|Legal Opinion: |
Text of Document: July 12, 1996
This letter is in response to your questions regarding the application of Tenn. Code Ann. § 68-120-113 to the situation in your city. As I understand the situation, the building inspector who is currently under contract with the city has failed to receive certification from the state fire marshall as required by the statute. The person that the city has considered hiring is scheduled to take the test in August, however, he has also previously served as building inspector. Your question is how should the city proceed with regard to (1) inspecting the buildings where construction is in progress; and (2) hiring a new inspector.
Tenn. Code Ann. § 68-120-113(a)(1) provides in part as follows:
After July 1, 1994, all municipal and county fire prevention and building officials having jurisdiction to enforce the provisions of this chapter shall receive certification from the state fire marshall before enforcing applicable building and fire codes. An application for certification shall be filed with the state fire marshal. A fire safety or building inspector employed on July 1, 1994, shall have up to twelve (12) months to receive certification following July 1, 1994, and any fire safety or building inspector hired after July 1, 1994, shall have up to twelve (12) months from the date of employment to receive certification. . . .
Your initial question was whether the city could retain the current building inspector longer than twelve months for the sole purpose of finishing inspections on the projects that he has been involved. The statute is clear that he does not have jurisdiction to enforce applicable building and fire codes after the twelve month period, unless he is certified. Therefore, he may not serve as building inspector on these or any other projects after this time expires. There are cities that retain inspectors to finish projects they have begun under the supervision of another building inspector. This may be an option to consider.
Your second question was whether the city could allow someone who has previously served as building inspector (but who also was not certified) to serve again at least pending the results of his next test. The statute does not expressly state that someone who has previously acted as building inspector may not be rehired and given twelve months to be certified, however, this idea is probably contrary to the spirit, if not the intent of the statute. The fact that his employment has not been consecutive and that he will only be allowed to serve until the results of his August test are released would help support the city's argument, but I cannot say how a court might interpret this situation.
Obviously, the best alternative would be for the city to hire a certified building inspector, or at least someone not previously employed as an inspector and who it reasonably believes would be certified within twelve months. However, if the city cannot find anyone to meet these qualifications, they at least have an argument that the previous building inspector should get another chance to be certified. The city has no such argument with regard to the current inspector.
Please let me know if I can be of any further assistance regarding this or any other matter.
MTAS Legal Consultant