# Code Administration Question of the Day 2 Aug 2018



## jar546

Scenario:

You have an existing commercial building that consists of 2 empty old "store fronts" on the bottom, facing the street and residential apartments above.  It is an older building, Type V construction, NS (non-sprinklered).
A municipal permit research reveals no permitting back as far as you can check and a check with the State that handled all commercial permitting also reveals no C of O or past permit.  It is essentially an "uncertified building" that has been in existence for years.

A new tenant wants to put in a tattoo parlor and fills out a permit application stating they are not going to do any work other than place a counter and use 1 room for a tattoo station.  There is 1 bathroom in the location (approximately 800 square feet) that is extremely small and in no way even comes close to ADA accessible.

Questions:

Q1)  Will you require the restroom to be ADA compliant?

Q2)  Would you require a permit at all?


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## JCraver

Just a counter, no other remodeling / alterations?  If it's truly _just_ a counter that he's putting in, then I'm going to drive right by.  I might even wave.

No (building) permit req'd. for a counter.


In real life - I'm going to have to check the zoning and make sure it complies with our code, then check with the Health Dept. and see what they require for tattoo parlors.  My suspicion is that once the HD is done listing their requirements he's going to have substantial renovations to make, which would then require a building permit from me.


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## mtlogcabin

Just a counter, no other remodeling / alterations? If it's truly _just_ a counter that he's putting in, then I'm going to drive by right by. I might even wave. 

No (building) permit req'd. for a counter.

No further follow up


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## Pcinspector1

Just a counter, no other remodeling / alterations? If it's truly _just_ a counter that he's putting in, then I'm going to drive by right by. I might even wave.

No (building) permit req'd. for a counter. IBC 105.2 - (7 & 13)

Route to the tattoo parlor should be made accessible if feasible. I might want a tattoo of a huey with big teeth, eyes and guns a blazing!


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## fatboy

Q1) Will you require the restroom to be ADA compliant?

Would consider it to be an existing use, no change in accessibility. 

Q2) Would you require a permit at all? 

No, with no electrical or structural changes.


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## north star

*@ @ = @ @*

*Q1):*  Will you require the restroom to be ADA compliant?
No, Technically infeasible !

*Q2):*  Would you require a permit at all?
Yes !.....Probably a "low cost permit" to assist in the
opening of a new business in my jurisdiction, to check the
restroom functionality, ...the electrical conditions, ...the
Zoning, ...Smoke Detectors, ...the Site address, ...where
will customers park and in conjunction with the Health
Dept.

*@ @ = @ @*


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## mp25

would the counter have to meet accessibility requirements?


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## RJJ

Yes a permit required in PA. It is a none Certified Building, The counter and primary function needs to be accessible. Parking may also be an if there is no accessible route. In PA because it is a uncertified building it needs a CO.
May not need the bathroom up grade if the accessible route is 20% of the costs.


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## jar546

OK, for all of those that don't require a permit, which means you will not issue an C of O:

Q)  Are you in the habit of allowing new businesses to open without a C of O in an uncertified building that never had a C of O?

Q)  What do you do when a business says they need a C of O for a health license?  Do you wave a magic wand?


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## fatboy

As part of our Business Licensing process, we will go in and basically do a Fire Business Inspection/safety inspection and require corrections made, then we issue a new C.O. in the business name, with the business license.

If it ends up being a change of use? Gloves off, full compliance with new use.

Works for us.


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## tmurray

We would typically only get involved if there was a change of use. 

Our code only permits retroactivity for two reasons; where the building did not comply with the code when it was constructed, or where it was constructed to code, but there exists a significant risk to life safety (violation of current code) in the opinion of the AHJ.


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## JCraver

No business licensing here - as long as your use is a permitted use in our zoning code, then you can open with no interaction from me whatsoever.  I might get to come see you if you need a sign and apply for a sign permit.  If there are complaints of PM violations after you open, you'll see me then too.

If you call me and ask for a CO on a building that's never had one, you're not going to get it.  I'll give you a zoning compliance letter if you're in compliance with the zoning regs., but that's it.


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## jar546

JCraver said:


> No business licensing here - as long as your use is a permitted use in our zoning code, then you can open with no interaction from me whatsoever.  I might get to come see you if you need a sign and apply for a sign permit.  If there are complaints of PM violations after you open, you'll see me then too.
> 
> If you call me and ask for a CO on a building that's never had one, you're not going to get it.  I'll give you a zoning compliance letter if you're in compliance with the zoning regs., but that's it.



Some businesses such as used car lots, beauty shops, etc are required to have a CofO in order for them to get their business license for a location with the State.


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## Pcinspector1

City Clerk issues a business license as long as the occupancy class does not change, then your in like flint.

I will not issue a CO if I didn't do the inspections unless a special inspector is used reliving me of the over site. 
Schools for some reason needs that CO for the state requirements. 

I have GC's ask for a CO on tenant finishes, but only if the OC changes for that space will I issue a CO.

I wish the IEBC was a little easier to use, just not use to it like you fellas.


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## mtlogcabin

No business license here. Food and/or alcohol establishments require local zoning, building, and fire approval before state will issue license.


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## my250r11

fatboy said:


> As part of our Business Licensing process, we will go in and basically do a Fire Business Inspection/safety inspection and require corrections made, then we issue a new C.O. in the business name, with the business license.
> 
> If it ends up being a change of use? Gloves off, full compliance with new use.
> 
> Works for us.



Pretty much the same, except we just sign off on the business license, no CO.  
If they request a CO then Building & Fire do inspections and if pass the will issue a CO, But only on bldgs. the State requires CO for their State License, the other would be a compliance letter.


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## JCraver

jar546 said:


> Some businesses such as used car lots, beauty shops, etc are required to have a CofO in order for them to get their business license for a location with the State.



Different strokes for different folks (or states, I guess).  I've never had anyone ask for one here (IL) for licensing purposes.  I've done a million zoning compliance letters, though.


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## Pcinspector1

JCraver said:


> I've done a million zoning compliance letters, though.



Usually those compliance (forms) want to know if there's a CO issued or if the building burns to the ground, can they rebuild.


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## RJJ

Yes JCarver: PA has within its regulations Certified & Un-certified buildings. This is different than many other states. EXample: Just had a VW agency change ownership. Building was and is a lawful certified building and we issue a new CO for the new owner if the building meets basic live safety elements.


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## JCraver

Pcinspector1 said:


> Usually those compliance (forms) want to know if there's a CO issued or if the building burns to the ground, can they rebuild.



Oh no, I don't fill out their forms*.  I give them a letter on my office letterhead that states they comply with our zoning provisions, and then I sign it.  That's all they get.

* - I do fill out the provided form for auto body shops that comes from the State.  It says (and this is a pretty near accurate quote): "I ______________ certify that this location meets the zoning requirements of (village, town, city)."  Then we notarize it and away it goes.


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## Pcinspector1

Yes...Their forms are very time consuming, real clock eaters.


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## ICE

At my current station, the Building Dept. will not know about it.  The Planning Dept. might hear about it.  The Health Dept. probably will.  

I have worked cities that require an inspection whenever a business license is issued.  That inspection did not require a permit.  I would find bootlegged work and dangerous conditions and then require relevant permits.


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## steveray

fatboy said:


> If it ends up being a change of use? Gloves off, full compliance with new use.



Agreed...The State here takes technical infeasibility on themselves (sort of)....So if we had to go down that road, they would have to talk to the State....We sort of grandfather old buildings as long as they meet the min. State fire code...


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## Francis Vineyard

jar546 said:


> Scenario:
> A new tenant wants to put in a tattoo parlor and fills out a permit application stating they are not going to do any work other than place a counter and use 1 room for a tattoo station.
> 
> Questions:
> 
> Q1)  Will you require the restroom to be ADA compliant?
> 
> Q2)  Would you require a permit at all?



A1) Owner or tenant choice of where to make improvement and does not have to exceed 20% of the alterations to the primary function area in accordance with the following provision.
*IEBC 410.7 Alterations affecting an area containing a primary function. *Where an alteration affects the accessibility to, or contains an area of primary function, the route to the primary function area shall be accessible. The accessible route to the primary function area shall include toilet facilities or drinking fountains serving the area of primary function.
*Exceptions:*
1. The costs of providing the accessible route are not required to exceed 20 percent of the costs of the alterations affecting the area of primary function.

A2) Not in accordance with the Virginia Code.
*USBC 108.2 Exemptions from application for permit.* Notwithstanding the requirements of Section 108.1, application for a permit and any related inspections shall not be required for the following; however, this section shall not be construed to exempt such activities from other applicable requirements of this code. In addition, when an owner or an owner’s agent requests that a permit be issued for any of the following, then a permit shall be issued and any related inspections shall be required.

Construction work deemed by the building official to be minor and ordinary and which does not adversely affect public health or general safety.


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## jar546

OK, let's continue to discuss:

Q1)  If it were a change of use and occupancy, would it be required to comply with State/Federal ADA codes/laws?

Q2)  Since it is an "uncertified building" with NO history of a C of O, how could anything new not be a change of use?


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## mtlogcabin

Q1) If it were a change of use and occupancy, would it be required to comply with State/Federal ADA codes/laws?
Federal ADA is a civil rights law and not enforceable by a local AHJ 

Q2) Since it is an "uncertified building" with NO history of a C of O, how could anything new not be a change of use?
C of O or not, uncertified or not a change of use or occupancy only has to comply with the following not the entire accessibility for new construction as outlined in IBC chapter 11 or ICC/ANSI A117.1 

1012.8 Accessibility.
Existing buildings that undergo a change of group or occupancy classification shall comply with this section.

Exception: Type B dwelling or sleeping units required by Section 1107 of the International Building Code are not required to be provided in existing buildings and facilities undergoing a change of occupancy in conjunction with less than a Level 3 alteration.

1012.8.1 Partial change in occupancy.
Where a portion of the building is changed to a new occupancy classification, any alteration shall comply with Sections 705, 806 and 906, as applicable.

1012.8.2 Complete change of occupancy.
Where an entire building undergoes a change of occupancy, it shall comply with Section 1012.8.1 and shall have all of the following accessible features:

1.    At least one accessible building entrance.

2.    At least one accessible route from an accessible building entrance to primary function areas.

3.    Signage complying with Section 1110 of the International Building Code.

4.    Accessible parking, where parking is provided.

5.    At least one accessible passenger loading zone, where loading zones are provided.

6.    At least one accessible route connecting accessible parking and accessible passenger loading zones to an accessible entrance.

Where it is technically infeasible to comply with the new construction standards for any of these requirements for a change of group or occupancy, the above items shall conform to the requirements to the maximum extent technically feasible.

Exception: The accessible features listed in Items 1 through 6 are not required for an accessible route to Type B units.


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## jar546

mtlogcabin said:


> Q1) If it were a change of use and occupancy, would it be required to comply with State/Federal ADA codes/laws?
> Federal ADA is a civil rights law and not enforceable by a local AHJ



Yes, which is why I am also pointing to State accessibility laws which often mirror or point to the ANSI A117.1 through the I-Codes.


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## JCraver

*Q1)  If it were a change of use and occupancy, would it be required to comply with State/Federal ADA codes/laws?*

Not in Illinois, unless the change of use/occ. also required a building permit:  Illinois Accessibility Code, Ch.1, 400.310 -  _"This code is applicable when work involving new construction, alterations, additions, historic preservation, restoration, or reconstruction in whole or in part begins after the effective date of this Code.  The Code becomes enforceable with the signing of a construction contract, issuance of an official authorization or permit for construction, or the start of construction, whichever occurs first."_

*Q2)  Since it is an "uncertified building" with NO history of a C of O, how could anything new not be a change of use?*

If it's restaurant, and it closes, and next week (or even next year) a new guy wants to open a restaurant, nothing changed but the name on the door.  "Here's your sign permit" and away you go.  If it's a restaurant and next week the guy decides he's a barber, then he's probably going to have to make an alteration or two that will require a permit.


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## Francis Vineyard

jar546 said:


> OK, let's continue to discuss:
> 
> Q1)  If it were a change of use and occupancy, would it be required to comply with State/Federal ADA codes/laws?
> 
> Q2)  Since it is an "uncertified building" with NO history of a C of O, how could anything new not be a change of use?



A1) see above replies!

A2) It depends!

*EXISTING BUILDING*. A building for which a legal certificate of occupancy has been issued under any edition of the USBC or approved by the building official when no legal certificate of occupancy exists, and that has been occupied for its intended use; or, a building built prior to the initial edition of the USBC.

*CHANGE OF OCCUPANCY.* Either of the following shall be considered a change of occupancy where the current VCC (amended IBC) requires a greater degree of accessibility, structural strength, fire protection, means of egress, ventilation or sanitation than is existing in the current building or structure:
1. Any change in the occupancy classification of a building or structure.
2. Any change in the purpose of, or a change in the level of activity within, a building or structure.
Note: The use and occupancy classification of a building or structure, shall be determined in accordance with Chapter 3 of the VCC.


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## tmurray

jar546 said:


> OK, let's continue to discuss:
> 
> Q2)  Since it is an "uncertified building" with NO history of a C of O, how could anything new not be a change of use?



We would class the building using the prior use if it is known. If unknown, then yes, we would treat it as a change of use.


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## jar546

Let's say the prior use was a few years ago and someone remembers it being a beauty parlor but there is no paperwork trail to back that up.


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## JCraver

A building permit is going to be the driver where I am.  And our State accessibility code isn't going to drive compliance without the permit.


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## jar546

JCraver said:


> A building permit is going to be the driver where I am.  And our State accessibility code isn't going to drive compliance without the permit.



When you have an uncertified building with no documented history of a C of O that has not been used in some time and a new business wants to occupy it, does it require a permit?

How can you allow the occupancy of a commercial building with a business without a certificate of occupancy?


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## JCraver

_When you have an uncertified building with no documented history of a C of O that has not been used in some time and a new business wants to occupy it, does it require a permit?_        NO.

_How can you allow the occupancy of a commercial building with a business without a certificate of occupancy?_  There's no such thing as an "uncertified building" in my City codes, nor any of the State codes I am permitted to / supposed to enforce.

*[A] 102.6 Existing structures. *The legal occupancy of any structure existing on the date of adoption of this code *shall be permitted to continue without change*, except as otherwise specifically provided in this code, the _International Existing Building Code, the International Property Maintenance Code or the International Fire Code._

The legal occupancy of a building doesn't end once that building becomes vacant.  So even 10 years later - if it was a beauty shop, and someone wants to reopen it as a beauty shop tomorrow, then I have no legal way to make them do anything.  Nor should I.


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## tmurray

The question I would always come back to is; is the building less safe now than if the beauty parlor had continually occupied the space? In my mind it is very unlikely that there is any increase in hazard simply that the use of the building was suspended for a few years and then started back up again.

On the legal side, if change of use/occupancy is my trigger, I have to prove that there was a change of use. If there is no paperwork, people remember it being a beauty parlor, and when I go to site I son't see something that is obviously a different use, I will have a very challenging time proving that the use has changed. The important question now is how do you capture the current use so this does not become a continuing issue? We have generally just written a memo to file stating the use so that there is some kind of record.


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## jar546

JCraver said:


> _When you have an uncertified building with no documented history of a C of O that has not been used in some time and a new business wants to occupy it, does it require a permit?_        NO.
> 
> _How can you allow the occupancy of a commercial building with a business without a certificate of occupancy?_  There's no such thing as an "uncertified building" in my City codes, nor any of the State codes I am permitted to / supposed to enforce.
> 
> *[A] 102.6 Existing structures. *The legal occupancy of any structure existing on the date of adoption of this code *shall be permitted to continue without change*, except as otherwise specifically provided in this code, the _International Existing Building Code, the International Property Maintenance Code or the International Fire Code._
> 
> The legal occupancy of a building doesn't end once that building becomes vacant.  So even 10 years later - if it was a beauty shop, and someone wants to reopen it as a beauty shop tomorrow, then I have no legal way to make them do anything.  Nor should I.



If the beauty shop had no CO and a new business wants to occupy it, at what point do you start having legal occupancies in your jurisdiction?  Where does the code / ordinance draw the line?  At what point are you legally obligated to step in?


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## JCraver

jar546 said:


> If the beauty shop had no CO and a new business wants to occupy it, at what point do you start having legal occupancies in your jurisdiction?  Where does the code / ordinance draw the line?  At what point are you legally obligated to step in?



They're already legal occupancies right now, today.  That doesn't change until someone pulls a permit, or wants to change the use.

Once that happens, depending on the scope of the work being done, either the whole building or just that tenant space in the building will get a CO with/after their final inspection.


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## Pcinspector1

Whats on both sides of this parlor? and do those spaces have CO's?


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## mtlogcabin

jar546 said:


> Let's say the prior use was a few years ago and someone remembers it being a beauty parlor but there is no paperwork trail to back that up.



In today's world google earth street view, facebook and other social medium platforms can verify a business use without paper documentation. Now it does not proof that the use you may find ever had a C of O but it is a starting point to work from.

We do not have a business license in our jurisdiction so the come and go every week. Half never succeed and are gone in 6 months or less. If alterations are being done that require a permit we work with them to get it done. If no permit is required we will do a fire life safety inspection but no C of O is ever given.


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## JCraver

mtlogcabin said:


> We do not have a business license in our jurisdiction so the come and go every week. Half never succeed and are gone in 6 months or less. If alterations are being done that require a permit we work with them to get it done. If no permit is required we will do a fire life safety inspection but no C of O is ever given.



Exactly the same thing here, except we do not do any inspections (fire/life safety) prior to them moving in.  Only inspections we do are when a permit is pulled, or when we have PM complaints.


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## jar546

Pcinspector1 said:


> Whats on both sides of this parlor? and do those spaces have CO's?



Lets say the other side is also empty and as stated from the beginning, there are no records of any COs for the property whatsoever.


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## jar546

JCraver said:


> They're already legal occupancies right now, today.  That doesn't change until someone pulls a permit, or wants to change the use.
> 
> Once that happens, depending on the scope of the work being done, either the whole building or just that tenant space in the building will get a CO with/after their final inspection.



How can they be legal occupancies when there is no history of a permit or CO for any part of the building?  This is what I don't understand.  So if there is a building you are not aware of that gets remodeled without a permit and a business moves in for 3 years then it is empty for another year then another business moves in, it is legal?

I am trying to establish the fact that NO CO ever existed for the building so when a new occupant (business) moves in with a new business, you have no requirements if they just want to put in some counters and display cases with no other renovations?


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## ICE

Having a building trumps having a CofO.


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## Francis Vineyard

Perhaps you may have a satisfactory answer if it were required to keep copies of C of O on file including for structures that existed before a C of O were required to be issued. 

For example where the lawful  retention record  for C of O is zero days after issuance how are you going to prove in court that it has not been legally occupied since it was constructed?


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## JCraver

jar546 said:


> How can they be legal occupancies when there is no history of a permit or CO for any part of the building?  This is what I don't understand.  So if there is a building you are not aware of that gets remodeled without a permit and a business moves in for 3 years then it is empty for another year then another business moves in, it is legal? - See below.
> 
> I am trying to establish the fact that NO CO ever existed for the building so when a new occupant (business) moves in with a new business, you have no requirements if they just want to put in some counters and display cases with no other renovations? - NO.




This City was founded in 1816 - we just celebrated our bicentennial.  Didn't have an ordinance establishing any building codes until 1958, and didn't have a full time building official/inspector until sometime in the 1980's.  All of the buildings on our square and ~90% of them in our downtown were built well before either of those things happened.  There are no CO's.

If, in theory, someone were to move in a business I don't know about, then IF the use is the same as the last use that was in there then the answer to the question in your first paragraph is - it is absolutely legal.  There's nothing I can do to get into that building and force ANY changes unless there are PM violations.

In a bigger city I can see this being an issue, but here, not so much.  There's ~7000 people here.  There aren't any (non-criminal) businesses I don't know about, and even if there are, there are for dang sure no buildings I don't know about.  Our problem buildings usually get dinged for a PM violation or two (because people looooove to complain), so in that process there is generally a requirement for a building permit.  Once you have to have a building permit, you have to comply with the code(s).  Once you comply with the code(s) to the extent that you are required to, and after I inspect it and verify that, then there is a CO issued (if applicable) for that portion of the building the permit was for.  And that practice just started with me, a little less than 5 years ago - I've never seen a CO from this City that was issued prior to me taking this job.


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## Pcinspector1

And then there's a fire that burns all the records, then what do you do?


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## fatboy

jar546 said:


> How can they be legal occupancies when there is no history of a permit or CO for any part of the building?  This is what I don't understand.  So if there is a building you are not aware of that gets remodeled without a permit and a business moves in for 3 years then it is empty for another year then another business moves in, it is legal?
> 
> I am trying to establish the fact that NO CO ever existed for the building so when a new occupant (business) moves in with a new business, you have no requirements if they just want to put in some counters and display cases with no other renovations?



If they could not document last known accepted use....gloves off, change of use, new codes apply.


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## RJJ

The answer to the first question, last stated by Jar is that if no CO existed for the space and use than it is an illegal occupancy.
The second question is that the use and occupancy must comply even if no alterations are being proposed.
The first threshold is ANSI requirements for accessible route from an accessible parking area. My first question would be to the applicant is what is the proposed use, how many square feet is the space and how many employees. Just for a start.


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## north star

*@ ~ @*

Regarding ***jar's*** question in Post # 25, *" ....Q1)  If it were*
*a change of use and occupancy, would it be required to*
*comply with State/Federal ADA codes/laws? "*, I thought that
since the Federal ADA laws are enforced by the Feds, that
a business owner was subject to enforcement of the Federal
ADA Standards [ or lack thereof  ], ...at any time, regardless
of a C. of O., or any locally adopted Accessibility Codes.

So Federal "Yes !",  ...State maybe.

*@ ~ @*


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## Francis Vineyard

fatboy said:


> If they could not document last known accepted use....gloves off, change of use, new codes apply.


Again it depends: "Some jurisdictions will uphold retroactive code provisions only in those circumstances where the building official can prove that a hazard* exists. Those courts have that the mere fact that a particular building is not up to the standards of the latest edition of the building code is an insufficient basis for the retroactive application of its provisions to the building. Usually, the courts will uphold retroactive applications if the building official can offer some reasonable explanation as to why the structure is hazardous. If a court can find any evidence to support the findings of the building official, it will most likely uphold the decision. [ ] The courts have no expertise in the area of building construction and so are hesitant to overrule the findings of an expert in the field. If no proof of the hazard can be offered, however, the courts will not hesitate to reverse.

Many jurisdictions have adopted provisions that apply specifically to existing structures. Thus, there is no doubt that the intent of the municipality is for owners to bring their structures into compliance with the updated codes.

In short, the building official should recognize that each provision of any building code is subject to constitutional attack for being unrelated to any legitimate governmental purpose. [ ] The building official will be called upon to explain, in common sense, the reasons behind any particular code provision. A clear understanding of the particular provisions of the code is definitely required."

* For example a higher hazard category referenced in the IEBC for change of use. 

Source: Legal Aspects of Code Administration, Retroactive Code Provisions.


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## RJJ

do you have any evidence / case law that supports your position? I find that the courts have a pretty good understanding of the codes and the sections relevant to a case.


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## Francis Vineyard

RJJ said:


> do you have any evidence / case law that supports your position? I find that the courts have a pretty good understanding of the codes and the sections relevant to a case.


That position is an excerpt from required reading for the ICC CBO exam. As you may well be aware each case is based on the facts at hand. 

Our office has taken the advice of an attorney in over 35 yrs. of practice in code enforcement.  Only twice in his experience that a judge evicted not having a C.O. owing to the building or structure determined to be dangerous or there was an imminent risk to human life. 

We did however go to court on behalf of a zoning violation, though the structure pass the building code and was inhabited, the lack of C.O. was dismissed. Again it depends.


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## Rick18071

Jar, I had the same problem with uncertified buildings. L&I told me to C. O. the building before issuing a permit for a change of occupancy or any work. Had an architect do the calculations that are in the IEBC Chapter 13 Performance Compliance Methods. *There are no requirements in this chapter for accessibility.* For what you described it could pass it without any work. If they need to do work to pass chapter 13 then they will need a permit just for that work. Then issue a C. O. for what the last use it was (hair dresser would be B). Then after that you are back to the normal way you do things. You can issue a permit for the work they plan to do. But it sounds like they may not need a permit after you issue the C. O. if they are not doing anything and it's not a change of occupancy.


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## steveray

jar546 said:


> How can they be legal occupancies when there is no history of a permit or CO for any part of the building?  This is what I don't understand.  So if there is a building you are not aware of that gets remodeled without a permit and a business moves in for 3 years then it is empty for another year then another business moves in, it is legal?
> 
> I am trying to establish the fact that NO CO ever existed for the building so when a new occupant (business) moves in with a new business, you have no requirements if they just want to put in some counters and display cases with no other renovations?



Depends on your State or local laws....Here is what CT put in our code:

(Amd) 111.1 Use and occupancy. Pursuant to subsection (a) of section 29-265 of the
Connecticut General Statutes, no building or structure erected or altered in any municipality after
October 1, 1970, shall be occupied or used, in whole or in part, until a certificate of occupancy
has been issued by the building official, certifying that such building or structure or work
performed pursuant to the building permit substantially complies with the provisions of the State
Building Code. Nothing in the code shall require the removal, alteration or abandonment of, or
prevent the continuance of the use and occupancy of, any single-family dwelling but within six
years of the date of occupancy of such dwelling after substantial completion of construction of,
alteration to or addition to such dwelling, or of a building lawfully existing on October 1, 1945,
except as may be necessary for the safety of life or property. The use of a building or premises
shall not be deemed to have changed because of a temporary vacancy or change of ownership
or tenancy.
Exceptions:
1. Work for which a certificate of approval is issued in accordance with Section
111.6.
2. Certificates of occupancy are not required for work exempt from permit
requirements under Section 105.2.


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## jar546

steveray said:


> Depends on your State or local laws....Here is what CT put in our code:
> 
> (Amd) 111.1 Use and occupancy. Pursuant to subsection (a) of section 29-265 of the
> Connecticut General Statutes, no building or structure erected or altered in any municipality after
> October 1, 1970, shall be occupied or used, in whole or in part, until a certificate of occupancy
> has been issued by the building official, certifying that such building or structure or work
> performed pursuant to the building permit substantially complies with the provisions of the State
> Building Code. Nothing in the code shall require the removal, alteration or abandonment of, or
> prevent the continuance of the use and occupancy of, any single-family dwelling but within six
> years of the date of occupancy of such dwelling after substantial completion of construction of,
> alteration to or addition to such dwelling, or of a building lawfully existing on October 1, 1945,
> except as may be necessary for the safety of life or property. The use of a building or premises
> shall not be deemed to have changed because of a temporary vacancy or change of ownership
> or tenancy.
> Exceptions:
> 1. Work for which a certificate of approval is issued in accordance with Section
> 111.6.
> 2. Certificates of occupancy are not required for work exempt from permit
> requirements under Section 105.2.



That is for single family dwellings.  Not what the discussion is about.


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## steveray

or of a building lawfully existing on October 1, 1945,
except as may be necessary for the safety of life or property. The use of a building or premises
shall not be deemed to have changed because of a temporary vacancy or change of ownership
or tenancy.

That part is not...The State protects houses a little more than commercial stuff so they are a little more specific there...


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## RJJ

Frances: sorry it took so long to respond. If your City / County attorney does not want to fight this issue in court I can understand that. I can also agree that some Judges will support the code official and stipulate that the owner / tenant make what ever corrections needed to gain a CO. I can also agree that most judges will not remove someone for a minor issue. The original OP was for a building that does not have an existing CO for any use and a new occupancy now wants to open a business. In PA they need a CO. If they put in a counter area it must comply to ANSI 117. If the space was not a lawful occupancy under L&I that bath room would need an upgrade. 
Also, accessible route comes into play. If that cost exceeded 20% they could get by with out a bath room up grade.
 Now for me over the last 35 years I have had a number of judges rule in my favor on CO issues. Some similar to this question. but if the AHJ is not going support you, you are just hung out to dry


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## Francis Vineyard

RJJ,
Thank you for your consideration but no apologies necessary, there's no protocol I'm aware of for a timely response. I consider myself fortunate to participate at my pleasure or perhaps sickness given the fact I've accumulated 3 weeks of comp time  (we don't get overtime).
We for the most part are in agreement, but I presumed Jeff was asking how each of us as the AHJ, how are we allowed in our jurisdiction (not limited to his) can permit occupancy in a building that has no record of a C.O. on file.
In Virginia after the statewide code was adopted in 1973, a C.O. shall be obtained before occupancy.  However the states minimum retention for C.O. is zero days after issuance. The city had a written building code since 1953 (ironically similar to the first BOCA) and the state regulations for structures before 1973 is similar to severay's post for Connecticut that they shall not be prevented from continued use, provided there's no change of occupancy.
For these where no C.O. exist, but there are records that one did, paying taxes would be an example, then the B.O. shall write a letter that a C.O. did exist upon request for which the city charges a fee.
An alternative to the above is if a permit is obtained for work that is required then approval of all finals may serve as the C.O.
Keep in mind this is an oversimplification of several administrative sections unlike the simple one severay provided.


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## Francis Vineyard

Last but not the least all structures that were constructed without a permit to my knowledge were sent a N.O.V. and settled out of court which is what we prefer, without involving our city attorney who provides us full support.


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## Francis Vineyard

Upon further reflection in reference to the ADA water closet my understanding structures that have a statement of completion but never occupied, and no C.O. would be issued until evaluated to meet the current code for the applicable occupancy. This wouldn't be typical to permit construction without knowing the intended use.
Typically the permit application would declare and be approved for the occupancy classification and the future tenant upfits would be under the edition of the certificate of completion depending on any amendment to the code. Otherwise it may be technically unfeasible to meet the current code for new construction in an existing building for the classification under which it was originally constructed.
Otherwise there can be no change of occupancy until a C.O. has been issued (under the code edition that the building was constructed) in accordance with the Existing Building Code.

This tread reminds me of a scene in a movie Phenomenon,
Dr. Bob: "if a man was born October 3rd 1928 at 10 p.m. and is still alive how old is he?"
George Malley: "where?"
Dr. Bob:"anywhere"
George: "Well let's get specific Bob! I mean if the guy is still alive born in California he's 67 years. 9 months, 22 days, 14 hours and 12 minutes. If he's born in New York. . . .


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## Francis Vineyard

By the way is "uncertified building" a quote unquote legal term or just a descriptive condition for no record. 
Last week after 15 years I finally gave up with the DMV to correct the license tag on the vehicle registration. When I went there to exchange them for a new set they said there were no records for the tags I had on the truck!  Did this mean I was driving around in an "uncertified" truck?


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## jar546

Francis Vineyard said:


> By the way is "uncertified building" a quote unquote legal term or just a descriptive condition for no record.
> Last week after 15 years I finally gave up with the DMV to correct the license tag on the vehicle registration. When I went there to exchange them for a new set they said there were no records for the tags I had on the truck!  Did this mean I was driving around in an "uncertified" truck?



In PA that term is written into the UCC laws.


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## ADAguy

Ok, this has been going on long enough. If it is now a preexisting building (precode) you could check Sanborn maps, if not shown you still must comply with ADA law which addresses preADA buildings exclusive of AHJ's refusal to retroactively require them to comply. As a business serving the public they must comply. Yes, counters/tables? serving the public must comply.

You have beat this issue to death. The key here is that if ADA upgrades require RR enlargement then a permit would/should be required, here it is then up to the AHJ to deal with it. Sounds as if the community has some catching up to do as they are losing business license fees and code abatement too.


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