OPINION NUMBER 07-0148

Joey Langlinais, Assistant Fire Chief.

Attorney General of Louisiana — Opinion
Febuary 12, 2009.

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60 — Law Officers — Authority and Jurisdiction

LSA-R.S. 14:206(2); LSA-R.S. 40:1563.1; C.Cr.P. Art. 211

We conclude that the Youngsville Fire Department Investigator, who is P.O.S.T. certified, has the authority to investigate and arrest individuals for violating LSA-R.S. 14:206. However, we recommend that they cause a Summons to be issued in lieu of arrest as explained in C.Cr.P. Art. 211. In addition, individuals who paint fire hydrants can be charged with violating either LSA-R.S. 14.56 Simple Criminal Damage to Property or LSA-R.S. 14:59(A)(10) Criminal Mischief. Again, we recommend that a Summons be issued.
Joey Langlinais, Assistant Fire Chief Youngsville Fire Department 2715 Youngsville Highway Youngsville, LA 70592

JAMES D. “BUDDY” CALDWELL, Attorney General

Dear Chief Langlinais:

Based on your letter dated May 8, 2007 and our telephone conversations on June 7, 2007 and August 1, 2008, you have requested an opinion from this office regarding the following issues concerning the Youngsville Fire Department:

(A) Whether the Youngsville Fire Department Investigator, who is a commissioned Arson investigator, has the authority to enforce LSA-R.S. 14:206
when a homeowner plants shrubs, erects fences or otherwise does landscaping that hinders fire department access to a fire hydrant or causes a fire hydrant to not be immediately discernible?
(B)Whether a person can be charged with Simple Criminal Damage to Property or any other fire prevention law when they paint a fire hydrant?
(C) What actions can be taken against a person who (1) plants shrubs, erects fences and/or otherwise does landscaping that interferes with the fire department’s access to a fire hydrant or (2) paints a fire hydrant?

In reference to issue one, LSA-R.S. 14:206(2) states that Fire Prevention Interference is the intentional performance of injuring, destroying, removing or in any manner interfering with the use of anytools, equipment, towers, buildings, or telephone lines used in the detection, reporting or suppression of fires. In addition, LSA-R.S. 40:1563.1 (AX 12) states the state or municipal arson investigators, while engaged in the performance of their duties as such, shall

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have the authority to investigate and cause the arrest of individuals suspected of having violated LSA-R.S. 14:206. Moreover, LSA-R.S. 40:1563.1
(C) states that a fire marshal shall issue a commission to any state arson investigator who qualifies as P.O.S.T. certified to carry firearms allowing him to carry and use firearms and to arrest individuals
suspected of violating LSA-R.S. 14:206.

In reference to issue two, LSA-R.S. 14:56 states that simple criminal damage to property is the intentional damaging of any property, without the consent of the owner by any means other than fire or explosion. Thus, the ownership of the fire hydrant is paramount. Additionally, it should be noted that under LSA-R.S. 9:1253, any road or street which becomes a public road or street under R.S. 48:491 (B) shall be subject to servitude of public transportation and utility running in favor of theparish or municipality in which the road or street is located. This servitude shall extend directly above and below the surface of the public road or street and shall grant to the governing authority of the parish or municipality and any public utility authorized by such governing authority the right to construct and maintain all public utilities, including but not limited to, the right to lay water lines, natural gas lines, sewerage lines, and electrical, telecommunications, and cable television lines.

Another criminal statute that may be used for this type of behavior is LSA-R.S. 14:59 (A) 10, Criminal Mischief is the intentional performance of placing graffiti upon immovable or moveable property, whether publicly or privately owned, without the consent of the owner, by use of spray paint, ink, marking pens containing nonwater soluble fluid, brushes, applicators, or other materials for marking, scratching, or etching. “Graffiti” includes but is not limited to any sign, inscription, design, drawing, diagram, etching, sketch, symbol, lettering, name, or marking placed upon immoveable or movable property in such a manner and in such a location as to deface the property and be visible to the general public.

As for issue one, since the wording of LSA-R.S. 14:206 is broad and encompasses “any manner interfering with the use of any tools, equipment . . . used in the suppression of fires,” then planting shrubs, erecting fences and any other landscaping that interferes with the use of the fire hydrant may be prohibited. Additionally, under LSA-R.S. 40:1563.1 the state or municipal arson investigator shall have the authority to investigate and cause the arrest of the individuals. It should be noted that the authority to cause the arrest is itself not the authority to arrest. It appears to simply be the authority to get a P.O.S.T. certified peace officer to arrest based on the recommendation of the arson investigator. However, in accordance with LSA-R.S. 40:1563.1(C) provides that if an arson investigator is qualified as P.O.S.T. certified to carry firearms which allows him or her to carry and use firearms then that investigator has the authority to arrest individuals suspected of violating LSA-R.S. 14:206.

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For issue two, criminal charges may be brought against a person for defacing or otherwise painting a fire hydrant under LSA-R.S. 14:56 or 14:59
(A) 10. Also, the local municipality may be able to request that all things interfering with the servitude be removed and if not removed, then the City Attorney may be bring a civil suit against the adjacent land owner for costs of the removal. Subsequently, the arson investigator cannot arrest citizens based on the above criminal statutes because an arson investigator can only arrest citizens based on LSA-R.S. 14-206. However, an arson investigator can cause a Summons to be served in accordance with C.Cr.P. Article 211 for misdemeanor violations such as the ones listed above.

In reference to issue three, the Youngsville Fire Department has many options as it relates to what actions can be brought against citizens for planting shrubs, erecting fences and/or otherwise doing anything that interferes with the fire department’s access to a fire hydrant or painting a fire hydrant a different color than originally painted. The first option that I would recommend is for the Fire Chief or Mayor write a courtesy letter to each adjacent property owner explaining the problem and the safety issues surrounding it and allow the owners 15-30 days to cure the problem. If still not resolved, have a local deputy or peace officer respond to the residence and cause a Summons to be issued in accordance with C.Cr.P. Article 211 for either simple criminal damage to property or for criminal mischief if it’s a fire hydrant defacing issue. If the problem is for a fence or other landscaping issues, then I would have the arson investigator or peace officer issue a Summons for violating LSA-R.S. 14-206, Fire Prevention Interference. All criminal statutes listed above are misdemeanors and carry a maximum fine of $500 and up to 6 months of jail time. Please note that this legal opinion is based on the Louisiana Revised Statutes and does not reference the International Fire Code, which appears to apply only to commercial buildings.

We trust that this adequately responds to your request. However, if our office can be of any further assistance, please do not hesitate to contact us.