The victims of the Noyes Street fire in Portland, Maine 11/1/14
In the early hours of November 1, 2014, a fire destroyed an apartment building owned by Gregory Nisbet on Noyes Street in Portland, Maine. Investigators found that the blaze was started by smoking materials disposed of in a plastic container on the front porch. They also found that some parts of the 1890s building were not constructed to modern standards, that hallways were clogged with belongings and debris, that smoke detectors were installed but had been disabled, and that furniture had been positioned so as to obstruct free movement in and out of rooms. The fire was able to quickly move into the structure and engulf the entire building. Six people died and they are depicted in the image clockwise from upper left: Ashley Thomas, 29, David Bragdon Jr., 27, Maelisha Jackson, 23, Christopher Conlee, 25, Nicole “Nikki” Finlay, 26, and Steven Summers, 29.
The history of the Noyes Street fire criminal case
In July of 2015, Greg Nisbet was indicted on six counts of Manslaughter. The State claimed that he caused the deaths through his reckless or negligent management of the Noyes Street property. He was also indicted on four misdemeanor counts of building code violations related to smoke alarms, stairway dimensions and egress requirements. In September of 2016, about two weeks before trial was to begin, the State charged an eleventh count: an additional misdemeanor code violation alleging that an upper floor bedroom window was too small to qualify as a secondary means of egress.
The trial was a so called “bench trial” with no Jury, just a judge to decide the case. Justice Thomas Warren found Greg Nisbet not guilty of all 10 original charges but found him guilty of the eleventh count, the window size code violation. There was no evidence that anyone attempted to use the window to escape, or that the window caused a death, but the judge found that it was too small to comply with the modern code standard requiring an egress opening of 5.7 square feet. Though the window was destroyed in the fire, the court relied on measurements of the charred opening, photographs from before the fire, and witness testimony to determine the dimensions. Greg Nisbet was sentenced to serve 90 days in jail and pay $1000 in fines.
Defense motion for new trial
After the trial, the defense found a State Fire Marshal’s memo from October 2013 specifically addressing egress windows in older buildings. The memo stated that buildings constructed before 1976 could meet a 3.3 square foot egress window standard exempting them from the 5.7 foot modern standard. Defense counsel moved for a new trial, arguing that the State had failed to disclose the memorandum and had therefore violated a duty to turn over exculpatory evidence. The judge denied the motion reasoning that the evidence at trial failed to show that the window would meet the 3.3 foot standard.
Appeal to the Maine Law Court
My office represented Gregory Nisbet on appeal. We argued that he was entitled to a new trial since the court had judged the evidence in the first trial by applying on the wrong legal standard. Mr. Nisbet, we said, should be given a chance to put on a case showing that the window could have complied with the 3.3 foot standard. We argued that we were entitled to a trial before a court that considered the proper legal standard, and that verdict based on a 5.7 foot standard was not valid since that standard did not apply. We also argued that uncertainty over the standard deprived the public of fair notice as to what constitutes a criminal violation, and that the window size requirement was unconstitutionally vague.
The State opposed all of our arguments and argued that the State Fire Marshal’s 2013 memo did not have the force of law and so did nothing to change the legal standard for egress windows size. They argued that, though the memo claimed to relax the standards for older buildings, the code provision was the criminal standard and the criminal violation was properly found where the window was smaller than the 5.7 square feet that the code required. For this and other reasons, the State argued that their failure to disclose the Fire Marshall’s memo didn’t matter since it would not have changed the standard and would not have changed the outcome.
The Maine Supreme Judicial Court sided with the State and affirmed Greg Nisbet’s conviction. He was ordered to serve his 90 day sentence. Greg reported to jail and was released 10/31/18.
Lessons learned and Greg Nisbet’s statement
Among all the legal wrangling, it is important not to lose sight of the true impact of this case. The fact remains that six young people died and that can never be made right. The case should serve as a warning to property owners to know every aspect of the National Fire Protection Association Life Safety Code and ensure compliance. They must understand that State prosecutors will not consider older structures to be “grandfathered in” even when other State agencies claim to have exempted older structures from certain rules. Now that the case is concluded, Greg Nisbet, through my office, offers the following:
On the anniversary of the tragic fire at his Noyes Street building, Greg Nisbet wants to express his deepest condolences to the families and friends of all those who died in this horrific disaster. For years, pending civil and criminal litigation has prevented him from commenting publicly, but with those cases resolved, he must acknowledge the pain of those close to the people who lost their lives and express his own heartbreak over this disaster. To say that Greg thinks of those young lives every day is an understatement; the tragedy and the loss of life is with him constantly though everything he does. He was not an absentee landlord but a resident of the same neighborhood living just a short distance away. He personally knew every one of his tenants and feels a tremendous sadness at their untimely deaths.
If any good can come of this tragedy, Greg hopes that this event will continue to be a wake up call to landlords, property managers, contractors, homeowners, and others that we all need to know the building life and safety code and ensure full compliance. Understand that code violations can be criminally prosecuted and punished with jail time even where there is no government inspection or official notice of violation. Understand that every building, no matter how old, can still be held to the modern code standards. Those who fail to fully understand the code and to continuously update their structures to comply with the code’s standards, do so at tremendous peril.
