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?
One of my pet peeves are building permits that don’t have a set expiration date. Most of the building codes have their permits expire 180 days after no work is done. However, this leaves open the potential for a permit to last a long time. For example, if a person pounds in a couple of nails every other month, it would be tough to prove in court that the permit expired. Recently, inspectors in my area did a survey to see what various jurisdictions did with permit expirations. I particularly liked Crystal Lake, IL’s approach. A permit for commercial construction lasts 1 year and a residential one lasts 6 months. In addition, there is a provision for a special permit with specific conditions. That would be very useful in a situation where a builder has been remiss in moving a project along. Recently, I had a case where as a condition of a sentence, the defendant agreed to a timeline of construction. It was not part of the permit because there was no provision for such a thing. It would have been helpful if the permit could have been issued with specific deadlines. The Crystal Lake ordinance also has provisions for extensions. I would rather see a set expiration date with a possibility of an extension rather than have to guess when a permit expired.
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?
An owner of a building in Chicago received a big shock when his building was torn down without his knowledge. He alleges in a civil lawsuit against the city that he was never served with papers for the demolition. A person with the same name received the papers instead. When the owner did not show up for the hearing, a default judgment was entered against him and the court ordered the building demolished. This is not that unusual a problem, especially when a structure is not owner occupied. I have seen warrants issued for the arrest of a person who had nothing to do with the violation but had the bad luck to have the same name as the offender. This is why obtaining proper identifying information about an offender is important. That would include a name, date of birth, height, weight, eye color, and in a perfect world, a driver’s license number. I think that some inspectors are a bit cavalier about this type of information but it can save the inspector and the local jurisdiction from a nasty lawsuit, like the one in this case. Often the best time to obtain identifying information is when a person applies for a permit. If things take a turn for the worse, the inspector already has the information.
A very important decision has just come down from the Court of Appeals of Minnesota involving the constitutionality of rental inspections. The case is McCaughtry v. City of Red Wing, 2012 WL 2077191, 2012. Landlords and tenants challenged the rental property inspection ordinance of the City of Red Wing which allowed inspections of property even if there was no evidence of a violation as long as inspectors obtained an administrative search warrant. The court said that:
Appellants have not established that the RDLC is unconstitutional on its face under the Minnesota Constitution on the ground that it permits the issuance of administrative search warrants by a judicial officer, without an individualized showing of suspicion that particular code violations exist in the rental dwelling to be inspected.
This case is significant given that rental inspections are crucial in fighting blight and crime. The landlords and tenants intend to appeal to the Minnesota Supreme Court so there may be further developments regarding this. It’s even possible this could go all the way to the United States Supreme Court.
Every time I teach I learn something. I was in Cedar Rapids at the end of last week doing a presentation at the IowACE meeting. One of the attendees told me about how she uses Facebook to investigate her cases. She’s been trying to shut down an illegal speedway that the parties insist is not a racetrack. Turns out they have a community page to, guess what, save the speedway. I have used Facebook in prosecuting people for possession of marijuana and I know that police officers use it quite a bit but this is the first time someone has told me about using it for a code violation. It is a very good idea and gives inspectors another avenue to explore. I think it might be useful in cases involving illegal home occupations. Has any one else had success using social networking in this way?
One of the true joys of teaching around the country is that I learn so much from the people I meet. My recent trip to South Carolina is a good example of that. I had never been to a training facility for fire fighters before and Columbia, SC has one of the best in the country. I learned that when you see fire fighters using hoses on a building on the 10 o’clock news, that’s called “media” water. By the time that occurs, the building is a total loss and there’s no one left to rescue. A number of speakers talked of the need to fight fires smarter using modern science instead of relying on emotion and tradition. Part of being smarter is installing sprinkler systems in residential structures. However, South Carolina is going through the same fight over that provision in the model building code that other jurisdictions are. It is not going to happen for the foreseeable future there even though fire prevention personnel know it would save lives and property. South Carolina also heavily relies on volunteer firefighters. It came as a great surprise to me that the administrative chapter of the IFC has not been adopted by the State of South Carolina and it is left to local jurisdictions to adopt it, many of which do not. This creates a situation where fire inspectors cannot write tickets for violations of the fire code and must rely on the building official to enforce the code. This creates some very unacceptable dilemmas for these inspectors (in my opinion). I was impressed with their dedication despite all of the obstacles put in their way.
One of the constant problems I run into with defendants is trying to make sure proper service of notices or citations occurs. Too frequently defendants refuse to accept these documents making it more difficult to obtain enforcement. When I teach Legal Aspects and discuss this issue, I suggest a few crafty options. For example, you do not have to put your return address on the outside of the envelope making it obvious the papers are coming from your jurisdiction. I’ve had inspectors who have sent envelopes with balloons imprinted on them with the heading, “Prize Headquarters”. One inspector I know collects greeting card envelopes in which to send notices. When I taught at Region III recently I discussed the various ways to serve these uncooperative individuals including amending the code to include service by private carrier (doesn’t everyone sign for FedEx or UPS?) Some of the women in my class went home and took my suggestions even further. They sent the notice in a box with items (like free pens, pads of paper and magnets) to further entice the defendant to accept service. And, it worked! Thanks to the folks in IA for this tip of the day.
Yesterday when I was teaching at the Region III conference in Chasta, MN, one of the participants shared with us his experiences with Compliance Connections. It’s a website that allows municipal inspectors to get connected with the right entity to gain code compliance on a problem property. It’s sponsored by Safeguard and the inspector says he’s had unbelievable help from the website. He told us that he’s had grass cut in a couple of days, he’s gotten calls from service companies that aren’t owned by Safeguard to promise compliance and is very pleased with the results. Apparently, Safeguard is trying to reduce the number of notices of violation that lenders are receiving for vacant properties or problem properties in their portfolios. It is definitely worth checking out when you have difficulty determining who is responsible for a property. The website is located at http://www.complianceconnections.com/
I’d love to hear from people who have tried it.
A young woman lost her life in Chicago recently during a fire. The fire began in a unit in a high rise apartment building, the residents fled the fire but left the door open so one of their pets could escape, the unsuspecting woman took the elevator up to the floor where the fire had spread, and was overcome as soon as the doors opened up. The building did not have sprinklers, a fire alarm system or an automatic recall elevator system according to ABC news in Chicago. The City of Chicago had delayed forcing older building to conform to the fire code by extending the time for compliance in its ordinance. In an interesting development, the State Fire Marshal cited the building owner for 19 violations of the fire code including the above violations which violate the Life Safety Code. Building owners are now arguing that they are confused over which law to follow. The State of Illinois has adopted the Life Safety Code as its state code. Chicago has home rule powers but that doesn’t exempt buildings from following state law unless state law grants such a waiver. Unfortunately, Illinois is hodgepodge of laws. We don’t have a state building code. Local governments basically adopt whatever they deem proper for the locale though most of the cities and villages I know of do adopt the Life Safety Code in addition to the IFC as their local ordinances. The caselaw in this area uses a balancing test weighing the cost of the upgrades versus the safety of the public. The safety of the public usually prevails which is why owners can be forced to retrofit their buildings. We know what prevents loss of life in fires but the outcry from building owners that delay upgrades due to the cost too often results in loss of life.
