Documentation - Your Only Life Line

Nov. 28, 2006
We don't know how many of you have ever been to court on a fire code related issue, but odds are, it's a relatively small number. Those that have been on the witness stand will have strong feelings about the rest of this article.

We don't know how many of you have ever been to court on a fire code related issue, but odds are, it's a relatively small number. Those that have been on the witness stand will have strong feelings about the rest of this article. For those of you who haven't, we hope to instill upon you the importance of documentation and bolster those of you who have to corroborate these thoughts with those of you who haven't. Your professional behavior and conduct before a trial will be the biggest and most inviting target for a defense attorney. Oh, and by the way, the defense attorney's job will generally not be to argue the merits of your cited code violations or how dangerous they are, but more often your credibility as a person, as a professional and as a witness. Believe us, it will get personal and you will be the one on trial, not the bad guy or gal.

The weak part of any criminal or civil case is prior documentation and history. The questions that come into play on the surface are: can the violations actually be cited in the code, did you give the offender(s) "reasonable time" to abate or correct the fire code violations, and have you addressed the violations to the correct person? Unfortunately, the defense attorney will be arguing much deeper than that.

Discovery is an opportunity for both the prosecutor and the defense attorney to lay out all the evidence and issues on the table. You get to present all of their reasons why the defendant is wrong and bad, and the accused gets the opportunity to review all the charges and develop a defense for why he or she is not wrong and bad. The period of discovery can be very embarrassing if you, the professional, are not prepared. Below is a punch list of things we think you should cover prior to going to court on any fire code issue.

  1. Be competent in the fire code and make sure you can articulate every code violation you cite before you cite it to someone. Providing background on why that section was created can be very helpful. (Provide documentation)
  2. Document, document, document. When in doubt, document.
  3. Begin early discussions with your attorney or counsel to make sure you are documenting things appropriately.
  4. Make certain that clear and permanent copies of all documented issues are safely stored.
  5. Do good research and cite sources providing all of this documentation to your attorney or counsel because they won't know where to look.
  6. As you prepare for trial, make sure you take notes and have your documentation ready to take with you on the stand.
  7. Remember, that anything you document or research is discoverable and must be presented to your attorney. Assume that it will all be provided to the defendant as well. Be careful what you put in writing, you never know will it will end up. Remember this includes your emails. Al of them!

The first and most obvious part of your job is to be a professional. With that, you must be well versed in whatever fire code and related standards you are enforcing. Granted, you may not feel 100% comfortable with all the code but you need to clearly understand and be able to talk about whatever code sections you are citing somebody with violating. For example, if you are writing someone up in a school for having too many or the wrong combustible finishes in an exit, then you need to be able to explain why that's a problem, how the condition you witnessed is in violation of the code, and have some ability to discuss the Steiner Tunnel test and facts from past historical fires like the Cocoanut Grove, or The Station fires.

When you find a violation, document it in a way that you will clearly communicate the problems to whomever you are trying to get compliance from, and in a way that you can remember what you did and what was wrong three years from now. Everyone we work for and with to gain fire code compliance should be clearly communicated to. If we cannot articulate a problem to someone, how can we reasonably expect them to fix it for us? So, first and foremost, write down the exact problem you see, where it is geographically located in the business, building or location, and what needs to be done to correct it. Seek clarity and understanding from the manger or owner you are dealing with. If they don't clearly understand what you are trying to communicate, re-write it.

Unfortunately, we tend to get lazy, are in a hurry due to workload, or unfortunately assume everyone knows the code like we do. We then take terrible short cuts and give inadequate one-line statements like: "Exit lights not lit." Ouch! This is going to get you burned if it ever goes to court. No pun intended. How are you going to remember what exit signs were out in a large building three years from now and worse yet, how does the business owner who is relying on the manager you spoke with, going to know what exit lights you were specifically talking about. We hear you, "..if he or she would look around they could see which ones were out!" But, what if the problem is intermittent, or they have a mix of code compliant externally and internally lit signs? See what we mean?

A better statement would be: "The exit sign over the northeast exterior door and main entrance door are not illuminated in accordance with section xxx.xx.x of the 2006 'Whatever' Fire Code. These lights must be internally illuminated at all times. Repair or replace the exit lights described no later than close of business on xx/xx/2006." Essentially, first tell them what the problem is and the applicable code section. Secondly, tell them clearly what you expect them to do, (for example: repair, replace etc.)

This statement clearly describes for the owner/manager where and what is wrong. It is specific enough for you to speak to it in three years, even if you can't remember every detail, and it provides the owner/manager clear direction of what needs to be done and when. Remember, the expected compliance date is very important whether or not you go to trial. There needs to be a compliance date otherwise the violation can exist in perpetuity with no legal consequence.

Don't wait until you are going to court to visit with your attorney. Go show them how you are writing violations from the beginning. Take the opportunity to get feedback on how you are communicating. After all, they are going to be the ones stuck defending you in the end. It is far better to document issues the way they would like so they can support you as much as possible. Also, this is a great time to begin educating them on the fire code. All attorneys hate the fire code because it is so squishy. They hate codified language that says "You shall do this… don't have to do it." So, start talking to them now. Don't wait till you are going to trial. That ends up in a lot of frustration, a lot of homework and potentially lost time if you have to start over.

Remember too that you will need to do most if not all of the research for your case. We have never seen an attorney that is comfortable or knowledgeable in the fire code unless they have been doing it for years. Your knowledge and comfort will be critical to supporting any efforts of your counsel.

We stated in the beginning that you will be the one on trial. This is true as the best way for a defense attorney to get his or her client off the hook will be to discredit you or your efforts. The point of weakness most often exploited is lack of documentation. Lack of proper documentation makes you and your department look unprofessional, it makes your counsel look unprepared and it can make a judge or jury think you were not very willing to help the business owner or manager fix their problem. If you are ever in doubt, document. By answering the who, what, where, when and why questions every time, you should be fairly safe.

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