Risk management and government regulations are not something that small business owners consider on a regular basis, nor how they may apply to them. When they are considered, it may be too late.
As members of IKECA, we believe in practicing and following certain policies and procedures. One of our principal endeavors has been the support and development of NFPA96 along with our work to include standards within the International Fire Code. How do these standards provoke increased risks, and how do we manage it accurately?
Each day, IKECA members service hundreds of customers. We use inspection techniques that, when followed correctly, produce desired outcomes. We notify the customer of deficiencies then proceed to offer recommendations that will keep their businesses clean, safe, and in excellent conditions for the public. However, what is our risk if they do not follow our recommendations? What if our recommendations are not of regulation or standards compliant?
NFPA96 is a direct standard that provides simple and cost effective results. It promotes clean, safe, and efficient operations for the restaurant industry and their service providers. There is, however, a recurring theme that is creating an inherent risk for service providers: AHJ interpretation.
NFPA96 becomes less effective when it allows the AHJ to, in the end, have its own personal interpretation of right versus wrong. NFPA96 tries to protect its integrity by offering definitive guidance by stating that Webster’s Dictionary shall be used for definition; however, the AHJ triumphs and nullifies the NFPA96 code in the end.
This simple loophole creates for us, as service providers, one of the biggest risks that confront us today. What is acceptable in one jurisdiction may not be in the next. What is good for one AHJ may not be suitable for another. Why do we consider these issues, regardless if the AHJ is passed or not?
For starters, warranty laws under the Uniform Commercial Code provide certain protection to the consumer, especially when it concerns written standards and understandings. These standards and their understandings can be highlighted and used against us if something goes wrong, even if an AHJ gave our non-NFPA96 compliant recommendation a pass.
Belonging to associations, such as IKECA or NFPA, reinforces our commitment to maintaining set standards. When we emphasize the fact that we belong (regardless of the local standards), it opens us up to liabilities and risks beyond what a local AHJ may find agreeable.
For example, say we are an IKECA member and proudly advertise this along with the fact that we follow NFPA96. We inspect a restaurant that has a simple hood system with a roof mounted up-blast fan. We note during our inspection that the hood ductwork does not have listed access panels and is not properly hinged. We install the most cost effective hinges and fire rated doors. We then believe we have found a solution. One week later there is another inspection. During the inspection the AHJ opens the fan on the roof and the fan falls forward during the inspection narrowly missing the AHJ.
In reviewing the NFPA96 standard, the AHJ notes that a service hold-open retainer is required and issues a citation; who’s at risk?
The restaurant owner will immediately turn to the company/person who sold him the hinge. Did we indemnify ourselves by pointing out that they purchased a less expensive hinge without a proper service hold-open retainer?
Same rooftop and same scenario, could someone have been hurt? Could it have been our own staff, compounding the issue with Workman’s Compensation? Could it have been another third party doing other services to the fan? Consider other residual damage that improper hinging may cause: Improper weight distribution during opening (causing damage to fan), fan base or fan seals that affect air flow or cause leaking.
Another area is access panels. A fire rated door is not always a UL listed door. Fire rating does not provide the level of protection that a UL listed door will provide. Issues such as FOG leakage are not addressed in fire rating, but are components of UL Testing. This minor variance can mean the difference between success and failure, fines and no fines.
It is estimated that as many as 85% of all restaurants do not meet NFPA96 standards. There is a lack of understanding in the AHJ community that the service provider uses as a foundation to not mandate if their customers meet the standard. If we are members of an organization that espouses to work under strict standards, which include as a foundation NFPA96, we too can be held accountable, regardless of what any AHJ may conclude. Because we advertise our affiliation to a standards organization, and have customers that hire us based on this fact, does the UCC (Uniform Commercial Code) therefore offer risk to us through its warranty codes?
What events have to take place in order for all service providers to be held accountable and hold the same standards as IKECA members? Can we as an IKECA member and a good business offer our customers the truth about the standard, and provide for them an opportunity to either comply or sign off on the non-compliant solutions being installed throughout restaurants in the United States?