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BCC Ruling No. 98-25-630

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BUILDING CODE COMMISSION DECISION ON B.C.C. #98-25-630

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

AND IN THE MATTER OF Subclause 3.6.4.2.(25)(b)(ii) of Regulation 61, as amended by O. Reg. 400/91, 158/93, 160/93, 383/94, 20/95 and 395/96 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Mohammad Abhary, Vice President, Arya Investments Corp., Toronto, Ontario for the resolution of a dispute with Mr. Gary Bilbous, Chief Building Official, Oshawa, Ontario to determine whether a 428 m 2 retail store in a proposed retail occupancy that is equipped with a single washroom which is handicapped accessible provides sufficiency of compliance with Clause 3.6.4.2.(25)(b) of the Ontario Building Code at Northwoods Mews, 1276 - 1288 Ritson Road North, Oshawa, Ontario.

APPLICANT

Mr. Mohammad Abhary, Vice President
Arya Investments Corp.
Toronto, Ontario

RESPONDENT

Mr. Gary Bilbous
Chief Building Official
City of Oshawa

PANEL

Mr. Roy Philippe (Chair)
Mr. Michael Steele
Mr. Robert DeBerardis

PLACE

Toronto, Ontario

DATE OF HEARING

June 4, 1998

DATE OF RULING

June 4, 1998

APPEARANCES

Mr. Mohammad Abhary, V. P., Arya Investment Corp.
Toronto, Ontario
Agent for the Applicant

Ms. Cveta Prgin, Building Engineer
Oshawa, Ontario
For the Respondent

RULING

  1. The Applicant

Mr. Mohammad Abhary, Vice President, Arya Investments Corp. holds a building permit under the Building Code Act, 1992 for a new multiple store retail plaza at 1276 - 1288 Ritson Road North, Oshawa, Ontario.

  1. Description of Construction

The Applicant recently constructed a one storey, 1,294.6 m2 retail plaza which could contain a maximum of twelve units. Each unit is approximately 107 m2. Currently some of the units have been combined into larger stores. The building is constructed of noncombustible construction. It is not equipped with a fire alarm system nor a sprinkler system. The structure is classified as having a Group E - mercantile major occupancy.

One of the retail outlets combines four units for a floor area of roughly 428 m2 and is leased to a dollar store. This store is equipped with only one washroom for both sexes. This washroom is handicapped accessible. The maximum number of employees in the dollar store at any time is three persons. The other stores are provided with their own washroom facilities.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the current provision of one water closet in a 428 m2 retail store provides sufficiency of compliance with Clause 3.6.4.2.(25)(b) of the Ontario Building Code. This provision stipulates that a mercantile occupancy under certain conditions can be allowed to have only one water closet. One of the conditions is that the Group E occupancy is less than 300 m2.

Provisions of the Ontario Building Code

Clause 3.6.4.2.(25)Sanitary Facilities

Not more than 1 water closet to serve both sexes need be provided in

(b)a Group E or F occupancy,

(i)having an occupant load not exceeding 9 persons, or

(ii)where the sum of the floor areas, excluding basements, does not exceed 300 m2 (3230 ft2 ).

  1. Applicant's Position

The Applicant submitted that the current washroom facilities are adequate for the number of employees. He further indicated that the lessor has informed him that at no time has any patron requested to use their washroom. In his view, OBC clause 3.6.4.2.(25) is too onerous for a small sized store

  1. Chief Building Official's Position

The Respondent submitted that the as constructed retail plaza with only one water closet does not provide sufficiency of compliance with the Ontario Building Code. They argued that the floor area of the Dollar Store, at 428 m2, clearly exceeds the 300 m2 maximum that allows one washroom in Clause 3.6.4.2.(25)(b). As they note, the Applicant freely concedes this point. Further, they calculate that using a rate of 3.7 persons per m2 for mercantile uses as found in table 3.1.16.A. translates into an occupant load of 115 persons for the Dollar Store, which is obviously far in excess of the 9 persons allowed in Clause 3.6.4.2.(25)(b).

Having not qualified under Clause 3.6.4.2.(25)(b), the Respondents instead indicated that the Dollar Store should be subject to Clause 3.6.4.2.(24)(b). This provision requires that one water closet be provided in a Group E occupancy for each sex where the sum of the floor area is less than 600 m2.

Finally, the Respondents advised that the plans submitted for a permit showed two washrooms, but only one was constructed.

  1. Commission Ruling

It is the decision of the Building Code Commission that the 428 m2 retail store equipped with a single handicapped accessible washroom does not provide sufficiency of compliance with Subclause 3.6.4.2.(25)(b) (ii) of the Building Code.

  1. Reasons

i)No alternative measures were provided for sufficiency of compliance.

ii)No other public washrooms are provided in the building complex.

iii)The occupant load and building area both exceed the requirements of Sentence 3.6.4.2.(25)

Dated at Toronto this 4th day in the month of June in the year 1998 for application number 1998-23.

Mr. Roy Philippe, Chair

Mr. Michael Steele

Mr. Robert DeBerardis