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.
Persons who do work without a permit or allow bedrooms in basements that are in violation of the building code risk more than fines. In a tragic case in Ann Arbor, a homeowner’s daughter died along with another person because of a fire in the basement. The owner was charged with renting without a certificate of compliance, illegal occupancy of the basement, inadequate smoke detectors, and inadequate exits from the basement by the local prosecutor. The public just doesn’t understand how building inspectors save lives.
If your building department is investigated by the grand jury, you have big problems. Oakland, California’s building services department was the subject of a a grand jury report that blasted it for deficiencies in the areas of the abatement process; policies, procedures and training; information, communication and data management; due process (notices, liens, fees and fines); contracting; and appeals. Mercury News reported that:
The final report included several examples in which liens were recorded before issuing an abatement notice and before the property owner had a chance to respond or appeal the blight abatement order. The liens ranged from hundreds to tens of thousands of dollars and often had no relation to the actual costs of unpaid fines or abatement work.
The Mayor said that the department is undertrained and understaffed.
This is why continuing education is so important. If people aren’t properly trained, they will eventually violate someone’s constitutional rights thereby subjecting themselves and the municipality to civil rights lawsuits and other charges.
The creator of Phonehenge, a collection of oddball structures I’ve previously written about, has been sent to jail for disobeying a court order to demolish the buildings which were built in violation of numerous codes. Contempt of court is a useful procedure that is used when a person disobeys a court order. The court usually imposes a fine or jail until the person complies with the order of court. This is probably the most powerful tool that exists to force defendants to comply with the code. While I have filed many petitions for rule to show cause why a defendant should not be held in contempt of court, very few people have failed to comply and a tiny amount have actually been jailed. Just the threat of going to jail is usually sufficient to inspire a defendant to comply. Mr. Fahey, the defendant in the California case, has been defiant, according to the court. Defendants can be jailed for violating court orders even though jail time is not a possibility for the offense itself. Contempt requires a separate procedure from the code violation.
I’m sure that many building inspectors don’t give themselves enough credit for the important job that they do, making sure that structures meet the standards of the building code. Because of this important task, homeowners don’t think much about the safety of their homes. A couple in Southborough, MA weren’t so fortunate. The Metrowest Daily Newspaper reports that after buying their dream house they discovered that:
The garage was too small to fit their car. Weeks later, water began flooding the basement. Over time, doors couldn’t be shut, and floors started creaking. The Culleys didn’t know it, but their house was shifting.
Now the couple and their lawyer, Michael McLaughlin of Boston, say the house was built illegally on top of poor-quality fill material, and because the soil is shifting unpredictably, the structure is sinking into itself. To make matters worse, a retaining wall they say used to run in a straight line along the rear of the property is failing, slithering across the edges in serpentine fashion.
The builder didn’t even own the land when he took the couples’ deposit. The couple contended there were never any real building plans. The state Department of Public Safety’s Board of Building Regulations and Standards, found 22 building code violations. A temporary certificate of occupancy was obtained fraudulently. The engineer who signed a statement which said that the house had been built properly reportedly received $100 to do so but had nothing else to do with the project. There was no permit for the retaining wall. In a deposition, the building inspector admitted that he didn’t issue a cease and desist order when he discovered work had been done without a permit and he admitted he was never given any building detail design data. While a jury awarded the couple $1 million in damages, the judgment was set aside by the judge. It appears that the couple will be appealing.
This story is too delightful not to post. Bank of America filed a foreclosure lawsuit against a homeowner despite the fact that the homeowner bought his house in cash and had no mortgage. The lawsuit was dismissed but Bank of America was ordered to pay his legal fees. After waiting awhile for the check, the homeowner decided to use one of the remedies available to creditors, having the Sheriff seize the debtor’s property. The Sheriff went to a local office of Bank of America in Naples, Florida to seize furniture, etc. but the bank manager managed to come up with the money owed the homeowner. You can find the story at news-press.com.
I actually escaped the snow in Chicago this week by heading up to the Region III ICC conference in Minnesota where the weather was sunny. I always have a great time at that extraordinary conference. It was great to see that attendance was very healthy and maybe we’re beginning to see a thaw in some of the gloom we’ve all been dealing with since the economy tanked. I taught Advanced Legal Aspects for Fire Code Inspectors and the inspectors asked a lot of good questions. We had a healthy discussion about post-deprivation hearings after an emergency evacuation. There’s quite a few cases now that make it clear that people (tenants and owners) who are deprived of their property rights in a building because of an emergency evacuation order, have a right to be heard after the fact at such a hearing. Most of the time no one actually appears at a hearing or files a notice appealing the order of the fire official. But, in order to meet the requirements of the fourteenth amendment, they must be given the opportunity. By keeping an appropriate record of the hearing or appeal, the local jurisdiction can easily avoid a civil rights lawsuit for depriving an individual of his or her property without due process.
There’s a very sad story about the death of a worker in New York City at a development owned by someone who keeps getting sued by the city and yet no one seems able to prevent him building shoddy structures. One quote that caught my eye was:
Spokesman Tony Sclafani said the department has no authority to deny or revoke permits based on previous safety violations or unpaid fines.
It got me wondering about whether there are jurisdictions that do have laws that deny building permits to builders who have unpaid fines or previous safety violations. I’d love to hear from someone who has such an ordinance so I can share it with the readers of this blog. I realize that builders will just incorporate under different entities to avoid such a penalty but even that could be addressed in an ordinance (e.g. based on someone’s percentage of ownership).
Large cities need to be strategic in how they use limited resources to target distressed properties. The IndyStar reports that Indianapolis has decided to concentrate its efforts by filing lawsuits against landlords who own multiple properties with high crime rates. The Fire Department said there were 90 arson fires in vacant buildings last year many set by homeless people seeking to keep warm. The local prosecutor handling the cases said that:
….. the city cross-referenced building code violations with high crime rates to prioritize which buildings and landlords to sue. Officials said rundown and unkempt buildings encourage crime.
This is a smart strategy and is most likely to lead to a decrease in crime. It’s one of the points I discuss at length when I teach my course on How Code Enforcement Effects Police Operations.
