STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )

)

)

Petitioner, )

)

vs. ) CASE NO. 83-2018

)

BARBECUE, LTD., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on August 18, 1983, in Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on August 29, 1983, and consideration of proposed Recommended Orders, the last of which was filed on September 9, 1983. In addition, Respondent has offered a memorandum in support of its proposal. The proposed Recommended Orders have been utilized in part. To the extent that they have not been utilized, they were rejected for reasons of irrelevance, immateriality, failure to conform with facts found, failure to comply with conclusions of law reached or inconsistency with the recommended disposition.

APPEARANCES

For Petitioner: Dennis Silverman, Esquire

State of Florida Department of Insurance 4l3-B Larson Building

Tallahassee, Florida 32301

For Respondent: Hugh M. Davenport, Esquire

Smith, Davenport, Bloom and Harden 2601 Gulf Life Tower

Jacksonville, Florida 32207 ISSUES

The issues to be considered through this Recommended Order involve an amended Order to Cease and Desist brought by the Petitioner against the Respondent pertaining to alleged violations of the Life Safety Code. In particular, Petitioner asks that the Respondent be prohibited from utilizing a loft area for restaurant patrons in that premises without providing an exit discharge on the level of the loft or in the alternative provision of an acceptable sprinkler protection system in the dining areas for patrons. The

stated authority for the Cease and Desist Order is Section 633.161, Florida Statutes.

FINDINGS OF FACT

1. The corporation, Barbecue, Ltd., owns and operates a restaurant in Jacksonville Beach, Florida, which serves the general public. The approved occupancy for diners in the restaurant facility exceeds 50 persons, but is less than 300 persons.

   
   

2. On July 15, 1982, an inspection was made of the restaurant facility by Thomas King, Fire Protection Specialist within the State Fire Marshal's Office. During the course of this inspection, King observed that the loft area which was provided for dining above the ground level floor dining area did not have available independent exits, unassociated with the exits on the ground level floor. A fire safety survey report was made on July 23, 1982, and the owners of the restaurant were requested to make corrections by September 30, 1982, related to appropriate exits on the level of the "loft" dining area. A return inspection was made by King on October 4, 1982, and the same problem was discovered on the subject of exits at the level of the loft area. As a consequence, a notice of violation was given to the owner of the restaurant on October 5, 1982. On that same date, a fire safety survey repor percent was prepared dealing with the reinspection of October 4, 1982.

   
   

3. There ensued an Order to Cease and Desist utilization of the loft area as a place of assembly for restaurant patrons. This initial Order to Cease and Desist was dated May 18, 1983. Respondent requested a Subsection 120.57 (1), Florida Statutes hearing to question the propriety of the Cease and Desist Order. Subsequent to that time, a final hearing was noticed for August 18, 1983. An amended Cease and Desist Order had been issued August 18, 1983 and it was that action by the Petitioner which was considered in the course of the final hearing. The original Cease and Desist Order followed efforts to resolve the controversy by negotiations between the parties. Moreover, there had been a preliminary survey by King on June 23, 1980, in trying to determine needed compliance for fire safety of what was then a proposed loft dining area. Again on July 8, 1980, King and the attorney for Respondent met and discussed possible alternatives to exit points on the same level as the loft area. The alternative discussed was the possibility of provision of a 100 percent automatic fire suppression sprinkler system on the ground floor and loft levels. Counsel for Respondent suggested that two exit points from the loft area dawn to the ground level floor would suffice. This suggestion was not accepted by the Petitioner. This round of discussions having been uneventful, the inspections of July 15, 1982, and October 4, 1982, were made. Finally, an architectural firm which was hired by Respondent, through an architect with that firm, Robert E. Kelly, expressed the opinion to counsel for Respondent on October 15, 1982, that provisions related to exit safety could be satisfied by the addition of a second set of stairs leading from the loft area to the ground floor.

   
   

4. Although local officials within the government of the City of Jacksonville Beach, Florida, had issued a permit for the construction of the loft area and later questioned the propriety of construction without the benefit of exit points at the loft level, no official with the Petitioner has ever countenanced the utilization of the loft area by patrons without complying with provisions of the Life Safety Code related to appropriate exit discharge points at the loft level area or automatic sprinkler systems in all areas frequented by patrons within the restaurant.

5. At the time of the hearing, the loft area was not being used by members of the general public. That loft area could be reached by a set of stairs from the ground floor dining area, with egress from the loft area being by return trip dawn that stairway. There is only a single stairway at present. The bottom of the stairway enters a service area utilized by employees of the restaurant and is 10 to 12 feet from a kitchen area. The kitchen area is separated from the dining area by two 180 degree swinging doors. The kitchen is a hazard area which has an automatic fire suppression system in the hood over the cooking devices for control. Immediately behind the kitchen, separated by a wall of concrete cinder block, is a barbecue pit. The dining area is found within-an A-frame structure. The ground level of that A-frame structure has egress points from the east and west sides at the ground level. The A-frame is constituted of steel beams with timbered sheathing and the inside interior finish to the A-frame is rough cut red cedar. The I-beams which form the A- frame are 10 to 12 inches thick and are sunk 10 feet into concrete outside of the building. The sheathing material on the I-beams is 2 inch tongue-and-groove lumber. The 2 inches refer to thickness of the wood. On the exterior surface of the A-frame, anodized aluminum shingles have been placed to waterproof the roof. The loft area has flooring which is constituted of 3/4 inch plywood covered with carpet. Some of the support for that floor comes from the I-beams in the A-frame structure. The inside of the A-frame in the restaurant in the dining area has exposed wood. The floor on the groind level of the dining area is terrazzo and cement. On the inside of the restaurant, in the dining area, the steel beams are covered by the aforementioned sheathing. The loft area does not have windows. The stairway connecting the loft area and qround level has a handrail. In the event of a fire situation in the kitchen area, a build up of heat or smoke could come into the dining area, to include the loft. The only means of exit at present in the face of this eventuality would be dawn the stairs. The area of the kitchen and barbecue pit is in a concrete block construction with a truss roof. Between the I-beams, there is an open channel allowing the passage of air. The dining or public area on the ground floor is

   980.59 square feet. The total ground floor level is 2,062 square feet and the loft area is 457.5 square feet.

   
   

6. Both the ground level dining area and the loft dining area constitute places of assembly. At present, the level of exit discharge for both of those areas is found in the two exits on the ground level floor. The overall construction of the dining area within the A-frame is ordinary construction within the meaning of Section 3-5, NFPA 220, Life Safety Code.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57 (1), Florida Statutes.

   
   

8. Section 633.161 empowers the Petitioner to enter Cease and Desist Orders against persons who violate rules and regulations promulgated by the Office of the State Treasurer and Insurance Commissioner as State Fire Marshal. As a part of this regulatory process, Rule 4A-27.13, Florida Administrative Code has been adopted and it incorporates the standards of the National Fire Protection Association related to life safety from fire as provided in NFPA No.10l, Life Safety Code. Section 4-1.2, NFPA No. 101, Life Safety Code, lists restaurants as a place of assembly. Section 8-1.3.1, NFPA No. 101, Life Safetv Code, further classifies places of assembly to include Class C, which is capacity of 50 to 300 persons. Respondent's restaurant falls into the Class C category. Section 8-2.4.3, NFPA No. 101, Life Safety Code, indicates that each

   Class C place of assembly shall have at least two means of egress, consisting of separate exits or doors leading to a corridor or other spaces giving access to two separate and independent exits in different directions. Section 5-4.1.2, NFPA No. 101, Life Safety Code, indicates that these exits shall be located so that they will be readily accessible at all times. Where the exits are not immediately accessible from open floor space, passage ways and aisles or corridors, which are continuous and safe, shall he maintained leading directly to those exits and allowing each occupant to have at least two exit choices by separate ways of travel. Section 5-1.2.4, NFPA No. 101, Life Safety Code, defines that portion of the means of egress between the termination of an exit and a public way to be an exit discharge. Having in mind the prior provisions, Section 8-1.6, NFPA No. 101, Life Safety Code, places limitations on the location of a place of assembly. These limitations are premised upon types of construction, classifications of the place of asnembly and location of the exit discharge or in some instances alternatives to exit discharge through complete automatic sprinkler protection. Appendix B to NFPA No. 101, Life Safety Code, references certain other NFPA publications and makes those materials in the associated publications part of the Life Safety Code. Chapter 3, NFPA No. 220, Life Safety Code, classifies buildings according to their fire protection qualities. The description of the restaurant in question places it in the category of ordinary construction as defined in Section 3-5, NFPA No. 220, Life Safety Code. As a consequence, limitations to the location of the place of assembly in the Respondent's restaurant dining area are as set forth in Section 8-1.6(c), NFPA No. 101, Life Safety Code, which states ?in buildings of noncombustible, ordinary and wood-frame, a Class C place of assehbly shall be permitted at the level of exit discharge." On this occasion it means that assembly is allowed on the ground floor level where two exist discharge points may be found. There being no exit discharge points on the loft level, and those exits on the ground level not being immediately accessible from the open floor space of the loft and no safe and continuous passage way, aisle or corridor being maintained which leads directly to those ground floor level exits through an arrangement which provides convenient access for loft level occupants, the loft area may not be used as a place of assem1y within the restaurant. To allow assembly in the loft area, two independent exit discharge points must be provided at the loft floor level. In the alternative, in keeping with Sections 1-4.2 and 6-4, Life Safety Code, exit discharge points at the level of the loft floor may be excluded and automatic sprinkler systems provided for both the ground floor level and loft floor level within the dining portion of the restaurant.

   
   

9. Reference is made by the Respondent to the fact that Rule 4A-14.06, Florida Administrative Code, allows occupancy in the loft area without the necessity of automatic sprinkler systems. This provision pertains to institutional and residential other than multi-family houses and dwellings and does not address places of assembly, such as the restaurant in question and does not act to the exclusion of those provisions of the Life Safetv Code discussed before.

   
   

10. Based upon the consideration of the facts found and the conclusions of law reached it is,

RECOMMENDED

That the amended Order to Cease and Desist remain in force and effect until such time as the Respondent shall provide independent means of exit discharge or egress at the loft level or in the alternative provide approved automatic

sprinkler systems for both the loft level and ground level assembly areas within the restaurant.

DONE and ENTERED this 17th day of October, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1983.

COPIES FURNISHED:

B. M. Davenport, Esquire Smith, Davenport, Bloom and

Harden

2601 Gulf Life Tower Jacksonville, Florida 3220

Dennis Silverman, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

Honorable William Gunter

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32301

Docket for Case No: 83-002018

Orders for Case No: 83-002018