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BCC Ruling No. 94-39-418

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BUILDING CODE COMMISSION DECISION ON B.C.C. #94-39-418

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

AND IN THE MATTER OF Section 3.7. and particularly Article 3.7.2.3. of the Revised Regulation of Ontario 1990, Regulation 61, as amended by O.Regs. 400/91, 158/93, 160/93 and 355/94 (the "Building Code").

AND IN THE MATTER OF an application by The TDL Group Ltd. for the resolution of a dispute with Mr. Denis A. Petry, Chief Building Official, City of Cornwall, concerning the barrier-free access and washroom requirements for a drive-thru restaurant.

APPLICANT

Mr. Robert W. Main
Development, Special Projects
The TDL Group Ltd.
Oakville, Ontario

RESPONDENT

Mr. Denis A. Petry
Chief Building Official
City of Cornwall

PANEL

Sarah Maman, Chair
Michael Lio
Rick Florio

PLACE

Toronto, Ontario

DATE OF RULING

December 2, 1994

APPEARANCES

Lynda J. Townsend
Barrister and Solicitor

Jon Winton
Leber/Rubes Inc.
For the Applicant

RULING

  1. The Applicant

The TDL Group Ltd. is the holder of a permit under the Building Code Act, 1992 to construct a Tim Hortons drive-thru restaurant that includes direct entry into the building to purchase goods at 851 Pitt Street, Cornwall, Ontario.

  1. Description of Constrution

The subject building is classified as a Group E Major Occupancy in accordance with Article 3.1.2.5. of the Building Code.

The building supports a drive-thru type operation and also contains facilities to permit direct entry into the building to purchase goods.

The building will not be provided with a barrier-free washroom designed to meet the barrier-free requirements.

  1. Dispute

The dispute between the Applicant and Respondent concerns the interpretation of the technical requirements of Section 3.7. and particularly Article 3.7.2.3. of the Building Code. At issue is the determination of whether a barrier-free washroom is required.

  1. Provision of the Building Code

Article 3.7.2.3. Washrooms Required to be Barrier-Free

  1. Except where other barrier-free washrooms are provided on the same floor level within 45 m (147 ft 8 in) and except within suites of residential occupancy and buildings exempted in Clauses 3.7.1.1.(1)(a), (b) and (c), in buildings where a washroom is required in accordance with Subsection 3.6.4., 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 3.7.3.8. to 3.7.3.11.

  1. Except as permitted in Sentence (3), where washrooms in excess of those required by Subsection 3.6.4. are provided in a storey to which a barrier-free path of travel is required in conformance with Article 3.7.2.1., these washrooms shall be designed to accommodate disabled persons in conformance with the appropriate requirements in Articles 3.7.3.8. to 3.7.3.11.

  1. Washrooms need not conform to the requirements in Sentence (2) provided

    1. they are located within suites of residential occupancy,
    2. other barrier-free washrooms are provided on the same floor level within 45 m (147 ft 8 in), or
    3. they are located in an individual suite having an area of less than 300 m?(3230ft?) in buildings where such suite is completely cut off from the remainder of the building so that there is no access to the remainder of the building.

  1. Applicant's Position

This drive-thru facility is a satellite to the main facility across the street in a shopping mall. It is intended that the main facility will have public washrooms and seating. The drive-thru facility is intended primarily to serve people in vehicles.

The applicant admitted that the Building Code did not exempt them from the barrier-free access washroom requirements.

The applicant stated that physically challenged people do not have to leave their vehicles in order to purchase goods and the washroom is for employees only. Therefore, the provisions of a barrier-free access and a barrier-free washroom are not needed.

Also, health and safety standards can not be enhanced to a level that would safely permit a physically challenged individual from working in this drive-thru take out facility.

  1. Chief Building Officials Position

The respondent did not object to the applicants position; however, he expressed a concern about the over 300 ft. distance between the main restaurant and the drive-in facility.

The respondent does not have the authority to accept a condition that deviates from the Building Code and the use of equivalents regulated by Section 2.7 of the Building Code is not applicable.

  1. Commission Ruling:

In favour of the Applicant. It is the decision of the Building Code Commission that not providing a barrier-free washroom shows sufficiency of compliance with the Building Code.

  1. Condition

The public pedestrian access into this facility must be removed.

  1. Reasons:

  1. The nature of the operations cannot safely accommodate physically challenged individuals.

  1. Members of the public will not be allowed access inside the building.

Dated at Toronto, this 2nd day, in the month of December, in the year 1994, for application number 1994-54.

Sarah Maman

Michael Lio

Rick Florio