Why can nightclubs exceed their capacity by simply hiring off-duty fire inspectors?
by Joe Tarr
Moose's Music Hall was the place to be in Knoxville this past New Year's Eve.
The V-roys smoked up the joint, ringing in the new year with Judas Priest's "Livin' After Midnight." Not long after, their mentor Steve Earle took the stage to play a couple of tunes with the band, delighting the crowd.
The place was packed, with a long line of people waiting to show their tickets and IDs at the door earlier in the night. According to the club, there were 700 people there.
Moose's capacity was—and remains—299 people. The club is working on getting its smoke alarm and sprinkler system approved by the city, which would permit it to allow more people inside its doors.
But how did the club get away with letting so many people in for the New Year's Eve show?
The club paid an off-duty city fire inspector to be on hand, making sure there were no problems. The club and city administrators say such so-called "fire watches" protect the public when they attend concerts, clubs and events.
But are Moose's and other clubs paying the city to violate the law? And are the city's fire inspectors using their regulatory power to muscle some extra cash on the side? And who is liable if something goes wrong—the club or the city?
"How do you work for somebody and then enforce the law on them?" wonders Councilwoman Carlene Malone. "If I'm paying you to do something, and you see something going on that shouldn't be going on, and in your other life you're the enforcement arm, are you likely to treat me the same way you'd treat everybody else? Are you going to hand me a ticket and say, 'See you in court, bub'?"
Metro Pulse found no evidence that the city's fire inspectors aren't doing their jobs. But a system that allows inspectors to work for the very people they regulate—and the fire marshal's reluctance to answer questions about that system—at the least suggests a potential for abuse.
Richard Costanza was the city's fire marshal until recently. He is currently on leave and in a dispute with city officials over a different matter (See Ear to the Ground, Metro Pulse Vol. 9, No. 13).
Earlier this year, Costanza said his department spends most of its energy inspecting hotels and apartments. "What we try to do is concentrate on where people sleep. We try to [inspect each place] every year, but like everybody else, we've got limited resources."
The department, which has eight inspectors, also regulates public establishments—restaurants, clubs, bars, theaters, arenas, convention centers—making sure they comply with codes and that there are no fire hazards. The city allows its fire inspectors to moonlight at these same places. The establishments pay the fire inspectors, not the city.
"The purpose of the fire watch is really to monitor overcrowding in the Strip area," Costanza said.
Defensive when questioned about the system, Costanza insisted that hiring an inspector does not mean an establishment can break the laws. "[The inspector is] subject to the rules and regulations we'd use if he was working as an officer for the city. He has to follow the code."
The fire marshal's department sets each building's occupancy limit depending on a number of factors, including the square footage, type of seating, the number of exits, and the types of alarms and fire prevention equipment, says John Tillett, a fire inspector who regulates the Strip area. Establishments with capacities of 300 or more must have an approved smoke alarm and sprinkler systems, Tillett says.
Charlie Barker, the fire department's public information officer, confirms that by hiring a fire inspector clubs can circumvent their capacities.
"They can have 300 or more, but they're required to have what is called a fire watch. What that is is they call [the fire marshal's office] and request a state certified fire inspector. They have to hire them off duty and they're in uniform, just like they were working for the fire department. [The inspector] determines what the cutoff point will be. They are there in case there is a problem. That is set up by the Standard Fire Prevention Code and the National Fire Protection Association Life Safety Code."
Barker has failed to provide Metro Pulse with copies of those codes, despite numerous phone messages.
Walter Sterling, senior fire protection specialist with the NFPA (one of the organizations Barker referred to), says NFPA codes mention nothing about exceeding capacity limits when a fire marshal is on hand. "You won't find anything in that line of thinking," Sterling says.
However, Sterling says there's nothing out of the ordinary about fire inspectors working off duty at clubs and concert venues. "That's a common occurrence," he says. "You see that all the time. It's the result of problems occurring and documented cases of people losing their lives."
Although inspectors must tell him when they work off duty, Costanza said he did not keep records of this work and did not have an idea how many jobs a year they work. "They've had them on the Strip but I don't know exactly who done what." Asked for a rough guess of how many are done annually, he said, "six, eight, 10."
But Gary Mitchell, manager of Moose's Music Hall on the Strip, says he frequently hires fire inspectors, sometimes weekly. He hires them—as well as city police officers—when he expects large crowds, potential trouble, or when the entertainment uses pyrotechnics.
Doug Berry, Knoxville's director of development, admits that the city hasn't done a good job keeping track of the work off-duty inspectors do.
"We have not been, as a matter of course, requiring disclosure on the part of fire inspectors on what they're doing," says Berry, who took his job 11 months ago. "What we have is a policy that's pretty much been oral."
He says that when fire inspectors tell establishments they need to have a fire watch to exceed a certain capacity, they are given the numbers to both the City Fire Marshal and Rural Metro, which has inspectors who don't work for the city.
Berry says acting fire marshal Roger Byrd is looking at the system and devising a more formal way of keeping track where inspectors work off duty.
Other places known to use off-duty inspectors include O'Charley's on Cumberland Avenue, which is known for large crowds of dancers on the weekends. The manager there says his club hires them, but didn't want to comment.
The Bijou Theatre was required to hire a fire marshal earlier this year because renovations at the 750-seat Gay Street theater weren't quite finished when its first scheduled shows came around, says Beverly Snukals, the theater's executive director.
"[The fire marshal] allowed us to have those shows, provided we had a fire inspector here," Snukals says. "It wasn't that we were terribly behind schedule. There were minor things that weren't quite finished yet." With the renovations now done, the Bijou no longer needs to have fire watches, she says.
What are venues getting when they hire an inspector, and can't clubs be conscious of fire safety on their own?
"Basically, what you've got is a city representative here to make sure all the rules are followed," says Mitchell of Moose's. "If anything does happen, say I had a fire marshal, you can't imagine how that would sound in court and the liability it would relieve you from."
Mitchell may in fact stand a better chance in court. But how will the city fare? Could this system leave the city open to a lawsuit, if in fact something does go wrong? "God forbid something happens where we have an employee off-duty who has the authority to allow codes not to be followed," Malone says.
Berry says each fire inspector is certified by the state and goes through extensive on-the-job training. They also must have at least three years experience with the fire department, so they're trained in life saving techniques. "They understand the fire codes, so they're there to ensure that everything is conducted in a safe manner that doesn't jeopardize human safety and welfare."
There's also a business friendly side of it, he adds: "If [an inspector is] agreeing to go under contract to provide a service to allow a business to have a higher occupancy than code allows, that's us trying to be a customer-service organization—and businesses are taxpayers. If we don't do this, that means Moose's, once they exceed 299—and Moose's can hold more people than that—we shut 'em down and Drivin' and Cryin' can't perform. My concern is that we not create a circumstance that makes a business owner feel forced to do that. We have emphasized vocally that [inspectors] are not supposed to be soliciting this service."
Mitchell says it is easier and safer for him to hire a fire inspector than train his own staff about safety regulations. "No matter how conscious you are of fire rules and regulations, everyone who works at this club has other duties. I could probably hire another security guy whose only job would be to check exits and emergency lights and make sure the aisles are clear...but he would ultimately get distracted doing something else."
Costanza said the primary reason for fire watches is public safety. "If [a club] was overcrowded and somebody died, the next criticism would be, 'Why wasn't somebody there?'"
Malone scoffs at this. "I absolutely dismiss that as being a joke. That's ridiculous. Somehow, you can go over capacity and the fire marshal gets everybody out safely? Are we buying safety or are we buying protection—and there's a difference."
The Bijou paid inspectors $25 an hour. Mitchell says he did not know how much the club pays since the billing is done through its Birmingham office. (In other cities, they're paid $20 an hour, he says).
Mitchell says Knoxville's fire inspectors haven't let him get away with anything, regardless of the money he's paying them. "The fire marshal in this town is stricter than any town I've ever worked in my life. A lot of times people might think that it's an old boys network, with kickbacks and payoffs, that they're buying protection. It's not like that. There's nothing to buy protection for...We're basically paying to have a trained professional to protect the public when ordinarily there wouldn't be anyone here. There's no downside to it. There's really nothing wrong with it."
Malone is opposed to allowing police officers, fire inspectors, and any other city regulatory enforcer to work off duty in an official capacity. (She also supports paying these employees more, so they won't need the extra cash).
The councilwoman says a conflict of interest and a potential for abuse clearly exist. She notes that city building inspectors are not allowed to work as plumbers, electricians, and mechanics within the city limits. "And people who aren't paying city employees on private contract, are their places less safe? Is the only safe place somewhere city employees are being paid? It's such a slippery slope, it blows my mind."
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