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There We Go Again

Well, there we go again. Just as they did last year, the National Association of Home Builders (NAHB) has once gain increased their systematic behind the scene maneuverings at the state legislative levels in many states, demanding that the legislatures pass laws that prohibit all jurisdictions from enforcing the requirement for installation of residential fire sprinklers in all new homes.

As you know, the fire prevention proponents and the fire service representatives worked tirelessly for a couple of decades to finally succeed in adopting the requirement for installation of the residential fire sprinkler systems in all new homes.

We were defeated many times before due to the strong influence of the NAHB in the building construction code development process. Yet, we continued to work hard through the formal process, and we were finally able to obtain the two-thirds majority of the votes during the International Code Council's (ICC) hearings in Minneapolis, back in September of 2008.

Since then, NAHB has done all that they could, to discredit the ICC process, the fire service participation in that process, and to derail our success in enhancing the safety of our communities. They gathered all their strength to confront us once again in the ICC's code hearing in Baltimore last October. But with strong fire service participation, we obtained an overwhelming majority and were able to soundly defeat their attempts.

And now once again, we must participate at the ICC's Final Action Code Hearing in Dallas (May 14-23, 2010) to defend our success and vote to maintain the residential fire sprinklers requirements in the 2012 edition of the International Residential Code (IRC).

I briefly explained the history of this issue, just to show that we in the fire service have done all that we professionally could through the established process, and our long awaited success was achieved fair and square. Yet, NAHB has not taken the defeat well, and it is obvious that they are not accepting the majority's will in the ICC's consensus process.

The system was just fine, as long as they were getting their way for all those years. But now, they are fighting it all the way. Not being able to succeed through the ICC's national code development process, they have since shifted their focus and started mounting political pressure on the states and the local jurisdictions. Hoping that they can manipulate the politicians and get their way after all.

Their short-term strategy was to prevent the local jurisdictions from adopting the 2009 edition of the International Residential Code (IRC); or at the very least, persuade them to yank out the residential fire sprinkler requirement out of their local codes.

And for their long-term strategy, their goal is to do away with the home rule and legislatively prohibit the municipalities and local jurisdictions in all the 50 states from ever adopting the requirement for installation of residential fire sprinklers in all new homes.

For them, this was not a bad strategy. NAHB recognized that the technical battle at the national code level was lost, and now they want to defeat us politically at the state legislative levels.

With this tactic, they plan to decentralize the battlefield, spread us thin and keep us fighting in 50 different states. Divide and conquer. They believe that since they can't win nationally, then, by winning in each of the states, their financial interests would still be served just as well. They hope to accomplish their goals through their financial strength, and by their manipulation and intensified lobbying efforts to influence the legislators on the state levels.

I believe that this indeed is an outrageous overreach and sets a terrible precedent. In my mind, this is not merely about the residential fire sprinklers. Although very important, the residential fire sprinkler issue is only one small piece of the puzzle. The problem goes way beyond fire sprinklers.

The primary tactic that NAHB use in approaching the state legislatures and the local politicians is to claim that the cost prohibitive and unfair governmental burdens are restricting their abilities to build new homes and creating more jobs which would help with the current economy recovery efforts to revive our communities. They play the sympathy card by claiming to be the victims of these current economic conditions and foreclosures.

If the state legislatures allow special interest groups the right to pick and choose what they like or dislike in the building construction codes, then they would cherry pick and throw out most of the fire and life safety provisions in the codes, since in their view those are cost prohibitive and unnecessary. Today, it is the NAHB and the residential fire sprinkler issue, but then, who knows what other provisions of the building construction codes they would want to yank out next?

My friends, please recognize that what is at stake is much higher than just residential fire sprinklers. It is the principle of safety for our public and our own firefighters that is at risk. Especially now, that all jurisdictions are feeling the adverse economic impacts of the current recession.

Take a quick look all around you. With all these brown-outs, fire station closures, and firefighter layoffs that are impacting most of the fire departments across the country, how would our public be better served and protected, if we allow these special interest groups to lower the building construction codes and throw away the fire protection and life safety requirements?

Our firefighters must recognize that the building construction codes have a very direct impact on their own safety. Structural integrity and safety of the buildings during the fires are directly relevant to all firefighters, and their families too, who await their safe arrival after each shift.

We need to educate the state legislators and all other elected officials that the codes and standards developed at the national level are the accumulation of decades of failure analysis, research, testing, technical evolution, building construction knowledge and field experience. They have the right, and every state can adopt and establish their own building construction codes based on the nationally adopted consensus codes. But then, these state codes should only be the minimum, and not the maximum. All local municipalities within the state, should then have the home rule right to be able to exceed those minimums established by the state; and yet they must not be allowed to be less restrictive.

NAHB attempts to cloak their true intention behind the flag of freedom, democracy and the right to chose, for each state to determine their appropriate levels of fire protection and life safety. And yet, hypocritically they want to deprive the local jurisdictions in those states, the very same rights to make the determination for their level of acceptable risk and safety.

It is time that we take a strong stance against all these ill-intended attempts and dangerous legislative maneuvers. We must not allow NAHB or any other special interest groups to play the Russian Roulette with the safety of our public and our own firefighters.

How can we do that? I believe the answer is rather simple. We must concentrate our efforts on where the state legislators focus on most, money.

In this article, I will focus on two specific approaches; with money as their common denominator.

One, we must utilize the federal funding and grant programs to persuade the states to comply with the minimum fire protection and life safety requirements outlined in the nationally developed consensus construction codes and standards.

Two, we must focus and clearly explain to the state legislators and all other decision-makers, the product liability angle associated with adopting substandard building construction codes. And that in itself of course, translates directly to money also.

Money talks! And, the home builders are making a lot of political contributions across the country, and their voices are being heard at the state levels. At the state legislative level, manipulated by the NAHB, the decision-makers are inadvertently jeopardizing the safety of our communities by making incorrect fire and life safety decisions. And that is despite the fact that they are clearly not qualified and lack technical expertise and familiarity with the building construction codes to even make such fire and life safety decisions. Yet, one thing that those people, who know nothing about building and fire codes all understand, is money.

Money being the key, I believe that one of the most effective methods to combat the NAHB's tactics to manipulate and influence the states, is to provide a federal incentives/disincentives package to encourage states not to decrease the level of protection specified in the national model building construction codes.

Similar efforts have been successful in encouraging states to adopt a minimum drinking age of twenty-one or federal highway funds would be withheld. Recent federal efforts have also been effective in encouraging the adoption of an energy code by all states.

The state legislatures must be educated to recognize that there would be an adverse financial impact on their state and jurisdiction as a direct result of their attempt to appease the NAHB in lowering the safety of our communities.

And, guess what? If the magnitude of that adverse financial impact for non-compliance is significant enough, then they will think twice before granting NAHB's wish. Most state legislators are well accustomed to review issues based on the cost-benefit analysis. And, if the possible gains are much smaller than the probable losses, then they will not risk such investments. After all, the state legislators and politicians are quite pragmatic when it comes to money.

That way, the states and local jurisdictions can have their Constitutional right to adopt any/all building construction codes that they want. But then, they should not qualify to receive federal grants if their codes are lower than the minimum national standards.

I believe that the federal government, through their various federal grants, could be a great impetus for change and could have a significant impact in decreasing the economic devastations caused by fire. In doing so, it will save lives too, both civilians and firefighters.

The key for long term success is making sure that the mighty dollar is best utilized to bring about tangible positive results. We must take measures that have a direct positive impact in reducing the fire fatalities and decreasing the economic burdens of fire in our country.

This of course, is by no means a new concept and I am not the first one to talk about it either. Much smarter fire service leaders, back in the 1987 America Burning Revisited report, discussed the very same concept and stated "Government and other institutions can encourage fire safety by offering financial incentives (i.e. tax rebates or reductions) to those who do not have fires, practice fire safety behavior or install automatic fire protection systems."

Here are some possible options for federal funding that could be utilized as tie-ins for the states adoption of the building construction codes without amendments that reduce the level of fire protection and life safety:

  • HUD projects
  • FHA, VA, Freddie MAC and Fannie Mae Loan Conditions
  • FEMA/Stafford Act Mitigation and Response/Recovery Grants
  • USDA and Department of the Interior Wildland grants
  • Green Building Legislation
  • Grants for Low Income Housing and Habitat for Humanity
  • Tax Credit Incentives

How about that? Am I asking for something that is unprecedented and too unreasonable?

Before you nod your head and answer yes, let me tell you that the very same organization that our beloved United States Fire Administration (USFA) resides in, the Federal Emergency Management Agency (FEMA) utilizes this very same approach with their floods program. To find more detail about this and other examples on this particular subject take a look at my previous article "Money Talks" posted on Firehouse.com last year.

With all that said then, let the states and locals decide freely. States and local jurisdictions can adopt anything they want. That is their right. They can decide to be more stringent than the national codes if they deem appropriate. But, if it is anything less than the nationally developed building construction codes, then they must not receive the federal funding. It is entirely their choice.

Now, let's talk about the product liability angle on this issue.

To better illustrate the issue, some analogies might be appropriate. Can you imagine that under the strong influence of the special interest groups that the state legislators in any state, pass laws that would lower the safety requirements and standards outlined and enforced by the National Highway Traffic Safety Administration (NHTSA) for their state? Or under the cloak of making cars more affordable to the public, the state legislators require removal of all the seat belts, the air bags, or anti-lock brakes in the cars sold in their states?

Could they seriously believe that there would not be any legal repercussions at all, when the traffic fatalities soar as a result of their state mandates to remove safety features such as seat belts, air bags, or the anti-lock brakes from the cars? How much sense would that make? Would that enhance the safety of our public? Then what's the difference with what we are discussing here?

These examples might sound farfetched and absurd. Because, we tend to believe that at this day and age, no reasonable state legislator would ever underestimate the liabilities of such decisions on their jurisdictions, and they would also recognize that the hazards imposed on the public is huge.

It is true that the state legislators themselves have legal immunity for their legislative works, and might not be held liable personally. But, the adverse economical impacts of such legislative malpractice decisions on the jurisdictions could be quite significant.

Focusing on the product liability angle, last year, in a joint article titled "Lightweight Construction: Is Now the Time to Push for Sweeping Industry Changes?", fire chief David Comstock and I, focused on the firefighters' safety in fires involving lightweight construction.

In that article Chief Comstock, who is also an attorney stated "while the homebuilders turn to local and state legislatures for relief, firefighters may need to turn to the courts. Although never previously used, injured firefighters or the estates of those killed as a result of truss failures should soon consider filing product liability claims against manufacturers and suppliers of trusses, as well as negligence claims against the architects and homebuilders who have used and continue to use unprotected truss systems."

That article was written more than a year ago, way before any state and local jurisdictions adopted the 2009 edition of the building construction codes. At that time, we only focused on the lightweight construction failures and their direct impacts on the firefighters' safety. But the logic and the concepts presented there still remain valid and apply to the safety of our public just the same. We believe that installation of the residential fire sprinkler system would be the best solution and will provide the highest level of fire protection and life safety for the public and our firefighters alike.

Now that the residential fire sprinkler requirement has been in the main body of the International Residential Code (IRC) for a few years, I believe that the states and municipalities adopting their own building construction codes must be highly aware, that reducing the level of fire safety and eliminating the residential fire sprinkler system requirements, could have legal repercussions increasing their liability exposures. That of course, is in addition to increasing their property loss, and public and firefighters injuries and fatalities.

You don't have to have a crystal ball to predict that it is not about if; it is only a matter of when.

A simple glance at the product liability cases from the past, point out that sooner or later, the families of those who unfortunately would lose their lives in fires in houses constructed without the residential fire sprinklers systems, in those states and municipalities that eliminate the residential fire sprinkler system requirements from their codes, could have a good legal case.

It is not about if, it is only about when. There we go again. Product liability could end up being the saviour for the public, and the impetus for fire safety enhancements.

AZARANG (OZZIE) MIRKHAH P.E., CBO, EFO, CFO, MIFireE, a Firehouse.com Contributing Editor, is the Fire Protection Engineer for the City of Las Vegas Department of Fire & Rescue. Ozzie served on the national NFPA 13 Technical Committee for Sprinkler System Discharge Design Criteria and serves on the IAFC Fire Life Safety Section Board of Directors. He was the first recipient of the IAFC's Excellence in Fire and Life Safety Award in 2007. Ozzie has participated in two Radio@Firehouse podcasts: Six Days, Six Fires, 19 Children and 9 Adults Killed and Fire Marshal's Corner. You can reach Ozzie by e-mail at amirkhah@lasvegasnevada.gov.

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