Victims of the Noyes Street fire. Top row, from left: Ashley Thomas, David Bragdon, Maelisha Jackson. Bottom row, from left: Christopher Conlee, Nikki Finlay, Steven Summers.
AUGUSTA — Justices on the Maine Supreme Judicial Court seemed dubious Tuesday about a claim that the state’s fire safety code is too vague to enforce.
Gregory Nisbet’s appeal is focused on escape window rules and a memo turned over to the defense post-trial.
Gregory Nisbet, who owned a Portland apartment house where six people died in a fire in November 2014, is appealing his code violation conviction to the state’s highest court. He was acquitted of six counts of manslaughter, but found guilty of violating the state code’s requirement of a second means of escape for tenants in third-floor bedrooms.
That conviction came with a 90-day jail sentence, apparently the first time a Maine landlord has been jailed for a misdemeanor code violation.
Nisbet has remained free during his appeal, and attended oral arguments Tuesday before the Supreme Judicial Court at the Capital Judicial Center in Augusta. He declined to comment after the session.
His lawyer, Luke S. Rioux, told justices that in 1976, the state changed its requirements for when the size of windows in upper-story bedrooms can be considered a secondary way to escape. The minimum opening changed from 3.3 square feet to 5.7 square feet, he said.
Because Nisbet’s building was constructed under the old code the older standard should apply, and uncertainty over which rule was in place made the fire code too vague to be enforced, Rioux said.
But Justice Joseph M. Jabar said minimum height and width requirements didn’t change, even if the minimum square footage was adjusted. “Twenty-four inches high by 20 inches wide isn’t vague, is it?” Jabar asked.
Rioux said the code was still unclear because it didn’t specify whether the required opening applied to the part of the window that could be opened or to the entire frame. He said it might have been possible to remove the frame by pulling out pins that held the frame in place, although it’s not clear if the tenants knew that.
Rioux is also arguing that Nisbet’s conviction should be overturned because prosecutors didn’t turn over a memo on window openings from the State Fire Marshal’s Office to defense lawyers until after the trial was over. Prosecutors said they provided the memo to Nisbet’s lawyers as soon as they learned of it, but Rioux said one of the state’s witnesses may have been aware of it while testifying.
Justices will have to decide if that’s a violation of rules requiring prosecutors to turn over all of their evidence to defense lawyers.
The judge who oversaw Nisbet’s original trial refused to order a new trial because of the memo, which was written a year before the Noyes Street fire and provided some clarification on the size requirements for windows to be considered a secondary means of escape. That judge said the memo wouldn’t have changed his decision to convict Nisbet.
In February, Nisbet settled a lawsuit by families of the fire victims. Lawyers and the victims’ families were frustrated by the small amount of the settlement, which was limited because Nisbet’s only assets after the fire appeared to be a $300,000 payout on his fire insurance policy. Families of the victims received $45,000 each, with $30,000 going to a victim who was injured but survived the fire.
There is no timetable for the justices to rule on Nisbet’s appeal. Such decisions usually aren’t handed down until two months or longer after oral arguments are heard.
Edward D. Murphy can be contacted at 791-6465 or at:
emurphy@pressherald.com
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