AR Opinion No. 2024-088 2025-01-30

Who enforces the Arkansas Fire Prevention Code in a fire district when wind turbines are being built, the State Fire Marshal, the city, or the local fire department, and can the city add stricter rules and charge inspection fees?

Short answer: The State Fire Marshal enforces the AFPC by default. Local jurisdictions can establish a building department with a building official to enforce Volume 2 (buildings and structures), can adopt more stringent local fire codes, and a first-class city like Green Forest can charge permit fees that cover third-party inspection costs.

Disclaimer: This is an official Arkansas Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Arkansas attorney for advice on your specific situation.

Subject

Enforcement of the Arkansas Fire Prevention Code (AFPC) in the Green Forest Fire District in connection with a planned industrial wind turbine project: who has enforcement authority, whether the city or fire department can adopt more stringent local rules, and whether the city can charge permit fees pegged to third-party inspection costs.

Plain-English summary

Carroll County established nine fire districts by ordinance, including the Green Forest Fire District. Industrial wind turbines were planned to be built in the district. Senator King asked the AG four practical questions about who runs the regulatory show.

Who enforces the AFPC? The State Fire Marshal, by default. The current AFPC is the 2021 edition, in effect since January 1, 2023. Volume 2 of the AFPC governs buildings and structures, and Volume 2 lets a local jurisdiction establish a "Building Department" led by a "Building Official" appointed by the local jurisdiction's chief appointing authority. If a local jurisdiction has appointed a building official, that official enforces Volume 2 locally. If no local building official exists, permit applications go to the State Fire Marshal.

Can locals adopt more stringent rules? Yes. The AFPC sets a minimum statewide standard. Counties, municipalities, and other political subdivisions can adopt local fire prevention codes that go further. The State Fire Marshal verifies that local code provisions are at least as stringent as the AFPC.

Can locals require peer review? Yes, as long as the peer review requirements meet or exceed AFPC standards. Peer review of footings, anchoring, and foundations is a permissible local enhancement.

Can the city charge permit fees that include third-party inspection costs? Yes, for a city of the first class like Green Forest. Cities have express power under A.C.A. § 14-56-201 to regulate building construction and under § 14-56-202(a)(2) to issue building permits. The AG had previously opined (Op. 2011-148) that requiring a building permit and charging a fee to offset costs is "incidental, if not necessarily indispensable" to the city's express regulatory power.

What this means for you

If you are a city attorney or building official in a fire district

The default enforcement authority is the State Fire Marshal. To shift Volume 2 enforcement (buildings and structures) into local hands, the local jurisdiction must affirmatively establish a Building Department and appoint a building official under AFPC Volume 2 § 103. Without that, your role on building inspections is limited and the State Fire Marshal handles permits.

If you are a city council weighing tighter local fire-safety rules

You have express authority to adopt a local fire prevention code that exceeds AFPC minimums. Ordinances must use the 2021 AFPC as the foundation document and must be at least as stringent as the AFPC. The State Fire Marshal can review for compliance and notify you if the local code is found to be less stringent. Peer review requirements for commercial construction (footings, anchoring, foundations) fit within this authority.

If you are a developer of large commercial or industrial structures (e.g., wind turbines)

Permit fees in first-class cities can lawfully cover the cost of independent third-party inspections. Plan for those costs in your project budget. The AFPC explicitly allows "fees prescribed by law" beyond the schedule-based permit fee, and Arkansas case law treats inspection-cost recovery as incidental to express municipal regulatory authority.

If you are a fire department asked to enforce building code

Under AFPC Volume 2, enforcement of building and structure provisions runs through the building official, not necessarily the fire department. If the fire department wants enforcement authority, the local jurisdiction must structure the building department to integrate the fire chief or designees as the building official.

Common questions

Q: What's the difference between the AFPC, Volume 1 and Volume 2?

The AFPC is composed of three international model codes plus rules adopted by the State Fire Marshal. Volume 2 specifically pertains to buildings and structures. The other volumes address fire-safety operations and standards more broadly. This opinion focused on Volume 2 because the wind turbine project was a buildings/structures question.

Q: How does a local jurisdiction "establish" a building department?

By formal action of the local appointing authority, which appoints the building official. Volume 2 § 103 sets out the structure. The building official then has authority to enforce Volume 2, receive permit applications, issue permits, inspect premises, and issue notices and orders.

Q: Can a county that hasn't passed a fire prevention ordinance still adopt stricter requirements?

The AG opinion focuses on cities of the first class for the permit-fee question and on counties, municipalities, and other political subdivisions for the more-stringent-code question. Counties have police power expressly delegated by the legislature (A.C.A. § 14-14-801(b)(13)) and can adopt local fire codes that exceed AFPC minimums.

Q: What about Act 841 of 2023?

Act 841 of 2023 transferred the State Fire Marshal Enforcement Section from the Division of State Police to the Office of Fire Protection Services within the Division of Emergency Management. The AFPC and existing rules continue in effect as rules of the new office.

Q: Why did the AG punt on who is currently the building official in Green Forest?

The AG's office is not a factfinder; it issues legal opinions, not investigative reports. Whether Green Forest or any specific Carroll County jurisdiction has appointed a building official is a fact question for the local government's records, not the AG's office.

Background and statutory framework

Arkansas Comprehensive Fire Protection Act. Designates the State Fire Marshal as responsible for enforcing and periodically revising the AFPC.

A.C.A. § 14-14-801(b)(13). The legislature's delegation of police power to counties.

A.C.A. §§ 14-14-808(a), 14-14-805(13). Limits county authority to powers exercised consistently with state law.

A.C.A. § 14-43-602. Grants municipalities general home rule over municipal affairs.

A.C.A. § 14-56-201(1)(A). Express municipal authority to "regulate the erection, construction, reconstruction, alteration, and repair of buildings."

A.C.A. § 14-56-202(a)(2). Authority of cities of the first class to issue or refuse building permits within city limits.

AFPC Vol. 1, § 104.3.2(b). "Rules of the State Fire Marshal's Office establishing minimum standards shall not prevent any district, city, or county from enacting more stringent regulations."

AFPC Vol. 2, § 109. Permit fees: "Where a permit is required, a fee for each permit shall be paid as required, in accordance with the schedule as established by the applicable governing authority." The validity of a permit is conditioned on payment of "fees prescribed by law" beyond the schedule.

Citations

A.C.A. § 20-22-1010(a)(5) (State Fire Marshal duties)
A.C.A. §§ 14-43-602, 14-56-201, 14-56-202(a)(2) (municipal authority)
A.C.A. §§ 14-14-801, 14-14-805, 14-14-808(a) (county authority limits)
AFPC (2021 ed.) Vol. 1, §§ 101-104; Vol. 2, §§ 103-109
Cosgrove v. City of W. Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997)
Ark. Att'y Gen. Op. 2011-148

Source

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

Official summary

Question 1: Is it the responsibility of the City of Green Forest or the Green Forest Fire Department to enforce the Arkansas State Fire Code, Volume 2 throughout the Green Forest Fire District?

Brief response: The State Fire Marshal is responsible for enforcing and periodically revising the Arkansas Fire Prevention Code (AFPC). Local jurisdictions may establish a building department led by a building official to implement and enforce the second volume of the AFPC, which pertains to buildings and structures. But because this office is not a factfinder when issuing opinions, I cannot say who, if anyone, has been appointed as the building official responsible for local enforcement of the AFPC where the wind turbines are planned to be built.

Question 2: Can the City of Green Forest or the Green Forest Fire Department adopt additional industry-recognized requirements for commercial construction projects more stringent than the minimum requirement of the Arkansas Fire Prevention Code, Volume 2?

Brief response: The AFPC establishes the minimum standards necessary to provide a reasonable level of safety and protection from fire, explosion, or other dangerous conditions. But counties, municipalities, and other political subdivisions may adopt local fire prevention codes that contain more stringent safety provisions than those in the AFPC.

Question 3: Can the City of Green Forest or the Green Forest Fire Department require peer review of footings, anchoring, and foundations in a commercial construction project more stringent than the minimum requirements of the Arkansas Fire Prevention Code, Volume 2?

Brief response: As explained in the response to Question 2, a local jurisdiction can adopt a fire prevention code with requirements that are more stringent than those contained in the AFPC, including a code that requires peer review of footings, anchoring, and foundations.

Question 4: Can the City of Green Forest or the Green Forest Fire Department require the developer to pay a permit fee based, in part, on the anticipated cost to the building inspector of conducting inspections, including the cost of employing independent third-party experts to conduct the inspections on its behalf?

Brief response: A city of the first class, like Green Forest, could pass an ordinance requiring developers of buildings or structures within city limits to pay fees to offset the costs of inspections, including the costs of employing independent third-party experts.

Original opinion text

Opinion No. 2024-088
January 30, 2025
The Honorable Bryan B. King
State Senator
871 CR 814
Green Forest, Arkansas 72638

Dear Senator King:

I am writing in response to your request for an opinion regarding a planned project to place industrial wind turbines in the Green Forest Fire District. You state that Carroll County established by ordinance nine fire districts in the county, one of which is the Green Forest Fire District. You have provided a copy of the ordinance (OR 2012-3), and you note that the ordinance does not establish the responsibilities of the nine fire departments that signed the ordinance.

DISCUSSION

Question 1: Is it the responsibility of the City of Green Forest or the Green Forest Fire Department to enforce the Arkansas State Fire Code, Volume 2 throughout the Green Forest Fire District?

As set forth in the Arkansas Comprehensive Fire Protection Act, the State Fire Marshal is responsible for enforcing and periodically revising the AFPC. The current version of the Code is the 2021 edition, which went into effect on January 1, 2023. The AFPC is composed of three international model codes, as well as rules adopted and amended by the State Fire Marshal.

Volume II of the AFPC authorizes local jurisdictions to establish a "Building Department" to implement, administer, and enforce Volume II of the Code. If established, the building department is led by a "building official," who is appointed by the local jurisdiction's chief appointing authority. The building official's duties and powers include enforcing provisions of the AFPC; receiving applications; issuing permits; inspecting premises; and issuing notices and orders to ensure compliance with the Code.

Because this office is not a factfinder when issuing opinions, I cannot say who, if anyone, has been appointed as the building official responsible for local enforcement of the AFPC where the wind turbines are planned to be built. But I will note that, with respect to permit applications, if no building official has been appointed, the owner, authorized agent, or contractor for a building or structure needing a permit must submit the permit application to the State Fire Marshal.

The AFPC, which applies throughout the state, establishes the minimum standards necessary to provide "a reasonable level of life safety and property protection from the hazards of fire, explosion, or dangerous conditions, in new and existing buildings, structures, and premises." But counties, municipalities, and other political subdivisions may adopt local fire prevention codes with provisions that are more stringent than those contained in the AFPC. The State Fire Marshal has the authority to determine whether local code provisions are at least as stringent as those in the AFPC, and he notifies local jurisdictions if their code requirements are found to be less stringent than the AFPC.

As explained in my response to your second question, a local jurisdiction can adopt a fire prevention code with requirements that are more stringent than those contained in the AFPC. Thus, a city, county, or political subdivision could pass an ordinance requiring peer review of footings, anchoring, and foundations in a commercial construction project, as long as those peer review requirements are at least as stringent as those found in the AFPC.

As explained by the Arkansas Supreme Court, cities "have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers, and (3) those indispensable (not merely convenient) to their objects and purposes." The General Assembly has given municipal corporations general home rule over municipal affairs and the specific power to "regulate the erection, construction, reconstruction, alteration, and repair of buildings." It has also given cities of the first class, like Green Forest, the power to issue or refuse to issue building permits for buildings or structures within city limits. This office has previously opined that "[r]equiring a building permit and charging a fee to offset the costs involved would appear to be 'incidental,' if not necessarily 'indispensable,' to [this] express regulatory power."

With respect to permit fees, the AFPC requires the building official to "keep official records of … fees collected," and it states, "Where a permit is required, a fee for each permit shall be paid as required, in accordance with the schedule as established by the applicable governing authority." The AFPC also requires an applicant for a permit to provide a "permit valuation" based on "the total value of work, including materials and labor," suggesting that the permit fee schedule should be pegged to the value of the construction. In addition to this schedule-based permit fee, the AFPC acknowledges that other fees may be prescribed by law.

Thus, it is my opinion that a city of the first class, like Green Forest, could pass an ordinance requiring developers of buildings or structures within city limits to pay fees to offset the costs of inspections, including the costs of employing independent third-party experts.

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

Sincerely,
TIM GRIFFIN
Attorney General