Tavern v. Dept. of Commerce, Div. Of State Fire Marshal
| Decision Date | 20 June 2003 |
| Docket Number | CASE NO. 02 JE 34. |
| Citation | 2003 Ohio 3295 |
| Parties | ABDALLA'S TAVERN PLAINTIFF-APPELLEE, v. DEPARTMENT OF COMMERCE, DIVISION OF STATE FIRE MARSHAL DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
{¶1} This is an administrative appeal of an alleged violation of the Ohio Fire Code ("Fire Code") by Abdalla's Tavern ("Appellee"). The State Board of Building Appeals ("BBA") determined that Appellee had committed two violations of the Fire Code. Appellee filed an appeal with the Jefferson County Court of Common Pleas, which reversed the BBA decision. The Department of Commerce, Division of State Fire Marshal ("Fire Marshal"), is the Appellant in this case, disagreeing with the reversal of the BBA decision. The record shows that the relevant Fire Code provisions that Appellee violated should not have been retroactively applied to Appellee by the BBA, and the judgment of the Jefferson County Court of Common Pleas is affirmed.
{¶2} On October 25, 2001, an inspector from the office of the Fire Marshal visited Abdalla's Tavern, located in Stratton, Ohio, to inspect the premises for possible fire safety violations. The tavern has an extensive kitchen and cooking area, including a number of grills and deep frying units.
{¶3} On November 9, 2001, the Fire Marshal cited Appellee for two violations of the Ohio Fire Code. The citation states that Appellee violated the following regulations:
{¶4} Ohio Adm.Code 1301:7-7-03(I)(1); "Two (2) existing commercial cooking appliances (grills and deep fryers) and one domestic cook stove utilized for
commercial purposes are not protected with commercial exhaust hood and duct system."
{¶5} Ohio Adm.Code 1301:7-7-03(I)(1); "Commercial cooking operation three (3) are not protected with an approved fire suppression system."
{¶6} The citation ordered Appellee to make the following changes within 30 days in order to abate the violations:
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{¶9} Appellee requested and was granted a hearing before the BBA on January 17, 2002, to challenge the citation. At the hearing, Appellee conceded that it was not in compliance with the current Fire Code standards. Appellee's primary argument at the hearing was that the tavern had been in continuous operation since 1937 and that the current Fire Code should not be retroactively applied to Appellee's business. Appellee based this argument on provisions in the Fire Code and in the
Ohio Building Code ("Building Code") that exempt preexisting buildings and conditions from new code requirements except in cases where the fire marshal finds a "distinct hazard to life or property" (Ohio Adm.Code 1301:7-1-02(A)), or where there is a "serious safety or sanitation hazard" (Ohio Adm.Code 4101:2-1-09).1 Appellee argued that there was no evidence of a distinct or serious hazard that would have required the type of abatement listed in the Fire Marshal citation.
{¶10} The Fire Marshal's evidence consisted primarily of testimony from Ms. Virginia Canankamp, a State Fire Marshal Inspector, and from some photographs taken by Ms. Canankamp when she inspected Appellee's tavern.
{¶11} Ms. Canankamp first testified that one of the hoods covering the cooking grills did not cover the entire grill area, supposedly in violation of an unidentified fire regulation. (Tr. p. 12.) After considerable debate with the BBA board members, she revised her testimony because it was contradicted by her own photograph, Exhibit G-8. (Tr. p. 15.)
{¶12} She then testified that the air duct to the grill exhaust fan was blocked, preventing the exhaust system from working. (Tr. p. 17.) She testified that the cooks from the tavern told her, "they have the makeup air blocked off because they said it is
too cold to cook in there without it." (Tr. p. 17.) Once again, the photograph that Ms. Canankamp took does not substantiate her testimony, which she freely admitted. (Tr. p. 17; Exhibit G-4.) She also testified that there was no grease dripping under the outside of the exhaust fan, and submitted this as proof that the fan was not working: "I was just showing that there is no grease coming out that usually you find in these systems." (Tr. p. 18.)
{¶13} She then testified that there was grease dripping underneath the outside vent of a second exhaust fan. (Tr. p. 19.)
{¶14} At this point, Ms. Canankamp began testifying about the applicable law. She stated: "In the fire code it says new and existing buildings not in strict compliance with the code shall be brought up to the code." (Tr. p. 19.)
{¶15} She then testified that Appellee was not in compliance with the Fire Code because the grill hood did not contain a continuous piece of metal covering the entire wall above the grill and extending to the grill itself. (Tr. p. 20.) She admitted that there was metal covering the wall, but stated that it had been welded to the grill hood. (Tr. p. 21.) She stated that the reason it needed to be a continuous piece of metal was, "so you don't get grease behind the appliances, behind the walls, and it is able to be cleaned." (Tr. p. 20.)
{¶16} Board member Bombelles then pointed out to Ms. Canankamp that Appellee was not disputing the Building Code requirements of a commercial grill hood, but rather, was disputing whether a preexisting facility was required to conform to the current code absent proof of a hazardous condition. (Tr. p. 21.)
{¶17} Ms. Canankamp then began testifying as to the hazard of not having an automatic fire suppression system under the grill hood. (Tr. p. 21.) She argued that the stove or fryer might be left on when no one was around, and in that case, only an automatic suppression system would extinguish the fire. (Tr. p. 21.) She did not present any evidence that this had ever happened or was likely to happen. She then changed her opinion about the applicable law: "the fire code does say that new and existing buildings not in strict compliance with the code shall be allowed to continue if it does not produce a hazard, and this is a hazard." (Tr. pp. 21-22.)
{¶18} At this point a question by board member Guenther made it clear that the issue under review was whether there was a, "preponderance of the evidence there is going to be a hazard to life safety?" (Tr. p. 22.)
{¶19} Ms. Canankamp testified that she thought one of the outside walls of the tavern showed evidence of a prior fire. (Tr. p. 23.) She stated that the wall, as
pictured in Exhibit G-3, was covered with soot and had no grease on it. (Tr. p. 23.) It is not clear how this lack of grease supported her opinion that there had been a fire.
{¶20} She returned to her concern that grease might seep behind the welded portion of the metal hood and metal wall covering, possibly causing fire, "in areas you can't get to." (Tr. p. 24.) She did not explain how an automated fire suppression system under the hood would diminish the danger of a fire behind the hood.
{¶21} She again testified that it was a hazard that one of the exhaust fans was kept closed with a wedge of wood. (Tr. p. 24.)
{¶22} She testified that she had just heard of a fire in Akron caused by an unattended deep fryer, and that this was proof that Appellee's kitchen was a hazard. (Tr. p. 25.)
{¶23} Attorney Hilary Damaser, on behalf of the Fire Marshal, stated that the law required Appellee to bring its commercial kitchen up to current mechanical code standards, citing Ohio Adm.Code 1301:7-7-03(I)(1), and that there were no exceptions for preexisting structures. (Tr. p. 26.) Appellee's professional consultant, Dave Collins, pointed out that R.C. 3781.11(B) requires the rules of the board of building standards to take precedence over the rules of the fire marshal where the rules are in conflict, and he testified that the rules of the board of building standards clearly provide
an exception for preexisting structures. (Tr. p. 26.) Attorney Damaser later conceded that Mr. Collins was correct. (Tr. p. 30.)
{¶24} At this juncture, the hearing devolved into a series of comments and interruptions by various board members. Ms. Canankamp also repeated a few more times that the kitchen presented a serious hazard, without adding any significant factual information.
{¶25} Midway through the proceedings, board member Cabot decided for himself that a serious hazard existed, and the remainder of the hearing revolved around how Appellee would comply with the requirements of the citation. (Tr. pp. 33ff.) Mr. Cabot concluded that, "[j]ust the mere existence of this operation in this condition, to me, is a serious hazard * * *." (Tr. pp. 37-38.)
{¶26} Finally, Appellee's attorney, Frank Bruzzese, interrupted the discussion in order to get some photographs and other facts into evidence. (Tr. p. 40.) Appellee entered into evidence a letter from the Fire Chief of the Stratton Volunteer Fire Department which stated: "this is a fully operational business that seems not to have any problems. [T]he building is in good structural shape and everything seems to be in good condition not only inside and out. As far as my knowledge of...
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