Power of AHJ to interpret

[mshields]

Where is the AHJ's authority to interpret code defined and perhaps more importantly where is the applicable definition of "interpret".

Recently, I told a client that if a rule in the code was clear and there were no other conflicting applicable codes, "interpret" does not mean "make up" code. A colleague, copied in the same e-mail string, to my dismay, stated that the AHJ always had the right to interpret.

Implying that he could "interpret" the meaning of something that is black and white in NFPA 99 with no conflicting requirements elsewhere, to mean what he wanted it to mean.

Practical realities aside; i.e. the fact that appealing an AHJ may well not be worth the effort, surely the AHJ's right to interpretation is not a right to create code. I'm looking to bolster that argument, if it is in fact correct with the two definitions asked for at the top of this post.

Thanks

 

[charlie b]

Take a look at the second sentence of the first paragraph of 90.4, and the paragraph that follows. Does that help or cause more confusion?

 

[Ingenieur]

There is an ahj definition in the nec
bare in mind the nec is a minimum standard
the ahj can require more if code is not clear or situation is unique or in a grey area

his authority is granted by a governmental body
his word is usually binding but subject to appeal
like a cop giving you a ticket, you comply or contest but can't disregard

I am an ahj (law not code)
if the client disagrees with a determination he can contest
I must write and certify a report justifying my position
if he agrees it is over, if not it advances to a hearing board then court
but he can't proceed until resolved
I always try to work with the client to reach a compromise as long as imo safety is not
I have had very few contentious stalemates
sometimes they agree
sometimes they convince me and I reverse
sometimes they just do it because it is cheaper

 

[kwired]

If the AHJ is a governmental body then that body is who should be doing the interpreting, not a field inspector. That said the field inspector is the front line and is who is evaluating things supposedly the way their employer wants them to evaluate it. If you disagree with any decision the field inspector has made there should be a method to appeal to the governmental body that is truly the AHJ and get an opinion of more then just one person. If you have an issue that has come up before they very well may try to use the result of that as the basis of what they tell you before going to the entire board or whatever with making a determination.

 

[Ingenieur]

If the AHJ is a governmental body then that body is who should be doing the interpreting, not a field inspector. That said the field inspector is the front line and is who is evaluating things supposedly the way their employer wants them to evaluate it. If you disagree with any decision the field inspector has made there should be a method to appeal to the governmental body that is truly the AHJ and get an opinion of more then just one person. If you have an issue that has come up before they very well may try to use the result of that as the basis of what they tell you before going to the entire board or whatever with making a determination.

the governmental body does not have the requisite skills to do so
that is exactly why they appoint someone who does
in my case the governor knows nothing about electrical engineering
hence my appointment and swearing in, I represent him (and legislature) in these matters
they write the law, I enforce it, courts resolve disputes

The members of a small town boro council are not nec experts
the code official is assumed to be by virtue of testing/experience/licensing
and the council by appointment grants him the authority to act on their behalf

 

[ggunn]

Where is the AHJ's authority to interpret code defined and perhaps more importantly where is the applicable definition of "interpret".

Recently, I told a client that if a rule in the code was clear and there were no other conflicting applicable codes, "interpret" does not mean "make up" code. A colleague, copied in the same e-mail string, to my dismay, stated that the AHJ always had the right to interpret.

Implying that he could "interpret" the meaning of something that is black and white in NFPA 99 with no conflicting requirements elsewhere, to mean what he wanted it to mean.

Practical realities aside; i.e. the fact that appealing an AHJ may well not be worth the effort, surely the AHJ's right to interpretation is not a right to create code. I'm looking to bolster that argument, if it is in fact correct with the two definitions asked for at the top of this post.

Thanks

The NEC does not carry the force of law. If an AHJ like a City Council adopts the NEC, then it is their ordinance that is the law, and they may add requirements of their own to augment the NEC and even choose not to enforce parts of it. In short, your colleague is correct.

Also, situations can arise which are not explicitly addressed in the NEC but need interpretation of disparate and sometimes conflicting language in the code. In such cases the AHJ's interpretation rules.

 

[Ingenieur]

The NEC does not carry the force of law. If an AHJ like a City Council adopts the NEC, then it is their ordinance that is the law, and they may add requirements of their own to augment the NEC and even choose not to enforce parts of it. In short, your colleague is correct.

Yep
and this is why engineers should not give legal opinion lol
any more than a lawyer should give engineering guidance

emails are dangerous
too easy to state an opinion that turns into a professional opinion

 

[Sierrasparky]

Take a look at the second sentence of the first paragraph of 90.4, and the paragraph that follows. Does that help or cause more confusion?

The authority having jurisdiction for enforcement of the Code has the
responsibility for making interpretations of the rules, for deciding on the approval of equipment and materials, and for granting the special permission contemplated in a number of the rules.

By special permission, the authority having jurisdiction may waive specific requirements in this Code or permit alternative methods where it is assured that equivalent objectives can be achieved by establishing and maintaining effective safety.

I see this as the AHJ interprets of confusing issue but I don't think the AHJ has the right to dismiss a Must or a Shall do this or that. That is unless there is something equivalent in its place.
Am I wrong in this assumption?

 

[charlie b]

. . . but I don't think the AHJ has the right to dismiss a Must or a Shall do this or that. That is unless there is something equivalent in its place.
Am I wrong in this assumption?

I think you are right. The AHJ can waive an NEC requirement if, and only if, there is something else that provides equivalent safety. But I see nothing in the NEC wording that gives the AHJ the authority to add requirements that exceed those of the NEC.

 

[charlie b]

If the AHJ is a governmental body then that body is who should be doing the interpreting, not a field inspector. That said the field inspector is the front line and is who is evaluating things supposedly the way their employer wants them to evaluate it. If you disagree with any decision the field inspector has made there should be a method to appeal to the governmental body that is truly the AHJ and get an opinion of more then just one person.

The City of Seattle explicitly defines the AHJ as being the Seattle Department of Construction and Inspection (SDCI). This was previously known as the Department of Planning and Development (DPD). If a contractor wishes to dispute a ruling by a field inspector (or for that matter a ruling by the plans reviewer), they can appeal to SDCI. The appeal will first be heard by a volunteer group known as the Construction Code Advisory Board (CCAB). I am a member of that board. We have heard only one such appeal in the past year, and it wasn't from an electrical contractor.

 

[mshields]

90.4 does help

90.4 does help

I read in an article that this question hinges on how one defines jurisdiction. The article made the point that jurisdiction is not just geographical but also limits, and this is surely perfectly logical to boot, limits the AHJ to the codes he is charged with enforcing AND the letter of those codes. I get that reality may dictate that the AHJ has the upper hand and I certainly get that he gets to hold things up pending an appeal of his authority. But surely he can't make shit up. Surely, he needs to be able to make a cogent, code based argument in order to prevail in instances where the owner is willing to fight the case up through appeal to the governing body who wrote or adopted the regulations. And by the way, I don't think you need to be an electrical professional to understand electrical regulations.

If it's not true that the AHJ needs to be able to make a code based argument for him to have the right to interpret the code in any way he so fancies, then we are living in the wild west of building construction where the AHJ can simply do whatever the hell he wants.

At the crux of my argument is also the fact contrary to popular opinion that everything may be interpreted. Relevant to building codes, if applicable codes conflict or if the code in question is vague, then of course the AHJ is the arbiter. But where the code says you must do x and x is perfectly clear, it is not within the AHJ's jurisdiction to contradict that.

 

[tom baker]

In Washington you can ask for a variance, by filling out a form and paying the fee, but you are paying for a no. No AHJ is going to allow something less than what the NEC requires

 

[Electric-Light]

Look at it this way. You can still get cited for excessive speed for condition when you're barrelling down in a blizzard at 50 mph in a 4WD. If your justification is "but it says 55", I don't think you will get out of it. You're in a grey area, but this is an example of very dark grey.

If you disagree with the AHJ's reasoning you can dispute their reasoning and if you find it is worth fighting instead of just doing what they want you to do.

 

[Ingenieur]

.... Surely, he needs to be able to make a cogent, code based argument in order to prevail in instances where the owner is willing to fight the case up through appeal to the governing body who wrote or adopt

And by the way, I don't think you need to be an electrical professional to understand electrical regulations....

federal mining law
appeal to congress and the president?
or to msha?

the first is an appeal to the enforcement agency
then usually a special hearing board
then the courts
NEVER the people how passed the law/ordinance

try puting a local council member who is a teacher on the stand in court to defend their decision...get them qualified as an expert
we as professionals find it hard to agree on things that we supposedly understand lol
a gas station owner elected to council making electrical engineering based code interpretations?

that is why special boards are set up with subject matter experts
zoning
construction codes
etc

I was the appointed Engineer (a legally defined and appointed position) for a dozen plus gov entities
cities
townships
boroughs
authorities

ALL hired, created or appointed boards or people to deal with these matters
in fact, in some cases iirc it is law they do so
I would counsel them on their response (in the case of authorities)
that is why it is LAW they appoint an Engineer
so they have someone that supposedly understands the code/law and technical aspects of water/sanitary systems
the other bodies had seperate boards to deal with these matters

like it or not the ahj can do what ever the heck he wants
even contrary or in excess of code
your recourse is the appeals process
but you can't proceed until resolved
but if he operated arbitrary and capriciously he won't last long
gov bodies don't like being in court

our law stipulates when we cite a condition mining stops...period
he can appeal, but can't mine
he must correct before mining

 

[junkhound]

On residential if AHJ says jump , I just say "how high".

Small job never pays to argue. Even if a 'bad' direction or interpretation, one can always 'fix' it after all permits signed off.

 

[jwelectric]

how it works in NC

how it works in NC

How it works in NC. General builds a house and calls Electrical Contractor (EC). It is the responsibility of the EC to make a code compliant installation therefore during the rough process the EC is the authority having jurisdiction.

Rough is complete EC calls the local Code Enforcement Official (CEO) for an inspection, authority having jurisdiction just moved to the CEO. EC and CEO disagree so EC calls the supervisor, authority having jurisdiction just moved to the supervisor. Supervisor backs CEO so EC calls county commissioner, authority having jurisdiction just moved. Commissioner refers it back to the inspection department so EC calls state, authority having jurisdiction just moved.

State backs CEO so EC appeals to the courts and guess what, there is no inspector at any level that has jurisdiction, and it lies completely with the courts.

For any NC inspectors that might be reading this it is easy to see that the one controlling this complete process was the EC so therefore I would say the EC is the authority having jurisdiction which leaves me being nothing more than a lonely ole inspector without any authority at all.

Here in NC the liability lies completely on the EC for a compliant installation. As a code official should I overlook something or even be misinformed about a code the liability is completely on the contractor so in my opinion the electrician is the person having the authority.

a side note; this is the mind set that I do my inspections with each and every day not any quote from law

 

[JohnE]

Mike,

I see you are in MA. I am an EC as well as inspector in MA. As an inspector, I do not believe I am the AHJ. I believe that is the State Board of Examiners. If you disagree with my interpretation, you can appeal to the Board, as a reaction. You may also proactively request a Formal Interpretation from the Board of Fire Prevention. An inspector cannot make up regulations, nor ignore any. Although they frequently do both, along with mis-interpret many, in my experience.

John

 

[kwired]

the governmental body does not have the requisite skills to do so
that is exactly why they appoint someone who does
in my case the governor knows nothing about electrical engineering
hence my appointment and swearing in, I represent him (and legislature) in these matters
they write the law, I enforce it, courts resolve disputes

The members of a small town boro council are not nec experts
the code official is assumed to be by virtue of testing/experience/licensing
and the council by appointment grants him the authority to act on their behalf

I did not mean to say that the governor of a state or a city mayor is who makes decisions on how to interpret electrical codes. What I was getting after is there usually is some sort of board that runs a government organization that enforces the codes. Normally you don't have one person setting policies you have a board that makes these policies. Things like how far inside the building is what that AHJ wants to accept as "nearest the point of entry" is one example of something many of them have already considered and have made a decision on what their limitations will be, and informed the inspectors of that decision so they are all enforcing the same interpretation. Occasionally there will be those things that come up that have never come up before, the proper thing for the inspector to do is refer it to their superiors if they aren't sure what to do. Then at least a larger group of people is making a decision and not just one inspector being the only mind behind a requirement.

Two quotes below indicate that is how it works with them, and I have seen similar from the state inspectors here as well.

The City of Seattle explicitly defines the AHJ as being the Seattle Department of Construction and Inspection (SDCI). This was previously known as the Department of Planning and Development (DPD). If a contractor wishes to dispute a ruling by a field inspector (or for that matter a ruling by the plans reviewer), they can appeal to SDCI. The appeal will first be heard by a volunteer group known as the Construction Code Advisory Board (CCAB). I am a member of that board. We have heard only one such appeal in the past year, and it wasn't from an electrical contractor.

Mike,

I see you are in MA. I am an EC as well as inspector in MA. As an inspector, I do not believe I am the AHJ. I believe that is the State Board of Examiners. If you disagree with my interpretation, you can appeal to the Board, as a reaction. You may also proactively request a Formal Interpretation from the Board of Fire Prevention. An inspector cannot make up regulations, nor ignore any. Although they frequently do both, along with mis-interpret many, in my experience.

John

 

[Ingenieur]

I did not mean to say that the governor of a state or a city mayor is who makes decisions on how to interpret electrical codes. What I was getting after is there usually is some sort of board that runs a government organization that enforces the codes. Normally you don't have one person setting policies you have a board that makes these policies. Things like how far inside the building is what that AHJ wants to accept as "nearest the point of entry" is one example of something many of them have already considered and have made a decision on what their limitations will be, and informed the inspectors of that decision so they are all enforcing the same interpretation. Occasionally there will be those things that come up that have never come up before, the proper thing for the inspector to do is refer it to their superiors if they aren't sure what to do. Then at least a larger group of people is making a decision and not just one inspector being the only mind behind a requirement.

Two quotes below indicate that is how it works with them, and I have seen similar from the state inspectors here as well.

that is why I posted this
I edited it for the salient points

the first is an appeal to the enforcement agency
then usually a special hearing board
then the courts
NEVER the people how passed the law/ordinance

that is why special boards are set up with subject matter experts
zoning
construction codes
etc

ALL hired, created or appointed boards or people to deal with these matters
in fact, in some cases iirc it is law they do so
I would counsel them on their response (in the case of authorities)
that is why it is LAW they appoint an Engineer
so they have someone that supposedly understands the code/law and technical aspects of water/sanitary systems
the other bodies had seperate boards to deal with these matters

 

[kwired]

NE state electrical board members is composed of two POCO representatives (one rural one municipal), an electrical inspector, two electrical contractors, an engineer and a journeyman electrician. I'm pretty certain they maintain representatives from each of the mentioned categories when there is changes to the members.