In the two previous issues, we analyzed the cases when companies did not allow representatives of regulatory authorities to conduct inspections, and the consequences of such inaccuracies. In the same issue, we propose to consider cases in which the supervisory authorities after the inspection go to court with claims to suspend the operation of equipment and premises of enterprises or to suspend the performance of certain works.
The leaders in the number of such lawsuits are the Department of the State Emergency Service of Ukraine (SES). Significantly fewer lawsuits come from the departments of the State Labor Office, the State Coinspection, and other regulatory bodies.
Representatives of the State Emergency Service are quite radical in their claims. Usually, after they find that certain premises of the enterprise do not meet the requirements of fire safety, they ask the courts to completely stop the operation of such premises by disconnecting power sources, sealing switchboards and front doors. Very often, after satisfying such claims, companies are forced to suspend their work completely.
Importantly!
The peculiarity of such cases is that the court's decision to apply response measures is subject to immediate execution, regardless of whether the company further appeals against it.
An order and then a stop or a stop and then an order?
There is no clear position among the courts as to the stage at which the supervisory authority may apply to the court to take action - after the inspection report has been drawn up or after the order has been issued and it has not been complied with.
Case 1:
Audit:
In July 2015, the Territorial Department of Derzhgirpromnahlyad in Zhytomyr Oblast conducted an unscheduled inspection of compliance with the requirements of laws and regulations on labor protection and industrial safety of Vogue Retail LLC during the operation of gas stations, filling stations.
Detected violations:
In the inspection report, the controlling body recorded 18 violations in the field of labor protection. The most important of them:
the enterprise has not received a permit for high-risk works (maintenance of high-risk AGZP equipment, gas-hazardous works) and operation of AGZP equipment;
there are no permits for the commissioning of AGZP.
Order:
07/24/2015 The Territorial Department of Derzhgirpromnahlyad in the Zhytomyr region issued an order stating all 18 identified violations, 10 of which required to be eliminated by 08/28/2015.
Appeal to the court:
On July 22, 2015, before issuing the order, the Territorial Department of Derzhgirpromnahlyad appealed to the district administrative court with a claim to Vogue Retail LLC to apply response measures to state supervision, requesting to ban the operation of AGZP to eliminate violations specified in the inspection report and prohibit execution works by dismissal of employees who have not undergone special training and testing of knowledge of the relevant regulations on labor protection to eliminate the violations specified in the inspection report.
Court decision can be viewed at:
The courts of all three instances denied the Territorial Department of Derzhgirpromnahlyad the claim.
In its decision, the Supreme Administrative Court of Ukraine noted:
"The analysis of legal norms shows that if a violation is detected, the authorized body must issue an order or other document, which is subject to execution within the prescribed time.
Given that the order of the Territorial Department of Derzhgirpromnahlyad in Zhytomyr region from 24.07.2015 required LLC "Vogue Retail" to eliminate the identified violations until 28.08.2015, and with this claim the plaintiff appealed 22.07.2015, ie before the expiration of the period granted to eliminate the identified violations… court of the first instance, with which the appellate court agreed, came to the right conclusion, refusing to satisfy the claims to prohibit the operation of AGZP and prohibition of work by dismissing employees who have not undergone special training and testing of knowledge of relevant regulations on labor protection ».
Decision of the Supreme Administrative Court of Ukraine dated 19.04.2016 in case №К / 800/51548/15.
If you have received a notice of inspection and want to prepare for it, or if you have already conducted an inspection and you have received a lawsuit to stop the operation of the premises, then contact us for help.
Case 2:
Audit:
The Main Department of the State Service of Ukraine for Emergencies in the City of Kyiv inspected compliance with the requirements of the legislation in the areas of fire and man-caused safety, civil protection in relation to ETO K LLC.
Verification results:
On October 29, 2013, the State Emergency Service drew up and handed over to the director of the enterprise an inspection report in which it recorded a number of violations of the Fire Safety Rules in Ukraine.
Appeal to the court:
11/18/2013 GU SES appealed to the district administrative court with a claim to apply to LLC "ETO K" response measures in the form of a complete suspension of further operation of the premises of LLC "ETO K".
Court decisions:
The courts of first and appellate instance refused to satisfy the claim based on the fact that the appeal to the administrative court with a claim for the application of response measures is premature, because the plaintiff did not provide the court with evidence of acceptance of LLC "ETO K" order to eliminate violations established by the inspection report .
The Court of Cassation did not agree with such decisions of the courts of previous instances.
Annulling the decisions of the courts of previous instances, the Supreme Administrative Court of Ukraine noted:
"Drawing up by a state supervisory body of an order, instruction or other administrative document to eliminate violations is not the only way to influence the violator and avoid the danger of personnel from the harmful effects of probable emergencies, among other things, the law defines the control body's appeal to the business entity. response measures.
Drawing up an instruction, order or other administrative document to eliminate violations of the requirements established by law and fire safety is not a prerequisite or obstacle to going to court to apply response measures.
Whereas the legal precondition for applying to the administrative court for the application of response measures is only to establish a violation of the requirements of the legislation in the field of man-made and fire safety, which poses a threat to human life and health. "
Decision of the Supreme Administrative Court of Ukraine dated 20.07.2017 in case № К / 800/48422/14.
When do they stop the operation of enterprises?
There is no specific list of violations of the law that would be grounds for taking any response measure. In general, courts take the position that the cessation of operation of an enterprise or individual equipment is applied when there is a real threat to human life and health or the state of the environment.
Case 3.
Audit:
In February 2012, the Leninsky District Department of the State Emergency Service in Kharkiv Oblast conducted a scheduled inspection of PJSC Elektromashina for compliance with the requirements of the legislation in the areas of fire, man-made safety, and civil protection.
Verification results:
According to the results of the inspection, a number of violations (55 points) were identified and an order was issued to eliminate them. Here are some of them:
luminaires with incandescent lamps are not equipped with protective caps;
the use of non-standard (self-made) electric heating equipment is allowed for space heating;
wall cladding on the evacuation routes in the plant management building is made of combustible materials, the evacuation routes are cluttered with foreign objects and not equipped with evacuation lighting, the doors of the evacuation exits are closed with bolted connections and other locks that are difficult to open from the middle. ;
in the welding shop, the width and height of the evacuation exits do not meet the fire safety requirements of building codes;
the premises of the plant are not equipped with an automatic fire alarm system and fire alarm;
the drying chamber of the electrical shop and the premises of the winding and procurement shop are not equipped with an automatic fire extinguishing system;
no fire-retardant treatment of wooden roof elements of the enterprise was carried out;
the premises of the winding and procurement shop are not separated from the administrative and other premises by vestibule locks with air support;
the boiler room is not separated from the electrical shop by fire doors;
paint warehouse is not equipped with fire doors;
auxiliary room in the boiler room is not separated from the boiler room by fire partitions and fire ceilings. Exit directly to the outside is absent;
existing fire hydrants are not equipped with fire hoses of the same diameter and trunks, as well as levers to facilitate the opening of the valve;
the building of the winding and procurement shop is not equipped with internal fire water supply.
Appeal to the court:
The State Emergency Service in Kharkiv Oblast filed a lawsuit asking the court to completely eliminate violations of the requirements of the legislation in the field of technogenic and fire safety, which pose a threat to human life and health, to suspend the operation of the premises of a special design bureau, winding shop chambers of the electrical shop, machine shop, paint warehouse of PJSC "Electromashina", immediately stop the operation of these premises in order to carry out in them any activities not related to the elimination of violations of legislation in the field of man-made and fire safety.
Court decisions:
The courts of all three instances denied the claim to the State Emergency Service in Kharkiv Oblast.
Grounds for refusal:
PJSC "Electromashina" independently eliminated 15 points of violations;
4 detected violations relate to the administrative premises, not to the production facilities, which the State Emergency Service requested to stop;
another 12 identified violations are based on irrelevant legislation:
"The plaintiff applied the rules of DBN B.1.1-7-2002, NAPB A.01.001-2004, which apply to new construction, expansion, reconstruction, technical re-equipment, restoration, overhaul of buildings and premises for various purposes. Requirements for fire safety during the operation of buildings and premises are established by the relevant regulations of the system of standardization and standardization in construction, as well as regulations on fire safety. The plaintiff refers to the regulations adopted in 2002-2004, without substantiating the grounds for their distribution to buildings built more than 50 years ago in the absence of their reconstruction and overhaul after 2002. "
the existence of a real threat to human life and health and the proportionality of the applied response measures have not been proved:
“A response measure in the form of complete cessation of real estate operation until complete elimination of violations of fire safety legislation is an extreme measure, the choice of which is appropriate only if the violations actually pose a threat to human life and / or health.
Taking measures to respond to violations of certain fire safety rules should be assessed taking into account the principle of proportionality, which provides a balance between any adverse effects on the rights, freedoms and interests of the individual and the goals to which such measures are aimed.
According to the established circumstances of the case, the work carried out by the defendant and the measures taken indicate the good faith of his intentions, elimination of a significant part of the violations, and therefore the panel of courts agrees with the conclusion of the courts that the response to the defendant is unreasonable. people due to the presence of such violations. In addition, the response to the court, in the opinion of the court, is disproportionate to the rights, freedoms and interests of the defendant and the goals to which such measures are aimed, and other violations can be eliminated by implementing the order.
If you have received a notice of inspection and want to prepare for it, or if you have already conducted an inspection and you have received a lawsuit to stop the operation of the premises, then contact us for help.
Case 4.
Audit:
In the period from 18 to 29 November 2013, the Main Directorate of the SES of Ukraine in Sumy region conducted a scheduled inspection of PE "Production and Commercial Enterprise" Astarta "for compliance and compliance with legislation in the field of fire safety
Verification results:
During the inspection, the State Emergency Service revealed a number of violations in the field of fire safety, which were recorded in the inspection report.
Appeal to the court:
In December 2013, the SES Office filed a lawsuit with the District Administrative Court to apply response measures in the form of a complete suspension of construction and installation work on the construction of the store PE "Production and Commercial Enterprise" Astarta "to completely eliminate violations of fire safety regulations. detected during the inspection.
Court decisions:
The court of first instance denied the claim, and the appellate court overturned the decision and upheld the claim.
The Supreme Administrative Court of Ukraine upheld the position of the Court of Appeal.
In its decision, the court of cassation noted:
"In deciding to refuse to satisfy the claims, the court of first instance assumed that the SES Office did not specify the grounds for a complete suspension of construction work on the construction of the store, as no evidence or justification was provided that the violations endanger life and health. people.
Having annulled the decision of the court of first instance and satisfied the claim, the appellate court noted that the circumstances referred to by the plaintiff are proven, the premises are operated in violation of the law in the field of man-made and fire safety, endangering human life and health. inspections, and at the time of the trial the Company did not provide the court with evidence to confirm the voluntary elimination of the identified violations.
As established by the courts and seen from the case file, during a scheduled inspection conducted by the SES Office, it was found that the premises are operated in violation of legislation in the field of man-made and fire safety, which endanger life and health, as recorded in the Inspection Act, namely:
there is no plan at the entrance to the construction site with the building under construction, driveways and entrances, locations of water sources, fire extinguishers and communications, which in case of fire will not ensure the speed and accuracy of personnel and fire and rescue units , due to the lack of information necessary for the rapid localization and elimination of the fire;
the building under construction is not provided with certified portable fire extinguishers according to the norms, sandboxes and water barrels, which in case of fire will lead to the impossibility of rapid localization and elimination of fire and as a consequence to human casualties, which in case of fire will lead to impossibility of rapid localization and fire fighting and as a consequence to human casualties;
no fire shield has been installed on the construction site, which makes it impossible to take priority actions to eliminate and localize the fire before the arrival of fire and rescue units, and therefore may lead to rapid spread of fire over a large area, as well as human casualties;
the value of the limit of fire resistance for construction products and structures (slabs and floor beams, stairways) used in construction and installation work has not been confirmed, which does not guarantee in the conditions of fire for the time required for rescue and firefighting, integrity and load-bearing capacity as well as heat-insulating nobility of building structures;
the construction site is not provided with visual agitation and fire safety signs, which in case of fire may lead to the fact that the staff will not know about the evacuation routes, location of primary fire extinguishers, fire shields and the procedure for fire;
not demolished (postponed) before the start of construction of a metal garage located in the fire breaks of the construction site, which in case of fire will complicate the access of fire and rescue units to the building and, as a consequence, may lead to the spread of fire to large areas and casualties;
there are no indicators (three-dimensional with a lamp or flat with the use of reflective coatings) of fire hydrants, which eliminates the possibility of using sufficient water in case of fire, because the water exported in fire trucks is enough for 5-7 minutes;
the minimum fire-fighting distance from the building of the store under construction to a private residential building has not been maintained, which may lead to the spread and spread of fire to nearby houses and buildings;
design documentation has not been developed for equipping the construction site with an automatic fire protection installation - no fire protection systems, do not provide: automatic fire alarm - detection of signs of fire or ignition at the earliest stages; system of notification and management of evacuation of people in case of fire - notification of visitors and staff about fire or ignition, with the help of special light indicators indicates the location of evacuation exits in conditions of poor visibility (in case of smoke); fire surveillance - at detection of signs of fire or ignition at the earliest stages, transfer of a fire signal to divisions of the state fire supervision for their further fast arrival and performance of works on rescue and extinguishing;
design documentation for outputting an alarm signal from the receiving device of the building fire protection system to the fire control panel has not been developed, which in case of fire will lead to untimely call of fire and rescue units and, as a consequence, to spread fire and significant material damage;
design documentation for fire-retardant treatment of wooden structures of combined coating has not been developed, which does not guarantee in case of fire for the time required for rescue operations and fire extinguishing, integrity and load-bearing capacity, as well as heat-insulating capacity of building structures;
the project documentation does not provide for the use of tempered or reinforced glass on the evacuation routes from the house for translucent filling of doors, transoms (in doors), which in case of dense smoke will not provide sufficient lighting of evacuation routes and may lead to human casualties;
the design documentation does not provide for the installation of built-in premises in the stairwell at the level of the basement and 2nd floors of the building, which may complicate the process of evacuation of the stairwell due to dense smoke if the fire is located in this room;
do not meet the requirements of regulations, according to the design solutions, the size (length and width) of the entrance vestibule on the 1st floor of the store, which in case of fire complicates evacuation from the premises and can lead to congestion and death;
do not meet the requirements of regulations, according to the design decisions, the size of the evacuation exits (doors) from the premises of the 2nd floor of the building (domestic, auxiliary), which in case of fire complicates evacuation from the premises and can lead to congestion and death .
The court found that at the time of the trial the Company did not provide evidence to confirm the voluntary elimination in full of the identified violations in the field of fire safety, which are recorded in the inspection report, in connection with which reasoned measures in the field of state supervision (control) complete cessation of construction and installation work on the construction of the store, until the complete elimination of violations of the requirements of regulations on fire safety, identified during the inspection.
Decision of the Supreme Administrative Court of Ukraine dated 01.06.2017 in case №К / 800/47159/14.
Lawyer's comment:
The analysis of court cases makes it possible to establish certain patterns and make recommendations to enterprises.
You need to prepare for the test in advance. If the company knows about the inspection of compliance with fire safety rules, it is necessary to eliminate at least minor violations that are sure to get into the act (homemade heaters, extension cords and other small things). Their presence in the act only creates the illusion of a "malicious violator."
If there are grounds not to allow the inspector to inspect, be sure to use this opportunity.
Record all actions of the inspector during the inspection.
In the inspection report, be sure to indicate your objections to the identified violations and explanations that confirm the absence of violations.
Immediately after receiving the inspection report, start work on eliminating the identified violations. Report the elimination of each violation to the controlling body and provide evidence of elimination.
Check the district court's website for a lawsuit to stop the business.
Prepare substantial objections to the claim and provide evidence of the absence / elimination of violations.
Such actions of the enterprise will provide high chances of a victory in court and will allow to continue continuous work of the enterprise.
The article was published in the periodical "Journal of the Chief Engineer" №12 for December 2017. Information about the magazine can be found on the website:
https://techmedia.com.ua/product/golovnogo-inzenera
Suspension of operation of equipment, premises and performance of works as a result of inspections
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