FIRE SAFETY COMMISSION
FILE: 9179/FSC
CASE NAME: Niagara Falls Fire Department v. 2216082 Ontario Ltd.
IN THE MATTER OF AN APPLICATION FOR AUTHORIZATION TO DO WORK pursuant to section 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, and the Ontario Fire Code, O. Reg. 213/07
Niagara Falls Fire Department (Thomas Detenbeck, Fire Prevention Officer) Applicant
-and-
2216082 Ontario Ltd. Respondent
DECISION AND ORDER
ADJUDICATORS: Tammy O'Neill, Vice-Chair, Presiding Member Marie Fortier, Member Doug Ritcey, Member
APPEARANCES:
For the Applicant: Brian Dickson, Niagara Falls Fire Department
For the Respondent: Gary Gruneir, C & K Mortgage Services Inc. (operating as Rescom)
Heard in Niagara Falls: January 9, 2015
DECISION AND ORDER
I. INTRODUCTION
1This is an application by Thomas Detenbeck on behalf of the Niagara Falls Fire Department (the “Applicant”) for an order authorizing work to be done, as required in an Inspection Order made under section 21(1) of the of the Fire Protection and Prevention Act (the “Act”). More particularly, the Applicant is seeking an order authorizing the demolition of a building owned by 2216082 Ontario Ltd. (the “Respondent”) located at 6442 Main Street, Niagara Falls, Ontario (the “building”) pursuant to s. 33(1) of the Act.
II. DECISION
2For the reasons outlined below, the Commission grants the Application.
III. BACKGROUND FACTS
3The property in question is a 2.5 story vacant building with mixed Group “A” and Group “C” occupancies with basement storage and mechanical room. There is a main floor restaurant area and upper apartment with guest rooms that are accessed via an exterior balcony.
4The Respondent was served, by the Applicant, with an Inspection Order dated June 18, 2014, requiring the owner to obtain: a demolition permit, have the building demolished, and have the premises left at grade. The work in the Inspection Order was to be completed by July 18, 2014.
5The reasons provided for the Inspection Order are as follows:
The subject premise consists of a vacant building in a dilapidated state of repair that has been found to be insecure at numerous times.
6A re-inspection for compliance done by the Niagara Falls Fire Services on October 16, 2014 found that the work had not been done and the Respondent had not complied with the Inspection Order.
IV. ISSUE
7The issue before the Commission is whether there are sufficient grounds to authorize the demolition of the building pursuant to section 33(4) of the Act.
V. THE APPLICANT’S CASE
8The Applicant presented its case through the testimony of Constable Neil White, Inspector Thomas Detenbeck and Brian Sparks, as well as submissions made by Chief Brian Dickson.
Thomas Detenbeck
9Thomas Detenbeck testified that the building has been vacant for quite some time and that a portion of the exterior upper balcony and upper railing system has partially collapsed thereby becoming a hazard to public safety.
10Mr. Detenbeck submitted photographs taken by himself on June 17, June 18, June 23, July 2, November 24 and November 25, 2014 and by Mr. Sparks on April 15 and April 29, 2014, which showed the building was in extreme disrepair.
11The Applicant stated that he personally visited the premises on several occasions between June 2014 and November 2014 and found the building to be insecure and that it showed signs of forced entry thus causing the Niagara Regional Police Department to be dispatched for further investigation. Mr. Detenbeck was particularly concerned when he visited the premises on June 23, 2014 and found bedding and personal items in one of the rooms, suggesting that someone was residing in the vacant building.
12Mr. Detenbeck outlined the following steps that were taken by the Niagara Falls Fire Services with respect to the property in question:
i. On August 20, 2013, Mr. Detenbeck received information indicating that the building may be insecure. Upon attending, he confirmed that a window on the south side of the building was open. He had the building secured.
ii. On June 17, 2014, Mr. Detenbeck visited the building and found it to be insecure because the main doors on the west side of the building as well as the door on the north were unlocked as both locks were broken. Access to the entire building could be gained through both doors. A second floor window was also insecure. Clothing and bedding were observed suggesting that the building had been recently occupied. The Niagara Regional Police were called to confirm that the building was unoccupied at the time of the visit and Miller Restoration was contracted to secure the building, including installing locks on both doors.
iii. Notices under section 15 of the Act, called “Immediate Threat to Life” were issued to the Respondent and posted on the building indicating that the building had been secured on June 17, 2014 and June 23, 2014. Two further notices under section 15 were issued and posted on November 24, 2014. One involved securing the building and the other involved disconnecting hydro. It was the Applicant’s evidence that it appeared that people were still gaining access to the building and that unauthorized access, unsafe interior and exterior electrical wiring and moisture all contributed to an increase in the risk of fire. When he visited the premises on November 24, 2014, the Applicant found that doors had been smashed in; drywall had been broken, providing a means of access to the interior of the building.
iv. An Inspection Order was served on the Respondent on June 18, 2014, requiring the owner to obtain a demolition permit, have the building demolished and the premises left at grade. The work was to be completed by July 18, 2014.
v. A re-inspection for compliance on October 16, 2014 found that the owner had not done the work as ordered.
vi. The Respondent has been charged under the Fire Protection and Prevention Act for failing to comply with an Inspection Order and under the Ontario Fire Code for failing to secure a vacant building.
13The Applicant testified that the Respondent did not appeal the Inspection Order that was issued by the Fire Department.
14The Applicant stated that the evaluation of fire risk is complex and specific to each building, but that buildings at lower risk suffer less significant damage, have repairs made quickly, have an absence of electrical and moisture concerns and are regularly patrolled. He noted that risk is also affected by the age and location of the building. He stated that the position of this building, within a few feet of a public sidewalk in a heavily travelled area, increases the risk and implications to the public in the event of a fire. He stated that the risk to fire fighters attending a fire would be increased, due to the necessity of searching the building to find illegal occupants who may be trapped inside. He stated that the history of break-ins, electrical issues (while the building power was still active) and the fact that the owners are not exercising due diligence in securing the building make this building a high fire risk.
Constable Neil White
15Constable Neil White is with the Niagara Falls Regional Police. He stated that he attended the premises on approximately ten to fourteen occasions from 2010 to date. He observed broken plywood and doors and indicated that the second floor was “possibly in a state of collapse”. When Constable White visited the premises, he would on occasion find evidence that persons had been sleeping in the building. On one occasion in 2013, he found a male, who admitted to Constable White that he had been living in the vacant building for over a week.
Brian Sparks
16Brian Sparks, a Property Standards Officer and Building Inspector with the Niagara Falls Building Services Division also testified on behalf of the Applicant. Mr. Sparks stated that an Unsafe Building Order as defined in section 15.9 of the Building Code Act, 1992 was issued against the property on May 7, 2014. The requirements of the Order included undertaking repairs or carrying out necessary remedial measures, including demolition. The requirements also included an engineering report addressing structural safety issues, to be provided by June 17, 2014. Mr. Sparks testified that there was no response from the owner or any of the six mortgage holders to whom the Order was addressed.
17Mr. Sparks indicated that a second Unsafe Building Order was issued on January 8, 2015, stating:
The building is structurally inadequate or faulty for the purpose for which it is used or is in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented. The exterior second floor slab along the west side of the building is in the process of collapsing and barricades previously provided have been vandalized.
The Order further stated that:
You are ordered to comply with the Building Code Act, 1992 and the Ontario Building Code thereto by taking appropriate action to eliminate the unsafe condition(s) set out in this order immediately or to demolish the building immediately leaving the site in a graded and levelled condition.
18It was Mr. Spark’s opinion that the building is unsafe, that the vacant nature of the building increases the risk of fire and that in particular, the condition of the balcony makes the building a risk to persons entering the property.
Brian Dickson
19Mr. Brian Dickson, Chief Fire Prevention Officer with the Niagara Falls Fire Department, made submissions on behalf of the Applicant and described a meeting in September of 2014, resulting from a call he placed to Harry Erlich, representative of the owner.
20The meeting, attended by Mr. Dickson, Mr. Detenbeck, Mr. Gruneir, Mr. Gruneir’s assistant, Michelle, and a potential buyer, had been called for the purpose of discussing the Fire Department’s concerns. Mr. Dickson stated that Mr. Gruneir indicated that the owner planned to work with the Fire Department and may undertake demolition in the near future. Mr. Dickson stated that he did not receive any further communication after the meeting and that in response to a subsequent call from Mr. Dickson, Mr. Erlich hung up.
21Mr. Dickson summarized the Applicant’s position by stating that a fire at this building would endanger fire fighters, affect the public on nearby thoroughfares and require closure of major roads. He cautioned that there is a need to act on the issue proactively rather than after an incident. Mr. Dickson cited statistical studies indicating that, during some years, the largest fires occur in vacant buildings. He stated that the owners have had time and many opportunities to erect barricades to secure the building, perform security patrols and take additional measures had they wished to work with Fire Services personnel. He stated that the time has passed to consider corrective measures, including possible removal of the balcony, boarding up entrances and erecting a parking barrier.
22Mr. Dickson stated that the demolition should not be as onerous to the Respondent as it might seem, first because the City of Niagara Falls Senior Planning Administrator has informed him that demolition of the existing building would not negatively affect the setbacks or heights that would be applied to construction of a new building on the site, and second because the Niagara Falls Fire Department would be willing to work with the owners if they wished to contract their own demolition company.
V. THE RESPONDENT’S CASE
23The Respondent did not call any evidence, although submissions were made on behalf of the Respondent by Mr. Gary Gruneir.
24Mr. Gruneir appeared on behalf of the Respondent, 2216082 Ontario Ltd., in his capacity as an employee of C & K Mortgage Services Inc. (operating as Rescom), a property management company that takes care of the property on behalf of the owners. Mr. Gruneir testified that he has the authority to represent and make commitments on behalf of the Respondent. Mr. Gruneir admitted that the building is in a state of disrepair and that the owner has not taken steps to ensure that the building was secure.
25Mr. Gruneir stated that the Respondent has been trying, without success, to sell the property and that an offer to purchase is currently pending.
26The Respondent agrees with the Applicant that the building should be demolished but would prefer to secure it, in concert with partial demolition to remove the structurally questionable balcony. In fact, the Respondent obtained a quotation in the approximate amount of $51,000 for complete building demolition. According to Mr. Gruneir, the building has not yet been demolished because of concerns that once the building foundations are removed, construction of a future building would be constrained by more restrictive setback distances from the property lines, thereby creating difficulties for a prospective purchaser. The Respondent did not provide any indication that this concern has been corroborated by the City of Niagara Falls.
27In his submissions, Mr. Gruneir stated that the Respondent would undertake to ensure the building was safe, properly secured and fenced at all times going forward and that the structurally questionable balcony would be either secured or removed. He argued that to not accept such measures, when they would have been considered acceptable nine months ago, would be punitive. In the alternative, Mr. Gruneir asked that the Commission provide the Respondent with the opportunity to contract and “cost out” the demolition should the Commission grant an Order for Demolition.
VI. THE LAW AND JURISDICTION
28Section 21(1)(a) of the Act provides as follows:
21 (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupier of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,
(a) to remove buildings or structures from the land or premises.
29The Act also provides that the fire inspector may make an application to the Commission under section 33(1) for an order authorizing the inspector to do the work that was required to be done under the inspection order. Section 33(1) of the Act states:
33 (1) If an order made under subsection 21(1) or (2) or section 25 or 26 requires a thing to be done, an inspector may apply to the Fire Safety Commission for an order authorizing him or her to cause the thing to be done.
30The Commission may grant an order under section 33(1) only if it finds that there exist the required grounds as outlined in section 33(4) of the Act. The wording of this section requires that the Commission be satisfied that at least one of the grounds in section 34(4)(a) exists and in addition, also the grounds specified in section 34(4)(b). Section 33(4) provides as follows:
33 (4) The Fire Safety Commission may authorize the inspector to cause to be done any thing required to be done by an order made under subsection 21 (1) or (2) or section 25 or 26 if,
(a) the person required by the order to do the thing,
(i) has refused to comply with or is not complying with the order,
(ii) is not likely, in the Commission’s opinion, to comply with the order promptly,
(iii) is not likely, in the Commission’s opinion, to carry out the order competently, or
(iv) requests the assistance of the inspector in complying with the order; and
(b) In the Commission’s opinion, failure to do the thing would seriously endanger the health or safety of any person or the quality of the natural environment for any use that can be made of it.
VII. REASONS FOR DECISION
31The Commission finds that there exists grounds under sections 33(4)(a)(i), (ii) and (iii), and section 33(4)(b) of the Act to grant an Order authorizing the Applicant to undertake the work required by Inspection Order 14-047.
33(4)(a)(i)
32Evidence that the Respondent “is not complying with the order” as outlined in section 33(4)(a)(i) of the Act is uncontradicted. The testimony of Thomas Detenbeck indicates that the Respondent has failed to comply with the Inspection Order and Mr. Gruneir admitted that was also the case. Furthermore, the Respondent corroborated Mr. Dickson’s submission that the Respondent failed to meet a verbal commitment made in September 2014 to undertake measures to address the concerns of the Niagara Falls Fire Department. It is also noteworthy that the Respondent failed to comply with the two Unsafe Building Orders that were issued by Mr. Sparks on May 7, 2014 and January 8, 2015.
33(4)(a)(ii)
33For the following reasons, the Respondent is not likely, in the Commission’s opinion, to comply promptly with the existing Inspection Order requirements to demolish the building, pursuant to section 33(4)(a)(ii):
a) The Respondent has been soliciting offers for the property for some time. A potential offer is being entertained currently, as was an offer during the meeting that occurred in September of 2014. It is the Respondent’s position that demolition of the building has not been undertaken because it could potentially have a detrimental effect on setback allowances for future development, and therefore on property value that might be realized through a sale. The Commission can understand the concerns about financial loss that the Respondent indicates has already been associated with the property. However, if the barrier to demolition is based on a genuine concern about development setbacks and lost property value, it seems reasonable that the Respondent would have made some level of inquiry to the City to ascertain whether demolition could be undertaken without jeopardizing future development. No evidence has been presented suggesting that any inquiries have been made, other than those made by the Fire Department.
b) Prior to and indeed during this hearing, the Respondent failed to make any commitment to undertake demolition in compliance with the Inspection Order, and instead has stated a preference to carry out corrective measures addressing site security, but at the same time has not taken adequate steps to secure the building.
c) In his submissions, Mr. Gruneir outlined a complicated set of facts relating to the ownership and potential sale of the property, which caused a delay in compliance with the order. There is no evidence before the Commission that these issues will be resolved in the near future.
33(4)(a)(iii)
34The Applicant indicates that the Respondent has clearly not taken sufficient measures to deter vandalism, illegal entry and effectively preserve the security of the building.
35Testimony by representatives of the Niagara Falls Fire Department, the City of Niagara Falls Building Services and the Niagara Regional Police Service indicate that the building has been repeatedly penetrated and that electrical wiring and structural conditions, at least on the second floor balcony, are hazardous.
36The Respondent has expressed an interest to initiate proper care of the building now, but showed similar interest in a September meeting with Fire Department representatives, when building demolition was discussed. Despite the apparent good intentions there is no evidence to indicate that the Respondent’s response now, to either secure or demolish the building on his own accord, will be more effective than the measures to date to address site security. Therefore, according to section 33(4)(a)(iii) referenced above, the Respondent is not likely, in the Commission’s opinion, to carry out the order competently.
33(4)(b)
37The Commission finds that the risk of fire is abnormally elevated in this building due to the history of repeated trespassing and apparent illegal occupancy. Based on the evidence of the Applicant, the Commission finds that the safety of the occupants, whether present legally or as trespassers or as passers-by, is endangered by the condition of the building and increased risk of fire. Moreover, the health and safety of first responders would be put at serious risk in the event of fire because of the need to address the issue of potential illegal occupants.
38The Commission accepts the evidence submitted by the Applicant and their witnesses and finds the Order, as amended, is necessary to protect the safety of potential occupant(s) and emergency responders in the event of a fire.
39The Commission further accepts the evidence submitted by the Applicant and admitted to by the Respondent that the property is in a state of disrepair and has been found to be insecure on numerous occasions.
40For the reasons outlined above, in the Commission’s opinion, a failure to demolish the building would seriously endanger the health and safety of potential occupant(s) and emergency responders in the event of a fire pursuant to section 33(4)(b) of the Act.
41Although the Commission is granting the Application to demolish the building, the Applicant may, at its discretion, work cooperatively with the Respondent in undertaking the demolition work.
VIII. CONCLUSION
42For the reasons outlined above, the Commission hereby grants the Order authorizing the Applicant to do or cause to be done the following:
a) obtain a demolition permit;
b) have the building located at 6442 Main Street, Niagara Falls, Ontario demolished and the premises left at grade as required by Inspection Order 14-047 made under section 21(1) of the Act;
c) maintain the building in a secure state until demolition; and,
d) deal with all hazardous materials and designated substances in accordance with Provincial and Federal regulations prior to, and, if applicable, during demolition.
43Compliance with the Order shall be initiated immediately.
Tammy O’Neill, Vice-Chair, Presiding Member
Marie Fortier, Member
Doug Ritcey, Member
Issued: February 27, 2015