Fire rebuild to include 20% upgrades?

[Robert]

I've been asked to develop a scope of work for a recent kitchen fire in a restaurant (California). I have not seen the space yet so details are vague. The client wants to rebuild the kitchen, like for like, no changes. Do I need to include 20% of the rebuilding cost for accessibility upgrades in other parts of the restaurant that were not affected by the fire? If so, do fire insurance companies cover that part of the scope for the owner? Thank you.

 

[conarb]

On the insurance question, after the Oakland Hills Fire California passed a law requiring insurance companies to offer policies that cover current code compliance, so the answer to you question is "depends upon the insurance policy".

 

[Robert]

Thanks. I'll ask about the Code upgrade option on their policy.

 

[ADAguy]

Was the place ADA compliant prior to the fire (smiling)?
If not, now is the chance to remove existing barriers to access.

 

[conarb]

Was the place ADA compliant prior to the fire (smiling)?
If not, now is the chance to remove existing barriers to access.

The Oakland Hills Fire was in 1991, the ADA 1990, the law was passed a few years after the fire when almost all burned-out residents found that their insurance didn't cover today's codes (mostly seismic).

 

[mark handler]

I've been asked to develop a scope of work for a recent kitchen fire in a restaurant (California). I have not seen the space yet so details are vague. The client wants to rebuild the kitchen, like for like, no changes. Do I need to include 20% of the rebuilding cost for accessibility upgrades in other parts of the restaurant that were not affected by the fire? If so, do fire insurance companies cover that part of the scope for the owner? Thank you.

According the to the CA code, yes, it includes this type of repair.

 

[Mr. Inspector]

The IBC only requires the 20% for Alterations affecting an area containing a primary function.The kitchen is not an area containing a primary function per definition.

If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.

 

[Robert]

Rick, that makes sense. ADA guy, I agree any barriers I see during my walk through will be addressed.

 

[JBI]

Just remember that 'repairs' is a defined term in the IEBC and that may determine whether the work is categorized as a 'repair' or and alteration.

 

[steveray]

Without knowing all the details, I might agree with Rick, but Mark knows Cali specific pretty well....

 

[mark handler]

The IBC only requires the 20% for Alterations affecting an area containing a primary function.The kitchen is not an area containing a primary function per definition.

If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.

I disagree
A "primary function" of a Restarant is preparing and serving food, the kitchen is "primary" to a restaurant and many times larger than the service area for customers.

 

[mark handler]

The IBC only requires the 20% for Alterations affecting an area containing a primary function. The kitchen is not an area containing a primary function per definition.

If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.

The CA code does not say anything about the "...affecting an area containing a primary function...."
Nor does it say the 20% need be spent in the area of alteration or repair.

 

[SCBO1]

Mark could you give an example of how the 20% rule would work?

Could I assume that this restaurant does not not have ADA compliant restrooms costing the owner additional $$$ and all he wants is to get back in business after a kitchen fire?

 

[ADAguy]

Though the "code" does not have a retroactive requirement with regards to Ch 11B, the owner is still (has always been) obligated under ADA to remove "existing" barriers to access and the "repaired" areas must comply with current CBC for alterations.
MH, see any exceptions to this?

 

[conarb]

Without knowing all the details, I might agree with Rick, but Mark knows Cali specific pretty well....

Yes, but Mark is also a total advocate of disability codes, right or wrong, his interpretation will always be on the side of more and stricter disability codes, I have read that over 90% of disibility cases that do go to court the owner wins.

All laws and codes can be interpreted differently, even judges, look at the 5 to 4 decisions coming down from the Supreme Court. As architects and contractors we have a fiduciary obligation to act in the best interests of our clients, Robert's case is on point, he has to provide a scope of work in the best interests of his client, not in accord with his personal, religious, or political beliefs.

 

[SCBO1]

give an example of how the 20% rule would work?

 

[mark handler]

Mark could you give an example of how the 20% rule would work?
Could I assume that this restaurant does not have ADA compliant restrooms costing the owner additional $$$ and all he wants is to get back in business after a kitchen fire?

You could assume that, the priorities for "upgrades" are given to those elements that will provide the greatest access in the following order:

• An accessible entrance;
• An accessible route to the altered area;
• At least one accessible restroom for each sex or one accessible unisex (single-user or family) restroom;
• Accessible telephones;
• Accessible drinking fountains; and
• When possible, additional accessible elements such as parking, signs, storage and alarms.

The total could be spent on fixing the entrance.

 

[SCBO1]

So... if you get the accessible entrance, the route and the bathrooms and the 20% is used up for these ADA upgrades, the owner can proceed?

The plan is reviewed and the elements are enforced by the AHJ, or do the plans go to an ADA advisory board or something like that for approval?

 

[conarb]

The plan is reviewed and the elements are enforced by the AHJ, or do the plans go to an ADA advisory board or something like that for approval?

You have hit on the problem, there is no real appelate board, yes I know, appeals can be demanded, but the appellate board is usually set up with three members of the city council or board of supervisors, people with no expertise. What one AHJ may demand another right next to it won't, different AHJs interpret codes and laws differently.

 

[JPohling]

I would guess that you are going to be over the threshold amount for these repairs so your looking at 100% compliance....

 

[conarb]

I would guess that you are going to be over the threshold amount for these repairs so your looking at 100% compliance....

I disagree:

1. See if the insurance policy will cover code updates.
2. If it doesn't then does the restaurant have money to fight in court?
3. If it does fight on the basis of ambiguity, if the AHJ attempts to force compliance by holding up the permit bring an action against the AHJ, most city attorneys won't spend the money to defend a legal action and will settle. AHJs have huge pension liability problems and won't waste money on litigation, on the other hand if their in-house legal staff has nothing to do they just might try to handle it themselves.
   
4. In any event settlement is an option at any point, threaten litigation and offer to do something minor, if that doesn't work file suit then offer to settle, many cases like this are settled the day of trial.

 

[Mr. Inspector]

Just a solid gold accessible toilet may give you the 20%.

 

[mtlogcabin]

We just went through this with a local restaurant. The bathrooms where next to the kitchen and the walls where damaged by fire and smoke. They exceeded the 20% amount making the 2 restrooms accessible and that is all we got at this time. Is the route to the restrooms accessible? Yes. Could it have been made better? Yes. Did I have the authority to require more? No.

 

[SCBO1]

Just a solid gold accessible toilet may give you the 20%.

I'd be happy if they'd put lever handles on and install their ADA signage. Gold is optional here.