Source: The Independent

The Letter And The Law

August 07, 2013

By Kitty Merrill

Summer nights of neighborhoods beset by noisy crowds partying outside area clubs could be circling the drain, if officials in East Hampton Town enforce a little known law that recently came to the fore. Traditionally, when determining an establishment’s peak occupancy, town fire marshals, planners and code enforcement officers calculate floor space and count chairs. Soon, they may also be counting seats – toilet seats, that is.

Last week Chief Fire Marshal David Browne notified about 35 local businesses of a provision in the New York State Plumbing Code that sets rest room requirements for a variety of types of uses – from restaurants to public auditoriums. “Please take this information and review your current activities and how these code requirements may affect your particular occupancies. This will be one of the issues this office will be looking at closely,” wrote Browne.

“The occupancy numbers at many public assemblies have risen exponentially from previous years mostly by expanding business onto outdoor space,” Browne wrote. He noted the state building code references what’s known as a change in occupancy, which occurs when the level of activity changes. “The expanded use of outdoor areas constitutes a change of use and occupancy without a change of occupancy classification,” Browne pointed out.

That expanded use leads to a section of the state code noting, “Increased demand.” With increased demand, the new occupancy is subject to increased plumbing fixture requirements in accordance with the Plumbing Code of New York State, Browne reasoned.

In the missive notifying business owners of the town’s intent to use those state stats when determining maximum capacity, Browne included a table that depicts the mandated numbers of fixtures and bathroom facilities per person.

Nightclubs, bars, and taverns must provide one lavatory for every 75 men and one for every 75 women. Restaurants must provide one of each for every 200 patrons. The establishments are also required to provide one drinking fountain for every 500 people. Port-o-potties may not be used in lieu of actual toilets, Browne told The Independent.

Local attorney Tina Piette appeared before the town board last Thursday night with questions about the letter. None of the members of the town board were aware it had gone out, nor was town attorney John Jilnicki.

On Friday Town Public Safety Administrator Pat Gunn explained, via email: “It is one of Chief Fire Marshal Browne’s responsibilities to issue maximum allowable occupancy limits for public assemblies including bars and restaurants. In 2012, Chief Browne astutely discovered that the Plumbing Code section of the New York State Uniform Code, which he is required to and empowered to enforce, contained additional criteria for establishing occupancy limits that should be considered in addition to the Fire and Existing Building Code sections.

“At my direction Chief Browne reviewed these provisions with the regional representative from the NY State Codes Division of Code Enforcement and Administration, who agreed and substantiated the need to apply the Plumbing Code occupancy standards in conjunction with the rest of the New York State Uniform Code.”

Maximum occupancy levels are set through the Fire Code based on available space and square footage. The Plumbing code, Gunn explained, simultaneously sets limits for the number of required plumbing facilities.

“It is possible, therefore, for an establishment to not be overcrowded as per the Fire Code limit, but to be in violation of the Plumbing Code for not having enough facilities for the number of occupants at the premises,” Gunn said.

The letter was an advisory designed to educate business owners, encourage a dialogue between them and the town, and make sure a fair standard was applied to all similarly situated establishments.

“I commend Chief Browne for his discovery of this issue as well as his initiative and willingness to make an attempt to reign in overcrowded nightclubs in some small way,” Gunn concluded.

Application of the “increased demand” plumbing requirements could give local business owners a wicked case of indigestion, as most of the popular night spots have just one bathroom per gender for their entire club, despite the hundreds who may show up to spend an evening outdoors drinking and dancing.

Gunn made clear, however, that there would need to be “some sort of trigger,” such as an alteration or renovation of a certain percent of the existing structure, or a change of occupancy for a particular area such as an outdoor deck or patio that had not previously been used to that extent, to bring the Plumbing Code regs into play.