City of Portland v. Building Codes Div.

Under ORS 455.77(2), investigative authority, which is authorized under subsection (1), covers a violation or omission by enforcement of codes when . . . .”

The City of Portland (The City) appealed a final order of the Director of Department of Consumer and Business Services, Building Codes Division (BCD), that concluded a provision of Oregon’s building code preempted a city ordinance which required high-occupancy nightclubs to have fire sprinklers.  After The City enacted a new ordinance requiring nightclubs in the city to install and maintain fire sprinkler systems in occupancies of 100 or more people, BCD informed The City that it had “plenary and exclusive authority” over buildings and issued a notice that alleged The City violated the state building code by enacting and enforcing the fire sprinkler ordinance. Under ORS 455.77(2), investigative authority, which is authorized under subsection (1), covers a violation or omission by enforcement of codes when . . . .” The Court held that ORS 455.770(2) was intended as a substantive limitation to the BCD’s investigative authority under ORS 455.770(1), and the statute does not authorize investigation of a city for enacting an ordinance nor authority to order penalties and repeal of the city’s ordinance. Reversed.