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BCC Ruling No. 99-20-676

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-20-676

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

AND IN THE MATTER OF Sentence 3.7.4.3.(4) of Regulation 403, as amended by O. Reg. 22/98, 102/98 and 122/98 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Frank Macri, Franchise Director, Pizza Nova Take Out Ltd., 2247 Midland Avenue, Toronto, Ontario, for the resolution of a dispute with Mr. Stephen A. Vokes, Chief Building Official, Municipality of Clarington, Ontario to determine whether the proposed 83 m2 Pizza Nova Take Out franchise should be considered a mercantile occupancy and is therefore adequately served by a single unisex, barrier-free accessible washroom in accordance with Sentence 3.7.4.8.(3) of the Ontario Building Code at the Pizza Nova Take Out, Clarington Centre (Building A), Bowmanville, Ontario.

APPLICANT

Mr. Frank Macri, Franchise Director
Pizza Nova Take Out Ltd.
Toronto, Ontario

RESPONDENT

Mr. Stephen A. Vokes
Chief Building Official
Municipality of Clarington

PANEL

Mr. Roy Philippe (Chair)
Mr. Michael Steele
Mr. Kenneth Peaker

PLACE

Toronto, Ontario

DATE OF HEARING

April 8, 1999

DATE OF RULING

April 8, 1999

APPEARANCES

Mr. David Syrett
Leber/Rubes Inc.
Toronto, Ontario
Agent for the Applicant

Mr. Gregg Powless
Building/Plumbing Inspector
Municipality of Clarington
Designate for the Respondent

RULING

  1. The Applicant

Mr. Frank Macri, Franchise Director, has applied for a building permit under the Building Code Act, 1992 to construct a new Pizza Nova Take Out franchise at Unit No. 112, Clarington Centre (Building A), Bowmanville, Ontario.

  1. Description of Construction

The Applicant is proposing to construct a new, 83 m2 (4.5 m x 18.39 m), Pizza Nova Take Out franchise. The Group E - mercantile occupancy (take out outlet), as described by the Applicant, will be constructed in a leased spaced (Unit No. 112) located in Building A of the Clarington Centre. The Clarington Centre is a new, one storey, retail strip plaza containing numerous Group D - business and Group E - mercantile occupancies, with a building area of 1,187 m2. The Pizza Nova franchise, as is the case with other tenants in the plaza, will be accessed directly from the outdoors, not from an interior corridor, and will have 1 hour fire separation demising walls between other occupancies. The plaza is noncombustible construction and is equipped with a monitored sprinkler system, but not a fire alarm system.

In the subject Pizza Nova facility (which represents only 7% of the total building area of the entire plaza) the Applicant is proposing that 72 m2 of the total area be devoted for food storage, preparation and sales, while 11 m2 is to be allocated for a customer ordering area that includes a condiment ledge. There is no provision for seating which would encourage patrons to consume food and drink, or otherwise remain in the take out outlet.

The construction in dispute concerns the number and location of washrooms proposed for the franchise. The Applicant is proposing to install a single, barrier-free accessible, washroom that is intended to serve both sexes. No other washrooms will be provided within any of the public spaces of the plaza. As well, the washroom is to be placed at the rear of the take out facility, behind the food storage and preparation areas.

  1. Dispute

The issue in dispute between the Applicant and Respondent is whether the proposed 83 m2 fast food outlet can be considered a mercantile occupancy and would therefore be adequately served by a single, unisex barrier-free accessible washroom, in accordance with Sentence 3.7.4.8.(3) of the Ontario Building Code. This provision determines the number of washrooms required per sex for mercantile occupancies. The dispute, however, centres on whether the major occupancy of the Pizza Nova Take Out outlet should be considered an mercantile occupancy or assembly. The washroom requirements are different for these occupancies. If considered an assembly occupancy, i.e. restaurant, then an additional washroom would be required.

Further, the location of the washroom at the rear of the take out facility, beyond food preparation areas, is also at issue. Article 3.7.4.15. stipulates that washrooms should not be located where in order to access them it would be necessary to travel through food preparation areas.

  1. Provisions of the Ontario Building Code

Sentence 3.7.4.8.(3) Plumbing Fixtures for Mercantile Occupancies

(3) Not more than one water closet to serve both sexes need be provided in a Group E occupancy where

(a) the occupant load is not more than 9 persons, or

(b) where the total area of the occupancy, excluding basements, is not more than 300 m2 (3,230 ft2).

Sentence 3.7.4.3.(4) Plumbing Fixtures for Assembly Occupancies

The number of water closets required for dining rooms, restaurants and cafeteria shall conform to Table 3.7.4.3.D.

Sentence 3.7.4.15.(1) Location of Plumbing Fixtures

(1) A room containing a water closet shall be located where

(a) it does not open directly into any room or area where food is intended to be stored, prepared, processed, distributed, served, sold or offered for sale, and

(b) it is not necessary for the public to go through the food preparation areas to gain access to the plumbing fixtures.

  1. Applicant's Position

The Applicant submitted that the proposed fast food franchise should be considered a mercantile occupancy and that the provisions found under Sentence 3.7.4.8.(4) are the applicable standards. As a result, he argued that a single, unisex washroom, equipped with one water closet and one lavatory is sufficient.

The Applicant based this argument on the fact that very little space of the fast food outlet is being provided for customers and there will be no seating at all. He also referred to Hazard Index Table 11.2.1.1.K. to support his position. As he noted, this Table includes "fast food" outlets as a Group E major occupancy. Moreover, the Applicant also referred to the 1975 version of the OBC that defined a restaurant as "any portion of a building thereof where food is offered for sale for immediate consumption therein..." He indicated that the subject fast food franchise does not meet this definition.

The Pizza Nova outlet cannot be considered a restaurant since the food and drink for sale is not for immediate consumption inside, the Applicant argued. This would also mean that Article 3.1.2.6., which allows a restaurant to be classified as a mercantile occupancy if it has less than 30 persons consuming food and drink, does not apply, since no food and drink will be consumed on the premises. Article 3.7.4.3. does not apply to the subject Pizza Nova outlet since this provision, Sentences (6) and (7) in particular, refer to the number of "seats" in a restaurant. Without seats this Article does not apply.

Sentence 3.7.4.8.(4) on the other hand, is more appropriate for determining the number of washrooms for a fast food outlet, the Applicant indicated. As he noted, the requirements for complying with this provision are that the occupant load is not more than 9 persons and the total area of the occupancy, excluding basements, is not more than 300 m2. The proposed Pizza Nova facility meets both of these requirements. As a result, the Applicant concluded, only one washroom is necessary based on the standards for a mercantile occupancy. It is this standard that has applied to their other Ontario locations, he stated.

Lastly, the Applicant noted that the single washroom provided will meet the barrier-free accessibility design criteria found in Article 3.8.3.12.

  1. Respondent's Position

The Respondent submitted that the proposed Pizza Nova fast food outlet should be considered as a restaurant and would thus be classified as a assembly occupancy. Consequently, In their view, a separate washroom is required for each sex. Moreover, each washroom is required to provide at least one water closet and one lavatory, and both are required to be barrier-free accessible.

The Respondent argued that the fast food outlet should be considered a restaurant because the patrons of the Pizza Nova facility may eat at the condiment ledge in the franchise itself and also in their cars in the parking lot. In fact, they point to Sentence 3.7.4.3.(10) which identify parking lots as extensions of restaurants where take out service is provided. As a result, they would consider the franchise a restaurant, but under Article 3.1.2.6. they would classify it as a mercantile occupancy since they would calculate the number of persons, including those eating in the parking lot, at not more than 30. Nevertheless, as a restaurant Sentence 3.7.4.3.(4) is applicable and it requires that two washrooms, one for each sex, be installed.

The Respondent also noted that both of the two required washrooms should be designed to bee barrier-free accessible, however they indicated that they would be satisfied if the Applicant simply provided another standard size (not barrier-free accessible) washroom.

Finally, the Respondent argued that the proposed location of the washroom, at the rear of the restaurant, does not comply with Sentence 3.7.4.15.(1), which prohibits patrons from travelling through food preparation areas to access plumbing facilities. They also referred to the Food Premise Regulation made under the Health Protection and Promotion Act which they claim supports their assertion that the washroom is incorrectly placed behind the food preparation areas.

  1. Commission Ruling

It is the decision of the Building Code Commission that the proposed single unisex barrier free accessible washroom to serve the fast food outlet provides sufficiency of compliance with Sentence 3.7.4.8.(3) of the Ontario Building Code provided that patrons need not go through the food preparation area to gain access to the plumbing fixtures.

  1. Reasons

i) The fast food outlet is considered a Group E occupancy as no seating is provided for consumption of food.

Dated at Toronto this 8th day in the month of April in the year 1999 for application number 1999-07

Mr. Roy Philippe, Chair

Mr. Michael Steele

Mr. Kenneth Peaker