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FIR-1.01 - Code Enforcement Policies

CODE ENFORCEMENT POLICIES
Administrative Rule Adopted by Portland Fire & Rescue Pursuant to Rule-Making Authority
ARB-FIR-1.01
 


I.      GENERAL

A.    This policy is established September 10, 1987.
 
B.    The purpose of this policy is to provide an overview of the statutes, laws and regulations related to fire protection that provide the basis of authority for the Fire Marshal in the adoption and enforcement of a fire prevention code and related fire and life safety regulations.
 
C.    This policy applies to areas served by Portland Fire & Rescue (PF&R)and to properties contracting for fire prevention activities.
 
D.    The State Fire Marshal is responsible for promulgating statewide rules and regulations that establish minimum standards for the protection of life and property from the dangers of fire (ORS 476.030 and 476.120). To meet this responsibility and to promote uniformity, the State Fire Marshal shall assure that local fire codes are consistent with minimum state standards. Codes adopted by local government subdivisions must either adopt by reference the codes of the State Fire Marshal or adopt codes that are consistent with state fire protection statutes that are equal to or more stringent than, the fire code promulgated by the State Fire Marshal. OAR 837-39-015 identifies the rules a local authority must follow in their adoption process. Authority is specifically given to the State Fire Marshal to adopt and enforce rules relating to: (a) the prevention of fires (b) the storage and use of combustibles and explosives (c) the maintenance and regulation of structural fire safety features in occupied structures, and (d) the means and adequacy of exit in the case of fire from factories, asylums, hospitals, churches, schools, halls, theaters, amphitheaters, all buildings occupied for sleeping purposes except private residences, and all other places where large numbers of persons work, live or congregate from time to time for any purpose.

II.      PROCEDURES

A.    Exempt Status:
 
1.    The State Fire Marshal may delegate duties and powers to those governmental subdivisions thatenact adequate fire regulations and provide reasonable enforcement of those regulations. Delegation is granted by designating a jurisdiction as partially exempt. In a partially exempt jurisdiction the State Fire Marshal turns over administration of such programs as fire inspections, investigations or public education to the local authority. Oregon Administrative Rules (OAR) 837-39 specify the rules and extent of exemption. Once a jurisdiction is granted a partial exemption from the State Fire Marshal it remains in effect unless terminated by the State Fire Marshal or notice is given by the jurisdiction.  Portland has been granted a partial exemption. A partial list of functions retained for the State Fire Marshal’s administration in Portland are: Community Information on Hazardous Substances, Record of Fires, Explosives generally, Application and Use of Certificates of Possession of Explosives, Permits for Public Fireworks Display, Permit for Public Fireworks Sales or Displays, Sales of Fireworks to Out of State Residents, Non-retail Facility License and Audits (fuel card lock), and LPG Licensing Program.
 
Although the administration of the functions listed in OAR 837-39 are reserved to the State Fire Marshal, nothing in that division prevents an authority having jurisdiction from enforcement of state statutes or the state fire code if such provisions are not covered in the local fire code or are more stringent than the local fire code.
 
PF&R has applied for and received partial exemption from the statutes, rules and regulations administered by the State Fire Marshal according to ORS 476.030 (3). Consequently, the Division Chief Fire Marshal is designated by the State Fire Marshal as the approved authority (not an Assistant to the State Fire Marshal) for exercising most functions relating to fire prevention, fire safety measures and building construction within the legal service boundary of PF&R (exempt jurisdiction boundary).
 
Note: There has been some confusion in past years as to the scope of the exempt jurisdiction program. Although ORS 476.030(3) authorizes the State Fire Marshal to "fully" exempt qualifying local governmental subdivisions from the State's fire laws, the State has not done so.  There are some programs that have statewide impact and are, therefore, more reasonably managed at the state level. See OAR 837-039-0050.
 
Consequently, the Division Chief Fire Marshal is held to be an assistant to the State Fire Marshal (ORS 476.060) and subject to his direction only in the execution of the functions retained by the State Fire Marshal (See OAR 837-039-0050), and in all areas served by PF&R under contract that are not within the exempt jurisdiction boundary.
 
ORS 476.030, OAR 837-039-0050, and the State Attorney General Opinion, OP 6447; May 1992, is reproduced here for the readers convenience.
 
476.030 Powers and duties of marshal and deputies generally; exemption of certain governmental subdivisions; inspection of adult foster homes.
 
(3) If, in the opinion of the State Fire Marshal, a governmental subdivision of the state has enacted adequate regulations generally conforming to state and national standards concerning fire prevention, fire safety measures and building construction requirements for safety, and if the governmental subdivision provides reasonable enforcement of its regulations, the State Fire Marshal may exempt the area subject to such regulation either partially or fully from the statutes, rules and regulations administered by the State Fire Marshal. Prior to adoption of any such exemption, the State Fire Marshal may request from the Department of Public Safety Standards and Training consideration of and recommendations regarding the exemption. The exemption may extend for a two-year period, and may be renewed from time to time, but may be canceled by the State Fire Marshal following 30 days’ written notice if the State Fire Marshal finds that the governmental subdivision’s regulations or enforcement thereof are not reasonably sufficient.  The governmental subdivision shall furnish a copy of such regulations to the State Fire Marshal and shall file with the State Fire Marshal any amendment thereto within 30 days before the effective date of such amendment.
 
The State Fire Marshal shall designate a person or division within such governmental subdivision as an approved authority for exercising functions relating to fire prevention, fire safety measures and building construction. Upon request of a local official having enforcement responsibility and a showing of unusual fire hazard or other special circumstances, the State Fire Marshal shall make investigation and appropriate recommendations.
 
OP 6447; May 19, 1992:
 
·        Does ORS 476.060 provide authority to the SFM to direct local fire officials to perform fire inspection and prevention activities in accordance with rules adopted by the SFM?  YES
 
·        Do the provisions of ORS 476.060 apply to fire officials in exempt jurisdictions?  IT DEPENDS. The Fire Marshal of an exempt jurisdiction is not an assistant to the SFM unless he is working in a contract area that does not have any exempt authority.
 
2.      OAR 837-039-0050 Programs Eligible for Delegation
 
As indicated by statutory reference and title, the administration of the following functional areas shall be retained in all cases by the State Fire Marshal:
 
a.      ORS 453.307 through 453.414, Community Information on Hazardous Substances.
b.      ORS 476.055, State Fire Marshal Fund.
c.      ORS 476.060, Local officers and Constables as Assistants to the State Fire Marshal.
d.      ORS 476.090, Record of Fires.
e.      ORS 476.420, Standardization of Existing Fire Protection Equipment; Exemption.
f.       ORS 476.440, Sale of Nonstandard Equipment Prohibited.
g.      ORS 476.510 through 476.610, Protection of Life and Property from Fire in Case of Emergency (Emergency Conflagration Act).
h.      ORS 476.855, Discretionary Powers of the State Fire Marshal.
i.       ORS 476.900 through 476.925, Forest Fire Protection Equipment Acquisition.
j.       Except as otherwise provided in OAR chapter 837, division 040, ORS 480.010 through 480.095, Explosives Generally.
k.      Except as otherwise provided in OAR chapter 837, division 040, ORS 480.200 through 480.280, Manufacture, Sale , Possession and Transfer of Explosives.
l.       Except as otherwise provided in OAR chapter 837, division 012, ORS 480.130, Permits Required for Sale or Public Display of Fireworks; fee.
m.     Except as otherwise provided in OAR chapter 837, division 012, ORS 480.150, Permits for Fireworks Sales or Displays; Rules; Security.
n.      Except as otherwise provided in OAR chapter 837, division 012, ORS 480.156, Sales of Fireworks to Out-of-State Residents.
o.      ORS 480.350, Nonretail Facility License.
p.      ORS 480.355, Conditional Nonretail Facility License.
q.      ORS 480.375(2), Audits of Nonretail Facilities.
r.       ORS 480.432 through 480.440 LPG Licensing Program; and
s.      Those other statutory functions reserved exclusively to the State Fire Marshal.
 
3.      Although the administration of the functional areas listed in section (1) of this rule are reserved to the State Fire Marshal, nothing in this division prevents an authority having jurisdiction from enforcement of state statutes or the State Fire Code if such provisions are not covered in the Local Fire Code or are more stringent than the Local Fire Code. [Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]
 
Statutory Authority: ORS 476.030      Statutes Implemented: ORS 476.030(3)
Historical: FM 5-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 9-2000, f. & cert. ef. 8-22-00
 
B.     Other State Statutes:
 
1.     Some State Statutes (ORS) relating to fire protection apply only to the State Fire Marshal's Office. These are mainly administrative provisions such as ORS 476.050, which addresses the payment of salaries and expenses of his staff. Other state statutes are binding on this jurisdiction. These are specified in City Fire Regulations PCC 31.
 
2.     Some statutes, such as those related to explosives (ORS 480.010 through 480.290), fireworks (ORS 480.110 through 480.170), andLiquid Petroleum Gas (ORS 480.410 through 480.460) are minimum requirements that the City must enforce. However, through City Fire Regulations (PCC 31) the City may be more restrictive than state law. This is possible through Home Rule provisions of the State Statutes.
 
C.     Review of Development Related Projects:
 
1.     Although the primary responsibility of plan review belongs to the building codes agencies, they are mandated to involve and consider the recommendations of the fire service. Through an interagency agreement with the City’s Bureau of Development Services (BDS), PF&R reviews commercial building permits, sprinkler and alarm installations, hazardous material processes, flammable and combustible liquid tanks and LPG installations, land division applications, and new one and two family dwellings. One and two family dwellings are delegated back to BDS except where deficient water and/or access are likely. Equally important, PF&R members continue to review plans relating to fire and life safety provisions with the resulting plan check incorporated into the approved set of plans.
 
D.     Local Authority, Codes and Standards:
 
The following are the documents that provide the sources of authority for the Fire Marshal:
 
1.      Portland City Code Title 31 (Fire Regulations): Creates local Fire Prevention authority, thereby gaining exempt status. Also adopts, by reference, other codes and standards.
 
2.      International Building Code (IBC): Adopted as the "State of Oregon Structural Specialty Code". This is the statewide minimum-maximum performance code by which all structures are altered, demolished, moved, or constructed. Several chapters are amended locally, by PCC 24, Building Regulations.
 
3.      International Mechanical Code (IMC): Companion to the IBC, provides requirements for HVAC and other mechanical systems within structures.
 
4.      International Fire Code (IFC): Companion to the IBC, as amended by the City of Portland ,provides non-conflicting Fire Prevention requirements, and is the Fire Prevention code of the city and fire districts, as amended. The State has also adopted the IFC.
 
5.      National Fire Codes (NFPA): Provide detailed requirements for a variety of special occupancies, processes, and hazards not specifically addressed by other codes. Adopted by reference in PCC 31, with certain standards specifically adopted. See Article 90 of Fire Code for list of specifically adopted standards. See also PCC 31.10.120-140.
 
6.      Other Recognized Practices: The Compressed Gas Association, The American Petroleum Institute (API), American Insurance Association, Factory Mutual, etc., provide a source of information not provided elsewhere. Broadly referred to in PCC 31 and the IFC.
 
7.      PCC 19 – Harbors: Defines the duties and powers of and provides the authority for the City Harbor Master. Directs the Harbor Master to develop a working liaison with various organizations (POP, USCG, USACOE, OSMB, ODSL, and MCSO). Also provides regulations pertaining to the shared use of the waterways system within the City limits.
 
8.      PCC 28 – Floating Structures: Provides minimum building and fire and life safety requirements for floating structures and moorages with the city’s jurisdiction as well as those properties contracting for fire prevention activities. It also provides for the authority of the Harbormaster to have the initial responsibility for the inspection of existing moorages as well as the permitting, testing and inspection of standpipes.
 
9.      PCC 29 – Housing Regulations: Provides minimum requirements in living units and also regulates dangerous buildings. The Fire Districts do not have an equivalent to the city's Housing Department, but regulate in a limited way through their Building Departments.
 
10.     PCC 33 – Zoning Regulations: Creates local land use and development authority and restric­tions in specified areas throughout the city.
 
11.     Other City Ordinances: Provide other requirements such as those restricting retail and wholesale fireworks sales and displays, etc.
 
12.     Policy Manual of the Fire Marshal’s Office: States the policies of the PF&R Fire Marshal and provides discretionary interpretation in those areas allowed by the statutes and codes, including interpretations of selected provisions of the Fire Prevention Code.
 

HISTORY
 
Originally adopted by Fire Marshal as Fire Prevention Division Policy Manual Document A-1, effective September 10, 1987, and revised February 16, 2000.
Filed for inclusion in PPD June 13, 2003.
Revised rule adopted by Chief of Portland Fire & Rescue June 12, 2007.