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BCC Ruling No. 94-22-400

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BUILDING CODE COMMISSION DECISION ON B.C.C. #94-22-400

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

AND IN THE MATTER OF Sentence 3.7.1.2.(1) of the Revised Regulation of Ontario 1990, Regulation 61, as amended by O.Regs. 400/91, 158/93 and 160/93 (the "Building Code").

AND IN THE MATTER OF an application by Brown Bay Developments for the resolution of a dispute with Mr. John Wright, Chief Building Official, Town of Markham.

APPLICANT

Brown Bay Developments

RESPONDENT

Mr. John Wright
Chief Building Official
Town of Markham

PANEL

Sarah Maman, Chair
Remus Tsang
Michael Wong

PLACE

Markham, Ontario

DATE OF RULING

September 29, 1994

APPEARANCES

Mr. Michael Ostreicher, Secretary/Treasurer
1002398 Ontario Limited
for the applicant

Mr. Anthony Boyko
Manager, Building Inspection
Town of Markham
for the respondent

NOTE

The hearing was adjourned on August 18th, 1994 pending a site visit of the outdoor deck and was reconvened on September 29th, 1994.

RULING

  1. The Applicant

Brown Bay Development is the holder of a permit under the Building Code Act, 1992 to construct an outdoor deck to be used as a patio for customers of Bentley's Seafood Restaurant, 8220 Bayview Avenue, Thornhill, Ontario.

  1. Description of Constrution

The applicant constructed a raised uncovered exterior platform (patio) in the parking lot in front of an existing twenty year old restaurant. The structure is comprised of an open floor area and is not attached to the existing building. The platform is accessible by a stair containing three risers. The structure serves as an outdoor patio for the restaurant.

  1. Dispute

The dispute between the Applicant and Respondent concerns sufficiency of compliance with Sentence 3.7.1.2.(1) of the Building Code. At issue is the need to provide a barrier-free entrance to subject platform.

  1. Provision of the Building Code

Sentence 3.7.1.2(1) Entrances:

Except as required in Sentence(2), every building in Article 3.7.1.1. shall have at least one entrance intended for general use by the public or the occupants designed in conformance with Article 3.7.3.3. and opening to the outdoors at sidewalk level or to a ramp conforming to Article 3.7.3.4 leading to a sidewalk.

  1. Applicant's Position

The applicant stated that the structure in question is a seasonal outdoor deck built in the parking lot in front of an existing twenty-two year old restaurant.

The plaza in question, located at 8220 Bayview Ave., is over twenty years old and does not provide barrier free access.

When the structure was built, the fact that the restaurant itself has no barrier free access nor does it have handicapped washroom facilities, lead the owners to believe that no barrier free access was necessary for the deck as it was merely an addition to the existing restaurant to be used in the summer months only.

Access to the walkway of the mall is difficult due to the high curb in the parking lot, while the entrance to the restaurant itself is at least twelve inches above the walkway.

It is the position of the owners that they in no way sought to circumvent the Building Code, however in this case where a seasonal structure has been added to an existing restaurant that does not provide barrier free access or handicapped washroom facilities, it appears unreasonable that the structure alone would require barrier free access.

The deck is part of the restaurant and is used exclusively for dining. When the Liquor Licensing Board issued the restaurant's liquor license it took into account the existing washroom facilities in determining the customer load for the deck rather than issuing a separate license.

Should the owners be required to modify the deck, it will require the use of an additional four parking spots, and the expenditure of thousands of dollars to make the necessary changes.

  1. Chief Building Officials Position

The respondent stated that people electing to sit on the platform area must do so by using a stair containing 3 risers. The platform was newly constructed and therefore must comply with Part 3 of the Building Code. Specifically the platform/building requires at least one entrance at the sidewalk level or a ramp conforming to Article 3.7.3.4. leading to a sidewalk.

  1. Commission Ruling:

n favour of the Respondent. It is the decision of the Building Code Commission that not providing a barrier free entrance to the patio on the platform does not comply with the Building Code.

  1. Reasons:

    1. A site visit indicated that access is available to the walkway of the mall.
    2. The patio is new construction and requires barrier-free access.

Dated at Toronto, this 29st day, in the month of September, in the year 1994, for application number 1994-30.

Sarah Maman

Sarah Maman

Michael Wong