the personnel of the state fire protection districts are "members of fire departments," within the meaning of A.C.A. § 12-13-108, and therefore are deputies to the Director of the Arkansas State Police. As such, they carry the Director's authority and obligations with regard to the enforcement of the state fire codes within their jurisdictions.

State law extends no similar authority to the personnel of fire protection districts for the enforcement of municipal fire codes. Therefore, to the extent that the municipal fire codes are different than the state fire codes, fire protection districts are not authorized under state law to enforce them. The extension of such authority is a matter that can be handled by the city's governing body under the general authority granted to municipalities by A.C.A. § 14-42-308. It should be noted that because municipalities cannot exercise powers that are contrary to state law, they cannot divest the members of a fire protection district of their authority to enforce state fire codes within the city, provided that the area of the district includes city territory.

You have also indicated an interest in the issue of whether fire protection districts can use municipal court systems for the enforcement of fire codes and laws. The answer to this question will depend upon the nature of the violation in question. Certain fire code violations do come within the jurisdiction of the municipal courts, as set forth in A.C.A. § 16-17-704. Assuming that the violation in question is within the jurisdiction of both the municipal court and of the fire protection district as discussed previously, the matter can be prosecuted in the municipal court. It should be noted, of course, that the Director of the Arkansas State Police has the ultimate discretion to determine the manner in which the state fire code is to be enforced. A.C.A. § 12-13-107(b). Accordingly, fire protection districts, as deputies of the Director, must carry out their enforcement responsibilities in accordance with the Director's chosen procedures. All prosecuting attorneys are required to assist the Director and his deputies if requested to do so. A.C.A. §12-13-112(i).

It should also be noted that the proceeds of certain fire code fees and penalties go directly into the state treasury to the credit of the Arkansas State Police Fund. A.C.A. § 12-13-116. Municipal court fees will go to the city in accordance with A.C.A. § 16-17-706.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh