IIAR

By Jeffrey M. Shapiro, PE., FSFPE

If you operate a place of business, do you fear “the inspector?” Lurking in the minds of many business owners is a lingering worry that “the inspector” will walk in one day and wreak havoc on their operation by requiring expensive upgrades to the facility, equipment or operations.

The most obvious way to manage this fear is to ensure that your facility is safely operated and well maintained. Nevertheless, because codes are voluminous, complex and ever-changing and because inspectors vary in their level of knowledge, training and experience, there is always a possibility that the outcome of a compliance inspection won’t go as well as one might hope.

When it comes to dealing with local code enforcement inspections related to fire or building safety, I can offer you three particularly beneficial pieces of advice:

1. Get it in writing, 2. Know the code, and 3. Know your rights.

1. Get it in writing: Fire and building safety field inspectors do not write laws. Their role is to interpret and enforce them, and some will do a better job than others. When a code compliance issue can be easily remediated, such as unblocking a path of egress or fixing a broken or inoperable safety device, deal with this issue quickly and cooperatively and you may be able to get an inspection notice that shows “no violations found.” When compliance questions or issues are more complex or expensive to remediate, be sure to request that the inspector provide you with a written notice, and more importantly that the notice to cite the code section that serves as the basis of the applicable requirement. Without knowledge of the specific code section being applied, you may spend many hours playing “what if” games researching the code trying to find the relevant requirement.

2. Know the Code: Assuming that you were successful in getting the inspector to cite a particular section of the code associated with a violation notice, you’ll need to get a copy of the code to review and research. These days, that task has become somewhat easier, as most codes and many standards are now available on-line (www.nfpa. org provides access to National Fire Protection Association documents, and www. iccsafe.org provides access to the International codes). In many cases, these documents can be viewed on-line for free.

Model code organizations, such as NFPA and ICC, also publish a variety of handbooks and commentaries on their codes and standards to assist users in understanding the background and intended application of these documents. However, don’t regard these support documents as gospel, as they typically represent the opinion of the author and lack a formal peer review process. The information may be incomplete or even incorrect.

As a general rule, some degree of “grandfathering” is permitted by all major codes and standards. The concept of grandfathering basically allows an existing business to continue operating under the rules that were in effect at the time of initial occupancy rather than requiring compliance with the latest codes and standards. However, there are exceptions to the general rule, which are typically spelled out in code sections governing retroactivity (e.g. International Fire Code, Section 102).

Such exceptions may include new code requirements that are administrative, operational or maintenance related. These are often treated as retroactively applicable to existing occupancies because they do not change an existing “condition,” such as building construction or equipment. For example, an updated code requirement to maintain records or reports or to store combustible materials a specified distance from sources of ignition might be enforced in existing occupancies, versus deferring to an old, outdated code requirement that previously applied.

Another exception may include code requirements that specifically state that they are retroactive to existing buildings and occupancies. Such requirements often involve basic safety requirements that certain buildings and occupancies should meet in all cases, such as minimum provisions for safe egress. In the case of the International Fire Code, specifically retroactive requirements were scattered about the code based on the specified topic. Beginning with the 2009 edition, all of these requirements were gathered into a single location, the new Chapter 46.

The International Code Council also publishes a separate code called the International Existing Buildings Code (IEBC), which specifies minimum requirements that are retroactive to existing buildings and occupancies, and the National Fire Protection Association publishes a code called NFPA 101 – Life Safety Code that includes separate chapters that are retroactive to existing occupancies. Although these codes are not as widely adopted as the major fire and building codes, they do provide useful guidance even in cases where they are not specifically adopted.

If a notice of violation pertains to an area that has been altered or added since original occupancy, special code allowances may apply. The International Building Code contains a single chapter, Chapter 34 that provides some relief for additions, alterations or changes in use versus what would be required for new construction. The International Existing Buildings Code handles such situations more comprehensively. One or both of these sets of requirements may be adopted by a jurisdiction.

Except as noted above, existing occupancies and conditions are not typically required to comply with the latest code provisions. So if, for example, the latest code added a requirement to provide a fire protection system in a newly constructed refrigerated warehouse, that requirement would not ordinarily apply to an existing warehouse lacking such protection as long as the existing warehouse has remained complaint with the regulations that governed original occupancy. On the other hand, if you are installing new equipment in an existing occupancy, expect that you’ll be required to comply with the latest code requirements governing that equipment.

3. Know your rights: If you have a written notice of violation, have researched code applicability and have determined that you disagree with a field inspector’s interpretation or application of the code, there are several options available for you to contest a field inspector’s decision. First and foremost, discussing your disagreement with the inspector in a non-confrontational manner is often a good starting point. Writing a letter to the inspector explaining the basis of your position may be a good way to kick off that discussion, and if you’ve developed documentation to support your position based on researching handbooks or other authoritative sources, provide that documentation as an attachment to or citation in the letter.

If the letter proves ineffective, requesting a face-to-face meeting with the inspector at your facility is often a good next step, as may be requesting a meeting with the inspector’s supervisor.

Bear in mind that a disagreement over code application shouldn’t offend the inspector personally, but it nevertheless may. Be sure to thoroughly document all of your exchanges so that you’ll have evidence of what’s taken place should things go South.

The next step in resolving a code compliance disagreement is typically a hearing by a “Board of Appeals.” These boards are established in most jurisdictions to resolve disputes between code enforcers and those who have been cited. Members of such boards are often practicing professionals involved in the local construction or business communities, and they are empowered, as a group, to overrule decisions by local officials, provided that their rulings are not allowed to constitute an outright waiver of a code requirement.

Next stop if the disagreement continues is the court house. If you get to that point, you’ll need more than this article to guide you!

Finally, bear in mind that negligence of the law is not an excuse for non-compliance. If an inspector comes to your facility and notices a violation to a code provision that you weren’t even aware of, you’ll still be required to comply with applicable regulations, even if the violation has existed for many years and even if it’s been missed by countless inspectors in the past. For example, if you made some alterations to your facility without a required permit or performed work that was not in compliance with the code provisions that were applicable at the time, local officials have full authority to require that such work be upgraded to comply with the latest code.