Request By:
Kenneth E. Hollis, Esq.
General Counsel
Department of Labor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You request an opinion of this office concerning the elevator inspection program and its relationship to municipalities. You ask:
"Can a municipality or any other governmental unit using its own designated persons administer a passenger elevator program that includes both inspection of elevators and issuance of certificates of operation subsequent to those inspections? "
You have been good enough to provide us with statutory citations as to the possible areas covered by the question. The state has an Elevator Inspector Act which includes KRS 336.510 - 336.680. KRS 336.510(4) defines "general inspector" as "a state inspector examined and hired to inspect elevators for the state labor department." Subsection (5) defines "special inspector" as "an inspector examined and certified by the department to inspect elevators in the state", and subsection (6) defines "inspector" as "either a general or special inspector" .
KRS 336.520 states that no person may act as either a general or special inspector of elevators unless he holds a certificate of competency from the Department of Labor. KRS 336.530(1) states that the Department of Labor shall administer all aspects of the state elevator inspection program. Subsection (3) provides that the Commissioner of Labor may appoint and hire from the holders of certificates of competency no more than five general inspectors of elevators. KRS 336.540 authorizes companies and municipal governments to designate persons to inspect elevators in such cities from holders of certificates of competency issued by the Department of Labor.
Reading these statutes in para materia, we find that the Department of Labor has the authority to issue certificates of competency for all elevator inspectors. The Department itself may from those certificate holders, choose not more than five persons to be general inspectors throughout the state. From that same list of holders of certificates of competency, private employers and municipalities may choose persons to perform such inspections.
KRS 336.570 provides that an elevator may be inspected by insurance companies' special inspectors, if that company insures the elevator in question and that if an elevator is not inspected by a special inspector, it must be inspected by a general inspector. KRS 336.600 requires that every passenger elevator must be inspected at least once every year. KRS 336.610 (1) requires every inspector to forward to the Department of Labor a full report of each inspection. If the inspection is satisfactory, the Department shall issue a certificate of operation which certificate shall be valid for one year.
It appears therefore that cities and companies may use their own inspectors who have been certified as competent by the Department of Labor. The reports of these inspectors whether they be special (private or municipal) or general (employees of the department) must be forwarded to the Department, which is the only entity authorized to issue a certificate of operation.
We understand that certain cities are issuing their own certificates of operation. We can find no specific statutes authorizing cities to issue certificates of operation. Various classes of cities have authority to inspect buildings and check for their safety, but these are general statutes and do not deal specifically with elevator inspections.
In your letter, you mentioned the new dual inspection statute (KRS 15.610) and its application to functions by more than one governmental agency. We do not believe that such statute is applicable in the present situation because there should be no duplication of inspection. Either an elevator is inspected by the general inspector employed by the Department of Labor or by a special inspector employed by private industry or municipalities and the inspection is under the auspices of a single agency (the Department of Labor) even though made by an employee of the city or private company.
Your second question is:
"Does the Kentucky Department of Labor have primary jurisdiction over passenger elevator inspections in the Commonwealth?"
In light of the foregoing discussion, the answer to that question is "yes". It appears that the statutes in question give the Department of Labor primary jurisdiction to control the issuance of certificates of operation and to certify those persons competent to make inspections of elevators.
Finally, you ask:
"Assuming that the Kentucky Department of Labor decided to inspect all passenger elevators in the Commonwealth for purposes of later certification, does KRS 15.635 then preclude use of special inspectors under KRS 336.540 who inspect for the purposes of later certification? "
Under the present statutory set-up, we do not see how the Department could require all inspections by its own employees (General Inspectors) . The cities may still choose their own inspectors from the Department's list of eligible inspectors pursuant to KRS 336.540. Where a city fails to inspect an elevator within one year, the Department's general inspectors must do so to meet the requirement of annual inspection (KRS 336.600), but it cannot exclude the special inspector's right to inspect. Such procedure would require statutory changes.
To recap, the Department of Labor has primary jurisdiction over elevator inspections, both by having the only right to issue certificates of operation and certificates of competency of all inspectors who do the inspecting. So, where the inspection is made by a special inspector hired by either a municipality, a company or insurance carrier, the reports of those inspectors must be forwarded to the Department in order that a certificate of operation can be issued by the Department. There is no specific statute authorizing the issuance of such certificates by municipalities or by private entities.