Can a California fire protection district chief enforce the State Fire Marshal's building standards and other regulations as applied to single-family homes and other R-3 dwellings within the district's territory?

Plain-English summary

Shasta County Counsel asked whether California Health and Safety Code section 13146 prohibits fire protection district chiefs from enforcing the State Fire Marshal's building standards and other regulations as those rules apply to R-3 dwellings (single-family homes plus a wide variety of small residential occupancies like adult day care, family day care, foster homes, and small drug recovery homes). The argument behind the question: § 13146(a) tells the city, county, or city-and-county to delegate enforcement of R-3 rules to either the local fire chief or the local building official, and § 13146(b) tells fire protection district chiefs to enforce the rules "except those described in subdivision (a)." Read narrowly, that subsection-(a) carve-out could be a jurisdictional bar that keeps district chiefs out of R-3 enforcement altogether.

The AG read the statute the opposite way. § 13146(b)'s "except those described in subdivision (a) or (d)" is a discretionary carve-out to avoid duplicative enforcement, not a hard bar. The clause says the fire protection district chief "shall enforce" the State Fire Marshal's building standards and regulations, with the exception that the chief is not required to do so when subsection (a) (local city/county fire or building chief enforcement of R-3 rules) or subsection (d) (State Fire Marshal direct enforcement) is in play. That language directs who must enforce; it does not prohibit a fire protection district chief from enforcing.

The AG anchored this reading in the Fire Protection District Law of 1987 (Health & Saf. Code §§ 13800-13970), which gives fire protection districts "all rights and powers, expressed or implied, necessary to carry out the purposes and intent" of the Law, including enforcing fire and panic safety building standards and other State Fire Marshal regulations in their respective areas. § 13145. Districts may also issue corrective orders for fire hazards, annex state-responsibility-area lands and assume fire suppression responsibilities there, contract to provide fire services for state agencies, cities, and counties, and enter joint-powers and mutual-aid agreements broadly. § 13801 expressly tells courts to read the law as "broad statutory authority for local officials." § 13804 calls for liberal construction.

If the Legislature had intended to strip fire protection district chiefs of R-3 authority, the AG concluded, it would have said so directly ("shall not," "are not authorized to"). The absence of that language, combined with the broader Fire Protection District Law context, supports the conclusion that § 13146 provides organizational direction (assigning primary enforcement responsibility) rather than a hard limit on district chief authority. So a fire protection district chief may enforce the State Fire Marshal's R-3 building standards and regulations within the district's territory.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

Fire Protection Districts. Public agencies separate from cities and counties that provide fire protection services within a defined territory. Created under the Fire Protection District Law of 1987 (Health & Saf. Code §§ 13800-13970). § 13810 says any territory may be included. § 13861 gives districts "all rights and powers, expressed or implied, necessary to carry out the purposes" of the Law. § 13862 lets them enforce rules and regulations for fire protection services. § 13871-13872 lets them issue citations.

R-3 dwellings. Defined in Section 310.5 of the California Building Code. Includes:

• One- and two-dwelling unit residential buildings
• Boarding houses with 16 or fewer occupants (or 10 or fewer for transient)
• Congregate residences (similar limits)
• Efficiency dwelling units
• Adult care facilities and day-care centers for 6 or fewer
• Alcoholism or drug abuse recovery homes (ambulatory only)
• Child care facilities for 6 or fewer
• Family day-care homes for 14 or fewer
• Foster family homes (ambulatory only)
• Lodging houses with 5 or fewer guest rooms

The State Fire Marshal's authority. The State Fire Marshal must "foster, promote, and develop ways and means of protecting life and property against fire and panic" and may adopt building standards and other regulations. § 13100.1; § 17921(b). The Marshal's regulations are in Cal. Code Regs. titles 19 and 24 (Part 9).

Health & Saf. Code § 13146 in detail. The provision parcels out R-3 enforcement responsibility:

• (a) The city, county, or city and county must delegate R-3 enforcement of the State Fire Marshal's building standards either to (1) the chief of the fire authority of the city, county, or city and county, or (2) the chief building official of the city, county, or city and county.
• (b) The chief of any city, county, or city and county fire department or of any fire protection district must enforce within its jurisdiction the building standards and other regulations of the State Fire Marshal, except those described in (a) or (d).
• (c) The State Fire Marshal has authority to enforce in areas outside corporate cities and districts providing fire protection services.
• (d) The State Fire Marshal has authority to enforce in corporate cities and districts providing fire protection services upon request of the chief fire official or governing body.

The interpretive question. Does subsection (b)'s "except those described in subdivision (a)" carve-out prohibit a fire protection district chief from enforcing R-3 regulations? The AG concluded no.

Why the AG read the carve-out as discretionary.

1. The statute uses "shall enforce" in subsection (b) to impose a duty on district chiefs. The "except" clause relieves the district chief of that duty in matters covered by (a) or (d), but does not prohibit voluntary enforcement.
2. The broader Fire Protection District Law gives districts broad enforcement authority, including § 13145 (district chiefs "shall enforce in their respective areas building standards relating to fire and panic safety adopted by the State Fire Marshal and published in the California Building Standards Code and other regulations that have been formally adopted by the State Fire Marshal for the prevention of fire or for the protection of life and property against fire or panic").
3. The State Housing Law (Health & Saf. Code §§ 17910-17998.3), including § 17962, also makes fire protection district chiefs responsible for enforcement in their areas.
4. § 13801 says the Legislature intends to provide "broad statutory authority for local officials" and encourages local communities to "adapt the powers and procedures in this part to meet their own circumstances and responsibilities." § 13804 calls for liberal construction.
5. If the Legislature meant to bar district chiefs from R-3 enforcement, it would have said so expressly ("shall not," "are not authorized to").

Statutory construction canons applied.

• Read the statute in the context of the whole statutory framework. Coalition of Concerned Communities, Inc. v. Los Angeles (2004) 34 Cal.4th 733, 737; Select Base Materials, Inc. v. Bd. of Equalization (1959) 51 Cal.2d 640, 645.
• Where ambiguity exists, "consideration should be given to the consequences that will flow from a particular interpretation." Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.
• Harmonize all parts of the law.

Common questions

Q: Can my California fire protection district inspect a foster family home or family day-care home for compliance with State Fire Marshal building standards?
A: According to this opinion, yes. § 13146 does not prohibit a fire protection district chief from enforcing R-3 standards. Whether your district will do so as a matter of policy is a local decision, but the statute does not bar it.

Q: Who has primary R-3 enforcement responsibility in my city?
A: § 13146(a) requires the city (or county, or city and county) to delegate R-3 enforcement to either the local fire chief or the local building official. So in incorporated cities, R-3 enforcement is primarily handled by one of those two officials. A fire protection district in the same area is not relieved of all authority, but the city's choice in (a) typically sets primary responsibility.

Q: Does the State Fire Marshal directly enforce R-3 rules anywhere?
A: § 13146(c) gives the Marshal authority in areas outside corporate cities and districts providing fire protection. § 13146(d) lets the Marshal step in within those areas at the request of the local fire chief or governing body.

Q: My fire district was told it could not write up an unsafe day-care center because § 13146(b) excludes R-3 rules. Is that right?
A: According to this opinion, no. § 13146(b)'s carve-out is read as a discretionary outlet to avoid duplicative enforcement, not a hard bar. The district has authority to enforce State Fire Marshal building standards in its territory under §§ 13145 and 13146(b).

Q: What other powers does my fire protection district have under the Fire Protection District Law?
A: Broad ones. Issue citations for code violations (§§ 13871-13872), issue corrective orders for fire hazards (§ 13870), provide fire services to state agencies (Gov. Code § 55603), cities, and counties (Gov. Code § 55632), and enter into joint-powers (§ 13861(j)) or mutual-aid (§ 13863) agreements with a broad range of public agencies.

Citations and references

Statutes:

• Cal. Health & Saf. Code § 13146; §§ 13145, 13800-13970 (Fire Protection District Law of 1987)
• Cal. Health & Saf. Code §§ 17910-17998.3 (State Housing Law)
• Cal. Health & Saf. Code §§ 13100.1, 13108, 13108.5, 13143.2, 13144.4
• Cal. Gov. Code §§ 6500, 51175, 55603, 55632, 61100
• Cal. Pub. Resources Code §§ 5786.7, 13070
• Cal. Pen. Code § 374.3
• Cal. Wat. Code §§ 31120, 71680

Regulations:

• California Building Code § 310.5 (R-3 occupancy)
• Cal. Code Regs. tit. 19; tit. 24

Cases:

• Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379
• Coalition of Concerned Communities, Inc. v. Los Angeles (2004) 34 Cal.4th 733
• Select Base Materials, Inc. v. Bd. of Equalization (1959) 51 Cal.2d 640
• Stafford v. Los Angeles County Employees' Retirement Bd. (1954) 42 Cal.2d 795

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/16-801.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA, Attorney General

OPINION of XAVIER BECERRA, Attorney General
CATHERINE BIDART, Deputy Attorney General

No. 16-801
July 26, 2017

RUBIN E. CRUSE, Shasta County Counsel, has requested an opinion on the following question:

Does Health and Safety Code section 13146 prohibit fire protection district chiefs from enforcing the State Fire Marshal's building standards and regulations as they relate to R-3 dwellings?

CONCLUSION

Health and Safety Code section 13146 does not prohibit fire protection district chiefs from enforcing the State Fire Marshal's building standards and regulations as they relate to R-3 dwellings.

ANALYSIS

A Fire Protection District is a public agency, separate from a city or county, that provides fire protection services within a defined geographical area. Fire protection districts have chiefs, who are vested with all the powers necessary to carry out the fire and safety purposes of their districts, including the power to issue citations for violations of fire protection codes and district ordinances.

Health and Safety Code section 13146 addresses the authority of fire protection district chiefs to enforce the State Fire Marshal's building standards and regulations, both in general and as those regulations relate to "R-3 dwellings" — a term that encompasses residential occupancies including single-family homes, as well as a variety of licensed facilities such as adult care centers, day-care centers, foster family homes, and drug recovery homes.

In this opinion, we consider whether section 13146 is meant to prohibit fire protection district chiefs from enforcing the State Fire Marshal's building standards and regulations as they relate to R-3 dwellings. For the reasons that follow, we find that the statute's language does not compel such an interpretation, and that the statute's context within the state fire protection statutory scheme as a whole counters such an interpretation.

We begin with the text of section 13146, which provides, in relevant part:

The responsibility for enforcement of building standards adopted by the State Fire Marshal and published in the California Building Standards Code relating to fire and panic safety and other regulations of the State Fire Marshal shall be as follows:

(a) The city, county, or city and county with jurisdiction in the area affected by the standard or regulation shall delegate the enforcement of the building standards relating to fire and panic safety and other regulations of the State Fire Marshal as they relate to R-3 dwellings, as described in Section 310.5 of Part 2 of the California Building Standards Code, to either of the following:

(1) The chief of the fire authority of the city, county, or city and county, or his or her authorized representative.

(2) The chief building official of the city, county, or city and county, or his or her authorized representative.

(b) The chief of any city, county, or city and county fire department or of any fire protection district, and their authorized representatives, shall enforce within its jurisdiction the building standards and other regulations of the State Fire Marshal, except those described in subdivision (a) or (d).

(c) The State Fire Marshal shall have authority to enforce the building standards and other regulations of the State Fire Marshal in areas outside of corporate cities and districts providing fire protection services.

(d) The State Fire Marshal shall have authority to enforce the building standards and other regulations of the State Fire Marshal in corporate cities and districts providing fire protection services upon request of the chief fire official or the governing body.

We have been asked to provide our opinion on the proposition that section 13146 prohibits fire protection district chiefs from enforcing the State Fire Marshal's building standards relating to R-3 dwellings. The argument focuses on the language in subdivisions (a) and (b) of the statute. Subdivision (a) assigns authority to enforce standards relating to R-3 dwellings to local fire or building officials — not to fire protection district chiefs — while subdivision (b) of the statute directs fire protection district chiefs to enforce standards and regulations "except those described in subdivision (a) . . . ." The argument, in short, is that the exception expressed in subdivision (b) is mandatory, rather than discretionary, placing a hard limitation on the potential jurisdiction of a fire protection district chief.

We disagree. First, we do not construe subdivision (b)'s exception from the mandate to enforce R-3 dwelling standards and regulations as a mandatory bar to enforcement, but rather as a discretionary outlet to prevent unnecessary duplication of enforcement. Second, the Legislature's overall fire protection statutory scheme supports a contrary interpretation, that is, that fire protection district chiefs are generally authorized to enforce all relevant standards and regulations within their jurisdictions.

Turning to the key provisions of the statutory scheme, we see that section 13146 as a whole parcels out the official responsibilities for enforcing the State Fire Marshal's building standards and regulations as they relate to R-3 dwellings throughout the state. Subdivision (a) provides that city councils and county boards of supervisors are not to enforce the state fire building regulations as an item of general business, but instead they "shall delegate" enforcement to the local fire chief or building chief. Subdivision (a) is silent as to fire protection district chiefs.

Fire protection districts and their chiefs are addressed in subdivision (b), which provides that a fire protection district chief "shall enforce" the State Fire Marshal's building standards and regulations, "except those described in subdivision (a) or (d)." As we have seen, subdivision (a) addresses situations where a local fire department or building department has been delegated to enforce R-3 dwelling regulations; subdivision (d) addresses situations where the State Fire Marshal itself is delegated to enforce its building regulations at the request of a local agency. Thus, fire protection district chiefs must enforce State Fire Marshal building regulations and standards as a general matter, but are not required to do so in situations where code enforcement is in the hands of another agency.

Our interpretation finds strong support in the broad powers bestowed on fire protection districts under the Fire Protection District Law and related provisions. The law gives fire protection districts "all rights and powers, expressed or implied, necessary to carry out the purposes and intent" of the Fire Protection District Law, including the power to "enforce rules and regulations for the administration, operation, and maintenance" of "fire protection services." Fire protection district chiefs "shall enforce in their respective areas building standards relating to fire and panic safety adopted by the State Fire Marshal and published in the California Building Standards Code and other regulations that have been formally adopted by the State Fire Marshal for the prevention of fire or for the protection of life and property against fire or panic." Similarly, fire protection district chiefs are among those officials who must enforce the State Housing Law, state building standards relating to fire and panic safety, and regulations promulgated pursuant to the State Housing Law relating to fire prevention, protection and suppression, and fire and panic safety, in their respective areas.

In addition, fire protection districts may issue written orders to correct any fire hazard, and annex territory (other than commercial forest lands) that is classified as a state responsibility area and, in such circumstances, "the district shall be responsible for fire suppression and prevention for structures in the area . . . ." A fire protection district may also provide a state agency with fire protection services, may provide a city or county with fire protection, suppression, and prevention services, and may enter into a joint powers agreement or mutual aid agreement with a broad range of public agencies. We find no differentiation by the Legislature between the scope of enforcement responsibilities granted to fire protection districts and those granted to other local authorities.

Finally, in enacting the Fire Protection District Law, the Legislature specifically advised a liberal construction of the statute to further the compelling public purposes of universal and efficient fire protection services. Indeed, the legislative findings supporting the law expressly state that "it is the intent of the Legislature in enacting this part to provide a broad statutory authority for local officials. The Legislature encourages local communities and their officials to adapt the powers and procedures in this part to meet their own circumstances and responsibilities."

Had the Legislature intended to bar fire protection district chiefs from enforcing State Fire Marshal's building standards and regulations as they relate to R-3 dwellings, we believe that it would have done so expressly (for example, by stating that such chiefs "shall not," or "are not authorized to," enforce such standards and regulations as they relate to R-3 dwellings). No such prohibitory language appears. We believe that the limiting language in Health and Safety Code section 13146, subdivision (b), provides organizational direction rather than a curtailment of the jurisdiction of a fire protection district.

Therefore, we conclude that Health and Safety Code section 13146 does not prohibit fire protection district chiefs from enforcing the State Fire Marshal's building standards and regulations as they relate to R-3 dwellings.