Judges: Robert T. Stephan, Attorney General
Filed Date: 2/21/1994
Status: Precedential
Modified Date: 7/5/2016
Mr. Edward C. Redmon Kansas State Fire Marshal 700 S.W. Jackson, Suite 600 Topeka, Kansas 66603
Dear Mr. Redmon:
You request our opinion on the ability of local fire department personnel to initiate action on local fire codes in municipal court. Specifically, you ask whether a local fire code which grants certain members of a fire department police power to enforce the code makes those members law enforcement officers for the purpose of initiating action in municipal court under the Kansas code of procedure for municipal courts.
You have informed us that several municipalities have adopted the uniform fire code (UFC). Section 2.105 of the UFC states, "[t]he chief and members of the fire prevention bureau shall have the powers of a police officer in performing their duties under this code." Section 3.101 of the UFC provides that failure to correct a violation of the UFC is a misdemeanor. K.S.A.
"A copy of the complaint shall be served, together with a notice to appear or a warrant, by a law enforcement officer upon the accused person, and forthwith, the complaint shall be filed with the municipal court, except that a complaint may be filed initially with the municipal court, and if so filed, a copy of the complaint shall be delivered to the city attorney. The city attorney shall cause a notice to appear to be issued, unless he or she has a good reason to believe that the accused person will not appear in response to a notice to appear, in which case the city attorney may request that a warrant be issued. . . ." (Emphasis added).
K.S.A.
There is no definition of the duties of firefighters in the Kansas statutes. However, K.S.A.
"Actual members of any organized fire department, whether regular or volunteer, of any municipality shall be vested with police power to form fire lines, to prohibit persons from interfering with firemen in the discharge of their duties, interfering with apparatus, running over fire hose and trespassing on private property, and shall have power to blockade any public highway temporarily while fighting a fire; and for the purpose of effectuating this police power shall have the power to make arrests for violation of any lawful orders made hereunder."
These statutes lead us to conclude that as a general rule, firefighters do not possess general law enforcement powers. Under state law therefore, firefighters do not have the authority to initiate actions in municipal court through the issuance of a notice to appear.
The question then becomes whether a municipality may by ordinance grant members of its fire department authority to serve warrants and notices to appear in municipal court for fire code violations. Under article
"The Kansas Code of Procedure for Municipal Courts, K.S.A.
12-4101 through12-4701 , although an enactment of statewide concern is not applicable uniformly to all cities by reason of K.S.A.12-4105 requiring municipal judges in first class cities to be attorneys while permitting second and third class cities to have lay judges."
It is clear that a city may exempt itself from the requirements of the Kansas code for procedure for municipal courts. Pursuant to subsection (c)(2) of article
In conclusion, we believe that in accordance with the Griffin case and article
Very truly yours,
ROBERT T. STEPHAN Attorney General of Kansas
James W. Coder Assistant Attorney General
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