VOLUME NO. 54                                                                                             OPINION NO. 9

 

FIRE CODE - Montana Code Annotated § 50-61-102 provides a rural fire district with the authority to adopt and enforce the State fire code upon approval of the Department of Justice;

FIRE DISTRICTS - Montana Code Annotated § 50-61-102 provides a rural fire district with the authority to adopt and enforce the State fire code upon approval of the Department of Justice;

ADMINISTRATIVE RULES OF MONTANA - Sections 23.12.601 to 23.12.606;

MONTANA CODE ANNOTATED - Title 7, chapter 33; sections 7-33-2105, -2402, ‑4208, 50-3-103(3), 50-61-102, (2).

 

HELD:            While rural fire districts are not authorized to independently adopt a fire code, Mont. Code Ann. § 50-61-102 provides a district with the authority to adopt and enforce the State fire code upon approval of the Department of Justice.

 

December 21, 2012

 

 

Mr. Bernard G. Cassidy

Lincoln County Attorney

512 California Avenue

Libby, MT 59923

 

Dear Mr. Cassidy:

 

You have requested my opinion as to the following questions that I have rephrased as:

 

1.         Whether a rural fire district possesses the legal authority to independently adopt and enforce a fire code.

 

2.         Whether Mont. Code Ann. § 50-61-102 provides a rural fire district with the authority to adopt and enforce the State fire code upon approval of the Department of Justice.

 

Your letter regarding the authority of a rural fire district to independently adopt a fire code was precipitated by a request from Lincoln County Rural Fire District #1 for your opinion on the subject.  You determined that a rural fire district does not have the authority to adopt a fire code, but does have the authority to "conduct inspections within its jurisdiction under the Uniform Fire Code adopted by the Montana Department of Justice."  Rural Fire District #1, however, had also sought an opinion from private legal counsel, who opined that state law does in fact allow a "fire agency," which includes a rural fire district, to adopt a fire code.  You now seek my opinion on the subject.

 

You are correct that rural fire districts are not expressly granted the authority to adopt a fire code, unlike a municipality or fire service area.  Compare Mont. Code Ann. § 7-33-2105 (listing "powers and duties" of rural fire district without mentioning adoption of a fire code) to Mont. Code Ann. § 7-33-4208 (authorizing a municipality to "adopt technical fire codes") and Mont. Code Ann. § 7-33-2402 (authorizing fire service area to "submit a fire code and a plan for enforcement to the department of justice" after obtaining "approval of the county commissioners").  As such, a rural fire district may not independently adopt a fire code or a plan for enforcement of a fire code.

 

While rural fire districts are not authorized to independently adopt a fire code, Mont. Code Ann. § 50-61-102(2) provides that the Department of Justice "may approve a municipal or governmental fire agency fire inspection program for local enforcement."  The "governmental fire agency" referred to is specifically one "organized under Title 7, chapter 33."  A rural fire district is a governmental fire agency authorized under Title 7, chapter 33.  Montana Code Annotated § 50-61-102 therefore applies to rural fire districts and authorizes the Department to approve a rural fire district's fire inspection program.

 

As noted above, a rural fire district may not independently adopt a fire code.  If a rural fire district wishes to be authorized to conduct local fire inspections under Mont. Code Ann. § 50-61-102, it must submit the fire code adopted by the Department of Justice as the approved "fire code" in its "plan for enforcement."  At this time the State fire code is the 2009 edition of the International Fire Code, though certain sections have not been adopted or have been altered.  See Mont. Code Ann. § 50-3-103(3); Mont. Admin. R. 23.12.601 to 606.

 

THEREFORE, IT IS MY OPINION:

 

While rural fire districts are not authorized to independently adopt a fire code, Mont. Code Ann. § 50-61-102 provides a district with the authority to adopt and enforce the State fire code upon approval of the Department of Justice.

 

Sincerely,

 

/s/ Steve Bullock

STEVE BULLOCK

Attorney General

 

sb/jss/jym