Did you know that a routine firefighter inspection can result in the closure of a business? Yes, you say. But in fact, everything can be worse than you thought, because it is not so easy to defend yourself from the claim of the State Emergency Service to stop the enterprise.
The current legislation gives the SES, as well as other controlling bodies, the right to file lawsuits for the application of response measures by stopping the operation of buildings. The reason for this may be the presence of violations of fire safety rules, which pose a real threat to human life and health. These are violations that were detected during the inspection, and which may cause a fire or problems with its elimination.
Over the past few years, the practice of the courts has changed significantly and not in favor of business. At the same time, the Supreme Court makes different decisions on almost identical situations, so it is not at all clear in which direction the "wind" may blow in your case. Next we will talk about typical situations, as well as how to reduce the risks of closing the company.
Detailed analysis of each violation
Earlier, firefighters filed a lawsuit in court, saying that the company has several dozen violations and the company needs to close. However, the courts have repeatedly stated that it is necessary to assess each violation contained in the act and analyze whether a specific violation poses a threat to human life and health.
The Supreme Court in its ruling of 24.11.2020 in case № 826/10169/18 noted that the lack of a reasoned assessment of each argument put forward by the parties to the case on the presence or absence of grounds for satisfaction of the claim, failure to state reasons for rejection of each argument the court's conclusions on recognizing as confirmed the circumstances of the existence of grounds for the application of response measures are premature and unfounded, made on the basis of incompletely established circumstances that are important for the proper resolution of the dispute.
Therefore, you need to pay attention to each violation, and if the regulatory body has not justified why a particular violation poses a threat, you need to refute this violation.
We will protect during inspection of controlling body
What is a real threat?
In fact, the concept of threat to human life and health is an evaluative concept and different courts interpret it differently.
For example, the Supreme Court notes that the occurrence of a real threat to human life and health from fire must be related to the circumstances that may lead to the ignition and spread of fire (ruling of 16.09.2020 № 816/4755/15).
That is, logically, life-threatening disturbances that do cause a fire, such as uninsulated wiring, can be life-threatening. Instead, the absence of an alarm system cannot pose a threat, as the task of the protection system is to report an existing fire.
However, sometimes the courts think differently. For example, the Supreme Court in its ruling of 16.09.2020 in case № 816/4755/15 stated that since the arrangement of premises with automatic fire alarm systems and automatic fire extinguishing systems is aimed at timely detection and notification of an already existing fire, elimination of its consequences, the lack of such installations do not indicate the presence of an unacceptable risk of fire.
At the same time, the same Supreme Court in its ruling of 10.09.2020 in case №620 / 1857/19 noted that the violations identified in the act, in particular, the lack of a fire alarm system and a fire alarm system, could certainly lead to death or harming their health.
However, in any case, it is necessary to present specific arguments and prove that there is no causal link between the violation and the real threat to life and health.
How to confirm the fact of elimination of violation?
After conducting an inspection and receiving an order, the company usually begins to eliminate the violations, and when firefighters file a lawsuit, it provides evidence of elimination of these violations directly to the court.
This can be documentary evidence (for example, acts of measuring the resistance of electrical insulation), and evidence of changes in the characteristics of the room (for example, the installation of new fire doors). Previously, photos or documents could be submitted to the court. However, now the position of the courts is quite clear. An unscheduled inspection is required to confirm the fact of elimination of violations and the new act will be a proof of elimination of previous violations. This position was expressed, in particular, by the Supreme Court in its decision of 29.10 2020 in case № 520/11608/19. Therefore, to confirm the fact of elimination of violations it will be necessary to let firefighters to the enterprise again.
What to do with the new rules?
Legislation is constantly updated, including fire safety rules and state building codes. During the construction of the facility there were some rules, during the inspection there were others. And of course, firefighters are taking on new norms and standards. These may be requirements for fire distances, areas of premises, as well as the installation of fire protection systems. With regard to such violations, it is important to take the position that the new rules cannot apply to old buildings. In addition, most DBNs concern the creation of new facilities or their reconstruction. For example, the Supreme Court in its decision of 19.09.2019 in case №826 / 19328/16 noted that the rules of the DBN apply to new construction, expansion, reconstruction. However, as established by the appellate court, the defendant did not carry out construction, reconstruction, technical re-equipment or overhaul.
And if leased?
In practice, firefighters file lawsuits against building owners, although parts of the buildings may be leased. In this case, it is the tenant who may be responsible for fire safety in the specified premises. However, when you provide evidence of renting a room you need to be careful and take into account many nuances. For example, the Supreme Court in its decision of 29.10.2020 in the case
№ 804/5103/16 pointed out that the courts had not established the validity of these leases, the area leased, the time of the violations, as well as the rights and obligations of the lessee regarding compliance with fire safety rules.
Do we allow for inspection?
In order to get to you for inspection, the inspector must follow many rules. These are the presence of a certificate and referral, inclusion in the plan and notification for the scheduled inspection, the availability of grounds, compliance with the deadlines and frequency of inspections. If any of these requirements are not met, the inspection may be legally barred. However, the inspector may then apply to the court for access to the inspection.
The Supreme Court in its decision of 01.09.2020 in case № 826/6838/17 noted that the SES has no legal grounds to apply to the court for the obligation of the business entity to allow its officials to carry out the inspection.
As we see, there are many nuances in disputes with firefighters. In order to avoid the closure of the enterprise, I recommend following the following recommendations:
1. Prepare for the test in advance, especially if it is planned. Before the inspection, you can conduct an audit that will identify violations and reduce the number of violations during the main inspection.
2. Be careful at the admission stage before checking, pay attention to all the details that could prevent the inspector.
3. Provide your reasoned objections on the act of inspection.
4. If you have already been sued, try to eliminate the main violations, if possible. Courts are more receptive to companies that do not have many violations. For violations that cannot be technically remedied or do not have sufficient resources, provide your arguments in accordance with the law and existing case law.
If you follow these guidelines, you can significantly reduce the risk of downtime.
Andriy Gevko, lawyer, partner of the law firm Bargen
Also read our article about why it is necessary to prepare for inspections of controlling bodies.
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