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Massachusetts Enforcement Overview

Massachusetts Enforcement Overview . Department of Fire Services Office of General Counsel Presented by: Steven P. Rourke, General Counsel Peter A. Senopoulos, Deputy General Counsel . M.G.L. c. 148 - Historical Perspective (Examples).

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Massachusetts Enforcement Overview

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  1. MassachusettsEnforcement Overview Department of Fire Services Office of General Counsel Presented by: Steven P. Rourke, General Counsel Peter A. Senopoulos, Deputy General Counsel Department of Fire Services

  2. M.G.L. c. 148 - Historical Perspective(Examples) • § 37 – aboveground storage tanks (1919 – Boston Molasses Explosion) • § 10 – rewrite that established BFPR (1945 – Cocoanut Grove fire) • § 26A½ - sprinklers in high rises (retroactive) (1986 – Prudential Tower fire) • § 12 – explosives storage; permitting by Marshal (2002 – following 9/11 attacks) • § 26G½ - sprinklers in nightclubs/bars (2004 following RI Station Nightclub fire) • § 26G – amendment (2009 in response to 2000 Newton office fire) Department of Fire Services

  3. Enforcement Issues • Head of Fire Department is the enforcement authority • Statutory Basis – M.G.L. c. 148 • Regulatory Basis – 527 CMR • Permit/Licensing Powers – see generally c. 148 §§ 10A and 13 • Statutory Basis for a Chief’s authority (in general): • Authority to enter premises (MGL c. 148 § 4) • Authority to enter, investigate, and issue orders, fines and penalties (M.G.L. 148 § 5) Department of Fire Services

  4. M.G.L. Chapter 148 § 4Persons authorized to enter and inspect premises • In performance of their duties pertaining to Chapter 148, 527 CMR or any other law, ordinance or by law relating to fire prevention. • Head of fire department, the Marshal or their designees may enter at any reasonable hour any building or premises to make inspection or investigation without being held or deemed guilty of trespass. Be careful here! • Contains Quarterly inspection requirements. • State institutions: DPH, Inns Department of Fire Services

  5. M.G.L. Chapter 148 § 5 Investigation of premises for fire hazards; remedy of conditions • Authorizes the Marshal / head of the fire department or whoever has been delegated in writing to enter buildings or premises to investigate conditions, which may cause or become dangerous as a fire menace, or obstacles, which impede ingress or egress. • If such conditions are found they shall order those conditions to be remedied in writing. Department of Fire Services

  6. M.G.L. Chapter 148 § 5 Investigation of premises for fire hazards; remedy of conditions • Order shall be served on the owner, occupant or his authorized agent by a member of the fire or police department. • Owner or occupant is subject to a fine of $50.00 for each consecutive 48 hours of non-compliance. Department of Fire Services

  7. Regulatory Basis for Chief’s Authority • Various BFPR authorities (see specific authorities – c. 148 §§ 9, 10, 10A, 13, 26F½, and 22D §4 • Specific authority of Chief’s granted by regulation • Enforcement authority – 527 CMR 1.03(1) • Duties of the head of the fire department – 1.03(8) (broadest power) Department of Fire Services

  8. 527 CMR 1.03 Enforcement Authority • The Marshal or the heads of the fire department or their designees are charged with enforcing the fire prevention regulations. • Right of Entry - Chapter 148 § 4 (without being deemed guilty of trespassing) • Coordinate inspections with building, plumbing, electrical, health inspectors, etc. (eyes and ears!) Department of Fire Services

  9. 527 CMR 1.03 (8) Duties of the Head of the Fire Department • Whenever the maintenance, operation, or use of any land building, structure, material or other object, or any part thereof... • Constitutes a fire or explosion hazard which is dangerous or unsafe, or is a menace to the public safety... Department of Fire Services

  10. 527 CMR 1.03 (8) Duties of the Head of the Fire Department • The head of the fire department is authorized and empowered to take action to abate any dangerous or unsafe conditions. (Unless the action to be taken is specifically otherwise prohibited by law, ordinance, by-law or regulation.) Example: interstate transportation Department of Fire Services

  11. Regulatory Basis for Authority • Specific authority granted by regulation (continued) • Coordinated Inspections – 527 CMR 1.03(2), mirrors c. 148 § 28A, see also 1.06(5) • Orders to eliminate dangerous conditions – 527 CMR 1.06(1) (a) to (j) (very broad) • Applicability issues • New and existing conditions 1.02(1) • 1. Unless existing condition does not constitute a distinct hazard to life/property • Conflicts = higher standard 1.02(2) Department of Fire Services

  12. 527 CMR 1.06 (1) Orders to Eliminate Dangerous or Hazardous Conditions • Conditions likely to cause or contribute to the spread of fire or explosion or endanger occupants. • Conditions which interfere with efficiency and use of fire protection equipment. • Obstructions to fire escapes, stairs, passageways, doors, windows which could interfere with occupant egress or fire department operations. Department of Fire Services

  13. 527 CMR 1.06 (1) Orders to Eliminate Dangerous or Hazardous Conditions • Accumulations of dust or waste in HVAC systems, grease in kitchen cooking equipment or exhaust ducts. • Accumulations of rubbish, waste combustible materials, etc. • Hazardous conditions from defective electrical wiring, equipment or appliances. • Hazardous conditions arising from equipment handling combustible, explosive or otherwise hazardous materials. Department of Fire Services

  14. 527 CMR 1.06 (1) Orders to Eliminate Dangerous or Hazardous Conditions • Dangerous or unlawful amounts of combustible, explosive or otherwise hazardous materials. • All equipment, materials, processes or operations which are in violation of the provisions and intent of 527 CMR. Department of Fire Services

  15. Authority Through the Permit Process • Granting and revoking permits – M.G.L. c. 148 § 10A • Power to grant • Power to Inspect • Power to Revoke • * 527 CMR 1.04 – permit regulations • * It is implied to expect cooperation from applicants and to set reasonable conditions Department of Fire Services

  16. Chapter 148 § 13 – Licenses and Registrations • Land storage of certain items • When Required c. 148 § 9: • Broad: fluids, compounds, explosives, inflammables • BFPR to establish threshold amount • Issued by local government body • License process: notice, hearing • Amendments: should re-trigger process • Revocation • Registrations: annually • Requirements: may be subject to reasonable conditions • Purpose: information/safety Department of Fire Services

  17. Order of Notice: Fire Chief’s Most Important Enforcement Tool • Authority • M.G.L. c. 148 § 5 • M.G.L. c. 148 § 30 • 527 CMR 1.06(1) through (7) • 527 CMR 1.03(8) – duties of Chief (authority to take necessary action) (God law) Department of Fire Services

  18. Order of Notice: Fire Chief’s Most Important Enforcement Tool • Elements to write Order (requirements reflects common sense and due process requirements) • In writing – M.G.L. c. 148 § 5 and 527 CMR 1.06 • Properly addressed • Accurate description of the facts which support violation (who, what, when, where, why) • Precise legal/regulatory reference for the violation • Signature, date of issuance • Compliance date • Method of Delivery (by hand or certified mail) • Appeal Rights Department of Fire Services

  19. Failure to Comply with Rules or Regulations • Punishment • M.G.L. c. 148 § 10B – any person who knowingly violates any rule or regulation made by the BFPR shall, except as otherwise provided, be punished by a fine of not less than $100, not more than $1,000 • Court Action to enforce order • Superior Court jurisdiction – c. 148 § 30 • Housing Court jurisdiction – c. 185 § 3 • District Court jurisdiction (a note on equitable jurisdiction) new c. 148 § 34D Department of Fire Services

  20. M.G.L. Chapter 148 § 30 Violation of Order • Violation of any lawful rule or order of the head of the fire department is punishable by a fine of $50 for each day the violation continues after notice. • Superior Court has jurisdiction. (Housing Court has concurrent jurisdiction with Superior Court & District Court – 34D) Department of Fire Services

  21. M.G.L. Chapter 148 § 34 Violation of Order • Any person violating provision of M.G.L. Chapter 148 is punishable by a fine of $100 or in the case of continuing offense, $100 for each day after notice Department of Fire Services

  22. Court Procedures • Application for criminal complaint (Dist. Ct) or Notice of show cause hearing (Housing Ct) (Clerk Magistrate hearings) • Hearing (informal) – reasonable cause )preponderance of the evidence test) • Complaint issued • Arraignment • Trial • Verdict • Disposition * Application for temporary restraining order / other equitable relief Department of Fire Services

  23. These are typical applications for a criminal complaint Department of Fire Services

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  32. M.G.L. c.148A Alternative Non-Criminal Fire & Building Code Violation ProceduresThe Fire Department’s new “power tool”

  33. Reasons for New Procedures • MA Task Force Report on Fire & Building Safety – Sept. 2003 – in response to Station Nightclub Fire in R.I. • Existing criminal process: time consuming, cumbersome and often confusing • New method allows for quick, simple enforcement methodology Department of Fire Services

  34. Reasons for New Procedures 2. Builds a “paper trail” of violations allowing enforcement personnel to concentrate efforts 3. Link violations with licenses, permits or certificates relating to the building or structure 4. Allows for a retained revenue source to fund local training and enforcement efforts Department of Fire Services

  35. New Ticketing/Code Enforcement Procedures(Major Features of Chapter 148A) • New non-criminal procedures for local and state fire and building code enforcement officers. • Applies only to violations of State Fire Code (527 CMR) and State Building Code (780 CMR) • Municipalities are not required to utilize c. 148A procedures. • If municipalities participate, hearing process must be established. Department of Fire Services

  36. Major Features of c. 148A 1. Enforced by a “local code enforcement officer”, defined as: • Head of fire department or designee empowered to enforce fire code • Local building inspector empowered to enforce the building code under c. 143, s. 3A • Separate track for state enforcement efforts Department of Fire Services

  37. Major Features of c. 148A(continued) • 2. Comprehensive ticketing process • Uniform throughout the state • Standardized forms approved by joint committee • 3. Hearings conducted by a “municipal hearing officer” • Person appointed by the appointing authority of the municipality to conduct hearings Department of Fire Services

  38. Major Features of c. 148A(continued) 4. Scheduled assessments (fines) Determined by a joint committee - warning- no fine 1st offense – $100.00 2nd offense - $500.00 3rd or subsequent- $1000.00 5. Fees collected are paid to municipalities and earmarked for enforcement, training & education of fire prevention officers and building inspectors 6.Appeals of municipal hearing officers decisions are to appropriate housing court or district court (if applicable) Department of Fire Services

  39. Fire Code Violations Subjectto the New Procedures Fire Code (527 CMR) – Approximately 170 violations contained in violation reference book Department of Fire Services

  40. Code Violations - Contentof “Ticket” M.G.L. c. 148A • Name and Address of Offender • Specific Offense Charged • Warning or Violation, Continuing Condition checked on ticket • Time and Place of Violation • Signed by Building or Fire Official • Signed by Offender • Copy given to offender at time of issuance or delivered or mailed to offender within 15 days of violation Department of Fire Services

  41. Service of Violation Notice • Deliver, if possible, to offender a copy of notice at time and place of violation or; • If not possible, copy shall be mailed or delivered to offender’s last known address, within 15 days of violation (or discovery thereof). • Certificate of service of proper mailing is “prima facie” evidence of proper service Department of Fire Services

  42. Offender’s Responsibility Within 21 days either: 1. Pay assessed penalty; or 2. Request a hearing before municipal hearings officer Department of Fire Services

  43. Municipal Hearings • Informal hearing and formal rules of evidence shall not apply • Must be prepared • Must provide basic testimony, documents, photographs, etc. to prove a case • Use common sense Department of Fire Services

  44. Appeals to Housing Court • Held before the Clerk Magistrate of the Court • De Novo (new) hearing. Not a review of prior hearing before the Municipal hearing officer • Be prepared! • Present all evidence Department of Fire Services

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  46. Process Ticketing Department of Fire Services

  47. Misc. Provisions of Chapter 148 § 26A-26F Smoke Detectors in Existing Bldgs • 26A½ - requires smoke detectors in high rise residential buildings prior to 1975 • 26B – requires sprinklers in residential buildings (under 70 ft.) constructed after January 1, 1975 (appeals to BBRS) • 26C – requires smoke detectors in existing apartments, hotels, motels and boarding houses with 6 or more units. • 26F – smoke detectors upon sale or transfer (new 527 CMR 32.00) • 26F½ - CO detector upon sale or transfer (Nicole’s Law) Department of Fire Services

  48. Misc. Provisions of Chapter 148 § 26G-26I Sprinklers in New & Existing Bldgs • 26G – requires sprinklers in non-residential buildings or additions of <7500 ft2 (recently amended) • 26G½ – requires sprinklers in existing bars, nightclubs, dancehalls, and discothèques with an occupancy of 100 or more. • 26H – (local option) requires sprinklers in boarding & lodging houses (6+ unrelated persons) Department of Fire Services

  49. Chapter 148 § 26G-26I Sprinklers in New & Existing Bldgs • 26I – (local option) requires sprinklers in new or rehabilitated residential occupancies with 4 or more units. Department of Fire Services

  50. Chapter 148 § 27AFire Protection Systems • Prohibits shutting off, disconnecting, obstructing, removing, destroying any fire protection device without written permit. • Includes sprinklers, hydrants, fire alarms, CO alarms, standpipes, and other suppression systems. • 527 CMR 1.06(2); 10.03(5) • Permit for installations/modifications • Notice only for temporary shut downs, minor repairs or maintenance Department of Fire Services

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