CODE ENFORCEMENT CRITICAL TO FIRE PREVENTION
During the past 10 years, the field of fire code enforcement has become more professional. Many states have adopted minimum standards for educating and training code enforcement officials and have increased the emphasis on continual in-service training and education. The knowledge of code enforcement personnel has increased greatly, and their ability to cite problems and intelligently discuss code infractions is at a level where they often can question the work of certified architects and engineers.
HAZARDS ARE DIFFICULT TO CORRECT
So then why is it so difficult to get a wide variety of moderate and severe hazards corrected? Some of the obstacles we have encountered are discussed below.
Increasingly, especially in urban/ suburban settings, property owners and tenants—whose only motivation is to make the most money possible without spending any funds to maintain their locations —are perpetuating life-threatening fire code violations on their properties. Included in this population are owners of multiple run-down properties, proprietors of quick-money schemes who have no intention of running a legitimate business, paper corporations hiding their assets and the identities of investors, and property owners who do not have the financial means to comply with the code.
In the state of New York, for example, we encountered the following violators:
- a paper corporation that leased a 15,000-square-foot building, filled it with hazardous chemicals and flammable liquid waste, and then abandoned it because it was too expensive to dispose of the materials;
- a property owner who rented rooms to 35 separate tenants in a single-family, three-bedroom frame house, using every’ inch of space from the attic to the cellar;
- a public assembly/bar/club located in the same building as a highhazard occupancy —in violation of the local building code — and with fire separations breached in several dozen spots; and
- an auto-bodv shop that continually sprays flammable liquid finishes on automobiles without having a codeapproved spray booth. The autos are sprayed inside and outside the shop while cutting torches are used nearby.
In these cases, despite the fire code enforcement official’s having used the best selling and public relations skills to define and discuss the above violations with the property owners or proprietors and a variety of persuasive techniques to attempt to get the violators to comply, zero results were obtained.
We have found that the trend today is for people to question and defy authority: The paper corporation with the hazardous chemical accumulation evades us; the owner of the framehouse renting bed space verbally threatens us; the bar owner plays dumb, ignores us, and continually asks us to explain the problem; and the local auto body shop owner laughs every time we inspect and says, “I will do as I please, and you ain’t gonna do nuttin’ about it!”
LEGAL AUTHORITY NEEDED
Is the administrative portion of your fire prevention code strong enough to give you the legal authority you need to deal with these kinds of conditions? The three model fire prevention codes provide specific particulars and technical administrative details for dealing with many aspects of fire prevention, but it is especially important that the code provide the fire marshal/inspector with the authority to enter premises (following specific legal entry procedures), eliminate dangerous or hazardous conditions by serving immediate “vacate” orders, serve immediate violation orders and/or summonses, serve summonses on vehicles in fire and hydrant zones, and administer a permit system that includes a legal mechanism for denying owners/tenants approval for certain uses/processes in cases where violations are not corrected.
Some communities that have had a problem with fire code enforcement and difficulty in achieving minimal standards of safety in many occupancies or that have encountered serious violations in which rapid abatement of the hazard has been difficult have designated fire marshals/inspectors as “peace officers”; these personnel are sworn agents of the state and their authority is defined in the state statutes.
Peace officer/fire marshal inspectors in many states have the power to do the following:
- make “warrantless” constitutionally permitted searches of premises where imminent hazards exist,
- submit simplified court information to criminal courts, and
- make arrests as permitted by penal law and the specialized rules and regulations pursuant to special
- job-related authority.
The intent of designating fire marshals/inspectors as peace officers is to enforce the law for instances deemed an imminent threat to life safety when all avenues to gain voluntary’ compliance have been sufficiently exhausted. What is the advantage of having a sufficiently trained fire marshal/inspector cite severe hazards to life safety and having no mechanism for enforcing measures to correct them? Many times, knowing that the fire marshal/inspector has the legal power to follow through to enforce the code is enough of a deterrent to having infractions become permanent violations. Obviously, issues of noncompliance for less severe hazards can be handled through the court system.
AUTHORITY TO ENTER PREMISES
In the beginning of the fire prevention administrative code, it is important to define the fire marshal/inspector’s ability to legally enter a premises. It might be worded as follows: “The fire marshal and his deputy and assistant fire marshals may, during all reasonable hours, enter any building or premises, except the interiors of oneand two-family dwellings, for the purpose of inspection or investigation to ascertain the existence of any condition which may cause a fire, endanger life due to fire, or violate the purpose or intent of this code. Where exigent circumstances may warrant inspection and investigation, the fire marshal has the legal authority to enter such premises at any hour of the day.”
This should give the fire marshal/inspector the authority needed to enter in most circumstances. In addition, if the fire marshal/inspector is a sworn peace officer and has reasonablecause to believe an imminent hazard endangering life safety exists, he or she would have constitutional authority’ to make the inspection to ascertain whether the conditions exist.
The need to invoke these portions of the code and law are not necessarymost times. However, the legal authority would be available if a severe hazard to life and property is detected and entrance to the premises is denied or physically barred.
The fire marshal/inspector must have the ability to issue a summons to the code violator who chooses not to correct the violations despite having been given sufficient opportunity to do so. In some situations where circumstances are life-threatening, issuing a summons may be warranted on detection of the hazard. Communication with the special district attorney who prosecutes the case is needed so that he or she fully understands the degree of danger the violation poses and that the intent of the citation is to gain compliance, not collect a fine. Where the ordinance is constantly and deliberately violated, the fire marshal/inspector might be given the opportunity to request that the prosecutor ask that the maximum penalty be levied in an attempt to force compliance.
THE COURT INJUNCTION
In some instances where summonses repeatedly have been issued in an attempt to get a condition remedied, a court injunction may be more effective. Usually issued in a state’s higher court, this order stipulates that the violator refrain from a certain practice/violation, remove a material stored, correct a hazardous condition, or vacate a structure.
Obtaining an injunction involves having a formal court hearing; serving the order; and ultimately enforcing the order, either with the violator’s cooperation or by the enforcers’ physically vacating and padlocking a premises. This procedure often is lengthy and time-consuming and may not yield the immediate results desired in life-threatening situations. Often, court dates are not set immediately and adjournments arc frequent. Once the injunction is issued, it is only effective when frequent surveillance of the premises can be conducted and the municipality wishes to enforce it.
THE VACATE ORDER
One of the best tools the fire marshal/inspector can have is the vacate order, as provided for in the administrative section of the respective fire prevention code. This order gives the fire marshal/inspector the legal authority to have a building or structure vacated. This portion of the code could read as follows:
“A building or structure that is an imminent danger to life and safety as a result of structural instability, fire, explosion, or any other hazardous situation shall be made safe and secure or be demolished and removed by the owner thereof. The occupants of any such building or structure shall vacate the premises forthwith. No persons shall use or occupy such a building or structure until it is deemed safe and secure by the fire marshal/inspector.”
It is incumbent on the fire marshal/ inspector to make sure that there is substantial reason to invoke a vacate order, and consultation with the legal division, municipal attorney, or special district attorney may be warranted if there is any doubt as to the justification for issuing it.
If an issued vacate order is ignored, it may be necessary to have the local police jurisdiction back you up in the enforcement of the order and, as a last resort, to charge the parties intentionally defying the order with “obstructing governmental administration” and remove them from the premises.
The intention, however, is that once the vacate order is issued, sufficient common sense will compel the occupants to leave the premises. The written order should be posted at all entrances to the structure and photographed while in place (should evidence of the posting be needed at a later date). Police sectors in the areas should be alerted to give special attention to the vacated building/structure so that the occupants do not reoccupy the premises.
ESTABLISH A PERMIT SYSTEM
It is imperative that a permit system be established so that there will be in place a legal mechanism for granting permission for various manufacturing, storage, and handling activities and business uses and processes. The permit can be issued for a combination of activities, such as those involving a repair garage and the use of flammable liquids, as well as for specific applications, such as welding and cutting operations for an auto-body shop.
Should sufficient legal basis exist for denying a permit for a location, this becomes the primary target for enforcement: the failure to secure the legal required permit. Once established, permits should have within them a provision that states that any misrepresentation or violation of the code provisions could result in the permit’s being revoked or canceled. Such provisions usually provide the mechanism for an immediate revocation. with a subsequent formal hearing to establish the facts and determine whether the permit should be canceled.
An additional benefit of the permit system is that the permit application must be updated annually so that changes in the identification and quantities of hazardous materials and flammable or combustible liquids stored on a premises can be entered into the records. Usually appropriate material safety data sheets are submitted with the application. Also, the NFPA 704 Identification System can be instituted for these locations.
In this time of lean budgets, the permit fees generated can help offset the operation costs of administering the permit system. Many times, the fees actually produce revenues.
At times we are frustrated in our attempts to gain compliance for serious fire code violations. In such instances, using a team approach that includes other enforcement agencies can help resolve situations where enforcement is difficult. Among these agencies are the building and zoning departments; the State Department of Environmental Conservation; local, state, and federal Environmental Protection Agencies; police department investigative units; emergency service squads; the health department; the U.S. Coast Guard; and the Environmental Crimes Bureau of the district attorney’s office.
Such a team approach was used in the case of the 15,000-square-foot warehouse mentioned at the beginning of the article that subsequently was abandoned with thousands of gallons of open flammable liquid containers, hazardous-material drums, and other hazardous materials inside. The enforcement actions of the fire marshal, the zoning inspector, the Department of Environmental Conservation, the health department, and the Environmental Crimes Bureau were involved. Even an adjoining state’s Environmental Protection Agency became involved after the violator had been traced to that state.
Involve the local building and zoning departments in difficult enforcement situations. Many times, the appearance of several agencies or the “threat” of another agency’s involvement persuades the habitual violator to comply.
LOBBY FOR LEGISLATIVE CHANGE
In some jurisdictions (especially those that do not use the “model” fire prevention codes), most of the fire code provisions are classified as violations under the law. In most penal laws, violations are punishable by up to 15 days in jail and/or a fine limited by local law. The three national model fire prevention codes consider code infractions to be misdemeanors, in some cases with a specified punishment of not more than six months in jail and/or a monetary fine (these code infraction provisions sometimes are found in the appendices to the model code and must be specifically adopted).
We are a nation governed by laws and codes. Unfortunately, the courts are unable to cope with an everincreasing caseload and to dispense enough justice for crimes such as misdemeanors and felonies to suit most people. Therefore, a fire code infraction that is classified as a violation will be treated with little consequence.
Some jurisdictions have special “parts” or court sessions to deal specifically with fire and local ordinance infractions. If fire code infractions are to be taken more seriously, the infraction should be raised from a violation to the level of a misdemeanor, since many code infractions affect some aspect of life safety. Jurisdictions that are not willing to classify these infractions as misdemeanors may be open to a compromise measure that would make a second offense for the same infraction a misdemeanor that carries a heavier penalty and is classified as a crime.
It would be ideal to be able to gain 100 percent compliance through public education and the sales skills of fire safety personnel, but this is real life and it doesn’t work that way. When monetary gains can result from violating the fire prevention code, there is a need for vigorous enforcement efforts on the part of the fire marshal/inspector.
To protect the public, fire suppression forces, and the environment, the fire marshal/inspector needs the authority and legal assistance from local prosecutors and judges to seriously address and take action to avert potential disaster. Fire code enforcement has come a long way over the years. Better trained and educated fire marshals/inspectors are on the job. Public education is making great strides in reducing the fire fatality rate in this country.
Let’s be prepared to address those potential disasters out there that we have cited over and over for cockviolations (iain the support of your local officials—you need their help and backing to put the necessary strength into fire code enforcement. 1’his position may not be popular with everyone, but it will get overwhelming support from the fire service and the public —because it is a matter of life safety