North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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(919) 716-6610 FAX: (919) 716-6757

February 5, 2001

Grover L. Sawyer, P.E. Deputy Commissioner Department of Insurance

P.O. Box 26387 Raleigh, N.C. 27611

Re: Advisory Opinion; N.C.G.S. § 143-138(e); State Building Code; County Regulations Requiring Installation of Carbon Monoxide Alarms

Dear Mr. Sawyer:

This letter is in response to your correspondence regarding the above-referenced matter. Mecklenburg County has recently adopted regulations requiring that carbon monoxide alarms be installed in new and existing residential dwelling units, as well as other structures. You have asked whether these regulations, as they pertain to new construction or existing buildings that are being altered or changed in use (hereinafter “new construction”), constitute an unenforceable local modification of the North Carolina Building Code (hereinafter “Code”). After carefully reviewing the regulations, applicable provisions of the Code and relevant case law, we conclude that the regulations, as presently written, are likely contrary to N.C.G.S. § 143-138(e) and unenforceable to the extent they apply to new construction. We also conclude, however, that regulations requiring carbon monoxide alarms in existing buildings are valid and enforceable.

The North Carolina Building Code Council has been empowered to prepare and adopt the Code. N.C.G.S. § 143-138(a). The Code applies throughout the State and has the full force and effect of law. Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955);

N.C.G.S. § 143-138(e). In Green v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975), the North Carolina Supreme Court recognized the importance and necessity of maintaining a single, comprehensive, state-wide Code. In that case, the Court considered the validity of a local ordinance, adopted by Winston-Salem, which amended its fire prevention code to require that sprinkler systems be installed in certain instances not required by the Code. Winston-Salem neither sought nor obtained the approval of the Council for its ordinance. The Supreme Court found “that the statutes [N.C.G.S. ch. 143, art. 9] clearly show a legislative intent to provide a complete and integrated regulatory scheme, including regulations as to the installation of sprinkler systems, in all buildings and structures, wherever situated in North Carolina, except as Grover L. Sawyer February 5, 2001 Page 2

expressly exempted by statute” and it determined that to give effect to this local ordinance “would, in effect, permit the City to amend the North Carolina Building Code by the simple expedient of codifying the contested ordinance as a part of its Fire Prevention Code and thereby to evade the clear requirements of G.S. § 143-138(e).” In the Court’s view, “this result would elevate nomenclature above substance.” Green, 287 N.C. at 75-76, 312 S.E.2d at 237.

Actions by the General Assembly since Green was decided have served to cement the principle that the Code applies uniformly across the State, free from local modifications. When Green was decided in 1975, N.C.G.S. § 143-138(e) permitted any political subdivision, with the approval of the Building Code Council, to adopt a local “building code or building rules and regulations.” 1957 N.C. Sess. Laws Ch. 1138. However, that language was recently deleted by the General Assembly. 1997 N.C. Sess. Laws Ch. 26. Deletion of this language limited the local exceptions to the Code expressly authorized by the General Assembly and strengthened the Building Code Council’s authority to promulgate and enforce a single, integrated means of regulating buildings and structures.

In short, Green and Article 9 of Chapter 143 of the General Statutes, particularly

N.C.G.S. § 143-138(e), establish that counties and cities do not have authority to adopt ordinances regulating matters within the authority of the Building Code Council except as specifically authorized by statute. Thus, to resolve your inquiry we must answer two questions:

(1) Has the General Assembly conferred authority on the Building Code Council to regulate carbon monoxide detectors? (2) If so, has the General Assembly nevertheless specifically authorized cities and counties also to regulate in that area?

The General Assembly has conferred very broad authority on the Building Code Council with respect to the scope of the Code. Matters within the authority of the Building Code Council include the power to adopt rules regarding the “reasonable and suitable classifications of buildings and structures, both as to use and occupancy . . . rules for the . . . ventilation of buildings . . . rules governing . . . heating appliances . . . and other facilities connected with the buildings and structures . . . and such other reasonable rules pertaining to the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure.” The breadth of this general authority is illustrated by the specific matters the General Assembly has vested within the authority of the Building Code Council. These include “battery-operated or electrical smoke detectors” and “water heaters.”

N.C.G.S. § 143-138(b). While arguments can be made that the regulation of carbon monoxide detectors is not within the scope of these broad powers, we doubt that such arguments would be accepted by the courts, especially in light of the Green decision.

Mecklenburg County’s carbon monoxide ordinance was adopted pursuant to the authority of N.C.G.S. §§ 153A-77 and 130A-39(a) “to protect and promote the public health.” This power, broad as it is, does not expressly include the power to regulate in areas subject to the authority of the Building Code Council. In our opinion, that level of legislative specificity is Grover L. Sawyer February 5, 2001 Page 3

required before a county or city may regulate in an area within the authority of the Building Code Council. In this connection it is noteworthy that in N.C.G.S. § 130A-39(b) the General Assembly gave express power to counties to adopt health rules more stringent than rules adopted by either the Commission for Health Services or the Environmental Management Commission, but did not give counties that power with respect to the Building Code Council.

For the foregoing reasons, we doubt that the Mecklenburg County ordinance as drafted is consistent with N.C.G.S. § 143-138(e) to the extent it regulates new construction. It would appear, however, that this defect can be cured without compromising the County’s purpose in adopting the ordinance. The authority of the Building Code Council does not generally extend to the regulation of existing buildings not undergoing alteration. See Carolinas-Virginias Assoc. v. Ingram, Comr. of Insurance, 39 N.C. App. 688, 699, 251 S.E.2d 910, 917, cert. denied, 297 N.C. 299, 254 S.E.2d 925 (1979) (holding that the authority of the Building Code Council does not extend to existing buildings). Thus, amending the present ordinance to limit its application to existing buildings would remove the conflict with N.C.G.S. § 143-138(e) and place the ordinance within the authority of Mecklenburg County.

We trust this is responsive to your concerns. If you have additional questions, please feel free to contact us.

Sincerely yours,

Reginald L. Watkins Senior Deputy Attorney General

Diane G. Miller Assistant Attorney General