STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES OFFICE OF HEARINGS State Secondary Complex General Office Building 7150 Harris Drive, P.O. Box 30015 Lansing, Michigan 48909 Telephone: (517) 322-1709 In the Matter Of:

Appeal Docket: BFD 99-930 Application No: BFE 99-202

Bethesda Romanian Pentecostal Church /

REPORT OF THE ADMINISTRATIVE LAW JUDGE Procedural Findings This

is

a

proceeding

held

pursuant

to

the

authority granted in Section 5 of 1966 PA 1, as amended, MCL 125.1351 et seq; 1972 PA 230, as amended MCL 125.1501 et seq; and 1969 PA 306, as amended, MCL 24.101 et seq. The purpose of this review is to examine an application for exception from requirements contained in the Barrier Free Design Rules of the State Construction Code.

A hearing was held on September 21, 1999, at the

State Secondary Complex in Lansing, Michigan.

Present

were

Timbuc,

Arthur

BFD 99-930

Kalajian,

architect,

1

and

Simion

pastor, representing the Applicant, and James Greene, representing the Barrier Free Design Division. Issue

Whether

an

exception

should

be

granted

from

Sections 1104.4 and 1108.2 of the BOCA National Building Code of 1996 (BOCA). Findings of Fact

The Bethesda Romanian Pentecostal Church is a new structure that has a 14,616 square foot main floor, a 1,650 square foot mezzanine, and a 1,952 square foot second

floor.

The

building

is

80

percent

complete

excluding parking and furnishings. Total estimated project cost is $650,000. An exception is requested from the requirement to provide barrier free access to the balcony and second floor. Applicant submits, a fellowship hall, sanctuary, classrooms and an office will be located on the main

BFD 99-930

2

floor.

There

will

be

an

upper

mezzanine

sanctuary

seating balcony and upper offices and storage on the second level.

Both upper levels will be accessed by

stairs. The balcony has five tiers or risers.

The

vertical distance from the main floor to the balcony is 10 feet.

It will be used for overflow seating for

members or attendees.

Following a discussion on the

record, Applicant's architect, Arthur Kalajian, declared rather than provide barrier free access to that level, it will reduce balcony seating by two rows of pews to comply with the code, Section 1103.1 of Part 4, subsection 8 (i), which provides, "When the balcony shall have less than 1/3 of the total seating it is exempt from barrier free requirements." In addition to the balcony, the new structure has a 1,952 square foot second floor. space and storage use.

This area has office

The vertical distance to this

area from the main floor is 12 feet.

It is estimated it

will cost $25,000 to install a special elevating device

BFD 99-930

3

to the second floor.

Applicant submits costs as the

basis for an exception.

Also, Applicant claims private

use. There is a toilet room behind the baptistery elevated above the main floor.

If a ramp is required to

be installed to this barrier free unisex toilet room, it will increase the cost of this project substantially because of lack of space and because the area to the baptistery will have to be reconfigured. An

audiovisual

area

is

constructed

on

a

150 square foot platform elevated 1 foot above the floor at the rear of the sanctuary.

The audiovisual area will

be used by volunteers during church services.

If a ramp

is installed, it will reduce seating capacity especially because

congregation

membership

is

growing.

Besides,

necessary audiovisual functions can be moved to the front of the auditorium. The church has 350 members and the capacity for 600 people.

The church staff consists of a pastor,

assistant pastor and treasurer.

BFD 99-930

4

Conclusions of Law Act 1 of the Public Acts of 1966, as amended, states that the barrier free design requirements were created "to provide for the accessibility and utilization by physically limited persons of public facilities and facilities used by the public."

The Barrier Free Design

Board is authorized by the Act to grant or deny requests for exceptions to any or all of the barrier free design requirements for a stated time period and upon stated conditions and require alternatives when exceptions are granted. An

exception

request

is

granted

only

compelling need is demonstrated by the Applicant.

when The

Applicant has the ultimate burden of proving that an exception should be granted. license

to

deviate

from

An exception is a special rules

applicability to all facilities.

which

have

uniform

Compelling need may be

present if the literal application of a specific barrier free design requirement would result in exceptional,

BFD 99-930

5

practical difficulty to the Applicant or where compliance would not be economically, technologically, structurally, or administratively feasible. Section 1104.4 of the BOCA National Building Code/1996 provides: Vertical interior routes: Accessible vertical interior routes that are in compliance with the requirements of section 1016.0 [ramps] or section 1108.3 [elevators] of the code shall be provided from all entrances to all levels, spaces, and elements of all building areas as required by section 1103.0 of the code. (Material in brackets added.) Section 1108.2 of the BOCA National Building Code/1996 provides: Toilet and bathing facilities: Toilet rooms and bathing facilities shall be accessible. At least one of each type fixture or element in each accessible toilet room and bathing facility shall be accessible. Exceptions 1.

2.

BFD 99-930

A nonpublic toilet room or bathing facility intended for use by a single occupant shall be permitted to be adaptable. This section is not applicable to dwelling units, guestrooms and

6

patient toilet and bathing facilities which are not required to be accessible or adaptable by Section 1107.0. I find compelling need for an exception from the requirement to provide a special elevating device to the balcony because Applicant states it will reduce seating on the balcony level in order to comply with the code regarding balcony exemptions by eliminating two (2) rows of seats. I further find an exception should be granted from the requirement to provide barrier free access to the unisex barrier free toilet room behind the baptistery and to the audiovisual platform at the rear of the auditorium (sanctuary). An exception should be granted because of costs, loss of space and reconfiguration concerns. I find an exception should be denied from the requirement to provide interior vertical access to the second floor of this facility. demonstrate compelling need.

BFD 99-930

7

Applicant has failed to

Moreover, the building official has made a strong statement to this application, i.e., "The Applicant made changes in the field, without city review and approval, that caused the non-compliant condition." Recommendation

I recommend an exception from Sections 1104.4 and 1108.2 as pertains to access up to the toilet room on the elevated baptistery level; however, the toilet room shall be made barrier free unisex. An exception should be granted to the elevated audiovisual platform. I recommend the request for an exception to the second floor office area be denied and that a special elevating device be installed forthwith. I further recommend the request for an exception be dismissed as pertains to the balcony because Applicant has

agreed

to

revise/change

its

construction

plans

regarding balcony seating thereby reducing seating to allow for an exemption.

BFD 99-930

8

It is recommended that a local building official follow up on the balcony seating allowed to conform with the reduced seating required for an exemption. If, after review of this recommendation, the Board approves an exception from BOCA Section 1108.2, bathroom grab bars shall be provided in accordance with CABO Section 4.24.2.2. The record is closed.

Dated: October 25, 1999 Andrew W. Foster, Jr. Administrative Law Judge

BFD 99-930

9