Number 13 December 12, 1972

Number 13 December 12, 1972 Honorable John F. Kehoe, Jr. Commissioner of Public Safety 1010 Commonwealth Avenue Boston, Massachusetts 02215 Dear Commissioner: You have requested my opinion whether St. 1972, c. 684, §§ 59, 60 requires the Department of Public Safety to collect fees from both the Commonwealth and private builders and owners of property for certifi- cates granted pursuant to G. L. c. 143, §§ 15 and 28. Specifically you ask: (1) Is the Department required to accept a fee prior to the issuance of a "certificate of approval" or "specification of requirements" by a local "supervisor of plans" for a building or structure under said local supervisor's jurisdiction pur- suant to G. L. c. 143, § 15? (2) Is the Department required to accept a fee prior to the issuance of a "certificate" by a local "inspector of buildings" for a building or structure under said local "inspector's juris- diction" pursuant to G. L. c. 143, § 28? (3) Is the Department required to charge a fee for the ap- proval of plans and specifications for buildings owned or oc- cupied by the Commonwealth or any of its political subdivi- sions pursuant to G. L. c. 143, § 15? (4) Is the Department required to charge a fee for the in- spection of buildings owned or occupied by the Common- wealth or any of its political subdivisions pursuant to G. L. c. 143, § 28? General Laws, c. 143, § 15 requires the issuance of a "certificate of approval" or "specification of requirements" prior to the erection or alteration of any public building. Similarly, G. L. c. 143, § 28 requires 66 P.D. 12 the periodic issuance of ''certificates" by inspectors for all buildings and structures within their jurisdictions. St. 1972, c. 684. §§ 59, 60 provides that both the "certificate of approval or specification of requirements" required by G. L. c. 143, § 15 and the "certificate" required by G. L. c. 143, § 28 ""shall"' not issue unless a prescribed fee is paid to the Com- missioner. In 1939, one of my predecessors rendered an opinion to the then Di- rector of the Board of Registration of Hairdressers, which stated lan- guage similar to St. 1972, c. 684, §§ 59, 60 was mandatory and indicated payment of the required fee operated as a condition precedent to is- suance of the required certificate. 1938-39 Op. Atty. Gen. 111. Another of my predecessors rendered a further opinion that the nonpayment of a fee will render the issuance of a license void. 6 Op. Atty. Gen. 663. I interpret the provisions of St. 1972, c. 684, §§ 59, 60 in accordance with the views expressed in both of those opinions and am of the opinion that the word "shall" as used in the 1972 amendments renders payment of the prescribed fee mandatory prior to the issuance of a "certificate of approval, specification of requirement" and "certificate" provided in G. L. c. 143, §§ 15, 28. Accordingly, I answer your questions one and two in the affirmative. Your third and fourth questions ask whether the fees required by St. 1972, c. 684, §§ 59. 60 apply to buildings owned or occupied by the Commonwealth or any of its political subdivisions. In a recent opinion I noted that the regulation and inspection of buildings maintained by the Commonwealth, except the State House, is governed by Chapter 143 of the General Laws. Op. Atty. Gen. 71/72-36. The first sentence of § 2 of said chapter provides: "The provisions of this chapter relative to the safety of persons in buildings shall apply to buildings and structures, other than the state house, owned, operated or controlled by the commonwealth, and to buildings and structures owned, operated or controlled by any department, board or commis- sion of the commonwealth, or by any of its political subdivisions, in the same manner and to the same extent as such provisions apply to privately owned or controlled build- ings occupied, used or maintained for similar purposes." (Emphasis supplied.) It is well established that the above-quoted section has fashioned an exception to the general principle of law that statutes are not to be inter- preted so as to impose a burden upon the sovereign, since a clear legisla- tive mandate exists authorizing the Department to regulate and inspect certain buildings owned and operated by the Commonwealth. See Op. Atty. Gen. 71/72-36; 1967 Op. Atty. Gen. 221 (electrical wiring); 1961 Op. Atty. Gen. 136 (gas fittings); 1962 Op. Atty. Gen. 74 (gas fittings); compare, Medford v. Marinucci Bros, & Co., Inc., 344 Mass. 50, 55-56 citing Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440; 1955 Op. Atty. Gen. 100. I note the express language of G. L. c. 143, § 2A P.D. 12 67 applies the provisions of Chapter 143 to certain buildings under the Commonwealth's control so as to provide for the safety of persons oc- cupying such buildings. Accordingly, opinions of my predecessors and myself have interpreted the scope of section 2A to include a broad vari- ety of inspections of buildings under the Commonwealth's control. See, e.g.. Op. Atty. Gen. 71/72-36; 1967 Op. Atty. Gen. 221. However, in my opinion the fees exacted for certificates pursuant to St. 1972, c. 684, §§ 59, 60 do not directly relate to the promotion of public safety, but rather serve to underwrite the normal expenses incidental to a system of registration and inspection and therefore fall outside of the scope of sec- tion 2A. It is also my opinion that requiring agencies of the Common- wealth to transfer funds in payment of certificate fees prior to undertak- ing necessary public projects would constitute the type of burden prohi- bited in Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440. It is my further opinion that where the Commonwealth is exempt from licensing fee provisions similar to St. 1972, c. 684, §§ 59, 60, an indepen- dent contractor, under contract to accomplish a governmental project, is likewise exempt from such a provision. Medford v. Marinucci Bros. & Co.. Inc., 344 Mass. 50, 57-58; 1967 Op. Atty. Gen. 221; 1955 Op. Atty. Gen. 100. I therefore answer your questions 3 and 4 in the negative. Very truly yours, ROBERT H. QUINN Attorney General