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Government
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Areas of Expertise :
Fire Protection, Building Code, Fire Suppression, Government
Published Date:
Last Modified Date:
Jurisdiction:
Oregon State
City of Portland v. Building Codes Division, 313 Or. App. 93, 496 P.3d 1108 (2021), involved a dispute between the City of Portland and the Oregon Building Codes Division (BCD) over a local fire sprinkler ordinance and the scope of the agency's enforcement authority. On September 13, 2013, the Portland City Council adopted Ordinance No. 186247, which amended the Portland Fire Code to require approved automatic fire sprinkler systems in certain existing nightclubs with occupant loads greater than 100 people. The Portland City Fire Marshal's Office identified 14 nightclubs that potentially fell within the ordinance, and all 14 eventually installed sprinkler systems.
The BCD later concluded that Portland had imposed local requirements in an area addressed by Oregon's statewide building code. The agency began administrative enforcement proceedings and initially proposed a $20,000 civil penalty together with an order directing Portland to repeal the ordinance. Its final order reduced the penalty to $8,750 but continued to require repeal. Portland sought judicial review, and on July 8, 2021, the Oregon Court of Appeals reversed the BCD's final order. The court concluded that the statutes relied on by the agency did not authorize the challenged investigation, civil penalty, or directive requiring the City Council to repeal Ordinance No. 186247.
The Portland City Council enacted Ordinance No. 186247 after local officials reviewed fire-protection requirements following a January 2013 nightclub fire in Brazil that killed more than 240 people. The ordinance required approved automatic fire sprinkler systems in existing nightclubs with occupant loads greater than 100. Nightclubs with occupant loads of 200 or more were required to comply by December 31, 2014, while establishments with occupant loads from 101 to 199 had until June 30, 2015.
Following adoption of the ordinance, the Portland City Fire Marshal's Office identified 14 nightclubs that potentially met its requirements. Building and business owners received notice of the new sprinkler rules, and the Fire Marshal communicated with some owners about the work required for compliance. Each of the 14 establishments ultimately installed an automatic fire sprinkler system.
In the fall of 2014, a lobbyist for the Oregon Restaurant & Lodging Association contacted the BCD about Portland's nightclub sprinkler ordinance. The communication questioned whether the City's local requirements conflicted with Oregon's statewide building-code framework. The matter then came under review by the state agency responsible for administering Oregon's building-code program.
The BCD notified Portland in November 2014 that it was examining the ordinance for a possible conflict with state law. The agency considered whether Portland could impose local automatic sprinkler requirements when sprinkler systems were already addressed by the Oregon Structural Specialty Code. Its review also examined the City's enforcement of those requirements.
In April 2016, the BCD completed an investigative report concluding that Portland had improperly adopted and enforced local requirements involving matters covered by the state building code. The agency relied in part on ORS 455.040, which restricts municipal enactment or enforcement of certain requirements concerning matters governed by the state code unless otherwise authorized by law. The investigative findings were followed by formal administrative enforcement proceedings.
The BCD issued a proposed order in July 2017 alleging that Portland had violated Oregon building-code laws through the adoption and enforcement of Ordinance No. 186247. The agency proposed a $20,000 civil penalty and directed the City to repeal the ordinance. Portland contested the proposed action and requested an administrative hearing.
During the administrative proceedings, Portland and the BCD filed competing motions for summary determination. The BCD argued that Chapter 9 of the Oregon Structural Specialty Code already regulated automatic fire sprinkler installation and that Portland therefore could not impose different local requirements. Portland disputed that interpretation and separately argued that the BCD lacked statutory authority to investigate the City for adopting legislation, impose a civil penalty for that legislative act, or compel the City Council to repeal an ordinance.
The administrative law judge largely agreed with Portland. The ALJ concluded that the BCD had not established on summary determination that Ordinance No. 186247 was preempted by the state building code. The ALJ also determined that the agency lacked authority to impose the proposed civil penalty or require repeal of the ordinance.
The BCD modified the ALJ's proposed order and concluded that Oregon law permitted the agency to take corrective action against Portland. In its final order, the BCD imposed an $8,750 civil penalty and directed the City to repeal Ordinance No. 186247. Portland then petitioned the Oregon Court of Appeals for judicial review.
The Oregon Court of Appeals heard oral argument on October 9, 2020. The parties disputed whether Oregon statutes authorized the BCD to investigate and sanction a municipality for adopting an ordinance and whether the agency could require a city council to repeal legislation. The appellate arguments therefore centered on the statutory scope of the BCD's investigative and enforcement powers.
The Oregon Court of Appeals reversed the BCD's final order in City of Portland v. Building Codes Division, 313 Or. App. 93, 496 P.3d 1108 (2021). The court concluded that ORS 455.770 did not authorize the BCD to investigate Portland for the legislative act of enacting Ordinance No. 186247 or to direct the City Council to repeal it. The court also rejected the agency's position that ORS 455.895 independently authorized a civil penalty against Portland for adopting and enforcing the ordinance.
The court did not decide whether Portland's nightclub sprinkler ordinance was preempted by Oregon's statewide building code. The appeal was resolved instead on the statutory limits of the BCD's investigative and enforcement authority.
Court:
Oregon Court of Appeals
Case Name:
City of Portland v. Building Codes Division
Building Code Compliance
Construction Building Codes
Construction Inspections
Fire Hazard
Fire Protection Engineering
Fire Safety Science
Fire Suppression Systems
City of Portland v. Building Codes Division, 313 Or. App. 93, 496 P.3d 1108 (2021), involved a dispute between the City of Portland and the Oregon Building Codes Division (BCD) over a local fire sprinkler ordinance and the scope of the agency's enforcement authority. On September 13, 2013, the Portland City Council adopted Ordinance No. 186247, which amended the Portland Fire Code to require approved automatic fire sprinkler systems in certain existing nightclubs with occupant loads greater than 100 people. The Portland City Fire Marshal's Office identified 14 nightclubs that potentially fell within the ordinance, and all 14 eventually installed sprinkler systems.
The BCD later concluded that Portland had imposed local requirements in an area addressed by Oregon's statewide building code. The agency began administrative enforcement proceedings and initially proposed a $20,000 civil penalty together with an order directing Portland to repeal the ordinance. Its final order reduced the penalty to $8,750 but continued to require repeal. Portland sought judicial review, and on July 8, 2021, the Oregon Court of Appeals reversed the BCD's final order. The court concluded that the statutes relied on by the agency did not authorize the challenged investigation, civil penalty, or directive requiring the City Council to repeal Ordinance No. 186247.
The Portland City Council enacted Ordinance No. 186247 after local officials reviewed fire-protection requirements following a January 2013 nightclub fire in Brazil that killed more than 240 people. The ordinance required approved automatic fire sprinkler systems in existing nightclubs with occupant loads greater than 100. Nightclubs with occupant loads of 200 or more were required to comply by December 31, 2014, while establishments with occupant loads from 101 to 199 had until June 30, 2015.
Following adoption of the ordinance, the Portland City Fire Marshal's Office identified 14 nightclubs that potentially met its requirements. Building and business owners received notice of the new sprinkler rules, and the Fire Marshal communicated with some owners about the work required for compliance. Each of the 14 establishments ultimately installed an automatic fire sprinkler system.
In the fall of 2014, a lobbyist for the Oregon Restaurant & Lodging Association contacted the BCD about Portland's nightclub sprinkler ordinance. The communication questioned whether the City's local requirements conflicted with Oregon's statewide building-code framework. The matter then came under review by the state agency responsible for administering Oregon's building-code program.
The BCD notified Portland in November 2014 that it was examining the ordinance for a possible conflict with state law. The agency considered whether Portland could impose local automatic sprinkler requirements when sprinkler systems were already addressed by the Oregon Structural Specialty Code. Its review also examined the City's enforcement of those requirements.
In April 2016, the BCD completed an investigative report concluding that Portland had improperly adopted and enforced local requirements involving matters covered by the state building code. The agency relied in part on ORS 455.040, which restricts municipal enactment or enforcement of certain requirements concerning matters governed by the state code unless otherwise authorized by law. The investigative findings were followed by formal administrative enforcement proceedings.
The BCD issued a proposed order in July 2017 alleging that Portland had violated Oregon building-code laws through the adoption and enforcement of Ordinance No. 186247. The agency proposed a $20,000 civil penalty and directed the City to repeal the ordinance. Portland contested the proposed action and requested an administrative hearing.
During the administrative proceedings, Portland and the BCD filed competing motions for summary determination. The BCD argued that Chapter 9 of the Oregon Structural Specialty Code already regulated automatic fire sprinkler installation and that Portland therefore could not impose different local requirements. Portland disputed that interpretation and separately argued that the BCD lacked statutory authority to investigate the City for adopting legislation, impose a civil penalty for that legislative act, or compel the City Council to repeal an ordinance.
The administrative law judge largely agreed with Portland. The ALJ concluded that the BCD had not established on summary determination that Ordinance No. 186247 was preempted by the state building code. The ALJ also determined that the agency lacked authority to impose the proposed civil penalty or require repeal of the ordinance.
The BCD modified the ALJ's proposed order and concluded that Oregon law permitted the agency to take corrective action against Portland. In its final order, the BCD imposed an $8,750 civil penalty and directed the City to repeal Ordinance No. 186247. Portland then petitioned the Oregon Court of Appeals for judicial review.
The Oregon Court of Appeals heard oral argument on October 9, 2020. The parties disputed whether Oregon statutes authorized the BCD to investigate and sanction a municipality for adopting an ordinance and whether the agency could require a city council to repeal legislation. The appellate arguments therefore centered on the statutory scope of the BCD's investigative and enforcement powers.
The Oregon Court of Appeals reversed the BCD's final order in City of Portland v. Building Codes Division, 313 Or. App. 93, 496 P.3d 1108 (2021). The court concluded that ORS 455.770 did not authorize the BCD to investigate Portland for the legislative act of enacting Ordinance No. 186247 or to direct the City Council to repeal it. The court also rejected the agency's position that ORS 455.895 independently authorized a civil penalty against Portland for adopting and enforcing the ordinance.
The court did not decide whether Portland's nightclub sprinkler ordinance was preempted by Oregon's statewide building code. The appeal was resolved instead on the statutory limits of the BCD's investigative and enforcement authority.
City of Portland v. Building Codes Division centered on statutory interpretation and administrative authority rather than technical expert testimony. The reported appellate decision does not identify expert witnesses whose opinions formed the basis of the Oregon Court of Appeals' ruling. In other disputes involving sprinkler systems, fire codes, or building-code compliance, the following types of experts may address technical issues when those subjects are contested.
Fire Protection Engineering Expert Witness:
A fire protection engineer may evaluate fire hazards, automatic suppression systems, occupancy classifications, life-safety requirements, and the design or performance of sprinkler systems.
Building Code Compliance and Inspection Expert Witness:
A building code expert may assess applicable structural and specialty codes, permitting and inspection procedures, occupancy classifications, and compliance with building-code requirements.
Fire Sprinkler System Expert Witness:
A sprinkler system expert may examine system design, installation, coverage, water supply, inspection, testing, maintenance, and compliance with applicable fire-protection standards.
Fire Code and Life Safety Expert Witness:
A fire code and life-safety expert may analyze occupant loads, means of egress, fire-prevention requirements, emergency safety measures, and the interaction between fire-code and building-code provisions.
The Dispute Involved More Than the Validity of the Ordinance
The administrative proceedings addressed whether Portland's local sprinkler requirements conflicted with Oregon's statewide building-code framework, but the appellate dispute also presented a separate question concerning the BCD's own authority. Portland argued that even if questions existed about the ordinance, the agency still needed statutory authorization for the specific investigative and enforcement actions it took against the City.
ORS 455.770 Was Central to the BCD's Claimed Investigative Authority
The BCD relied on ORS 455.770 as part of its authority to investigate Portland's conduct. The Court of Appeals concluded that the statute did not authorize the agency to investigate a municipality for the legislative act of adopting an ordinance or to compel the municipality's legislative body to repeal that enactment.
ORS 455.895 Did Not Independently Support the Civil Penalty
The BCD also relied on ORS 455.895 in support of its civil penalty. The Court of Appeals rejected the agency's argument that the statute independently authorized a penalty against Portland under the circumstances presented. As a result, the $8,750 civil penalty contained in the final order could not stand.
The Administrative Law Judge and the BCD Reached Different Conclusions
The ALJ concluded that the BCD had not established on summary determination that the ordinance was preempted and also determined that the agency lacked authority to impose the proposed penalty or order repeal. The BCD later modified the ALJ's proposed order and issued its own final order imposing the reduced penalty and directing Portland to repeal the ordinance. That final agency action became the subject of Portland's petition for judicial review.
The Appellate Decision Did Not Resolve Whether the Ordinance Was Preempted
The Court of Appeals did not determine whether Portland was ultimately permitted to maintain sprinkler requirements different from those contained in Oregon's statewide building code. Its decision addressed the enforcement mechanisms used by the BCD rather than resolving the underlying preemption question. The distinction between those issues defined the scope of the appellate ruling.
The administrative dispute developed from Portland's adoption and enforcement of Ordinance No. 186247 into a broader challenge over the authority the BCD could exercise against a municipality. Although the BCD concluded that Portland had imposed local requirements involving matters governed by the state building code, the Court of Appeals determined that the statutes invoked by the agency did not authorize the investigation, civil penalty, or compulsory repeal contained in its final order.
The July 8, 2021 decision therefore reversed the BCD's enforcement action without resolving whether Portland's nightclub sprinkler ordinance was itself preempted by Oregon law. The validity of the ordinance under the statewide building-code framework remained distinct from the statutory-authority question decided on appeal.
Did the Oregon Court of Appeals invalidate Portland Ordinance No. 186247?
No. The Court of Appeals reversed the BCD's final enforcement order but did not hold that Ordinance No. 186247 was invalid. The court resolved the appeal based on the limits of the BCD's statutory authority.
Did the court decide whether Portland's sprinkler ordinance was preempted by Oregon law?
No. The court expressly did not resolve whether the ordinance was preempted by Oregon's statewide building code. Its decision addressed whether the statutes relied on by the BCD authorized the agency's investigation, civil penalty, and repeal directive.
What role did the administrative law judge play in the proceedings?
The administrative law judge considered competing motions for summary determination during the administrative case. The ALJ concluded that the BCD had not established that the ordinance was preempted on summary determination and also determined that the agency lacked authority to impose the proposed penalty or require repeal. The BCD later modified the proposed order before issuing its final administrative decision.
What statutes were involved in the BCD's enforcement authority?
The appellate dispute included the BCD's reliance on ORS 455.770 and ORS 455.895. The Court of Appeals concluded that those statutes did not provide the authority asserted by the agency for the challenged investigation, civil penalty, and directive requiring Portland to repeal the ordinance.
What was the difference between the preemption issue and the agency-authority issue?
The preemption issue concerned whether Portland's local sprinkler requirements conflicted with Oregon's statewide building-code system. The agency-authority issue concerned whether the BCD had statutory power to investigate Portland for adopting the ordinance, impose a civil penalty, and direct the City Council to repeal it. The Court of Appeals resolved the second issue without deciding the first.
City of Portland v. Building Codes Division centered on statutory interpretation and administrative authority rather than technical expert testimony. The reported appellate decision does not identify expert witnesses whose opinions formed the basis of the Oregon Court of Appeals' ruling. In other disputes involving sprinkler systems, fire codes, or building-code compliance, the following types of experts may address technical issues when those subjects are contested.
Fire Protection Engineering Expert Witness:
A fire protection engineer may evaluate fire hazards, automatic suppression systems, occupancy classifications, life-safety requirements, and the design or performance of sprinkler systems.
Building Code Compliance and Inspection Expert Witness:
A building code expert may assess applicable structural and specialty codes, permitting and inspection procedures, occupancy classifications, and compliance with building-code requirements.
Fire Sprinkler System Expert Witness:
A sprinkler system expert may examine system design, installation, coverage, water supply, inspection, testing, maintenance, and compliance with applicable fire-protection standards.
Fire Code and Life Safety Expert Witness:
A fire code and life-safety expert may analyze occupant loads, means of egress, fire-prevention requirements, emergency safety measures, and the interaction between fire-code and building-code provisions.
The Dispute Involved More Than the Validity of the Ordinance
The administrative proceedings addressed whether Portland's local sprinkler requirements conflicted with Oregon's statewide building-code framework, but the appellate dispute also presented a separate question concerning the BCD's own authority. Portland argued that even if questions existed about the ordinance, the agency still needed statutory authorization for the specific investigative and enforcement actions it took against the City.
ORS 455.770 Was Central to the BCD's Claimed Investigative Authority
The BCD relied on ORS 455.770 as part of its authority to investigate Portland's conduct. The Court of Appeals concluded that the statute did not authorize the agency to investigate a municipality for the legislative act of adopting an ordinance or to compel the municipality's legislative body to repeal that enactment.
ORS 455.895 Did Not Independently Support the Civil Penalty
The BCD also relied on ORS 455.895 in support of its civil penalty. The Court of Appeals rejected the agency's argument that the statute independently authorized a penalty against Portland under the circumstances presented. As a result, the $8,750 civil penalty contained in the final order could not stand.
The Administrative Law Judge and the BCD Reached Different Conclusions
The ALJ concluded that the BCD had not established on summary determination that the ordinance was preempted and also determined that the agency lacked authority to impose the proposed penalty or order repeal. The BCD later modified the ALJ's proposed order and issued its own final order imposing the reduced penalty and directing Portland to repeal the ordinance. That final agency action became the subject of Portland's petition for judicial review.
The Appellate Decision Did Not Resolve Whether the Ordinance Was Preempted
The Court of Appeals did not determine whether Portland was ultimately permitted to maintain sprinkler requirements different from those contained in Oregon's statewide building code. Its decision addressed the enforcement mechanisms used by the BCD rather than resolving the underlying preemption question. The distinction between those issues defined the scope of the appellate ruling.
The administrative dispute developed from Portland's adoption and enforcement of Ordinance No. 186247 into a broader challenge over the authority the BCD could exercise against a municipality. Although the BCD concluded that Portland had imposed local requirements involving matters governed by the state building code, the Court of Appeals determined that the statutes invoked by the agency did not authorize the investigation, civil penalty, or compulsory repeal contained in its final order.
The July 8, 2021 decision therefore reversed the BCD's enforcement action without resolving whether Portland's nightclub sprinkler ordinance was itself preempted by Oregon law. The validity of the ordinance under the statewide building-code framework remained distinct from the statutory-authority question decided on appeal.
Did the Oregon Court of Appeals invalidate Portland Ordinance No. 186247?
No. The Court of Appeals reversed the BCD's final enforcement order but did not hold that Ordinance No. 186247 was invalid. The court resolved the appeal based on the limits of the BCD's statutory authority.
Did the court decide whether Portland's sprinkler ordinance was preempted by Oregon law?
No. The court expressly did not resolve whether the ordinance was preempted by Oregon's statewide building code. Its decision addressed whether the statutes relied on by the BCD authorized the agency's investigation, civil penalty, and repeal directive.
What role did the administrative law judge play in the proceedings?
The administrative law judge considered competing motions for summary determination during the administrative case. The ALJ concluded that the BCD had not established that the ordinance was preempted on summary determination and also determined that the agency lacked authority to impose the proposed penalty or require repeal. The BCD later modified the proposed order before issuing its final administrative decision.
What statutes were involved in the BCD's enforcement authority?
The appellate dispute included the BCD's reliance on ORS 455.770 and ORS 455.895. The Court of Appeals concluded that those statutes did not provide the authority asserted by the agency for the challenged investigation, civil penalty, and directive requiring Portland to repeal the ordinance.
What was the difference between the preemption issue and the agency-authority issue?
The preemption issue concerned whether Portland's local sprinkler requirements conflicted with Oregon's statewide building-code system. The agency-authority issue concerned whether the BCD had statutory power to investigate Portland for adopting the ordinance, impose a civil penalty, and direct the City Council to repeal it. The Court of Appeals resolved the second issue without deciding the first.
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Fire Protection Engineering
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