The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6646

January 27, 1990

COLLEGES AND UNIVERSITIES:

Application of Fire Prevention Code to state-supported colleges and universities

FIRE PREVENTION CODE:

Application to state-supported colleges and universities

The Fire Prevention Code authorizes the State Fire Marshal to require state-supported colleges and universities to submit school construction plans for new construction, remodeling, or additions for review and approval by the State Fire Marshal, and to submit to on-site inspection of these projects.

The State Fire Marshal may delegate new construction inspection of state-supported college and university projects to qualifying full-time employees of a local fire department as provided for in Section 2b of the Fire Prevention Code.

Municipalities may not require state-supported colleges and universities to comply with local fire safety codes for new construction, operation, or maintenance of college and university facilities.

Col. R. T. Davis

Director

Department of State Police

714 South Harrison Road

East Lansing, MI 48823

You have requested my opinion on several questions relating to fire safety standards applicable to state-supported colleges and universities and other state owned or leased buildings.

Your first question asks:

"Does the State Fire Marshal have the authority to require state-supported colleges and universities to submit school construction plans for new construction, remodeling, or addition for review and approval by the State Fire Marshal? Are they required to submit to on-site inspection of these projects?"'

Const 1963, art 8, Secs. 5 and 6, provide that the governing board of a baccalaureate degree granting institution of the state shall have general supervision of its institution and the control and direction over all expenditures from the institution's funds. This constitutional status of baccalaureate degree granting institutions limits the ability of the Legislature to enact legislation which interferes with the operation and allocation of funds of such state institutions. Weinberg v Regents of University of Michigan, 97 Mich 246; 56 NW 605 (1893); Sterling v Regents of University of Michigan, 110 Mich 369; 68 NW 253 (1896); Wm C Reichenbach Co v Michigan, 94 Mich App 323; 288 NW2d 622 (1979).

Nevertheless, state colleges and universities remain a part of state government and cannot use their autonomy to thwart clearly established public policy of the state. Regents of the University of Michigan v Michigan, 166 Mich App 314, 325-328; 419 NW2d 773 (1988). Accordingly, they have been held subject to legislation enacted pursuant to the state's police power to promote the health, safety and welfare of the people. Peters v Michigan State College, 320 Mich 243; 30 NW2d 854 (1948); Branum v Board of Regents of the University of Michigan, 5 Mich App 134; 145 NW2d 860 (1966); Regents of the University of Michigan v Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973); OAG, 1975-1976, No 3662, p 708 (December 15, 1976); OAG, 1977-1978, No 5326, p 515 (July 5, 1978).

The Fire Prevention Code, 1941 PA 207, as amended, MCL 29.1 et seq; MSA 4.559(1) et seq, was enacted to promote the health, safety and welfare of the people as reflected in its title, which states in pertinent part:

"AN ACT to provide for the prevention of fires and the protection of persons and property from exposure to the dangers of fire or explosion; to authorize the investigation of fires and the discovery of crime or other offenses in relation thereto; to require the razing, repair, or alteration of buildings, and the clearing and improvement of premises which constitute a fire hazard or a menace to the peace, security, or safety of persons or property; to control the construction, use, and occupancy of those buildings and premises for fire safety purposes; to provide for the certification of fire inspectors and the delegation of certain powers to those certified fire inspectors ...."D"

The Legislature vested administration and enforcement of the Fire Prevention Code with the State Fire Marshal through the Department of State Police, and established and empowered the State Fire Safety Board to promulgate administrative rules pertaining to fire safety. MCL 29.2; MSA 4.559(2), and MCL 29.3b; MSA 4.559(3b). Section 3c of the Fire Prevention Code, MCL 29.3c; MSA 4.559(3c), provides in pertinent part:

"(1) The board shall promulgate rules pertaining to fire safety requirements for the construction, operation, or maintenance of all of the following:

(a) Schools and dormitories, including state supported schools, colleges, and universities and school, college, and university dormitories."" (Emphasis added.)

Thus, the Legislature unambiguously expressed its intent that state colleges and universities be subject to the Fire Prevention Code.

Pursuant to Section 3c, the State Fire Safety Board has promulgated administrative rules governing schools, colleges, and universities. 1989 MR 7, R 29.301 et seq. Those rules expressly require the submission to the State Fire Marshal of plans and specifications for college and university projects involving construction, remodeling, or additions, and also provide for on-site inspection of such projects during construction and upon completion. 1989 MR 7, R 29.305, R 29.307.

It is my opinion, therefore, in answer to your first question, that the State Fire Marshal has the authority to require state-supported colleges and universities to submit school construction plans for new construction, remodeling, or additions for review and approval by the State Fire Marshal and to submit to on-site inspection of these projects, in accordance with the administrative rules.

Your second question is:

"Does the State Fire Marshal have the authority to delegate new construction inspection of state-supported college and university projects, for which plans have been reviewed, to qualifying, full-time employees of a local fire department following procedures indicated in Sec. 2b of the Fire Prevention Code?"'

Section 2b of the Fire Prevention Code, MCL 29.2b; MSA 4.559(2b), provides, in part:

"(1) Upon the request by resolution of a governing body of a city, village, or township, the state fire marshal may delegate to 1 or more employees of the city, village, or township employed as full-time fire inspectors the authority to enforce 1 or more of the fire safety rules promulgated under this act, if the employees have been certified as certified fire inspectors by the state fire marshal and that certification has not been revoked by the state fire marshal."D"

Under this section, the State Fire Marshal may delegate to qualifying local fire inspectors enforcement authority of only those fire safety rules promulgated under the state code. Hence, the delegation authorized by Section 2b does not impose any new fire safety standards, but merely constitutes an expedient means of carrying out the legislation's objective. Local No 1644 AFSCME v Oakwood Hospital Corp, 367 Mich 79, 91; 116 NW2d 314 (1962). Furthermore, enforcement authority includes on-site inspection. 1989 MR 7, R 29.307.

It is my opinion, therefore, in answer to your second question, that the State Fire Marshal may delegate new construction inspection of state-supported college and university projects to qualifying full-time employees of a local fire department as provided for in Section 2b of the Fire Prevention Code, MCL 29.2b; MSA 4.559(2b).

Your remaining two questions may be combined to read as follows:

Does a local unit of government have the authority to enforce its own legally adopted fire safety codes for new construction, operation, or maintenance of state-supported college and university facilities or other state owned or leased buildings?

As creations of the state, municipalities have only those powers conferred upon them by the constitution and statutes. Const 1963, art 7, Sec. 34. See also, Eyde Construction Co v Meridian Twp, 149 Mich App 802, 807; 386 NW2d 687 (1986). While such powers include broad authority to adopt reasonable ordinances to protect the safety and welfare of property and persons within their boundaries, municipal ordinances have often been found to be inapplicable to state owned property. See, e.g., OAG, 1965-1966, No 4494, p 309 (June 13, 1966); OAG, 1943-1944, No 0-1114, p 493 (August 16, 1943); OAG, 1928-1930, p 596 (September 27, 1929). These opinions follow the principle explained at 62 CJS, Municipal Corporations, Sec. 157, pp 319-320:

"Property of the state is exempt from municipal regulation in the absence of waiver on the part of the state of its right to regulate its own property; and such waiver will not be presumed. The municipality cannot regulate or control any property which the state has authorized another body or power to control."D"

The Supreme Court has ruled that immunity from local regulation is not necessarily defeated because the property at issue is privately owned and merely leased by the state. Dearden v City of Detroit, 403 Mich 257, 267; 269 NW2d 139 (1978). But cf City of Chicago v L J Sheridan & Co, 18 Ill App 2d 57; 151 NE2d 451, 456 (1958) (private owner may not avoid obligation to comply with local ordinance merely by agreeing to lease property to the state).

In Dearden v City of Detroit, supra, the Michigan Supreme Court ruled that the issue of whether a local zoning ordinance applied to a state agency may be characterized "as one, not of absolute governmental immunity, but rather of legislative intent."" 403 Mich at 265. The Court compared the scope of authority granted the Department of Corrections with the zoning authority of municipalities and held that by granting the Department of Corrections exclusive jurisdiction over penal institutions, the Legislature intended to grant the Department immunity from local zoning ordinances when establishing a penal institution.

Subsequent decisions have followed the analysis employed in Dearden to determine whether a state agency is subject to regulation. See, e.g., Marquette County v Board of Control of Northern Michigan University, 111 Mich App 521; 314 NW2d 678 (1981) (Legislature did not intend State Construction Code to apply to construction of dormitories by regional university); Pecoraro v Dep't of Corrections, 100 Mich App 802; 300 NW2d 418 (1980), 1v den 411 Mich 973 (1981) (Michigan Housing Act, which incorporates municipal fire codes, is not applicable to prison construction within exclusive control of Department of Corrections). See also, OAG, 1987-1988, No. 6458, p 160 (August 4, 1987) (Legislature intended clinical laboratories operated by Department of Corrections to be licensed under provisions of Public Health Code).

As in the Dearden zoning case, no statute authorizing municipalities to adopt local fire safety standards "disclose[s] what effect, if any, [such standards] should have on state agencies."" 403 Mich at 265. See, e.g., MCL 117.3(k); MSA 5.2073(k), and MCL 41.805; MSA 5.2640(5). Nor does the Fire Prevention Code specify that local fire safety requirements shall apply to buildings owned or leased by the state. Thus, while the Legislature has recognized the general authority of municipalities to enforce local fire regulations not inconsistent with state law, it cannot be said that the Legislature intended to subject state owned or leased property to such ordinances.

In Marquette County, supra, the court set forth the principle of law that it believed Dearden established, as follows:

"In effect, the Court established another principle of statutory construction which supports defendant in the present case: if one act establishes a state agency's exclusive jurisdiction over certain subject matter and a second act of general application does not state whether it applies to the agency in question, the second act does not apply to that agency."" 111 Mich App at 526.

Accordingly, whether local fire safety codes may be enforced against a state agency turns on the scope of authority granted to and limitations imposed upon the particular state agency by the Legislature and the Constitution.

With regard to state colleges and universities, Const 1963, art 8, Secs. 5 and 6, give governing boards exclusive control over the operation and allocation of funds of their institutions so long as they do not thwart clearly established public policy of the state. Regents of the University of Michigan v Michigan, supra, 166 Mich App at 328-330. However, the Legislature may not delegate its power to establish state public policy and municipalities may not legislate such. Arlan's Dep't Stores, Inc v Attorney General, 374 Mich 70, 77; 130 NW2d 892 (1964). A local fire safety code does not constitute an established public policy of the state. Thus, a local fire safety code may not be enforced against state colleges and universities. See, Marquette County v Board of Control of Northern Michigan University, supra.

With respect to property owned or leased by other agencies and departments of state government, it is possible to provide you only with general guidance. Under the test established by Dearden, it is necessary to carefully examine the nature and scope of the authority granted to the particular state agency by the Constitution and the Legislature in order to determine whether the Legislature intended the agency to be subject to regulation. Thus, the answer to this portion of your question may vary, depending upon the particular state agency or department involved and upon the nature and extent of the authority conferred upon that agency or department.

It is my opinion, therefore, that municipalities may not require state-supported colleges and universities to comply with local fire safety codes for new construction, operation, or maintenance of college and university facilities. It is my further opinion that, such local fire safety codes may not be enforced against other state owned or leased property unless an examination of the controlling statutes reveals that the Legislature intended the particular state agency to be subject to such regulation.

Frank J. Kelley

Attorney General