Dear Ms. DiCarlo:
This office is in receipt of your opinion request directed to Attorney General Richard Ieyoub. The request has been assigned to me for research.
In your letter, you have expressed concern regarding the legal ability of the Department of Social Services to set the capacity limits for certain day care facilities. Your concern arises because of a written agreement executed between the State Fire Marshal and the Department of Social Services.
The agreement states, in pertinent part:
As indicated by the above, the regulations for setting the minimum space requirements, enforced by both the State Fire Marshal and the Department of Social Services are the same. Therefore, by mutual agreement between the State Fire Marshal and the Department of Social Services, in an effort to save time, funds and misunderstanding, only one agency shall make the measurements for setting the licensed capacity for both Class A and Class B licensed day care centers. (Emphasis added).
You question the validity of this agreement, and raise two inquiries concerning same, discussed herein below.
ISSUE I
Does the Department of Social Services — Bureau of Licensing have the jurisdiction to set capacity loads for Class B child care facilities?
With respect to Class B facilities, LSA-R.S. 46:1413(C)(3) governs and provides:
The standards for fire and safety promulgated by the office of state fire marshal shall regulate the following:
* * *
(3) minimum space requirements.
Use of the word "shall" is mandatory. LSA-R.S. 1:3. It is the responsibility of the state fire marshal to set these minimum space requirements, which responsibility may not be delegated in opposition to statutory rule.
Further indicia of the state fire marshal's duty to set capacity limits is contained within the language of LSA-R.S.46:1413(B)(1) and (2), providing:
B. In addition, all child care facilities with Class B licenses shall comply with the following rules and regulations:
(1) All standards of fire and safety promulgated by the office of state fire protection of the Department of Public Safety and Corrections, in accordance with 40:1561 through 1636.
(2) All standards of fire and safety provided under the National Life Safety Code or such other national code or parts of such codes as promulgated by the Office of State Fire Marshal of the Department of Public Safety and corrections, in accordance with R.S. 40:1561 through 1636.
Within the National Life Safety Code mentioned above are the standards defining facility capacity limits. Pursuant to LSA-R.S. 46:1413(B)(2) quoted above, the state fire marshal must set these capacity limits. This responsibility may not be delegated to the Department of Social Services absent statutory authority. We further find no other provision of law which would give concurrent authority to the Department of Social Services regarding capacity limits.
However, a close reading of the agreement entered into between the state fire marshal and the Department of Social Services reflects that the Department of Social Services is only empowered to take the measurements of each facility. This office is of the opinion that the Department of Social Services is acting as an agent for the state fire marshal in this respect. Under the terms of the agreement, the state fire marshal retains the authority to set the capacity limits, and for this reason we find the agreement permissible under law. However, the Department of Social Services may not superimpose its own capacity limits, or take measurements that fail to comply with the regulations promulgated by the state fire marshal.
ISSUE II
Does the Department of Social Services — Bureau of Licensing have the authority to enforce the space requirements in Class "B" child care facilities at 35 square feet when it is not written as law in the Act or the Minimum Standards?
LSA-R.S. 46:1413(N) governs our response, and provides:
N. Child-staff ratios and minimum space requirements shall be enforced by the Department of Health and Hospitals or the Department of Social Services, as well as the state fire marshal.
We refrain from addressing your specific inquiry regarding the 35 square foot limitation. We reiterate that the Department of Social Services has the authority to enforce capacity limits as they are established by the state fire marshal. Again, the Department of Social Services is without authority to unilaterally set capacity limits.
If you have an objection concerning the capacity limits as they are presently being enforced by the Department of Social Services, you should consider exhausting all administrative remedies which may be available to you.
Very truly yours,
RICHARD P. IEYOUB Attorney General
BY: KERRY L. KILPATRICK Assistant Attorney General KLK:ams 0070y