Brad Schimel: Rule requiring fire sprinklers in apartment buildings is unenforceable

Wisconsin regulators can’t enforce a rule requiring sprinklers in large apartment buildings, Republican Attorney General Brad Schimel said Friday in a victory for builders looking to save on costs.

The state Department of Safety and Professional Standards adopted a rule in 2008 that requires sprinklers in apartment buildings built after Jan. 1, 2011, that have more than four units. Gov. Scott Walker signed a law in May of 2011 known as Act 21 that prohibited state agencies from writing rules that are more restrictive than state law. In this case, statutes declare that sprinklers are required in apartment buildings with more than 20 units.

The Wisconsin Builders Association questioned whether the 2008 requirement is valid in light of Act 21, arguing the rule is more restrictive than statutes. Fire safety advocates warned that abandoning the rule would be dangerous.

DSPS officials asked Schimel in July for a formal legal opinion, which Schimel issued Friday. He wrote that the requirement is indeed more restrictive than the 20-unit minimum required by state law.

Schimel acknowledged that Act 21 has far-reaching consequences and that, in some cases, it will invalidate a state agency’s “arguably laudable policy choices.” But he said the Legislature, in passing the law, decided agencies shouldn’t make those types of policy choices.

“As a result, Act 21, where it invalidates rules as it does here, may create gaps of unregulated conduct, and these gaps will remain unfilled until the Legislature chooses to act, or by its silence, decides that particular conduct should remain unregulated,” Schimel wrote.

Messages left with the builders association and the Wisconsin State Fire Chiefs Association on Friday afternoon weren’t immediately returned.

According to a campaign finance database kept by government watchdog group Wisconsin Democracy Campaign, Schimel has received $154,185 from donors with ties to the construction industry since mid-2013. His spokesman, Johnny Koremenos, didn’t immediately reply to an email asking if the donations played a role in Schimel’s opinion.