Code Attorney

I received a request that I post this question for all of my readers to answer.  Do any of your jurisdictions have an ordinance allowing you to shut down a business if it is occupying the space without a certificate of occupancy?  Certainly if the work is hazardous, an inspector can use emergency powers to do so.  However, most of the cases don’t fall into this category.  The way I usually handle those cases is to recommend that the inspector ticket the owner every day the business remains open.  If that doesn’t work in a couple of days, the inspector starts giving tickets to the managerial staff, and if that doesn’t work, the inspector gives tickets to the employees (it doesn’t usually go that far).  In Illinois, a defendant who commits an ordinance violation can also be arrested. I actually had a case where we gave the person a ticket in the morning, told them not to reoccupy the space, and then arrested him in the afternoon when the inspector found the business still operating.  If anyone has something to share, I will post it and give you credit.

A very worrisome lawsuit has been filed by the Federal Housing Finance Agency which oversees Fannie Mae and Freddie Mac, against the City of Chicago which recently passed an ordinance that requires mortgage holders to register vacant buildings 30 days after they become vacant or 60 days after a mortgage goes into default, whichever is later, pay a registration fee, keep the premises free of weeds or trash and make sure they are structurally sound.

The lawsuit says that:

….the city’s ordinance encroaches on the FHFA’s role as the sole regulator and supervisor of Fannie Mae and Freddie Mac. It says Chicago cannot mandate how the agencies handle vacant buildings for which they are the designated mortgagee.

The problem is that Fannie Mae and Freddie Mac own about 258,000 mortgages in Chicago so a considerable number of vacant structures would be unregulated if the lawsuit succeeds.  Illinois law makes it almost impossible for a municipality to cut weeds, fix up property and add the costs to the property tax bill.  This has really hampered our ability to address problem properties which is why ordinances like the one in Chicago are so important.

At the Springfield conference, my topic was effective code enforcement programs. After hearing about all of the substantive issues involving healthy homes, it was really a privilege to be able to speak about how to accomplish our mutual goals.  There was a lot of frustration over the problems we are facing because budgets are being slashed, programs cancelled and properties are getting worse because of the foreclosure mess.  Despite this, it was important to find out that there are a lot of committed professionals who are forming partnerships to address these issues.  And, there are steps inspectors can take that don’t cost much money to implement, for example, making sure that renovators are certified in lead paint removal before issuing a building permit.  Who knows how many health problems children are spared because of this simple procedure? The training in Springfield was offered free of cost as were many of the publications.  I hope my readers will make use of the links I have created to find these organizations. I want to thank Eleanor Davis from the IDPH, Lead Paint Program, for inviting me to speak at the conference and giving me the opportunity to meet the other speakers.  I hope it will lead to even better enforcement opportunities.

One of the most interesting speakers at the Springfield conference was Dr. Catherine Karr, who is a pediatric environmental health specialist.  She reviewed a wide variety of home health hazards including lead paint, radon, mold, carbon monoxide, fire, and pests.  So many of these topics intersect with property maintenance and fire prevention enforcement.  She is a member of a group called PEHSU (Pediatric Environmental Health Specialty Units) which is a national network of academic-based centers of expertise that service health care providers, public health professionals, communities and families.  Asthma, for example, is a huge health problem for children and adults and is made worse by living in homes that have mold problems and pest infestation.  Illinois is included in the Great Lakes Centers’ Pediatric Environmental Health Specialty Unit based at the University of Illinois at Chicago. All areas of the country are part of some regional unit. PEHSU is a great resource for information on all of these issues. When inspectors are dealing with a property where children live, the long term effects of the unhealthy conditions should be a top priority for enforcement.

Lynne Page Snyder from NASCSP, the National Association for State Community Services Programs,  spoke about “weatherization plus health” at the Springfield conference.  Funds from the Department of Energy’s Weatherization Assistance Program (WAP) and DHHS Community Services Block Grants are being used to assist low-income families to improve the energy efficiency of low-income homes.  NASCSP is a professional membership organization for the State and territorial administrators of these programs.  WAP’s mission is to reduce energy costs for low-income families, particularly for the elderly, people with disabilities, and children, while ensuring their health and safety.  While the weatherization assistance program is not specifically aimed at creating healthy homes, it can lead to fixing property maintenance problems.  For example, kitchen and bath exhaust fans may be installed to combat mold and moisture problems.  Window replacements may reduce lead paint hazards.  NASCSP has put on conferences around the country to try and connect organizations and do cross-training.  It is launching a public website soon that will map WAP and healthy homes programs nationwide.

When I am in court, my focus is on the safety of the building that is the subject of my prosecution.  I don’t know that I’ve paid that much attention to the effect that the problem with the property is having on the long term health of the residents.  It certainly has been a concern when there is an immediate hazard but otherwise I haven’t really concentrated on what the implications are to general health.  That is why it was wonderful to have the opportunity to meet professionals for whom this is a great concern.

Amy McLean Sales from the National Center for Healthy Housing spoke at the conference about the seven principles of healthy housing.  They are:

Dry: Damp houses provide a nurturing environment for mites, roaches, rodents, and molds, all of which are associated with asthma.

Clean: Clean homes help reduce pest infestations and exposure to contaminants.

Pest-Free: Recent studies show a causal relationship between exposure to mice and cockroaches and asthma episodes in children; yet inappropriate treatment for pest infestations can exacerbate health problems, since pesticide residues in homes pose risks for neurological damage and cancer.

Safe: The majority of injuries among children occur in the home. Falls are the most frequent cause of residential injuries to children, followed by injuries from objects in the home, burns, and poisonings.

Contaminant-Free: Chemical exposures include lead, radon, pesticides, volatile organic compounds, and environmental tobacco smoke. Exposures to asbestos particles, radon gas, carbon monoxide, and second-hand tobacco smoke are far higher indoors than outside.

Ventilated: Studies show that increasing the fresh air supply in a home improves respiratory health.

Maintained: Poorly-maintained homes are at risk for moisture and pest problems. Deteriorated lead-based paint in older housing is the primary cause of lead poisoning, which affects some 240,000 U.S. children.

These principles apply to many of the homes that have been the object of court cases I have handled.

Amy also showed statistics that communities of color are more likely to live in unhealthy housing. I would imagine a lot of the housing is rental property not maintained by the landlords.  I asked her about resources to help people in this economic environment to fix properties in need of repair but she is as frustrated as I am because of the lack of money available to help people who need assistance to fix a deteriorating property.  The grim reality is that if we don’t do something now, they will be the properties we will need to demolish 5 years or 10 years from now.

This week I was a speaker at the 2011 Lead Poisoning Prevention Conference in Springfield, IL that was about so much more than lead poisoning. It was really about healthy homes and covered a wide range of topics.  What I learned was so valuable that I will be writing various posts about it and adding new links to this site that contain valuable information. The conference was put on by the Illinois Department of Public Health, St. John’s Children’s Hospital, Kohl’s Department Stores and the Illinois Public Health association.

One of the ways that local jurisdictions are enforcing the renovation, repair and painting requirements of the EPA with regards to lead paint, is to refuse to issue a building permit to a contractor who is working on a pre-1978 residence if it does not qualify as an exception to the law unless the contractor provides proof of certification as a renovation firm.  I spoke with the inspector from Rock Falls, IL who follows this procedure.  He told me that under his code, he is responsible for enforcing federal, state and local statutes so he has authority to take this action.  But, before implementing this, he contacted a trainer who agreed to come out to Rock Falls and train, at a discount, any contractor who wanted to sign up for a weekend training. It was a huge success because it was convenient and the price was right.  He’s been able to get hundreds of firms qualified to do the work. This is a great example of a creative solution and I wanted to share it.  He says the program is running smoothly and he has very few problems.

One of the very unfortunate consequences of the economic downturn is the layoff of code enforcement personnel.  Peoria, Illinois is facing the layoff of about 1/3 of its staff.  I’ve had the good fortune of doing a number of training days in or near Peoria.  As with many cities, it struggles hard to prevent blight.  I fear a spiraling down effect in cities and towns where budget cuts leads to weaker enforcement which leads to more problems in neighborhoods that are already struggling.  The inspectors I work with are already doing as much as they can to deal with problem properties.  What will some of these towns and cities look like in 10 years because of the decisions we are making today?

A former inspector for Aspen, CO faces criminal negligent homicide charges for the death of a family due to carbon monoxide poisoning.  A pipe from the boiler used to melt driveway snow was disconnected allowing carbon monoxide to enter the residence. The inspector had signed off on the work.  The city of Aspen, ICC, the county and the Colorado Municipal League have called for a dismissal of the charges.  The inspector is asking that the charges be dismissed due to the immunity granted to public employees by state law.  This is the first time I’ve come across such a case.  It is quite troubling and contrary to most of the caselaw in this country that discusses the public duty doctrine which states that inspectors owe a duty to the general public but not specific individuals in most cases.  This is a good example of how a tragedy can lead to some questionable law enforcement decisions. I would have a different viewpoint if the case involved bribery or some other type of unlawful behavior but there is nothing like that in this case.  I have seen many cases where there has been negligence by building inspectors but have never even considered that the proper remedy would be criminal prosecution.

The  Virginia-Pilot has a story about a person who built a 2 story structure without a permit and was finally found out by the building department.  Despite the fact that I have written extensively about the negative consequences of building without a permit (see my last book, The Building Process Simplified), I am still amazed at the brazenness of people who think they won’t get caught even though they are building something everyone can see!  I suppose they hope they’ll get by with a small fine and an apology but will be allowed to keep the illegal structure.  While a few might get a variance or pass inspection, many of these structures have to be torn down.  Most people who do this are trying to avoid paying for the permits or the other costs of compliance.  I have had many of them argue with me in court when they are prosecuted even though the violation is clear.  The costs they incur when they are caught far exceed the cost of the permit.