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BCC Ruling No. 00-20-752

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BUILDING CODE COMMISSION DECISION ON B.C.C. #00-20-752

IN THE MATTER OF Subsection 24 (1) of the Building Code Act, 1992.

AND IN THE MATTER OF Sentences 3.3.1.17.(5) and 3.4.6.5.(8) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99 and 205/00 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Ray Abbott, Co-Owner, NRG Fitness Centre Inc., Oshawa, Ontario for the resolution of a dispute with Mr. G.N. Bilous, Chief Building Official, City of Oshawa, to determine whether the as-built guards constructed mainly with panels consisting of 50 by 50 mm wire mesh provides sufficiency of compliance with Sentences 3.3.1.17.(5) and 3.4.6.5.(8) of the Ontario Building Code at NRG Fitness Centre Inc., 69 Taunton Road West, Oshawa, Ontario.

APPLICANT
Mr. Ray Abbott, Co-Owner
NRG Fitness Centre Inc.
Oshawa, Ontario

RESPONDENT
Mr. G.N. Bilous
Chief Building Official
City of Oshawa

PANEL
Mr. Kenneth Peaker, Chair-Designate
Mr. Donald Pratt
Mr. Fred Barkhouse

PLACE
Toronto, Ontario

DATE OF HEARING
May 11th, 2000

DATE OF RULING
May 11th, 2000

APPEARANCES
Mr. Ray Abbott, Co-Owner
NRG Fitness Centre Inc.
Oshawa, Ontario
The Applicant


Mr. Carmelo Reitano
Building Inspector
City of Oshawa
Designate for the Respondent

RULING

1. The Applicant

Mr. Ray Abbott, Co-Owner, NRG Fitness Centre Inc., Oshawa, Ontario, has received a building permit under the Building Code Act, 1992 and has recently constructed a new fitness facility known as NRG Fitness Centre Inc., at 69 Taunton Road West, Oshawa, Ontario.

2. Description of Construction

The Applicant has recently constructed a new fitness complex called "NRG Fitness Centre" classified as having Group A, Division 2 major occupancy. The structure is described as one storey in building height, 1313.86 m2 in building area, and of non-combustible construction.

On the eastern portion of the main floor, the building consists of a gymnasium divided into a weight room (16 m by 8 m), a resistance training area (16 m by 16 m) in the middle, and an aerobic room (12 m by 15 m). Also on this side of the building are areas such as the locker rooms, showers, laundry facilities, etc. that are ancillary to the gymnasium. On the building's west side and immediately adjacent to the central main entrance of the building (on the south side) is a nursery followed by a laundry room, both of which open to an entrance lounge. This lounge contains the reception counter which acts as a partial border on the north side to allow for controlled entrance to the corridor leading to the gymnasium and its ancillary areas.

The building has a second level that is considered a mezzanine and which covers the areas above the weight room, entrance lounge and the corridor. The mezzanine accommodates some of the exercise equipment. The stairs leading to this level are located within the resistance training area.

The building is operated under a lease agreement and prohibits unsupervised use of the equipment by youths under the age of 15.

The issue at dispute between the Applicant and Respondent is whether the operation of the building compensates for the as-built guards constructed mainly with panels consisting of 50 by 50 mm wire mesh and thereby provides sufficiency of compliance with Sentences 3.3.1.17.(5) and 3.4.6.5.(8) of the Ontario Building Code. Both provisions stipulate that unless it can be shown that openings in a guard do not pose a hazard, the guard must be designed so as not to facilitate climbing. Specifically, Sentence 3.3.1.17.(5) mandates safety requirements within floor areas and Sentence 3.4.6.5.(8) mandates safety requirements related to exit signs. The guards in dispute are located both within a floor area and in exits.

3. Dispute

Both parties to this dispute apparently agree that the design of the guards could facilitate climbing. The dispute, however, is whether in this instance, with supervised utilization of equipment for youths under 15, the guards constitute a hazard. Therefore the issue before the Building Code Commission is whether the intended supervised use of the facility compensates for the inherent climability of the guards.

4. Provisions of the Ontario Building Code

Sentence 3.3.1.17. Guards

(5) Unless it can be shown that the location and size of openings do not present a hazard, a guard shall be designed so that no member, attachment or opening located between 140 mm (5 ? in) and 900 mm (2 ft 11 in) above the level protected by the guard will facilitate climbing.

Sentence 3.4.6.5. Guards

(8) Unless it can be shown that the location and size of openings do not present a hazard, a guard shall be designed so that no member, attachment or opening located between 140 mm (5 ? in) and 900 mm (2 ft 11 in) above the level being protected by the guard will facilitate climbing.

5. Applicant's Position

At the outset, the Applicant submitted that the design and locations of the as-built guards do not pose a hazard as the gym is restricted to persons 15 years or older. In addition, no persons of diminished capacity are permitted. The Applicant also noted that the gym is a controlled space where a member card must be scanned to gain full access.

The Applicant stated that the design of the guards was based on his suggestion after seeing the same design in some YMCA complexes. He continued that although they were warned by the city at the construction stage about the climability of the guards they had to proceed with construction in order to be prepared for their January opening.

The Applicant argued that their supervised operation of the centre would compensate for the climbability of guards for the following reasons: the open-concept structure is not a large building and the mezzanine area is visible from every point on the ground floor; youths under 15 years cannot use the equipment without one-on-one adult supervision; the nursery is located by the front door to the building away from the controlled access gymnasium and ancilliary areas; children are not allowed to enter the controlled access areas; there are always at least two employees at the reception counter to supervise who enters; tours for prospective members are supervised; and one hour orientation sessions are offered to every new member to the centre.

The Applicant also argued that they have stability as a tenant in the building. He indicated that they have a 15 year lease with the intention to possibly purchase thereafter.

In closing, the Applicant stated that although he is aware that the decisions of the Commission are all site specific, he believes they provide the same level of security and supervision in their complex as is the case in the Durham YMCA building, which recently had identical guards approved by the Building Code Commission.

6. Respondent's Position

The Respondent submitted that even though NRG Fitness members under 15 require supervision, this stipulation does not restrict children of lower ages from joining and attending the club.

The Respondent mentioned that they had advised the Applicant about the climability of the guards at the design stage. It was also suggested that vertical pickets could be provided in lieu of the wire mesh and would thereby avoid the climbability issue. Moreover, the Respondent felt that the proper process in terms of submitting all the building plans was not fully followed.

In terms of the as-constructed guards, the Respondent argued that the 50 by 50 mm welded wire mesh would provide a foothold that could facilitate climbing by children and this, in his opinion, contravenes Sentences 3.3.1.17.(5) and 3.4.6.5.(8) of the OBC. In addition, there was concern raised regarding the future use or extension of the building that could include some facilities to be used by children, which could pose serious hazards. The Respondent noted that if a future owner decided to use the building as a childcare centre, the guards would be very dangerous as children are not supervised on a one-on-one basis in such facilities. Such a change in tenancy is a possibility, as the Applicant is only leasing the building.

7. Commission Ruling

It is the decision of the Building Code Commission that the as-built guards constructed mainly with panels consisting of 50 by 50 mm wire mesh do not provide sufficiency of compliance with Sentences 3.3.1.17.(5) and 3.4.6.5.(8) of the Ontario Building Code at NRG Fitness Centre Inc., 69 Taunton Road West, Oshawa, Ontario.

8. Reasons

i. The guards are climbable

ii. The guards are climbable. The security arrangements do not appear to be adequate so as to ensure that only eligible persons will be allowed in the areas containing the subject guards.

iii. The guards are climbable. The BCC is concerned that since the building is leased a future tenant may propose a use that could expose children to the guards thus creating a dangerous situation.

Dated at Toronto this 11th, day in the month of May in the year 2000 for application number 2000-22.

_______________________________________________

Dr. Kenneth Peaker, Chair

_______________________________________________

Mr. Donald Pratt

_______________________________________________

Mr. Fred Barkhouse