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. Act 764 of 2023 (codified at A.C.A. § 12-13-120) temporarily limits the storm-shelter capacity requirements that the AFPC can impose on Group E occupancies before January 1, 2025, and sets new criteria for how capacity is determined after that date. The AG flagged this as a recent legislative response to the 2023 AFPC update.
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 projects in the 2023-2024 transition window, check Act 764 of 2023 (§ 12-13-120) for any modified capacity requirements that apply before January 1, 2025.
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
Act 764 of 2023 (§ 12-13-120) was the legislative response to the 2023 AFPC update. If the legislature wants further alignment between ADE class-size rules and AFPC occupant load (e.g., authorizing fire marshals to use ADE ratios for classroom occupant load), that requires statutory change. Until then, the IBC controls.
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?
Usually yes, but storm shelters are designed for emergency conditions. The IBC capacity is the safety-engineering number that accounts for unusual occupancy (assemblies, parents at events, evacuations from other parts of the building). Using actual headcount would create undersized shelters.
Can the fire marshal grant an exception for a specific school?
Yes, but with limits. AFPC Vol. 1, § 104.9 lets the fire code official modify in individual cases for "special individual reasons," but the modification cannot weaken health, life, or fire safety. A blanket substitution of ADE ratios would weaken safety; a one-off accommodation for an extraordinary site condition is plausible.
What changed under Act 764 of 2023?
The Act limits the storm-shelter capacity requirements the AFPC can place on Group E occupancies before January 1, 2025, and sets criteria for how capacity is determined after January 1, 2025. The Act gives schools (and the legislature) more time to adapt to the 2023 AFPC update.
Does ADE have any role in safety standards for schools?
ADE handles educational standards (curriculum, class size, teaching load) and accreditation. It does not set safety standards for buildings; that is the Fire Marshal's domain.
Are AFPC and IBC requirements minimum or maximum?
Minimum. AFPC Vol. 1, § 101.2.2 says local governments can adopt more stringent standards than the AFPC, but not less stringent. So a city or county can require larger storm shelters, but not smaller.
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 current version (2021 edition) took effect January 1, 2023. 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; the AFPC continues in effect.
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. Section 1004 of IBC 2021 governs occupant load. Section 423.5 governs storm shelters in Group E occupancies. Section 423.5.1 governs storm shelter occupant capacity. Section 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.
Act 764 of 2023 (A.C.A. § 12-13-120) is the recent legislative response, transitional storm-shelter capacity rules.
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, Section 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
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?
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). The current version of this code is the 2021 edition, which went into effect on
January 1, 2023. 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." 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. Because the AFPC's
requirements are minimum standards, a local government may adopt more stringent
standards if it chooses, but not less stringent ones.
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." 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
feet per occupant, for different spaces, depending on each space's function. For an
educational classroom area, the occupant load factor is set at 20 net square feet per
occupant. 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. Except in certain circumstances, a teacher may not teach more
than 150 students per day without receiving additional compensation.
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. If that is your question, the
answer is "no."
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. The fire code official enforces the AFPC's provisions, 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. The interpretation cannot
have the effect of waiving the requirements specifically provided in the code. 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. But any such
modification must not lessen the "health, life, and fire safety requirements."
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