Code Attorney

Yesterday I had the privilege of teaching Advanced Legal Aspects of Code Enforcement for Property Maintenance Inspectors for the Missouri Association of Code Enforcement at Lake of the Ozarks, MO.  Today I read the headlines about the 8 children killed in a fire in a building in Chicago with code violations.  The owner was already in court for this building that the Chicago Sun-Times said was without working smoke detectors.  I remember telling the inspectors yesterday that they save lives by doing their jobs and that rental inspection programs are a key part of enforcement. It is just so sad that this loss of life happens when these tragedies can be prevented yet some landlords resist spending the money necessary to ensure their buildings are safe.  In Illinois we have tried to get legislation passed so that non-home rule communities can license landlords but the proposed bills always die because of opposition by those who do not care enough about the safety of the public. What a waste of young lives.

Having prosecuted many owner/landlords, I have heard lots of excuses for the violations on their properties but they are all very similar.  I started pondering this after reading an article about an owner/landlord in West Virginia who complained he was being harassed and singled out over properties he owned.  These “defenses” fall into the following categories:

1. The inspectors don’t know what they’re doing and the (fill in the blank) is perfectly fine.
2. The inspectors are out to get me because of (choose one – politics, they don’t like me, I am a  ______ and I’m being discriminated against).
3. I’m being harassed.
4. The inspectors aren’t going after other people who commit violations (sometimes illustrated with photos).
5. I’ve put $$$ into the properties and the inspectors aren’t giving me time to fix things or I don’t have the money to fix the properties.
6. The city wants to put something else where my property is and is trying to drive me out.
7. The tenants destroy my property.

Some of these may be legitimate reasons but often not legal defenses.  My response to these types of arguments are:

1. Did you appeal the inspectors decision to a higher authority?
2. Did you report the harassment to the police?
3. There is no such crime as “harassment”.
4. If the inspectors have been smart and notified other violators at the same time as a troublesome owner, I point out that he/she is the only one who didn’t comply after notification.
5. Please give the photos to the inspectors so they can follow up on enforcement against the offender (usually met with, “I don’t want to get anyone in trouble.”
6. If he/she can’t afford to keep the property up, maybe it’s time to consider other options.
7. What proof does he/she have of the city trying to have something else built on the property.
8. Perhaps screening tenants would be a good way of saving money on repairs in the future.
9. Do you agree there are violations on the property in addition to the reasons you think you’re being harassed?

Rarely does anything legitimate come up in these conversations. Do any of my readers have other great excuses?  I will publish the best ones.

What can be done when a defendant refuses to obey a court order, whether it’s fixing up properties or turning over documents?  The solution is the contempt power of the court which is the way that the court enforces its orders.  Without it, court orders would be toothless and unenforceable.  The court can order the defendant to be jailed until he or she complies or impose daily fines until there is compliance.  Most defendants will comply if there is such a threat.  The prosecutor usually begins the process by filing a document known as a rule to show cause why the defendant should not be held in contempt of court.  The defendant then gets an opportunity to show why he or she shouldn’t, usually by complying with the order.  This is why it’s so important to have the court issue an order and then set a deadline for compliance.  Once that date passes without compliance, the prosecutor can file such a motion and begin the process.  Without it, justice would grind to a halt.  In a Milwaukee case, a court appointed manager is asking the court to hold a defendant in contempt for failing to turn over records so the manager can do his job regarding the defendant’s properties. Every court is vested with this power so it can enforce its orders. Without it, enforcement against recalcitrant owners would be impossible.

Moreno Valley, CA spent $1.2 million dollars in a settlement after employees alleged that they were retaliated against for following the law and pursuing code cases. A former building official and code compliance manager each received $600,000 after allegedly being fired  for carrying out code-enforcement actions involving building-code violations by a former councilman.  http://www.pe.com/articles/city-760079-former-council.html

It’s important for an inspector to document attempts made to thwart him or her from carrying out official duties.   Emails, letters, notes regarding witnesses, and summaries of conversations may be useful at a later time. Even if an inspector doesn’t get a written reply to an email regarding a sensitive matter, being able to show that there was an attempt by the inspector to get guidance from a supervisor or a response from a governmental official may be valuable.  People often say dumb things in emails, never realizing that those types of communications are discoverable in a lawsuit.

Criminal prosecutions are rare in the field of building code enforcement but when there is a high profile death that results from shoddy construction, indictments do happen.  Recently in Los Angeles, A German architect/contractor was charged with involuntary manslaughter in the death of a firefighter. The architect designed his own mansion and told the building department he wasn’t going to include any fireplaces in the 12,000 square foot structure.  But, then he changed his mind:

Days after Becker was permitted to move in, a fire awoke him and his girlfriend at night. After the fire, authorities determined that Becker built long, natural-gas fire pits meant for outdoor use into the interior of his home. He’s accused of gross negligence for building the frame of the fireplaces with combustible materials, instead of materials such as brick, and for not building any firebreaks inside the walls.

In my last couple of Tweets, I pointed inspectors to articles involving the explosion of the fertilizer plant in West Texas and a tragic fire in England.  It’s a shame we wait until people die before there is interest in better prevention and regulation.  It’s human nature to cut corners to save money which is why we need consistent oversight to prevent these foreseeable tragedies.  After these terrible events which catch the attention of the public, we always see a flurry of enforcement but eventually that fades until the next preventable occurrence. These are opportunities though to educate the public and why safety inspections are so important.

The Illinois Association of Code Enforcement group does a lot of informative programming for its members.  Recently I had the pleasure of attending a day of training and learning more about Compliance Connections which is a division of Safeguard, one of the largest service companies that take care of properties for lenders.  I first wrote about Compliance Connections last year after learning about it from inspectors in Minnesota.  Everyone has a horror story about the lack of involvement by lenders and service companies used by them but I think some real progress has been made recently.  The inspectors I work with have had success using this website (which is a free service) to get grass cut or trash removed.  However, the company only addresses vacant property issues due to potential litigation with property owners so there are restriction.  In addition, privacy laws sometime restrict service companies from contacting inspectors when a problem with the property arises.

Inspectors can use Compliance Connections to notify a servicer about problems on the property.  Compliance Connections should respond and the inspector will get notified about a plan for correction as well as the lender.  It can also be used to send information on outstanding bills (e.g. for cutting weeds) so that the municipality gets paid.

The speaker, Heather Lazar (phone 1-800-852-8306 x 1500) encouraged inspectors to report contractors to Safeguard who violate local ordinances by working without the proper permits.  Safeguard doesn’t actually do the work required but relies on local contractors.  If a contractor doesn’t follow Safeguard’s rules, the company may be excluded from future work.  Other people to contact when there is an issue using Compliance Connections are Michael Halpern 1-800-852-8306 x 1392 and David Mazanek 800-852-8306 x 1261.

Safeguard will pay for 8 scholarships for inspectors to the AACE conference in Oklahoma City, OK which starts October 30, 2013.

One of the inspectors I work with shared this with me about contact information for a property management company taking care of properties for HUD.

HUD has established a contract with PK Management Group c/o Prescient, Inc. to do property management of all HUD properties. The Florida office contact number is 305-854-1711.

I hope this will be useful to you.  I have been preoccupied lately with planning to move my office.  I will let my readers know all of the particulars as the time gets closer.  The contact information will hopefully remain the same.

Santa Barbara is a wonderful place for a code training.  I was lucky enough to be invited by the California County Building Offiicials Association to teach Legal Aspects of Code Administration on September 24th.  I really enjoy traveling around the country because I learn so much.  One of the big problems the building officials are facing in California are houses used for growing marijuana.  There are a lot of mom and pop operations because of California’s approach to medical marijuana.  Some unscrupulous individuals rent vacant houses, never letting on that they are not going to live in the house, and then fill it with plants.  The electrical system is compromised with all of the power needed for such an operation and the owner is left with a big mess when the perpetrator moves on or is arrested.  I wonder if anyone has ever used the zoning ordinances to prosecute anyone for illegal home occupation?

A recent article by an insurance group discusses how important it is to enforce tough building codes. As an example, it uses Hurricane Andrew.  Insurance companies like tough enforcement because it saves the industry money.  On a more personal level, it decreases the amount of destruction done to people’s homes and property by major weather events.

Multiple studies have been conducted which demonstrate the positive impact of modern, engineering- based building codes on the performance of residential homes during a severe high-wind event. Among them are: an IBHS study conducted following Hurricane Charley (2004); it found that adoption and enforcement of modern building codes reduced the severity of residential property claims by 42% and the number of residential property claims by 60%; and,

•      a study commissioned by the National Association of Mutual Insurance Companies (NAMIC), which found that, if states in hurricane-prone areas had begun adopting and enforcing modern building codes in 1988, wind-related property losses could have been reduced by nearly $13 billion dollars.

Unfortunately, not all states have adopted minimum standards. The question is, why not?