Analysis
New regulations on business interruption sanctions due to non-observance of fire security regulations
The Government Decision no. 915 establishing the criteria for stopping the operation or use of buildings or establishments determined by serious breach of the requirements for fire safety in terms of endangering lives of occupants and intervention forces, failing to ensure the stability of the bearing elements, namely limiting the spread of fire and smoke inside the building and in the neighbourhood was published on November 4, 2015 in the Official Gazette, Part I, no. 824 (“Decision”).
Directly related to this Decision, on 5 November 2015, the Government Emergency Ordinance no. 52 ("Ordinance") amending and supplementing Law 307/2006 regarding fire security (“Law”) was published in the Official Gazette, Part I, no. 828.
Firstly, the provisions of the Decision are applicable to buildings or establishments having commercial, cultural or touristic destination. The definition attributed by Decision for the phrase of "buildings or establishments with commercial trade" is comprehensive, referring both to bars, clubs and restaurants but also to shopping centres, shops and supermarkets.
Secondly, the Decision establishes the criteria for applying the complementary measure consisting in functioning interruption of constructions or establishments with any of the above destinations, with a developed area larger than 200 sq. m.
This measure may be applied both to (a) authorized buildings in terms of fire safety, (b) as well as to those unauthorized, but the situations that attract these penalties differ depending as follows:
| Authorized buildings in terms of fire safety |
Unauthorized buildings in terms of fire safety |
|---|---|
| Exceeding by more than 10% of the number of users for which the authorization was granted; |
Exceeding by more than 10% in the number of users compared to the reference value; |
| Exceeding the number of over-ground levels compared to the reference value limit for buildings with fire stability level V / degree of fire resistance; |
Exceeding the number of over-ground levels compared to the reference value limit for buildings with fire stability level V / degree of fire resistance; |
| Removing the evacuation routes when, according to specific technical regulations were imposed on two or more escape routes, according to the reference value; |
Non-providing the minimum number of ways to escape towards the reference value; |
| Reduction of more than 25% of the reference value of height or width of the escape routes, if deficiencies cannot be corrected during inspection; |
Reduction of more than 25% of the reference value of height or width of the escape routes, if deficiencies cannot be corrected during inspection; |
| Removing the systems for extinguishing, signalling, detection and warning of fire; |
Not equipping with extinguishing systems, signalling, fire detection and warning, according to the reference value; |
| Removal of smoke exhaust systems, and of lighting security systems for the evacuation. |
Not equipping with systems for extinguishing, signalling, detection and warning of fire; |
| Categories of construction or establishments for which have not been identified the date of the technical documentation authorizing the construction works or the date of commissioning the operation. |
The reference values referred to in the above situations must be reported and verified, as following:
- for the authorized buildings - the technical regulatory requirements indicated in the documentation that was the basis of the authorization, and
- for the unauthorized buildings - specific technical regulations in force at the time of the technical documentation authorizing the construction or at the time of commissioning the operation.
The state bodies authorized to ascertain the infringement of the obligation regarding the number of users for which the authorization was granted / number of users compared to the reference value are represented by the personnel of inspectorate for emergencies (“ISU”), which can require support from personnel from the Romanian Police and Gendarmerie.
According to the Decision, interruption of the functioning or using the building or the establishments will be applied until the fire security authorization will be obtained. By means of exception, in case that the measure was applied in the situation when the number of users for which the authorization was granted is over-stepped, the measure lasts for a period of 60 calendar days from the communication of the minutes of finding and sanctioning the contravention.
According to the Ordinance, the measure of stopping the functioning implies the application of a seal by the ISU inspectors, together with posting an announcement about the sanction applied, concluding in this regard the minute ascertaining the application of the seal. A complaint filed against this measure does not suspend its enforcement.
The Ordinance also provides the situations when lifting the seal can be ordered, as follows: (i) at the expiration of the period for which the measure was applied (ii) on the basis of an enforceable judgment; (iii) when the owner or user of the space where construction or establishments of the economic operators is changed (in case this implies changes in the destination of the building or of the business profile), (iv) in case of urgent or necessary repairs in order to achieve the fire security requirements; (v) after obtaining the fire security authorization.
The Ordinance also amends the obligations of the manager or head of institution (as defined in the Law), clarifying that it is in its responsibility and obligation to implement fire security measures.
