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

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

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

4. Department of Fire Services n In performance of their duties pertaining to Chapter 148, 527 CMR or any other law, ordinance or by law relating to fire prevention. n 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! n Contains Quarterly inspection requirements. F State institutions: DPH, Inns M.G.L. Chapter 148 § 4 Persons authorized to enter and inspect premises

5. Department of Fire Services n 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. n If such conditions are found they shall order those conditions to be remedied in writing. M.G.L. Chapter 148 § 5 Investigation of premises for fire hazards; remedy of conditions

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

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

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

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

10. Department of Fire Services n 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 527 CMR 1.03 (8) Duties of the Head of the Fire Department

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

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

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

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

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

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

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

18. Department of Fire Services Order of Notice: Fire Chief’s Most Important Enforcement Tool n Elements to write Order (requirements reflects common sense and due process requirements) 1. In writing – M.G.L. c. 148 § 5 and 527 CMR 1.06 2. Properly addressed 3. Accurate description of the facts which support violation (who, what, when, where, why) 4. Precise legal/regulatory reference for the violation 5. Signature, date of issuance 6. Compliance date 7. Method of Delivery (by hand or certified mail) 8. Appeal Rights

19. Department of Fire Services Failure to Comply with Rules or Regulations n Punishment u 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 n Court Action to enforce order u Superior Court jurisdiction – c. 148 § 30 u Housing Court jurisdiction – c. 185 § 3 u District Court jurisdiction (a note on equitable jurisdiction) new c. 148 § 34D

20. Department of Fire Services M.G.L. Chapter 148 § 30 Violation of Order n 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. n Superior Court has jurisdiction. (Housing Court has concurrent jurisdiction with Superior Court & District Court – 34D)

21. Department of Fire Services n 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 M.G.L. Chapter 148 § 34 Violation of Order

22. Department of Fire Services Court Procedures 1. Application for criminal complaint (Dist. Ct) or Notice of show cause hearing (Housing Ct) (Clerk Magistrate hearings) 2. Hearing (informal) – reasonable cause )preponderance of the evidence test) 3. Complaint issued 4. Arraignment 5. Trial 6. Verdict 7. Disposition * Application for temporary restraining order / other equitable relief

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

24. Department of Fire Services

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

33. Department of Fire Services 1.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 Reasons for New Procedures

34. Department of Fire Services 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 Reasons for New Procedures

35. Department of Fire Services 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. New Ticketing/Code Enforcement Procedures New Ticketing/Code Enforcement Procedures (Major Features of Chapter 148A)

36. Department of Fire Services 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 Major Features of c. 148A

37. Department of Fire Services 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 Major Features of c. 148A (continued)

38. Department of Fire Services 4. Scheduled assessments (fines) Determined by a joint committee - warning- no fine 1 st offense – $100.00 2 nd offense - $500.00 3 rd 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) Major Features of c. 148A (continued)

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

40. Department of Fire Services 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 Code Violations - Content of “Ticket” M.G.L. c. 148A

41. Department of Fire Services 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 Service of Violation Notice

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

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

44. Department of Fire Services 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 Appeals to Housing Court

45. Department of Fire Services

46. TicketingProcess

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

48. Department of Fire Services n 26G – requires sprinklers in non-residential buildings or additions of <7500 ft 2 (recently amended) n 26G½ – requires sprinklers in existing bars, nightclubs, dancehalls, and discothèques with an occupancy of 100 or more. n 26H – (local option) requires sprinklers in boarding & lodging houses (6+ unrelated persons) Misc. Provisions of Chapter 148 § 26G-26I Sprinklers in New & Existing Bldgs

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

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

51. Department of Fire Services Chapter 148 § 28A Notification of other Agencies n Requires that a fire official who in the performance of his duties observes violations of the building code to notify the agency charged with enforcement.

52. Department of Fire Services New/Enhanced Criminal Sanctions n Enacted after the 2003 Station Nightclub Fire in R.I.

53. Department of Fire Services Chapter 148 § 34A Enhanced Penalties for Places of Assembly n Fine of not more $5000, or imprisonment for not more than 2½ years or both for causing a dangerous condition in a place of assembly. n Dangerous condition defined as: blocked or impeded egress, failure to maintain fire protection systems, exceeding occupancy, improper storage of flammables, improper use of fire works. n Subsequent violation becomes a felony (up to $25,000/5 years).

54. Department of Fire Services Chapter 148 § 34B Violations resulting in serious bodily injury/death “Wanton” or “reckless”: n Violations of the state fire code or state building code which result in “serious bodily injury or death.” n Punishable by imprisonment for not more than 5 years, a $25,000 fine or both.

55. Department of Fire Services n Provides for a fine of not more than $1,000, imprisonment for not more than 1 year, or both. n Second or subsequent violations of the building code, fire code, including incorporated specialized codes, or lawful orders of the building official, fire official or Marshal. Chapter 148 § 34C Repeat violations of the fire or building code

56. Department of Fire Services Chapter 148 § 34C Courts n Grants specific jurisdiction and equitable power to the Housing Court, District Court, and Superior Court to enforce the orders of the head of the fire department and Marshal. n New/unique power for District Courts.

57. Department of Fire Services Negligence Liability

58. Department of Fire Services 5 Elements of the Negligence Civil Suit n Duty of Due Care F Based upon the reasonable man under the attendant circumstances n Actual Breach of that duty n Breached duty results in actual damages, forseeable and proximate n Causal connection between the breach of duty and injury n Compensable damages

59. Department of Fire Services Plaintiff must prove each and every element by a preponderance of the evidence or the case will be subject to summary judgment

60. Department of Fire Services The Massachusetts Torts Claims Act: M.G.L. c. 258 n Claims and indemnity procedure for the Commonwealth, municipalities, counties, and districts and the officers and employees thereof n This 1978 statute abrogated, in part and with limits, the ancient doctrine of Sovereign immunity n At urging of S.J.C. in Whitney v. Worcester (1977) n Applies to torts (civil wrongs): negligence and intentional torts n Provides the exclusive manner to file legal claims against the municipality

61. Department of Fire Services Presentment Procedures

62. Department of Fire Services Claim Presentment n Claim Presentment – prior to filing a lawsuit, plaintiff must: u Present claim in writing to the executive officer if the public employee (fair summary of claim) u Must file written claim within 2 years after the date in which the cause of action arose u Six month rule: response or denial

63. Department of Fire Services Filing the Civil Action n Must be filed within 3 years of date that the cause of action arose n Presentment is a pre-requisite to filing suit n Proper service must be made on the public attorney n Superior court jurisdiction

64. Department of Fire Services Basic Concepts of the Tort Claims Act

65. Department of Fire Services Negligent Acts of the Employee n Makes the employer (the municipality) liable for injury to property or person caused by the negligent act or omission of a public employee (elected or appointed) while acting within the scope of his duties to the same extent as the private individual n Imputes the liability of the employee to the employer n Scope of duty: reasonably related to the job n $100,000 – limit of liability for negligence

66. Department of Fire Services Intentional Acts of the Employee n Allows public employer to indemnify the employee for claims based upon: F Intentional torts / civil rights violations F Must be acting within the scope of his duties F Indemnification – personal financial loss, fees, costs F Does not include grossly negligent, willful or malicious conduct F Statute uses the term “may indemnify” not automatic / discretionary F $1 million tort limit

67. Department of Fire Services Most Common Defenses

68. Department of Fire Services Exclusivity Provision Chapter 258 § 2 n No double recovery F Monohan v. Town of Methuen: Chapter 258 or Chapter 41, 100, 111F – not both

69. Department of Fire Services Discretionary Acts (258 § 10B) n Exempts: “(b) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or a public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused” n Excludes any claim based upon the exercise or performance or the failure to perform a discretionary function of an employee acting within the scope of employment n Limited in application public policy and planning F See Stroller v. Lowell (1992) case and Sulusti v. Watertown (1994) hydrant case

70. Department of Fire Services Public Duty Exemption (Public v. Special Duty) n Judicially created exemption - Irwin v. Ware (1984) n Applies if the duty owed is to the public at large n Not applicable if there is a special duty owed to the individual as distinguished from the general public

71. Department of Fire Services Determined on a Case by Case Basis n Public Duty u Upkeep of fire hydrants – see Salusti v. Watertown (1994) u Homeowners case – Cyran v. Town of Ware (1992) n Special Duty u Probation failure to check molester’s record – A.L. c. Commonwealth n Codification of the public duty exemption – added section (e) through (j) to Chapter 258 § 10

72. Codification of the Public Duty Rule Provisions Applicable to the Fire Service

73. Department of Fire Services Provisions of c. 258 § 10, § 1-8, inclusive, shall not apply to: n (e) Any claim based upon the issuance, denial, suspension or revocation or failure, or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization n (f) Any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph (j)

74. Department of Fire Services Provisions of c. 258 § 10, § 1-8, inclusive, shall not apply to: n (g) Any claim based upon the failure to establish a fire department or a particular fire protection service, or if fire protection service is provided, for failure to prevent, suppress or contain a fire, or for any acts or omissions in the suppression or containment of a fire, but not including claims based upon the negligent operation of motor vehicles or as otherwise provided in clause (1) of subparagraph (j)

75. Department of Fire Services Tort Tips (So you can sleep at night) n Ignorance is not bliss n Basic knowledge of the standards of due care n Stay within the scope of the employment n If an incident happens, get all the facts (the W’s) n Did the Plaintiff follow the Tort Claim procedures? n Be aware of, but ignore the exemptions n Establish a good working relationship with the Municipal Attorney

76. Act reasonably at all times and use your best judgment!

77. Department of Fire Services Office of General Counsel Thank you