Fire Code Enforcement: Three Strikes and You’re Safe!

By ED RUCKRIEGEL

Fire code enforcement is often seen simply as conducting inspections, noting violations, and conducting reinspections to ensure violations have been corrected. In its pure and simple form, this is true. When the violation notice provides accurate information and the property owner or contractor acts accordingly, code enforcement is clean and simple. Conversely, when a responsible party ignores the notice, allows the violation to persist, or otherwise fails to respond, the code enforcement authority must act. In reality, code enforcement can be complex and challenging.

Most cities have a defined compliance enforcement process when violations persist. Depending on local, county, and state rules, municipalities may have few or many options for legal action against the property owner. Most often, they include reinspection fees, citations, and prosecution for extraordinary code violations. However, code authorities may wish to consider other options.

FINES OR FIRE SAFETY?

After a period of noncompliance and mounting fees, penalties, and fines, a municipality may want to consider how such expenses affect safety. By collecting assessments against the owner, the municipality may in fact be negatively impacting building occupants’ safety or living conditions. A fine impacts the bottom line and reduces funds available to the owner for basic maintenance and fire safety compliance.

In Madison, Wisconsin, an assistant city attorney suggested requiring fire protection upgrades in lieu of fines. This approach was used a couple of times. Improved fire protection in lieu of fines works when the fines reach an amount that would pay for fire protection. If fines exceed a few thousand dollars, then this option may improve facility safety. For example, the owner may be offered the option of investing the amount of the fines or penalties in the built-in fire protection of the building. In lieu of paying $150,000 in fines, the owner must instead spend that $150,000 on fire sprinkler system upgrades or fire alarm system improvements. This option can be a big win for the city and for the building occupants. Compliance is achieved through a legal process, and fire safety is improved for occupants and firefighters.

The municipality’s legal counsel could codify or propose this code enforcement option when negotiating a settlement. A discussion between attorneys immediately before going to court can be a powerful tool. The prudent property owner will want to spend money, even on fire protection, rather than just write a check to the municipality. The fire marshal should discuss this approach with the city attorney’s office in advance to determine whether it requires a process prescribed by local ordinance or if it is something to consider when negotiating a settlement of fines.

THREE STRIKES … YOU’RE SAFE!

Repeat violations can be a tough cycle to break. In some buildings, it seems the exit signs are always out. In other residential buildings, it seems one or more of the common area smoke alarms are constantly chirping the low-battery signal.

The “three strikes” concept developed from a staff discussion about how to deal with repeat violations in Madison. If it works to deter repeat criminals, it could work to prevent repeat fire code violations. This code enforcement tool is winning the battle against ongoing violations. Many properties now have devices that prevent repeat violations and take compliance out of the hands of neglectful property managers. It is a very effective deterrent; often, property managers change behaviors when they know the next step will be more costly.

For specific violations, the owner could implement the following appropriate solutions:

The municipality would decide whether two or three repeat violations will trigger the solution. The chief must decide whether repeat violations (noted on initial inspections) or nuisance violations (noted on initial inspections and on reinspections) would trigger the required safety improvements. The code official’s tolerance for finding the same violations time after time will set the threshold for mandating the prescribed safety improvement.

Using or adopting a three-strikes fire code enforcement policy offers many advantages. The solutions to the repeat violations are more permanent and take some of the fire safety responsibility from the owner by using low-maintenance or automatic systems and components. Mandating fire-safe solutions for repeated violations saves the department time and money, allowing the inspection staff to focus on other fire prevention efforts and reducing or eliminating the ongoing reinspection cycle for a violation at a given property.

Madison uses the International Fire Code as the basis for its fire code. The city’s General Ordinances Chapter 34.01 (7) (b) provides the following: 

Order Requiring Replacement of Fire Prevention, Detection or Suppression System Due to Recurring Violations.
Whenever the Chief shall find in any building or upon any premises during any three consecutive inspections or reinspections a fire prevention, detection or suppression system which is defective, inoperative, improperly maintained or improperly operated, the Chief may order the following remedies:
1. If the system includes one or more exit light(s) which have not been illuminated during inspections, the Chief may order that all of the exit lights in such premises be equipped with self-illuminating lights or lights equipped with light emitting diodes (LED);
2. If the system includes one or more self-closing fire door(s) any of which have been found to have been held open with non-approved hold-open devices during inspections, the Chief may order that all of the fire doors in such premises be equipped with an automatic closing device;
3. If the system includes one or more battery-operated smoke alarm(s) which have been inoperative during inspections, the Chief may order that the premises be equipped with smoke alarms hardwired into the premises electrical service;
4. If the system includes emergency exit doors which, during hours of occupancy, have been found to be secured or locked with bolts, bars, chains, padlocks or locking devices other than the primary door lock, the Chief may order the removal of such bolts, bars, chains, padlocks or additional locking devices, and the Chief may further order that all emergency exit doors within the premises be equipped with panic door release hardware;
5. This subsection shall not be construed as a limitation upon the powers of the Chief to issue orders for corrections of violations, nor shall this subsection be construed as a limitation upon any of the powers of the Chief under any other applicable provision of the ordinances.

DO THE RIGHT THING—TAKE ACTION!

Most fire code officials have dealt with the absentee property owner or the owner who is impossible to track down for code enforcement. On occasion, fire code officials discover life safety violations or imminent hazards in properties whose owners are nowhere to be found. With this discovery, the fire department must act to protect building occupants. Vacating the building is the approach most often considered, but such action can open the door to a whole set of other problems: Where do the residents relocate temporarily? How do you keep them out of the building? Is the department now responsible for the residents and the building? Does taking control solve the problem? If doing nothing is not an option, consider another problem-solving approach.

A fire department facing an occupied building with a significant hazard or many hazards and with no responsible party available should consider contracting with vendors to abate the hazard. It may be as simple as hiring security to serve as a fire watch or contracting a sprinkler fitter to restore the fire sprinkler system. The hazard or violation will determine the type of service or level of service the department must purchase. At the end of the day, occupants are protected, and the fire department did the right thing.

Before taking action to mitigate the hazard, the fire chief may want to make sure legal counsel and elected officials support such action. In addition, the municipality will want to have the authority to bill the property owners or add the cost of services to the property tax assessment.

The bold and seldom-used authority for the chief to abate hazards requires careful consideration, legal authority, policies for staff to follow, and confidence in staff to cautiously and judiciously use the authority. When something must be done immediately because of an imminent hazard, the chief must act on behalf of the occupants and life safety. Madison’s General Ordinances Chapter 34.01 (7) (e) provides the following: 

Authority to Abate Hazard.
The Chief shall have the authority to order the immediate abatement of any hazard deemed by the Chief to be an imminent hazard to the life, safety, and well-being of the public. Whenever the owner shall refuse or neglect to abate said hazard, the Chief may cause the same to be abated and the City shall recover the expenses incurred thereby from the owner. The Chief shall keep an accurate account of all unpaid expenses incurred by the City for hazard abatement rendered and report the same to the City Comptroller, who shall annually prepare a statement of these special charges at each lot or parcel of land and report the same to the City Clerk, and the amount therein charged to each lot or parcel of land shall be collected in all respects like other special charges upon real estate as provided in section 66.0703 of the Wisconsin State Statutes.

PERSONAL SERVICE

In code enforcement, personal service is a legal process in which an individual serves another individual with a notice, citation, or summons. A different form of personal service can be applied in code enforcement. When the department has outstanding violations and someone in the command staff or fire prevention division knows the responsible party—professionally or personally—that staff member may want to contact that acquaintance to discuss the situation. Simply explaining the prosecution process personally can be enough to get the owner to act. The personal approach can work well when dealing with friends, other managers in government positions, and even the local “big shot.” It works well when the acquaintance has some authority but may not be aware of the fire department’s pending action. The purpose of the call is to discuss the violations and the next steps in the compliance process, not to work out a deal or compromise.

A personal call from the chief, fire marshal, or inspection official to property owners known in the community can have a big impact. The fire chief’s touch tells the owner it is important and noncompliance is not an option. Further, a personal call from the chief can make a pretentious property owner feel important and, therefore, more likely to comply. Of course, this approach relies on the chief or code official knowing the personality of the property owner and can be very effective.

The personal service approach is often underused in departments. To some, it has negative connotations. Others see it as infringing on friendships. Conversely, personal service can build relationships and rapport. Responsible friends and peers appreciate the personal touch. Many managers like a “heads up” before a citation is issued or legal action is started. Personal service works when the conditions warrant.

RESULTS

The authorities, techniques, and processes described herein have varying results. In one case, an owner was required to spend more than $350,000 on fire protection upgrades in six buildings in lieu of writing a check to the city. This owner has downsized his property management operations and is now very responsive to violation notices. Another property owner is now cooperating with inspection staff simply because he received a “do better” talk from the chief. The authority to abate hazards has empowered command officers and fire investigators to turn an unsafe situation into something with which they are comfortable when other options are not available. The mere threat of imposing one of the three-strikes consequences can directly change behaviors. A combination of creative and conventional code enforcement approaches will improve fire safety.

The Madison Fire Department uses the outlined techniques to achieve a high level of compliance. Implementing the code enforcement tools makes it clear the department is serious about code enforcement. The measures work, and they improve safety for occupants and firefighters.

From inspection through compliance, fire inspection is a defined process and varies according to local rules and state statutes. The fire department’s authority to take action against persistent violations and absent property owners also varies. Look outside the department’s current defined process to find some new approaches to an old problem: property owners who neglect to operate or manage a fire-safe building. Creative thinking, solution-based problem solving, and a willing governing authority can open doors to more comprehensive options for code enforcement.

REFERENCE

City of Madison, Wisconsin, Fire Prevention Code, Chapter 34, www.cityofmadison.com/fire/documents/MGOchapter34.pdf.

ED RUCKRIEGEL has been fire marshal for the Madison (WI) Fire Department since 1994. He became a fire protection engineer for the city in 1990. A 30-year veteran of the fire service, he began his career as a volunteer firefighter. Ruckriegel has a bachelor’s degree in fire and safety engineering technology from Eastern Kentucky University.

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