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BCC Ruling No. 99-59-715

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-59-715

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

AND IN THE MATTER OF Sentence 3.8.2.3.(1) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99 and 278/99 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Paul Pappas, owner, 1090302 Ontario Limited, Hamilton, Ontario, for the resolution of a dispute with Mr. Len C. King, Building Commissioner, City of Hamilton, Ontario, to determine whether the proposed change of use to a Group A, Division 2 (restaurant) occupancy, that is not provided with barrier-free a accessible washroom nor a separate washroom shared between employees only, is required to comply with Sentences 3.8.2.3.(1) and 3.7.4.3.(7) respectively of the Ontario Building Code at Smooth Herman's Bar and Grill, 109 George Street, Hamilton, Ontario.

APPLICANT

Mr. Paul Pappas, owner
1090302 Ontario Limited
Hamilton, Ontario

RESPONDENT

Mr. Len C. King
Building Commissioner
City of Hamilton

PANEL

Mr. James Lischkoff (Chair-Designate)
Mr. Robert De Berardis
Mr. Stewart Smith

PLACE

Toronto, Ontario

DATE OF HEARING

September 23rd, 1999

DATE OF RULING

September 23rd, 1999

APPEARANCES

Mr. Paul Pappas, owner
1090302 Ontario Limited
Hamilton, Ontario
The Applicant

Mr. Willie Wong, Manager
Customer Services
Hamilton Building Department
Designate for the Respondent

RULING

1. The Applicant

Mr. Paul Pappas, owner, 1090302 Ontario Ltd., Hamilton, Ontario, has received a building permit under the Building Code Act, 1992 to renovate an existing building and to convert it to bar/restaurant known as Smooth Herman's Bar and Grill, 109 George Street, Hamilton, Ontario.

2. Description of Construction

The Applicant proposes to renovate an existing Group D - (office) Business occupancy by converting it to a Group A, Division 2 - (bar/restaurant) Assembly use. The building is described as two storeys in building height, 255 m2 in building area, and is of combustible construction. The structure is a heritage building located in an historic area of downtown Hamilton known as Hess Village. The occupant load of the facility has been calculated at a maximum of 40 persons, which includes the staff of four.

The construction in dispute involves the provisions of washrooms in the renovated facility. Currently, the Applicant is proposing only two washrooms, one per sex, to serve both the patrons and the staff. A barrier free washroom is not proposed, nor is a barrier free path of travel, including an entrance, being contemplated. Specifically at issue therefore is whether the two washrooms provided are required to be barrier free and whether a single, separate shared washroom for employees only is also required.

3. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed change of use to a Group A, Division 2 restaurant/bar occupancy, necessitates that a barrier free washroom be provided in accordance with Sentence 3.8.2.3.(1) of the Ontario Building Code and whether a separate washroom facility dedicated for employees only is required as per Sentence 3.7.4.3.(7).

The former provision stipulates that a barrier free washroom and a barrier free path of travel serving that washroom are required in buildings where a washroom is required under Subsection 3.7.4. The larger question at issue, however, is whether this existing building, as a result of its change of use, is required to become barrier free accessible in the first place. As a change of use with a renovation to an existing building that is older than five years Parts 10 and 11 of the OBC are applicable. The proposed change in building use and renovation are considered to reduce the performance level of the structure and therefore certain additional construction as per Parts 3 and 9 of the Code is required. Subsection 3.8, "Barrier-Free Design", however, is not among the areas with which compliance is needed as determined in Sentences 10.3.1.1.(1) and 11.4.3.4.(2).

The latter provision determines the appropriate number of washrooms that are required in this type of assembly occupancy. In this instance, with a 36 seat restaurant/bar plus four staff for a total occupant load of 40, the sharing of water closets between staff and patrons is permitted, but the number of lavatories must conform to Table 3.7.4.3.F. This Table mandates that two washrooms per sex are required in the subject establishment. Sentence 3.7.4.3.(8) is an exception to Sentence (7), however, in that cases where the total number of staff is less than five, employees of both sexes are allowed to share a single water closet if the facility has a door capable of locking from the inside. The Applicant is not proposing a third washroom.

4. Provisions of the Ontario Building Code

Sentence 3.8.2.3.Washrooms Required to be Barrier-Free

(1) Except where other barrier-free washrooms are provided on the same floor level within 45 mm (147 ft 8 in) and except within suites of residential occupancy, and buildings exempted in Clauses 3.8.1.1.(1)(a), (b) & (c), in buildings where a washroom in required in accordance with Subsection 3.7.4., a barrier-free path of travel shall be provided to a barrier-free washroom designed to accommodate disabled persons in conformance with the appropriate requirements in Articles 3.8.3.8. to 3.8.3.12.

Sentence 3.7.4.3.Plumbing Fixtures for Assembly Occupancies

(7) Except as provided in Sentence (8), in every dining room, restaurant, cafeteria and alcoholic beverage establishment having not more than 40 seats, patrons are permitted to share the sanitary facilities provided for employees, and the minimum number of water closets and lavatories shall conform to Table 3.7.4.3.F. based on

(a) a male occupant load of 50% of the number of seats plus the number of male employees, and
(b) a female occupant load of 50% of the number of seats plus the number of female employees.

5. Applicant's Position

The Applicant submitted that neither the barrier free accessibility nor the third washroom are required in his bar/restaurant. He argued that it was not his intention to renovate to create a barrier free path of travel, including widening the front entrance door and flattening its stoop, in his establishment. As a result, he did not see why a barrier free washroom would be required. He indicated that it was his understanding of the Building Code that barrier free requirements pertained to the construction of new buildings and not to limited renovations of existing, non-barrier free buildings like his. The Applicant stated that it was his belief that none of the barrier free requirements applied to his bar.

Regarding the issue of an extra washroom, the Applicant argued that Sentence 3.7.4.3.(4) was applicable. It refers to Table 3.7.4.3.D. which requires only one washroom per 20 persons of each sex, he noted. Thus, for his bar, with an occupant load of 40 only two water closets in total are required. He indicated that whereas other sentences in Article 3.7.4.3. specify regarding washrooms per number of seats or per employee, Table 3.7.4.3.D. simply refers to persons. This more general term could include both staff and patrons, he asserted.

Lastly, the Applicant argued that none of the other eight to ten restaurants in the area have been subjected to these requirements. He argued that the enforcement of the Building Code should be consistent.

6. Respondent's Position

The Respondent submitted that both the barrier free requirements and the additional washroom were mandatory. On the issue of barrier free requirements, he indicated that it was his belief that the change of use and work involved meant that the requirements of Section 3.8 were applicable. He also noted that the existing front door of the building was approximately 0.9 m in width and with additional minor modifications the facility could be made barrier free. As a result, he argued that the barrier free requirements are appropriate in this instance. Specifically, the Respondent argued that a barrier free path of travel (including the entrance), two barrier free seats and two barrier free washrooms should be provided.

Regarding the provision of a third washroom, the Respondent argued that Sentence 3.7.4.3.(4) and Table 3.7.4.3.D. only provided part of the total requirement in terms of the number of washrooms. It does not indicate how many washrooms should be included when considering staff as well. Sentences 3.7.4.3.(7) and (8) are more appropriate for the subject establishment, he stated, since they make allowances for a bar/restaurant with less than 40 seats and staff of five or fewer. In the Respondent's view, these sentences clearly require that an additional washroom for employees is required.

7. Commission Ruling

It is the decision of the Building Code Commission that it is not necessary to comply with the requirements of Sentence 3.8.2.3.(1) of the Ontario Building Code.

It is also the decision of the Building Code Commission that one additional washroom be provided for use of the staff as per OBC Sentence 3.7.4.3.(8) and that this washroom may be used by patrons in accordance with Sentence 3.7.4.3.(7).

8. Reasons

i) The existing building does not have a barrier free entrance and no renovations are proposed to alter the entrance.

ii) We have reviewed the partial plan (dated May 25, 1999) and the letter from Fabiani Architect Ltd. (dated September 23, 1999 - Exhibit 5a) and consider this information to be correct.

Dated at Toronto this 23rd day in the month of September in the year 1999 for application number 1999-38.

Mr. James Lischkoff, Chair-Designate

Mr. Robert De Berardis

Mr. Stewart Smith