Confirming building classification during occupancy Susan Clarke, P.Eng., MBA Office of the Fire Marshal 1
Caveat This presentation is for information purposes; not providing legal advice For legal advice, consult with your municipal solicitor 2
Objectives Identify issue relating to establishing occupancy type (or increase in hazard) after occupancy Identify why it is important to establish building classification after occupancy Identify who is responsible? Describe legislation available Describe compliance & enforcement options bridging the gap 3
Issues often identified by municipal fire inspectors Changes in Occupancy, after occupancy permit (without change of use permit) Increases in hazard, through introduction of activities not allowed for in original design In both cases, building features may not be sufficient to accommodate the changes 4
. Change of Use some examples 5
Barn used as Assembly Occupancy Could be a single occasion, or a change of use 6
House, used as a rooming house. This centrally located rooming house is available for single females only. Great bus service, free laundry facilities and proximity to shops are but a few of its features. Rooms are furnished and include kitchen facilities. Washroom facilities are shared. http://www.och.ca/site/index.php?option=com_ezrealty&task=detail&id=1&itemid=123&lang=en 7
House, with an accessory apartment. Key property details: Furnished lower level of executive home Ideal for non smoking single professional Walking distance to Y http://www.gottarent.com/apartment/vacancy/spaceid/18633/unitid/39571/sel/pictures 8
House, used as a care occupancy. http://www.stewart-homes.com/index.php?pagename=pickeringprograms designed specifically to care for medically complex infants and very young children. Referrals to the program often come directly from hospital pediatric wards 9
House, used as a hotel Advertised Bed & Breakfast (10 suites). http://www.jarvishouse.com/ 10
Church basement Converted use: Private school Daycare Issues? Fire separation between tenants Fire alarm Fire safety plan 11
http://www.hotfrog.ca/companies/brilliant-beginnings-daycare. 12
Strip mall unit (retail or industrial) Converted use: Private school Daycare Medical suite (e.g. sleep disorders) Issues? Fire separation between units Fire alarm Fire safety plan 13
. Increase in hazard some examples 14
New equipment in an industrial occupancy New roll-paper coating process equipment Uses Class I flammable liquids Existing sprinkler system is rated light hazard NFPA 13 requires process to be protected by extra hazard group 1 15
. 16
School classroom Designed/constructed as a regular teaching classroom Introduction of cooking appliance If appliance is a stove, this now meets definition of hazardous classroom OBC has requirements for protection of a hazardous classroom 17
Kindergarten Classroom Whitby Fire Department files 18
School corridor serving classrooms Used for library Used for computer lab Used for storage Issues? Combustibles Obstructions 19
http://www.ludworth.org.uk/every_child_matters. 20
Skating arena Used for fall fair Used for trade show Used for concert Issues? Increase occupant load exit capacity Suppression not designed for increased combustibles 21
.. www.flickr.com/photos/11397310@n00/2859598989/ 22
House, converted to a grow op. http://www.househunting.ca/buying-homes/story.html?id=9d106ba8-603e-46ee-a356-c59246d8c367 23
Why is it important to establish occupancy type (or design) after occupancy? 24
Control of hazards If the building wasn t designed for the protection of multiple occupants (e.g. house to rooming house or accessory apartment) Insufficient fire separations Insufficient early warning Lack of fire safety plan etc. 25
Control of hazards If the building wasn t designed to protect vulnerable occupants (e.g. residential to care occupancy) Insufficient compartmentalization (corridors, sleeping rooms) Insufficient early warning Insufficient exiting Insufficient suppression protection Insufficient fire safety plan 26
Control of hazards If the building wasn t designed for the hazards incurred by the new occupancy (e.g. F3 to an F1) Protection features are insufficient (e.g. sprinkler system rating) 27
Control of hazards If the activity creates a hazard not allowed for in the original design Building features may be insufficient to control the hazard, and protect the occupants Building features may be insufficient to protect areas beyond point of origin 28
. Who is responsible? 29
Responsibility - owner to give designer and building department correct information about intended use of building to obtain change of use or building permit, in accordance with BCA to ensure activities are not introduced that increase the hazards beyond what the building systems are designed for (OFC) To obtain CFO approval of provisions to control the hazard (2.1.2.2.) 30
Change of Use. 31
Owner Notify Chief Building Official of change of use BCA 10. (1) Even though no construction is proposed, no person shall change the use of a building or part of a building or permit the use to be changed if the change would result in an increase in hazard, as determined in accordance with the building code, unless a permit has been issued by the chief building official. 2002, c. 9, s. 16. 32
Owner Need to assess for increase in hazard of changed occupancy: Article 1.3.1.4., Div C Table 1.3.1.4., Div C See footnote references See exemptions 33
Owner Required to assess building under Part 10, Div B for: Change in Major Occupancy (SS 10.1.1.) Classification according to Construction and Occupancy (SS 10.2.1.) Reduction in performance level (SS 10.3.2.) Compliance with specified Sections in OBC as apply to new major occupancy 34
Owner, cont d If increased hazard established, but assessment does not result in construction, change of use permit (S10) Where compensating construction is required, building permit application (S8) May look at permissions to use Compliance Alternatives (Part 11) 35
Reality Check Some owners don t properly describe to building department what the use is Some owners choose not to apply for change of use/building permit Some uses evolve over time with no construction proposed (e.g. C to B3; F3 to F2; strip mall unit E to A2) 36
Change of use - example Group home, originally exempt from B3 application by OBC Article 3.1.2.5.,Div B but where additional person(s) requiring assistance to evacuate are now cared for No construction proposed Use might have evolved over time, without realization that additional fire protection features are required 37
. Changes of use/increase in hazard, cause fire risk to occupants and to others Occupants are unaware that the building features may not be adequately designed to protect them If fire occurs, occupants are at greater risk 38
Discovery Building department Follow up to complaint, usually Letter to owner to get building permit Work towards compliance May lay charges 39
Discovery Fire Department inspection Not mandatory May be by program (e.g. vulnerable occupancies) May be by complaint (e.g. neighbour, unhappy tenant, notification from fire suppression crew) 40
Ontario Fire Code Article 2.1.2.2., Div B: Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard 41
Actions: Determine original permitted occupancy or activity (municipal files) Determine date of change of use Ensure building is retrofitted appropriately (FPPA or OFC) Ensure building department is advised 42
Legislation Fire Protection and Prevention Act Fire Code Building Code Act Building Code 43
Ontario Fire Code Applies to existing, occupied buildings Division A: Owner is responsible for compliance with OFC Compliance with OFC does not relieve owner from compliance with other applicable legislation and regulations the more stringent requirements prevail 44
Ontario Fire Code Division B 2.1.2.1. For the purpose of applying this Code, a building or part thereof shall be classified according to its major occupancy by the Chief Fire Official in conformance with the Building Code Why? Because original approved design (by building department) may not be how building is currently being used! 45
How to address change of use?. 46
Ontario Fire Code Article 2.1.2.2., Div. B Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard Can be basis for laying charges, and/or for Inspection Order Can also be basis for notifying building department 47
Article 2.1.2.2., Div. B Activities that create a hazard Change of occupancy As defined in OBC (Article 1.3.1.4., Div C) Activities in areas, not anticipated by Code (i.e. corridor used as library) Increased hazard, fire protection equipment not designed for (i.e. sprinkler system insufficient) 48
Issue Inspection Order S21, Fire Protection and Prevention Act Reason: Activities that create a hazard and that are not allowed for in the original design Work Ordered: Reinstate original activity the design was intended to address (either building or area), or Increase protection accordingly describe (can use OFC or OBC requirements) 49
Increase protection Inspection Order 21.(1): (g) remedy contravention of OFC (i.e. where OFC is applicable) (f) to do anything respecting fire safety including containment, means of egress, fire alarms and detection, suppression, fire safety plan where OFC not applicable 50
Ontario Fire Code Part 9 Retrofit Application: Assembly Occupancies Boarding, Lodging and Rooming Houses Health Care Facilities (licensed) Residential (multi-unit, up to/incl. 6 storeys) Residential (multi-unit, higher than 6 storeys) Two-Unit Residential** Hotels 51
Retrofit Upgrade building features to provide a minimum level of life safety Containment Means of egress Fire alarm and detection Suppression Level may not be as high as that in current/other edition/s of building code 52
Section Title Effective Date Ontario Fire Code Nov. 21, 1981 Referenced OBC Definition existing 9.1 General May 14, 1983 O.Reg. 251/83; Amended 9.2 Assembly 1986 OBC compliance date Feb. 11, 1987 9.3 Boarding, Lodging July 14, 1984 and Rooming O.Reg. 425/84 Houses 9.4 Health Care Facilities 9.5 Buildings up to and including 6 storeys in bh, Residential 9.6 Buildings higher than 6 storeys in bh, Residential 9.7 Reserved 9.8 Two Unit Residential February 28, 1987 October 24, 1992 July 14, 1994 1990 OBC October 9, 1992 1994 OBC July 14, 1994 9.9 Hotels Jan 1, 2007-12 1994 OBC July 23, 1994 Feb. 11, 1987 October 9, 1992 July 14, 1994 January 1, 2007 53
Retrofit - Application Section 9.8 Two unit Residential Applies only to those buildings where two units existed on July 14, 1994 For those that changed use after this date, Section 9.8 does not apply Implication: Inspection Order (21.(1)(f)) Refer to building department 54
Retrofit - Application Sections 9.2 9.9 (except 9.8) Applies to all existing buildings Construction requirements will be to referenced building code Implication: Inspection Order (21.(1)(g)) Refer to building department 55
Code Application review Important to check date of construction, and change of use Compare to Building Code: Change of use Introduction of relevant requirements Care, Hotels, etc. Compare to Fire Code Retrofit application dates 56
Confirm dates Owner s statement Complaint Advertisements Municipal records Income tax statements e.g. income from rental Receipts from construction 57
Compliance Options Only Retrofit Section 9.8 refers to existing in the Application statement and defines this as July 14, 1994 If a dwelling unit converted to a 2-unit residential after this date, then Section 9.8 does not apply Only options are Inspection Order, and/or refer to municipal building department 58
Two-unit residential (S 9.8) Municipal building department, may not want to legalize two-unit where zoning does not permit Because zoning takes time to get owner to comply Fire department should issue Inspection Order for the interim period Include warning that compliance with IO does not mean owner is relieved from compliance with other law 59
Compliance Options For other occupancy types, if dates can be established that indicate change of use occurred after referenced building code edition or where Retrofit does not apply to a specific occupancy Discuss with municipal building department Who will take ownership If fire department, may ask building department for assistance to identify additional requirements from building code 60
Inspection Orders FPPA SS 22.(1) No orders for repairs or alterations under clause 21.(1)(b) that was constructed in compliance with the building code. that continues to comply with that code as it existed at the time of construction unless the order is necessary to ensure compliance with Retrofit of existing buildings 61
Example group home previously a dwelling unit, now a care occupancy Issue Inspection Order for care occupancy (and fire safety plan) requirements in OFC Section 9.5 Option may be given to re-instate original single family use This does not preclude requirements from other municipal authorities (e.g. building department, zoning bylaws) 62
Inspection Orders FPPA SS 22.(2) If repairs, alterations or installations are carried out in compliance with order under SS 21.(1), or for the purposes of complying with the fire code shall be deemed not to contravene the building code Copy of Inspection Order to building department required (SS 22.(3)) 63
Comment Issuing an Inspection Order is a common means used to date for achieving compliance Sometimes difficult to establish dates Building department may not wish to pursue compliance with OBC) However, using Retrofit or Inspection Order may not make a building fully compliant with the law (e.g. edition of OBC) 64
Use of the Building Code If Change of Use occurs after: July 1, 1993, or April 6, 1997 for B3 occupancies Then fire department should be notifying CBO Note: cannot use OBC where change of use predates those above; can use OFC Retrofit however 65
Reminder OFC Article 1.2.3.1., Div A Compliance with this Code does not relieve the owner from compliance with other applicable legislation and regulations,. More stringent requirements prevail 66
Building Code Act Change of Use provisions date introduced (1993/1997) (S10) Limitation period (BCA SS 36.(8), (8.1)) for charges No limitation period for Orders Note: consistent with Supreme Court of Canada decision, May 2012 67
Building Department Actions Inspect property Order owner to comply with building code requirements for use Owner applies for permit S10 if only change of use S8 if construction required 68
Enforcement i.e. Charges 69
Interpretations Act, S26 Where an act or omission constitutes an offence under two or more Acts, the offender, unless the contrary intention appears, is liable to be prosecuted and punished under either or any of those Acts, but is not liable to be punished twice for the same act or omission. 70
Building Code Act BCA 36. (1) A person is guilty of an offence if the person, (a) knowingly furnishes false information in any application under this Act, in any certificate required to be issued or in any statement or return required to be furnished under this Act or the regulations; (b) fails to comply with an order, direction or other requirement made under this Act; or (c) contravenes this Act, the regulations or a by-law passed under section 7. 1992, c. 23, s. 36 (1); 1997, c. 24, s. 224 (17); 1997, c. 30, Sched. B, s. 19; 2002, c. 9, s. 53 (1); 2009, c. 33, Sched. 21, s. 2 (8). 71
Building Code Act (8) No proceeding under this section shall be commenced more than one year after the facts on which the proceeding is based first came to the knowledge of, (a) an officer, where the proceeding is in respect of the enforcement of by-laws passed under section 15.1; or (b) the chief building official, in any other case. 2009, c. 33, Sched. 21, s. 2 (9). (8.1) Subsection (8), as it read immediately before the day subsection 2 (9) of Schedule 21 to the Good Government Act, 2009 comes into force, continues to apply where the subject-matter of the proceeding arose more than one year before that day. 2009, c. 33, Sched. 21, s. 2 (9). 72
Implications: Need to work with municipal prosecutor about desire to prosecute Limitation of this Section is for enforcement application; doesn t say anything about issuing an Order! 73
Fire Protection and Prevention Act 28. (1) Every person is guilty of an offence if he or she, (b) prevents an inspector from entering land or premises under section 19 or 20, refuses to answer questions on matters relevant to the inspection or provides the inspector with information, on matters relevant to the inspection, that the person knows, or ought reasonably to know, to be false or misleading; (c) subject to subsection (2) contravenes any provisions of this Act or the regulations; or 74
Fire Protection and Prevention Act Offence, failure to comply with inspection order 30. Every person who fails to comply with an order made under section 21, 25 or 26 is guilty of an offence and on conviction is liable to a fine of not more than $20,000 for every day during which the default continues, and the imposition or payment of the fine does not relieve the person from complying with the order. 2005, c. 33, s. 10. 75
SUMMARY. 76
Fire Department Responsibilities: Inspect building Determine occupancy type Identify fire safety issues related to occupancy type Records search approved occupancy type Date of change of use? 77
Fire Department Consider Options (not mutually exclusive): Advise Bldg Dept. Inspection Order 21.(1)(f) where Retrofit doesn t apply 21.(1)(g) where Retrofit applies Charges, under FPPA (Retrofit deficiencies; 2.1.2.2.) 78
Building Department Responsibilities: Inspection on complaint, or notification by fire department Compliance Order comply with building code Enforcement Limitation period (BCA 36.(8), (8.1)) 79
At the municipal level Building and Fire Departments should consider developing a policy about process to follow where change of use occurs without a permit To ensure that building is retrofitted with due consideration of appropriate regulation Legal advice should be sought 80
Outcome? Increased Occupant safety 81
Thank you Questions? 82