When designing a school storm shelter in Arkansas, do you use the building code's occupant load formula or the Department of Education's class size rules?

Plain-English summary

Senator Kim Hammer asked the AG to resolve what looked like a conflict: the 2021 International Building Code (IBC 2021), incorporated into the Arkansas Fire Prevention Code (AFPC), sets the occupant load for an educational classroom at 20 net square feet per person, which would put about 42 people in an 850-square-foot classroom. Meanwhile, the Arkansas Department of Education's Rules Governing Class Size and Teaching Load set student-teacher ratios that produce 20 to 30 students per 850-square-foot classroom, depending on grade level. How big does a school storm shelter need to be? The AG: use the IBC.

The two regulations have different jobs. The AG explained the apparent conflict isn't really a conflict.

• AFPC/IBC controls "occupant load," meaning the number of people who can safely occupy a space given the available exits. This is a fire-and-life-safety concept. Storm shelters under § 423.5 of the AFPC must accommodate the total occupant load of certain school facilities (Group E occupancies with 50+ occupants).
• ADE Rules govern class size for educational quality. The student-teacher ratios make sure students get adequate instructional attention and teachers get appropriate compensation. These are pedagogical and labor concepts, not safety.

Because the two regulations serve different functions, they don't conflict. The AFPC's occupant load is the safety-engineering number; the ADE Rules are about classroom assignment, not about how many people can fit in a room safely.

For storm shelter sizing, IBC controls. Storm shelters required for Group E (educational) occupancies must accommodate the greater of:

1. The total occupant load of classrooms, vocational rooms, and offices in the Group E occupancy, OR
2. The occupant load of the largest indoor assembly space associated with the Group E occupancy.

The occupant load itself is calculated using the IBC factor (20 net sq ft per person for classrooms), not the ADE student-teacher ratios.

The fire marshal can interpret but not substitute. The fire code official has authority to interpret the AFPC and adopt clarifying policies, and can grant case-by-case modifications when there is a "special individual reason." But the interpretation cannot waive code requirements or weaken safety standards. Substituting ADE ratios for IBC's occupant load factor would lower the storm shelter capacity below what IBC requires for safety, which is precisely the kind of waiver the fire code official cannot grant.

Transitional note in the 2023 opinion. Footnote 11 says Act 764 of 2023 (codified at A.C.A. § 12-13-120) limited storm-shelter capacity requirements before January 1, 2025, and set criteria for capacity after that date. The AG described the Act as “presumably” a response to the 2021 AFPC edition taking effect. The opinion does not analyze a current project under post-2025 rules.

What this means for you

School district administrators

When you plan a new school building or addition with storm shelter requirements, calculate the shelter capacity based on the AFPC/IBC occupant load. Do not rely on actual enrollment numbers or ADE class-size ratios; those will undersize the shelter. The legal standard is the safety-engineering capacity, which is higher than the typical classroom population.

For a project governed by the period before January 1, 2025, footnote 11 identifies Act 764 of 2023 (§ 12-13-120). For a current project, check the requirements now in effect; the opinion does not apply the post-January 2025 criteria to a particular design.

Facility planners and architects

Use the IBC 2021 occupant load factor (Table 1004.5) for educational classrooms: 20 net square feet per person. This is the engineering basis for both means-of-egress design and storm shelter sizing.

Note the AFPC allowance: occupant load can be increased above the table value if all other code requirements are met and the load does not exceed one occupant per seven square feet of occupiable floor space (AFPC Vol. 2, § 1004.5.1). This is a discretionary increase, not a substitute for the table.

Fire marshals and building code officials

This opinion is direct authority that you cannot use ADE student-teacher ratios as a substitute for the IBC occupant load factor. Your interpretive authority allows you to clarify the code, not to weaken its safety standards.

For modifications under AFPC Vol. 1, § 104.9, document the "special individual reason" and confirm the modification does not reduce health, life, or fire safety. Routine substitution of ADE ratios would not satisfy this standard.

Storm shelter specialists

Storm shelter sizing follows the IBC occupant load formula. Don't accept "we only have X students in this classroom" as a reason to undersize. The shelter must accommodate the safety-engineering capacity, not the actual headcount.

State legislators

Footnote 11 says the 2023 Act was “presumably” a response to the 2021 AFPC edition becoming effective. It describes transitional and later capacity criteria, but the AG did not analyze the later criteria in this opinion.

Architects designing additions or renovations

Determine whether your project triggers storm shelter requirements (Group E occupancy, 50+ occupants total). If so, calculate the required shelter capacity using the IBC occupant load. Don't reduce based on ADE ratios.

Common questions

Why does it matter? Won't the actual classroom usually have fewer people than the IBC capacity? The AG said the AFPC uses occupant load for safety while ADE ratios govern class size and teaching load. In the example he discussed, the IBC factor produces 42.5 occupants in an 850-square-foot classroom, compared with the 20 to 30 students in the question. The ADE ratios cannot replace the AFPC metric for the shelter-capacity question.

Can the fire marshal grant an exception for a specific school? The fire code official may allow a modification for a “special individual reason” that makes strict compliance impractical, but the modification cannot lessen health, life, or fire safety. The AG said that using ADE student-teacher ratios in place of the AFPC occupant-load metric is not allowed.

What changed under Act 764 of 2023?
Footnote 11 says the Act limited requirements before January 1, 2025, and set criteria for determining capacity afterward. The opinion does not explain those criteria or apply them to an individual project.

Does ADE have any role in safety standards for schools?
The opinion compares ADE's class-size and teaching-load rules with the AFPC's occupant-load rules. It says the ADE ratios do not control the fire-code occupant-load calculation.

Are AFPC and IBC requirements minimum or maximum?
The opinion says the AFPC establishes minimum fire and building safety rules and local governments may adopt more stringent standards, but not less stringent ones. It does not decide a particular local shelter requirement.

Background and statutory framework

The Arkansas Comprehensive Fire Protection Act gives the State Fire Marshal authority to enforce and revise the Arkansas Fire Prevention Code (AFPC) (A.C.A. § 20-22-1010(a)(5)). The opinion says the 2021 edition took effect January 1, 2023. Footnote 2 explains that Act 841 of 2023 transferred Fire Marshal duties from the State Police to the Office of Fire Protection Services within the Division of Emergency Management while preserving existing rules.

The AFPC has the force of state law statewide because it was promulgated under the Arkansas Administrative Procedure Act. Johnson v. City of Nashville, No. 4:15-CV-04033, 2017 WL 2790552 (W.D. Ark. June 27, 2017), confirmed: "the AFPC applies across the state of Arkansas and that although cities and counties may adopt the AFPC, they are not required to do so."

The AFPC consists of three International model codes plus rules. Volume 2 incorporates IBC 2021. § 1004 of IBC 2021 governs occupant load. § 423.5 governs storm shelters in Group E occupancies. § 423.5.1 governs storm shelter occupant capacity. § 1004.5.1 allows occupant load increase to one per seven square feet.

The fire code official's interpretive authority is in AFPC Vol. 1, § 104.1; modification authority is in § 104.9. Both require interpretations and modifications to comply with code intent and not lessen safety requirements.

The ADE Rules Governing Class Size and Teaching Load (Rule 3 student-teacher ratios; Rule 4 the 150-students-per-day teaching load limit) are separate from the AFPC and do not address occupant load.

Footnote 11 describes Act 764 of 2023 (A.C.A. § 12-13-120) and its pre- and post-January 2025 capacity provisions.

Citations

• A.C.A. § 12-13-101 et seq. (Fire Prevention Act)
• A.C.A. § 12-13-120 (Act 764 of 2023, transitional storm shelter capacity rules)
• A.C.A. § 20-22-1010(a)(5) (Fire Marshal AFPC enforcement)
• AFPC Vol. 1, § 101.2.2 (minimum standards)
• AFPC Vol. 1, § 102.4 (compliance for design and construction)
• AFPC Vol. 1, § 104.1 (interpretive authority)
• AFPC Vol. 1, § 104.3.2 (jurisdictional split)
• AFPC Vol. 1, § 104.9 (modification authority)
• AFPC Vol. 2, § 202 (occupant load definition)
• AFPC Vol. 2, § 423.5, § 423.5.1 (Group E storm shelter requirements)
• AFPC Vol. 2, § 1004 (occupant load)
• AFPC Vol. 2, § 1004.5, Table 1004.5 (occupant load factors)
• AFPC Vol. 2, § 1004.5.1 (occupant load increase)
• IBC 2021, § 1004 (occupant load)
• ADE Division of Elementary and Secondary Education Rules Governing Class Size and Teaching Load
• Johnson v. City of Nashville, No. 4:15-CV-04033, 2017 WL 2790552, at *3 (W.D. Ark. Jun. 27, 2017)
• Act 309 of 2023 (separate Act, distinguishing the One Call Center revision)
• Act 764 of 2023 (storm shelter transitional rules)
• Act 841 of 2023 (Office of Fire Protection Services transfer)
• Ark. Att'y Gen. Ops. 2005-075, 2003-198

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-048

August 24, 2023

The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015

Dear Senator Hammer:
I am writing in response to your request for an opinion on the maximum occupancy of a general education classroom. You believe that a disparity exists between the number of occupants permitted in a classroom under the 2021 International Building Code (IBC 2021) and the number of students permitted in a classroom of the same size under the Arkansas Department of Education’s Division of Elementary and Secondary Education Rules Governing Class Size and Teaching Load (ADE Rules). You correctly state that the IBC 2021 sets the occupant load for a general instructional classroom at 20 square feet per person, which would accommodate 42.5 individuals in an 850-square-foot classroom. You then say that the ADE Rules set an occupant load of 20 to 30 students in an 850-square- foot classroom, depending on grade level. But as explained below, the ADE Rules are not concerned with “occupant load,” which is a concept confined to the IBC 2021. Finally, you note that how the occupant load is calculated will affect the size and cost of any new “safe room” that is built.

Against this background, you ask the following questions, some of which I have paraphrased:

1. Which regulation controls the calculation of the occupant load: IBC 2021, the ADE
   Rules, or some other standard?

   Brief answer: The 2021 edition of the Arkansas Fire Prevention Code, which
   incorporates the IBC 2021, controls.

2. Would the fire marshal have the latitude to interpret the commentary section of IBC
   2021 to make allowances for the Department of Education’s rules governing class
   size?

The Honorable Kim Hammer
State Senator
Opinion No. 2023-048
Page 2

Brief answer: To the extent that you are asking whether the fire marshal or fire code official can use the student-teacher ratios from the ADE Rules to calculate occupant capacity for purposes of building a storm shelter, the answer is “no.”

DISCUSSION
Question 1: Which regulation controls the calculation of the occupant load: IBC 2021, the ADE Rules, or some other standard?

Under the Arkansas Comprehensive Fire Protection Act, the State Fire Marshal is responsible for enforcing and periodically revising the Arkansas Fire Prevention Code (AFPC). 1 The current version of this code is the 2021 edition, which went into effect on January 1, 2023. 2 The AFPC’s purpose is to reduce the number of fires and other hazard- related concerns in Arkansas by “establish[in] minimum rules dealing with fire and building safety.” 3 Because the AFPC has been properly promulgated in compliance with the Arkansas Administrative Procedure Act, it has the force of state law, regardless of whether a local government has adopted it by ordinance. 4 Because the AFPC’s requirements are minimum standards, a local government may adopt more stringent standards if it chooses, but not less stringent ones. 5

The AFPC is composed of three international model codes, as well as rules adopted and amended by the State Fire Marshal. You have asked about one of these model codes, IBC 2021, which forms the second volume of the AFPC. IBC 2021 defines the “occupant load” of a room or space as “the number of occupants for whom means of egress facilities are provided.” 6 In other words, “occupant load” refers to the number of individuals who can safely occupy a given space, taking into consideration the number and size of exits that are available. Table 1004.5 of IBC 2021 sets the occupant load factor—the floor area in square 1 See A.C.A. § 20-22-1010(a)(5).
2
Act 841 of 2023 transferred the duties and personnel of the State Fire Marshal Enforcement Section of the Division of State Police to the Office of Fire Protection Services within the Division of Emergency Management. Despite this shift and other major revisions to the laws regarding fire protection services and prevention programs, the AFPC remains in effect. See Act 841 of 2023, § 47(b) (“All rules promulgated by the Division of Arkansas State Police concerning fire enforcement or the Fire Prevention Act, § 12-13-101 et seq. or the Arkansas Fire Code shall continue to be in effect and shall be adopted by the State Fire Marshal as rules of the Office of Fire Protection Services.”). 3 Foreword to Arkansas Fire Prevention Code (AFPC) (2021 ed.).
4
See Johnson v. City of Nashville, No. 4:15-CV-04033, 2017 WL 2790552, at *3 (W.D. Ark. Jun. 27, 2017) (“[I]t is evident that the AFPC applies across the state of Arkansas and that although cities and counties may adopt the AFPC, they are not required to do so.”); Ark. Att’y Gen. Ops. 2005-075, 2003-198. 5 See AFPC, Vol. 1, § 101.2.2.
6
AFPC, Vol. 2, § 202. A “means of egress” is further defined as “a continuous and unobstructed path … from any occupied portion of a building or structure to a public way….” Id.

The Honorable Kim Hammer
State Senator
Opinion No. 2023-048
Page 3

feet per occupant—for different spaces, depending on each space’s function. 7 For an educational classroom area, the occupant load factor is set at 20 net square feet per occupant. 8 You have noted in your request that this occupant load factor would allow 42.5 people in an 850-square-foot classroom.

By contrast, the ADE Rules set limits, not by square footage, but based on the student/teacher ratios. These student-teacher ratios differ depending on the grade level of the students, whether the class has an instructional aide, and whether the course lends itself to large group instruction. 9 Except in certain circumstances, a teacher may not teach more than 150 students per day without receiving additional compensation. 10

The ADE Rules and the AFPC serve different functions. While the AFPC’s occupant loads (as set forth in the incorporated IBC 2021) are meant to address the number of individuals who can safely occupy a given space, the student-teacher ratios in the ADE Rules are meant to ensure that students receive adequate attention while teachers receive appropriate pay for their workload. Thus, the AFPC should be used to determine the “occupant load” of a particular space for safety purposes.

Question 2: Would the fire marshal have the latitude to interpret the commentary section of IBC 2021 to make allowances for the Department of Education’s rules governing class size?

This question seems to imply that the AFPC and the ADE Rules conflict. But for the reasons explained in response to your first question, the ADE Rules and the AFPC are not in conflict. Given your mention of “safe rooms,” I gather that you may be asking whether the fire marshal can use the student-teacher ratios from the ADE Rules to calculate occupant capacity for purposes of building a storm shelter. 11 If that is your question, the answer is “no.”

7
See AFPC, Vol. 2, § 1004.
8
The AFPC allows the occupant load for a given building or space to be increased from the values listed in Table 1004.5, provided that all other code requirements are met with respect to the new value and the occupant load does not exceed one occupant per seven square feet of occupiable floor space. AFPC, Vol. 2,
§ 1004.5.1.
9
See Division of Elementary and Secondary Education Rules Governing Class Size and Teaching Load (ADE Rules), Rule 3. 10 See ADE Rules, Rule 4.
11
IBC 2021 requires certain educational facilities, known as “Group E occupancies,” with an occupant load of 50 or more to have storm shelters that meets certain specifications. AFPC, Vol. 2, § 423.5. The required occupant capacity of the storm shelter is the greater of either (1) the total occupant load of the classrooms, vocational rooms, and offices in the Group E occupancy or (2) the occupant load of the largest indoor assembly space associated with the Group E occupancy. AFPC, Vol. 2, § 423.5.1. Presumably in response to the 2021 edition of the AFPC going into effect at the beginning of 2023, the General Assembly added a new code section during the 2023 regular legislative session, limiting the occupant capacity requirements that the

The Honorable Kim Hammer
State Senator
Opinion No. 2023-048
Page 4

The AFPC explicitly states that the design and construction of new structures and any alterations, additions, or changes to existing structures must comply with the code’s provisions. 12 The fire code official enforces the AFPC’s provisions, 13 and while he or she has the authority to interpret the AFPC and adopt policies and rules that clarify it, the interpretation must comply with the code’s intent and purpose. 14 The interpretation cannot have the effect of waiving the requirements specifically provided in the code. 15 The fire code official can allow modifications in individual cases if there is some “special individual reason” that makes carrying out the strict letter of the code impractical. 16 But any such modification must not lessen the “health, life, and fire safety requirements.” 17

In sum, the AFPC does not allow using a different metric to calculate occupant load to determine the size of a storm shelter or whether a given space even requires a storm shelter. And while the fire code official may grant a modification to a particular educational facility so that it is not required to comply with the strict letter of the code, the modification could not weaken the AFPC’s safety requirements, and there would need to be a “special individual reason” for the modification.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

AFPC can place on Group E occupancies before January 1, 2025, and setting criteria for how the occupant capacity shall be determined after January 1, 2025. See Act 764 of 2023, § 1 (codified at A.C.A. § 12-13- 120). 12 See AFPC, Vol. 1, § 102.4.
13
Your question only mentions the “fire marshal.” The State Fire Marshal and local fire officials work in conjunction to enforce the fire safety laws and ordinances of the state and its political subdivisions. While the State Fire Marshal has statewide jurisdiction, the local fire code official has primary responsibility for the safety of places in his or her own district, city, or county. See AFPC, Vol. 1, § 104.3.2. 14 See AFPC, Vol. 1, § 104.1.
15
Id.
16
AFPC, Vol. 1, § 104.9.
17
Id.