Request By:
Mr. Leonard D. Mills
Executive Vice President
Home Builders Association of Kentucky
P.O. Box 166, 612 B Shelby Street
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Greg Holmes, Assistant Attorney General
This is in response to your letter of November 18 in which you requested advice concerning the authority of the Kentucky Board of Buildings, Housing and Construction, specifically, whether the department, through the commissioner can issue regulations, pursuant to their authority in KRS 198B Section 4, which are in conflict with the Kentucky Building Code, and, if so, which takes precedence in existing buildings, the uniform building code or the newly promulgated regulations.
In order to answer your question it is necessary to construe several related sections of the Kentucky Revised Statutes. KRS 198B Section 4 (3) requires the Kentucky Board of Buildings, Housing and Construction to administer regulatory legislation relating to buildings and construction. KRS 198B Section 5 (3) (b) and Section 5 (5) require the Board to set forth standards, specifications and requirements in terms of performance objectives, so as to facilitate the use of new technologies, and issue regulations which are necessary to implement the uniform state building code or to carry out any other statutory responsibility assigned to the Board, respectively. The two statutes of principal importance in answering your question are KRS 198B Section 8 (3) and 227.300 (1).
KRS 198B (8) (b) reads as follows:
(3) No amendment shall violate the performance orientation of the code, favor certain materials or suppliers, or weaken the life features of the uniform state building code as specified in subsection (3) of Section 5 of this Act.
KRS 227.300 (1) reads as follows:
(1) The commissioner shall promulgate reasonable rules and regulations based upon good engineering practice and principles as embodied in recognized standards of fire prevention and protection, providing for a reasonable degree of safety for human life against the exigencies of fire and panic, and insuring as far as is practicable against fire loss. Such rules and regulations shall be known as the standards of safety. After promulgation of the uniform state building code, no part of the standards of safety shall establish, in whole or in part, any building code other than the uniform state building code, but the commissioner may supplement the uniform state building code with fire safety regulations designed to operate in conjunction with the code. (Emphasis added.)
Taken together these two statutes clearly indicate that the Kentucky building code is the controlling authority with respect to the Kentucky Board of Buildings, Housing and Construction. Thus the Board may not promulgate regulations which conflict with the building code. The Board may, however, issue regulations which explain, clarify, or supplement the code. Although the building code will control any issue to which it directly refers, any ambiguity or change in circumstances not directly addressed in the code may be controlled by reasonable rules and regulations issued by the department.