November 23, 2004

Illinois Fire Chiefs Association
Post Office Box 7
Skokie, Illinois 60076-0007

Illinois Association of Fire Protection Districts
901 South Second St., Suite 200,
Springfield, IL 62704

Re: Authority of the Office of the State Fire Marshal to Direct Enforcement of a Safety Code

Dear Association Members:

This letter addresses the authority of the Office of the State Fire Marshal (OFSM) regarding enforcement of a statewide fire safety code.

The OSFM has statutory authority to enact rules implementing a fire safety code, but the authority can vary by type of governmental body affected. In practical terms, non-home rule units of local government, fire protection districts, and other units of local government other than school districts which perform fire safety inspections and enforcement need to implement the more stringent of either the OSFM adopted standard or the locally adopted fire safety code. The OSFM standard is set forth in Section 100.7 of Title 41 of the Illinois Administrative Code, and specifically adopts the NFPA 101 (2000) as the standard for the State. A fire safety code adopted by a home rule unit preempts the OSFM-adopted NFPA 101 standard; but absent a locally adopted fire safety code, the home rule unit would need to implement the OSFM adopted standard. The Illinois School Building Code (Section 2-3.12 of the School Code, 105 Ill. Comp. Stat. 5/1 et seq .) directs school districts (as well as regional superintendents and fire safety inspectors who inspect schools) to use the Health/Life Safety Code for Public Schools as the governing standard for the inspections.

The second paragraph of Section 9 of the Illinois Fire Investigation Act (425 Ill. Comp. Stat. 25/9) provides that the OSFM shall adopt and promulgate such reasonable rules as may be necessary to protect the public from the dangers specified in the preceding paragraph. The first paragraph of Section 9 identifies two sets of criteria as potential dangers to the public: 1) structures or buildings by reason of faulty construction, age, lack of proper repair, or any other cause to become especially liable to fire, or to become liable to cause injury or damage by collapsing or otherwise; and 2) keep[ing] or maintain[ing] combustible or explosive material or inflammable conditions, which endanger the safety of said buildings or premises.

Furthermore, the fourth paragraph of Section 9 provides that the OSFM:

. . . a nd the officers of cities, villages, towns and fire protection districts by this Act, charged with the duty of investigating fire [see 425 Ill. Comp. Stat. 25/6] shall, under the direction of the Office of the State Fire Marshal, inspect and examine at reasonable hours, any premises, and the buildings and other structures thereon, and if, such dangerous condition or fire hazard is found to exist contrary to the rules herein referred to, or if a dangerous condition or fire hazard is found to exist as specified in the first paragraph of this Section, and the rules herein referred to are not applicable to such dangerous condition or fire hazard, shall order the dangerous condition removed or remedied, and shall so notify the owner, occupant or other person interested in the premises. ( 425 Ill. Comp. Stat. 25/9)

Pursuant to the statutory authority provided in Section 9 of the Fire Investigation Act, the OSFM promulgated a number of rules, published in the Illinois Administrative Code. (41 Ill. Admin. Code 100) The rule promulgated by the OSFM adopting the NFPA 101 (2000) Code for Safety to Life from Fire in Buildings and Structures as the standard for the State of Illinois became effective April 1, 2003. (41 Ill. Admin. Code 100.7) Notice of the proposed rule amendment announcing the adoption of NFPA 101 (2000) as the standard for the State of Illinois was initially published in the Illinois Register on November 1, 2002. Notice of adoption of NFPA 101 (2000) as the standard for the State of Illinois, with a stated effective date of April 1, 2003, was published in the Illinois Register on February 28, 2003.

The impact of the OSFM rules varies by the type of unit of local government. This difference arises because of varying authority granted to different types of local government by the Illinois Constitution, as well as to school districts, under Illinois law.

Non-home rule units (other counties and municipalities) and other units of local government (not including school districts) including fire protection districts

The authority of counties and municipalities that are not home rule units, and other units of government (such as fire protection districts) is more limited, generally having only the powers granted to them by law. (Ill. Const. Art. VII Sections 7, 8) In this case, the third paragraph of Section 9 of the Fire Investigation Act does provide authority for adoption of rules equal to or higher than those promulgated by the OSFM. (425 Ill. Comp. Stat. 25/9) In effect, these units of local government must comply with the OSFM NFPA 101 (2000) standard, unless the locally adopted fire safety code is equal or superior to the State standard in protecting residents. A fire safety code enacted by a non-home rule unit or other unit of local government cannot conflict with or contradict the State NFPA 101 (2000) standard adopted by the OSFM, but may be more rigorous or more stringent than the State standard. State Bank of Waterloo v. City of Waterloo , 339 Ill.App.3d 767, 792 N.E.2d 329, 275 Ill.Dec. 98 (5 th Dist. 2003) (quoting Village of Wauconda v. Hutton , 291 Ill.App.3d 1058, 684 N.E.2d 1364, 1366, 226 Ill.Dec. 161 (2 nd Dist. 1997)); see also Schillerstrom Homes, Inc. v. City of Naperville , 198 Ill.2d 281, 762 N.E.2d 494, 499-500, 260 Ill.Dec. 835 (2001) (quoting Kalodimos v. Village of Morton Grove , 103 Ill.2d 483, 470 N.E.2d 266, 275, 83 Ill.Dec. 308 (1984)).

Home rule units (certain counties and municipalities)

Section 6(a) of Article VII of the Illinois Constitution defines home rule units as well as the authority of a home rule unit. Counties (with an elected chief executive officer), municipalities with a population of more than 25,000, and other municipalities that have elected by referendum to become home rule units are home rule units. (Ill. Const. Art. VII Sect. 6(a)) Municipalities include cities, villages, and incorporated towns. (Ill. Const. Art. VII Sect. 1.) Noteworthy in this instance is Article VII, Section 6(i)'s provision of concurrent jurisdiction of the home rule unit and the State to exercise any power or function of the home rule unit absent a specific withholding of that authority by the General Assembly. Critical in analyzing OSFM authority to adopt a statewide fire safety code is the final paragraph of Section 9 of the Fire Investigation Act that states the section is not a limitation upon any home rule unit. (425 Ill. Comp. Stat. 25/9) With the statutory acknowledgment recognizing deference to home rule units, in the absence of adoption of a local fire safety code by a home rule unit, the home rule unit would implement the OSFM adopted statewide standard because both the OSFM and home rule unit have concurrent jurisdiction. However, given Section 9's stated deference to home rule units, adoption of a local fire safety code by a home rule unit (be it more or less stringent than the OSFM standard) would preempt application of the OSFM standard.

School districts

School districts are unlike the other non-home rule units of local government because the Illinois School Building Code (105 Ill. Comp. Stat. 5/2-3.12) specifically provides that the Health/Life Safety Code for Public Schools (as further defined in great detail in the School Building Code) is the governing standard for the safety inspections of schools performed by the regional superintendent or fire safety inspectors. Paragraph six of the School Building Code specifies the need for fire inspectors to conduct fire safety inspections, but also notes the need to coordinate the inspection visit with the regional superintendent prior to the inspection. ( See Board of Education of Minooka Community High School District No. 111, Grundy, Kendall and Will Counties v. Carter , 119 Ill.App.3d 857, 458 N.E.2d 50, 75 Ill.Dec. 882 (3 rd Dist. 1983) (supporting applicability of school code rules specifically drafted for application to schools over the more generally applicable Office of the State Fire Marshal's rules); County of Lake v. Board of Education of Lake Bluff School District No. 65, Lake County , 325 Ill.App.3d 694, 761 N.E.2d 163, 260 Ill.Dec. 319 (2 nd Dist. 2001) (supporting applicability of School Code over county building code for building used for public school purposes).

In summary, the standard for fire inspectors performing safety inspections pursuant to the Fire Investigation Act varies :

•  Non-home rule units and other units of local government should employ and apply the more stringent of either the OSFM adopted NFPA 101 (2000) standard, or the locally adopted fire safety code;

•  Home rule units should use the OSFM adopted NFPA 101 (2000) standard unless the home rule unit has adopted its own fire safety code; and

•  School districts should use the School Building Code defined Health/Life Safety Code for Public Schools as the standard for fire safety inspections.

Sincerely,

JAMES S. SINCLAIR
STOBBS & SINCLAIR LTD.
500 Bond Street
Alton, Illinois 62002
Tel: 618-465-6978
Fax: 618-465-7022