The Portland apartment building that caught fire two years ago, killing six people, was being run as a rooming house that lacked the required fire detection systems and escape routes to give residents a better chance to survive, a state fire official testified Wednesday.

Assistant Fire Marshal Richard McCarthy made the statement shortly before state prosecutors rested their case against Gregory Nisbet, a local real estate agent and landlord who is facing six counts of manslaughter stemming from the Nov. 1, 2014, blaze on Noyes Street.

One of Nisbet’s defense attorneys challenged McCarthy’s characterization of the house, trying to cast doubt on a key prosecution argument that the landlord was violating safety codes at the time of the fire.

Nisbet’s lead attorney, Matthew Nichols, said he plans to introduce a motion Thursday to acquit Nisbet of the charges. If that motion is denied, as expected, the defense will call its witnesses, with closing statements likely being presented on Friday.

Nichols said after the proceedings Wednesday that no decision had been made about whether Nisbet will testify in his own defense. Superior Court Justice Thomas Warren, who will decide the case because Nisbet waived his right to a jury trial, said he would likely speak to Nisbet at some point Thursday afternoon about whether he would testify.

DISPUTE OVER TIMING OF DEATHS

Nisbet is facing a manslaughter charge for each of the six people who died as a result of the fire, which ignited accidentally when someone improperly discarded smoking materials on the front porch. He also faces six misdemeanor code violations that allege his apartment lacked adequate escape routes and fire alarm systems.

If convicted, he would be the first landlord in Maine found guilty of manslaughter for an accidental fire.

The fire’s victims included tenants David Bragdon Jr., 27, Ashley Thomas, 26, and Nicole Finlay, 26. Steven Summers, 29, of Rockland, Maelisha Jackson, 23, of Topsham and Christopher Conlee, 25, of Portland were visiting the house and also died.

Testimony on Wednesday included a testy exchange between Nichols and Maine Chief Medical Examiner Dr. Mark Flomenbaum.

Flomenbaum’s testimony, which was prerecorded and presented to Justice Warren on a flat-screen TV, indicated that the five people who perished inside the house all died of smoke inhalation. The defense has suggested the victims were quickly incapacitated by the fast-spreading fire and could not have used escape routes.

During the cross examination part of the video, Nichols aggressively questioned Flomenbaum about a conversation the medical examiner had with state prosecutors the day before the interview was recorded. Nichols’ questioning suggested that prosecutors laid out the competing theories of the case during that conversation. Nichols asked Flomenbaum whether he considered himself an advocate for the state, which the doctor denied.

Nichols grew upset that he couldn’t get specific responses to questions about when the victims may have become incapacitated and unconscious before their deaths. That frustration increased when Nichols struggled to get answers about whether specific organs were affected by the heat and flames prior to death.

“Can we cut the BS,” Nichols said, prompting a state prosecutor to object.

CHALLENGING OFFICIAL’S TESTIMONY

The defense also has suggested that the victims may have been intoxicated, which could have impaired their ability to escape the early morning fire. The defense has noted that at least two of the three survivors – tenant Nathan Long and visitor Paul Garrido – were sober when they went to bed.

Flomenbaum testified that all of the victims – with the exception of Thomas – had varying levels of alcohol or THC, the active ingredient in marijuana, in their blood that could have impaired their thinking and mobility.

McCarthy’s testimony that Nisbet was operating a rooming house and not a single-family apartment supported a key prosecution argument and prompted a defense attorney to try to raise doubt about his testimony.

If the property is deemed to be a rooming house, it would be required to have a fire alarm system that could be activated manually to alert other tenants of fire, as well as self-closing fire doors and other safeguards not required in other apartments.

“The use of the building is critical for fire safety,” said McCarthy, the assistant state fire marshal who oversees inspections and fire prevention. “What is safe for one occupancy may not be safe for another occupancy.”

ROOMING HOUSE OR SINGLE-FAMILY?

Assistant Attorney General John Alsop has accused Nisbet of operating a rooming house but not even meeting the safety standards required for a single-family apartment, such as working smoke detectors and emergency secondary exits. Alsop also said Nisbet built non-permitted third-floor bedrooms that were essentially “death traps” and ignored dangerous conditions at the property leading up to the fire, such as frequent smoking on a porch that was littered with furniture and trash.

Nichols, however, has denied those charges. He said city law allows up to 16 people to live in a single-family apartment and that it was the tenants who removed the smoke detectors and created the dangerous conditions.

The apartment at 20 Noyes St. was half of a three-story duplex where tenants rented out their individual bedrooms and shared a kitchen, a living room and bathrooms, prosecutors say.

Survivors and former tenants have testified that Nisbet failed to maintain the property in recent years, but admitted that the responsibility for trash and debris on the porch fell on the tenants. They also said that new tenants were typically friends of people already living there and that Nisbet never sought people to fill rooms.

McCarthy said Wednesday that he determined the building was being used as a rooming house because none of the tenants had leases, and occupants turned over on a frequent basis. He testified that he also was told that tenants had separate rental agreements with Nisbet and that most of the bedrooms had padlocks on the outside. McCarthy also said he was told that people were living in the basement and waiting for a unit to become available.

McCarthy said he did not personally inspect the building after the fire. Instead, he made his determination based on a series of phone conversations with another inspector and investigator for the Fire Marshal’s Office.

Defense attorney Sarah Churchill tried to raise doubts about the testimony, suggesting that McCarthy received incorrect information.

“Your opinion is only as good as the reliability of the information given to you,” Churchill said.

McCarthy also testified that the third-floor windows were too small to qualify as a secondary means of escape, something that is required in both rooming houses and single-family dwellings.

He said windows intended as emergency exits need 24 inches of space to crawl through when in the open position. When a window is more than 20 feet off the ground, it must open up to a platform where someone could await rescue. Also, the bottom of the window cannot be more than 44 inches off the floor.

SIZE REQUIREMENTS FOR WINDOWS

Former residents who lived in those bedrooms testified that the third-floor windows only opened about 8 inches and would have been impossible for someone to escape through. Three of the six fire victims died in those third-floor rooms.

Churchill, the defense attorney, raised the possibility that the Noyes Street building may have been grandfathered from meeting the requirement about the size and position of the third-floor windows.

Churchill also went after McCarthy for failing to examine city land-use codes during his investigation, which focused on national codes enforced by the state.

McCarthy had testified that the National Fire Protection Association defines a single-family home as having no more than three people staying in rented rooms. An appendix in the code defines a rooming lodge as having between four and 16 people. However, he admitted that the code itself doesn’t define a single-family unit and instead refers to federal, state and local laws.

 


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