The Honorable Jay Bradford State Representative P.O. Box 8367 Pine Bluff, Arkansas 71611-8367
Dear Representative Bradford:
This is in response to your request for an opinion on the following question:
In determining when portable toilet facilities should be used on construction sites, is a municipality governed by Arkansas Code Annotated 12-13-101 et seq. which adopted the Standard Fire Prevention Code (1991 Edition) Section 2101-9-2 or may the municipality use the applicable Rules/Regulations in the Southern Standard Building Code which may have been adopted by that municipality?
RESPONSE
It is my opinion that the answer to your question depends upon whether the locally adopted code provision is at least as stringent as the applicable provision of the Standard Fire Prevention Code. Municipalities are empowered to adopt fire prevention codes other than the Arkansas Fire Prevention Code, but each provision of such code must be at least as stringent as the Arkansas Fire Prevention Code.
The statute you reference, A.C.A. § 12-13-105, subsection (5), empowers the State Fire Marshal Enforcement Section of the Arkansas State Police to "[e]nforce the fire prevention code and periodically revise and update such code." The State Fire Marshal has adopted rules and regulations under the authority of this statute. See State of Arkansas, Arkansas Fire Prevention Code Rules and Regulations (1992 edition), § 1-100.
The Arkansas Fire Prevention Code consists of two volumes. Volume I is the Standard Fire Prevention Code (1991 edition) and Volume II is the Standard Building Code (1991 edition). See State of Arkansas Fire Prevention Code Rules and Regulations (1992 edition), § 1-201. These volumes, together with the applicable rules and regulations promulgated by the State Fire Marshal, constitute the Arkansas Fire Prevention Code.Id. at § 1-200.
At least two sections of the Code are pertinent to local municipal authority. The first is Rule 1-304.2, which provides that: "The local Fire Official shall, in those areas having adopted a Fire Prevention Code at least as stringent as the Arkansas Fire Prevention Code, enforce the provisions of said code for all buildings. City, town and county Building Officials shall be responsible for enforcing the Building Code in their respective jurisdiction." The second provision states as follows:
1-307.1 LOCALLY ADOPTED CODES (a) Each district, county or municipality that has a locally adopted and enforced fire prevention code other than the Arkansas Fire Prevention Code, 1992 edition, shall submit such code to the State Fire Marshal.
(b) The State Fire Marshal shall cause each code to be reviewed and shall advise those counties or municipalities of any requirement that is less stringent than the Arkansas Fire Prevention Code. It shall be the responsibility of the county or municipality to bring the submitted code up to the minimum standards of the Arkansas Fire Prevention Code.
(c) After the initial submission of the county or municipal fire code to the State Fire Marshal's office, it will only be necessary to submit the code for review to the State Fire Marshal's Office, when there is a change in the locally adopted Code.
Municipalities are therefore expressly authorized to adopt local fire prevention codes, as long as the provisions contained therein are at least as stringent as the Arkansas Fire Prevention Code. The particular regulation about which you have inquired is found at § 2101.9(b) of Volume II of the Fire Prevention Code, which comprises the Standard Building Code. It provides as follows:
(b) Sanitation — Adequate sanitary facilities for the convenience of all workmen shall be provided. These facilities shall be kept in a clean and sanitary condition throughout the duration of the work. The temporary workman's convenience shall be enclosed, screened, and weatherproofed and shall be connected to a sewer. Upon removal of the temporary facilities the sewer connections shall be removed and the sewer capped. In lieu of connecting to a sewer, the temporary facility may be a portable, enclosed, chemically treated, tank-tight unit.
I have been unable to locate the applicable provision of the" Southern Standard Building Code" which you indicate has been adopted by the municipality in question. The municipality may use and enforce its provisions only if it is at least as stringent as the provisions of the Arkansas Fire Prevention Code. As noted previously, the State Fire Marshal's office has the initial jurisdiction to determine such questions. Id. at Rule 1-307.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh