Rules to Live By: Statutes, Codes and Treatises
It is a wise practice to use advisory codes and treatises to make you think about whether your venue’s practices are as safe as they should be. The risk of giving these materials to your staff is that they might not take them seriously enough until something bad happens. The benefit is that they could help save lives.
At a minimum, each of us has a duty to follow the law. Being a lawyer, I will leave matters of conscience, morality and even justice for another contributor. Instead, this article will focus on what exactly it means to follow the law, and how far that analysis gets you when determining whether a venue has done enough to avoid legal trouble.
A law, as many of us recall from “Schoolhouse Rock,” is the end product of much negotiation and group editing by legislators, followed by a signature from the executive branch. In the United States, there are federal statutes such as the Occupational Safety and Health Act and the Americans With Disabilities Act, as well as myriad state laws, some of which put a state-specific spin on a federal standard (such as state OSHA statutes). Not all laws are created equal, however, as shown by recent events in my home state of Arizona.
In the fall of 2010, Arizona voters approved a ballot question that made Arizona the fifteenth state to pass some form of medical marijuana legislation. As a result, the state Department of Health Services has been busy licensing people to purchase marijuana and reviewing applications for dispensaries to sell it. So the rule is that marijuana is now legal for medicinal use. But even state-licensed marijuana use raises thorny legal issues. First, there is the not-insignificant problem that marijuana possession and use remains illegal under federal law. Second, there are lots of situations where it would be a safety hazard for an employee to work under the influence of a controlled substance, whether legally or not. Unfortunately, the state legislature has provided no guidance how an employer may restrict, discipline, or even terminate an employee who puts safety at risk by exercising a state-approved right to consume marijuana. The statute creates a fundamental clash between rights and duties. In this instance, the law will be shaped by the results of lawsuits likely to be filed as users and employers struggle to figure out how the new rules work in practice.
More recently, the Arizona legislature passed a “Firearms Omnibus Bill” that would have dramatically increased the right of people to carry guns into public buildings. Lobbying by IAVM and others helped eliminate some particularly ill-conceived provisions, but the bill sailed through to the Governor’s desk, where her signature was considered a foregone conclusion. In a major surprise, she vetoed it. Then the Governor added a veto message indicating that she will sign a similar bill if it closes the loopholes she found objectionable. So the rule is exactly the same as it was before — for now. Since the next legislative session begins in just a few months, venues that complained this year that they lacked the resources to comply should prepare now for the law that is likely to go on the books next year.
For venues, there are a variety of codes that have varying amounts of legal weight. There are mandatory local codes governing the physical structure of a venue, such as the municipal building code and fire code. The International Code Council issues the International Building Code, which is the leading source for the standards a physical structure must meet to ensure occupant safety. The local fire code is often based on either NFPA 1, the Fire Prevention Code published by the National Fire Protection Association, or the ICC’s International Fire Code.
Lawyers debate whether building or fire codes are only minimum standards or the standards for building and fire safety. Inarguably, if a venue can show that it complied with one of these mandatory codes, that is a strong evidence that it is doing what industry experts and local lawmakers have decided is reasonable for a safe venue in that community. In addition, however, the venue must also show that its overall conduct was reasonable in the “totality of the circumstances.” In other words, code compliance is a great start for the defense, but it needs to be part of an overall pattern of reasonable conduct by the venue.
Other types of codes may not have been expressly adopted by local legislatures, but still function as best practices guides. Two common advisory standards that venues should know are NFPA 101, the Life Safety Code, and the various signage provisions set forth by the American National Standards Institute. Here are a couple of examples of the way these codes work.
Even if your state or municipal legislature has not expressly adopted NFPA 101, it remains a good idea in the eyes of industry experts to have conducted a Life Safety Evaluation for your event (§13.4.1), and to have sufficient numbers of Trained Crowd Managers on site (§12.7.5). Likewise, you can post any legally permissible signs on your property that you want, but for venues whose warning signs are in a format other than the ANSI-specified color, shape, conspicuity, and font, if the adequacy of notice to patrons becomes an issue, you will have some explaining to do.
In other words, advisory codes do not carry the force of law, but since they are widely acknowledged to be the product of the industry’s best minds on a given subject, you better have a compelling reason if your venue chooses not to follow them.
Nearly any learned text can be considered a treatise, from a practitioner’s guide about risk management or emergency planning to an advocacy group’s training materials. If it suggests that one way of performing a task or thinking about a situation is preferable to others, you may want to rely on it when creating your own venue’s operational practices.
Some people worry about having treatises in the building, as if the fact that you may not have followed every suggestion means that your venue is operating unsafely. Often these well-intentioned worriers are senior managers with little to no operational responsibility. Repeat after me: It’s okay to have books and training materials in your office. Most of them begin with disclaimer language that states what should be obvious, even to lawyers, such as this excerpt from the first page of the Life Safety Code:
Anyone using this document should rely on his or her own independent judgment or, as appropriate, seek the advice of a competent professional in determining the exercise of reasonable care in any given circumstances.
In tort litigation, the legal question is whether a venue has behaved reasonably under the circumstances. This does not require you to follow every piece of advice you receive — it does require that when you receive what is generally considered good advice, you should either follow it or have a compelling reason to do something different. As the NFPA says, you are expected to exercise your own independent judgment. Treatises are valuable precisely because they enhance your ability to exercise well-informed independent judgment.
To borrow a famous line, “Knowledge is good.” It is essential to follow rules that have been codified into law, and it is a wise practice to use advisory codes and treatises to make you think about whether your venue’s practices are as safe as they should be. The risk of giving these materials to your staff is that they might not take them seriously enough until something bad happens. The benefit is that they could help save lives. That is one risk I think is worth taking.
 After this article was submitted for publication, Arizona sued the United States, asking a federal judge to tell it whether the state’s Medical Marijuana Act is preempted by federal law. Depending on the outcome of that lawsuit, users and providers operating under the state statute risk being prosecuted for federal narcotics violations.