Opn. No. ( 1977 )

HARRY C. TOWNSEND Secretary, Howells Fire District

We acknowledge receipt of your letter inquiring whether the board of fire commissioners of your fire district may charge a rental fee to fire district residents and to groups such as boy scouts and girl scouts for use of the fire hall as a meeting place and as a place for community activities.

Under certain circumstances, the leasing of the property might bring the property within the definition of a "place of public assembly" as that term is defined in the Labor Law § 2, subdivision 12 in which case the premises would be subject to the provisions of Labor Law Article 17. A discussion of this proposition is contained in a formal opinion of the Attorney General published in 1962 Op. Atty. Gen. 33.

Under Town Law § 176, subdivision 19 exclusive management and control of the fire district property is vested in the fire district commissioners and they may lease a portion of a firehouse if such use of the firehouse will not interfere with the purposes for which the firehouse was designed.

Real Property Tax Law § 410 grants a tax exemption to property of a fire district if the property is used exclusively for public purposes. A corollary of this proposition is that if the property is used to produce income then the assessors may not continue the tax exemption on the property. Thus, the fee charged for the use of the property should be designed only to cover the expenses of cleaning and maintenance so that no profit will result. This proposition is discussed in informal opinions of this office reported in 1958 Inf. Op. Atty. Gen. 22 and 1968 Op. Atty. Gen. 63.

Town Law § 176, subdivision 14 authorizes the use of fire district buildings "for the social and recreational use of the firemen and residents of the district". Under this provision, residents of the district may be allowed to use the property for social and recreational use without charge and there is no reason why formalized groups such as the Scouts may not be allowed the use of the premises for this purpose.

Copies of the above referred to opinions are enclosed herewith for your examination.

In our opinion, a board of fire commissioners may charge a fee or rental for use of the fire hall by fire district residents and formal groups made up of residents, or may allow the free use of the fire hall by them; a fee or rental may be charged to non-residents of the district and formal groups not limited in membership to residents of the fire district; such use, if it makes the use of the premises fall within the Labor Law definition of a place of public assembly, subjects the property to Labor Law Article 17; if rental from the premises results in any profit the tax exempt status of the property may be lost; any use of the property is subject to reasonable regulation by the board of fire commissioners.