Request By:
Richard Hampton
Environmental Supervisor
Three Rivers District Health Department
P.O. Box 158
Owenton, Kentucky 40359
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in answer to your letter of January 28, 1980 in which you desire an interpretation of KRS 318.165. This statute states:
"No permanent water supply shall be provided to any building by any public utility or water district where the interior plumbing system has not been installed and approved in accordance with the provisions of KRS chapter 318 and the state plumbing code."
Specifically you wish to know against whom this section is to be enforced, if a permanent water supply is provided to a building when the interior plumbing system has not been installed and approved in accordance with the provisions of KRS chapter 318 and the state plumbing code, and by whom this section is to be enforced if there is such a violation.
The penalty provision for this chapter is found at KRS 318.990. It states:
"Any person who violates any provision of this chapter or any regulation adopted hereunder or any provision of the state plumbing code shall be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100) or imprisoned for not more than ninety (90) days or both for each offense. Each day the violation continues shall constitute a separate offense." (emphasis added)
"Person" is defined for the purposes of chapter 318 as:
". . . any individual, public or private corporation, political subdivision, government agency, municipality, co-partnership, association, firm, trust, estate, or other entity whatsoever." KRS 318.010(9).
The penalty provision appears to apply to whomever or whatever violates KRS 318.165 so long as this violator comes within the definition of "person" and is not excluded by some other statute. For example, a violator could include the owner of the building who did not obtain proper approval or the water company or district which improperly provided the water supply.
KRS 318.020(3) states, "This chapter shall not apply to persons employed by any water company, water district or sanitation district, in the laying, maintenance, and operation of its mains and other appurtenances in the conduct of its business". While the penalty would not apply to employees of the water company or district "in the conduct of its business", it would apply to the water company or district itself and to employees not acting in the conduct of business.
The enforcement section of chapter 318 is KRS 318.180. It states:
"(1) Notwithstanding the existence or pursuit of any other remedy (civil or criminal) the department, or its officers, agents, or inspectors, are hereby authorized to institute and maintain actions to restrain and enjoin any violation of this chapter, the state plumbing code, or the rules and regulations of the department relating thereto. (2) City, county and commonwealth's attorneys, and the attorney general, shall within their respective jurisdictions represent the department, its officers, agents, and inspectors, in the enforcement of the provisions of this chapter, the state plumbing code, and rules and regulations of the department relating thereto, but when the department deems it necessary, it may employ, at its discretion, special attorneys to assist the department, or its officers, agents, or inspectors, and may pay reasonable compensation, fees and other costs from any unexpended plumbing funds."
The "department" refers to the Department of Housing, Buildings, and Construction. KRS 318.010(1).
The Department of Housing, Buildings and Construction is authorized to enforce chapter 318. However, KRS 318.180 does not limit enforcement to the Department, rather, it provides for other means of enforcement in the language "[n]otwithstanding the existence or pursuit of any other remedy (civil or criminal). . ." The identity of other persons or agencies with such enforcement authority would need to be derived from other provisions of KRS.
For example, county, city-county, and district health departments may order owners and operators of property to comply with applicable state public health laws, they also may institute and maintain injunctions to abate nuisances which "are or may be a menace to the health of the people of the state or community. . ." and to require compliance with state public health laws. KRS 212.245(6). See also 212.210(1).