Who has fire code authority over a Mississippi community college building, the State Fire Marshal or the local fire marshal?

Plain-English summary

Northwest Mississippi Community College is constructing a new building at its Southaven campus. Funding came from several sources: $7M from the Economic Development Authority, $4M from NWCC, $3M from the state, and $1M from DeSoto County. The college's attorney asked which entity has fire prevention and protection jurisdiction: the State Fire Marshal, the local (city or county) fire marshal, or someone else.

The AG worked through Section 45-11-101, which is the Mississippi Fire Prevention Code statute. The State Fire Marshal promulgates the MFPC, which applies to:

• (a) all buildings owned by the state or state agencies;
• (b) all buildings used for public assembly, except where the local jurisdiction has adopted a fire prevention code at least as stringent as the MFPC;
• (c) all buildings 75 feet or taller (with the same local-code-stringency exception);
• (e) any building, on request, where the requestor wants State Fire Marshal review (with the same exception).

The community college angle: Section 37-4-1 specifies that community and junior colleges are agencies of local government, not state agencies. Their buildings are therefore not state-owned for purposes of subsection (1)(a). The AG had previously held that result in MS AG Op., Dale (Sept. 27, 2000). So community college buildings do not automatically fall under the State Fire Marshal's jurisdiction by virtue of being state-funded.

That kicks the analysis to subsections (b), (c), and (e). If the new building will be used for public assembly (a factual call for the college's governing board), or is 75 feet or taller (also factual), the MFPC and State Fire Marshal jurisdiction apply unless DeSoto County or Southaven has a local fire prevention code that the State Fire Marshal has determined to be not less stringent than the MFPC. Section 45-11-101(2) tasks the State Fire Marshal with annually examining local codes and listing which ones meet that standard. Whether a local code qualifies is a determination for the State Fire Marshal, not the AG.

If the building is not public assembly and not 75+ feet, the local fire code applies and the local fire marshal has jurisdiction.

What this means for you

For community college trustees and construction managers

The opinion holds that, because community and junior college buildings are not state-owned (Section 37-4-1; MS AG Op., Dale), they do not fall under the MFPC by virtue of subsection (1)(a), so the local fire code generally applies and the local fire marshal has jurisdiction. It holds that this flips if the building is used for public assembly (subsection (1)(b)) or is seventy-five feet or taller (subsection (1)(c)): then the MFPC and State Fire Marshal jurisdiction apply unless the county or municipality has adopted a fire prevention code "with standards not less stringent" than the MFPC. The opinion holds that whether the building is public assembly or 75+ feet are factual determinations for the college's governing board, and notes that under subsection (1)(e) an interested person may submit construction plans to the State Fire Marshal for pre-construction review where no qualifying local code is in place.

For local fire marshals

The opinion holds that the local fire marshal has jurisdiction over a community college building unless the building is used for public assembly or is 75 feet or taller, in which case the MFPC governs unless the local code is not less stringent. Whether a local code meets the not-less-stringent standard is a determination for the State Fire Marshal, who under Section 45-11-101(2) annually examines local codes and lists those that qualify.

For city and county officials looking at fire-code policy

The opinion holds that, for public-assembly and 75-foot-or-taller buildings, the MFPC applies "except in any county or municipality which has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code," with that qualifying status determined by the State Fire Marshal under Section 45-11-101(2).

Common questions

Why are community college buildings not "state-owned"?
Section 37-4-1 says community and junior colleges are agencies of local government rather than agencies of the state. The AG cited that statute in MS AG Op., Dale (Sept. 27, 2000) and reaffirmed it here. State funding does not change the answer; the statutory designation does.

Who decides whether a building is "public assembly"?
The opinion holds that whether the building will be used for public assembly is a factual determination to be made by the governing board of the community college. The opinion does not define "public assembly."

How is it determined whether a local fire code is "not less stringent" than the MFPC?
The opinion holds that this is a determination for the State Fire Marshal, who under Section 45-11-101(2) annually examines local codes and prepares a list of those with provisions not less stringent than the MFPC.

Can construction plans be reviewed before building begins?
The opinion notes that under Section 45-11-101(1)(e), an interested person may submit construction plans to the State Fire Marshal's office for review and approval before construction, to ensure compliance with the MFPC, where there is not a qualifying local code in place.

Background and statutory framework

Section 45-11-101(1) provides:

The State Fire Marshal shall promulgate the Mississippi Fire Prevention Code which shall apply to:

(a) All buildings owned by the state or state agencies;

(b) All buildings utilized for public assembly, except in any county or municipality which has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code; however, the State Fire Marshal or his authorized representative shall perform investigations or inspections of such buildings only when advised by interested persons of a danger or hazardous inflammable condition existing in any building that would tend to impair the safety of persons or property, or when the State Fire Marshal or his authorized representative believes the investigation or inspection is in the interest of public safety. The investigation or inspection shall be made in accordance with Section 45-11-3;

(c) All buildings, the permits for the construction of which are issued subsequent to July 1, 1978, and which are not less than seventy-five (75) feet in height; provided, however, that in any county or municipality which has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code, the provisions and enforcement mechanism thereof shall apply and not the Mississippi Fire Prevention Code;

. . .

(e) Any buildings, the permits for construction of which are issued subsequent to July 1, 2004, upon the request of any interested person.

Section 45-11-101(2) requires the State Fire Marshal to annually examine local fire prevention codes and prepare a list of those meeting the not-less-stringent standard.

Section 37-4-1 states that community and junior colleges are agencies of local government rather than agencies of the state. The AG had reached the same conclusion about community college buildings in MS AG Op., Dale (Sept. 27, 2000).

The AG declined to make the factual determinations: whether a particular building qualifies as public assembly is for the college's governing board, and whether a local code meets the not-less-stringent standard is for the State Fire Marshal.

Citations

• Miss. Code Ann. § 45-11-101(1)(a)-(e) (scope of MFPC)
• Miss. Code Ann. § 45-11-101(2) (State Fire Marshal annual code review)
• Miss. Code Ann. § 37-4-1 (community/junior colleges as agencies of local government)
• MS AG Op., Dale (Sept. 27, 2000) (community college buildings not state-owned)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/02/J.-Lamar-February-3-2025-Jurisdiction-Over-Fire-Prevention-Code-of-Community-College-Building.pdf

Original opinion text

February 3, 2025

John T. Lamar, Jr., Esq.
Attorney for the Board of Trustees
Northwest Mississippi Community College
214 South Ward Street
Senatobia, Mississippi 38668

Re: Jurisdiction Over Fire Prevention Code of Community College Building

Dear Mr. Lamar:

The Office of the Attorney General has received your request for an official opinion.

Background

Northwest Mississippi Community College ("NWCC") is constructing a new building at its Southaven location. A question has arisen regarding which governmental entity has the authority to determine the standards and requirements for fire prevention and protection. The sources of funding for the new building are as follows: $7 million from the Economic Development Authority; $4 million from NWCC; $3 million from the state of Mississippi; and $1 million from DeSoto County.

Question Presented

Which entity has jurisdiction and authority over fire prevention and protection for a community college construction project? Specifically, is it the State Fire Marshal, the local governmental entity's fire marshal, or another entity?

Brief Response

The State Fire Marshal promulgates the Mississippi Fire Prevention Code ("MFPC"), which applies to all state-owned buildings, all buildings used for public assembly, and those buildings that are seventy-five feet tall or taller, so long as there is not a local fire code that is not less stringent than the MFPC. Miss. Code Ann. § 45-11-101(1)(a), (b), (c). Otherwise, the local code will apply, and the local fire marshal will have enforcement authority and jurisdiction. See Miss. Code Ann. § 45-11-101.

Applicable Law and Discussion

Section 45-11-101 provides in pertinent part:

(1) The State Fire Marshal shall promulgate the Mississippi Fire Prevention Code which shall apply to:

(a) All buildings owned by the state or state agencies;

(b) All buildings utilized for public assembly, except in any county or municipality which has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code; however, the State Fire Marshal or his authorized representative shall perform investigations or inspections of such buildings only when advised by interested persons of a danger or hazardous inflammable condition existing in any building that would tend to impair the safety of persons or property, or when the State Fire Marshal or his authorized representative believes the investigation or inspection is in the interest of public safety. The investigation or inspection shall be made in accordance with Section 45-11-3;

(c) All buildings, the permits for the construction of which are issued subsequent to July 1, 1978, and which are not less than seventy-five (75) feet in height; provided, however, that in any county or municipality which has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code, the provisions and enforcement mechanism thereof shall apply and not the Mississippi Fire Prevention Code;

. . .

(e) Any buildings, the permits for construction of which are issued subsequent to July 1, 2004, upon the request of any interested person. The interested person may submit the construction plans to the State Fire Marshal's Office for review and approval before construction to ensure compliance with the Mississippi Fire Prevention Code; however, in any county or municipality that has adopted a fire prevention code with standards not less stringent than the Mississippi Fire Prevention Code, the provisions and enforcement mechanism thereof shall apply instead of the Mississippi Fire Prevention Code.

. . .

(2) The State Fire Marshal shall annually examine the fire prevention codes adopted by counties and municipalities within the State of Mississippi and prepare a list thereof specifying which codes have provisions not less stringent than those of the Mississippi Fire Prevention Code.

The Mississippi Fire Prevention Code ("MFPC") applies to all state-owned buildings. Miss. Code Ann. § 45-11-101(1)(a). Because we have previously opined that community and junior college buildings are not state-owned and therefore not subject to Subsection (1)(a), the local fire code would generally apply, and the local fire marshal would have jurisdiction. MS AG Op., Dale at *1 (Sept. 27, 2000).

However, in accordance with Section 45-11-101(1)(b) and (c), all buildings used for public assembly and those that are seventy-five feet in height or more are subject to the MFPC and the State Fire Marshal's jurisdiction unless there is a local fire prevention code "with standards not less stringent" than the MFPC. Whether the building will be used for public assembly and/or is seventy-five feet or taller are factual determinations to be made by the governing board of the community college. Finally, an interested person may request that the State Fire Marshal review and approve the construction plans before construction begins to ensure compliance with the MFPC where there is not a local code in place that is not less stringent than the MFPC. Miss. Code Ann. § 45-11-101(1)(e). Whether any local fire code is not less stringent than the MFPC is a determination to be made by the State Fire Marshal. Miss. Code Ann. § 45-11-101(2).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General

[Footnote 1: Section 37-4-1 specifically states that community and junior colleges are "agencies of local government rather than agencies of the state."]