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.
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.
The judge ultimately gave the architect 1 year in jail of which he will serve about 6 months. This is not unusual as defendants usually get credit for good behavior while in jail. Firefighters were angry the defendant didn’t receive a maximum 4 year sentence but the judge said he was concerned that “responsibility for the fire could be shared, because safety inspectors had failed to find the illegally installed fireplaces.” However, evidence showed that he made these changes after the final inspection and even disconnected sprinklers.
I have often found that judges know very little about how the inspection process works. Code officials know that they have little control over owners once the certificate of occupancy is issued. Too many owners create dangerous conditions because they don’t want to spend the necessary money to do things right.
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 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.
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.
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 recently completed a 2 month period of travel all over the Midwest doing trainings for building officials, fire inspectors, property maintenance and housing inspectors and law enforcement officers in Columbus, Ohio, East Liberty, Iowa, South Bend, Indiana, Troy, Michigan, East Peoria, IL and Sheboygan, Wisconsin. All of them are facing challenges because of the foreclosure crisis and are trying to respond with reduced resources. I want to say how much I appreciate the hospitality I received wherever I went and the enthusiasm of the participants. It gives me great hope when I see the number of inspectors who take the time to come to the classes I teach so they can enhance their skills and keep trying to improve their communities. At a time when so many public employees are feeling unappreciated and under attack, I just wanted to extend my thanks to everyone who made my trainings a rewarding experience.
The New York Post is reporting that the compound built in Pakistan that housed Osama Bin Laden deviated from the building plans on file. It was supposed to be a 2 story building but ended up with 3. An extra building not on the plans also was constructed. The Post says Bin Laden never paid property taxes. It also reported that:
The oversights were no surprise to locals, who say Abbottabad’s building inspectors never bother to check whether homes are built in line with their building permits.
I keep saying that strict code enforcement can aid law enforcement. You just never know what you’ll find when you pursue these cases.
It’s always sad to read about building inspectors who get caught up in the criminal justice system because they commit criminal acts. Los Angeles has a scandal going on because 2 building inspectors were arrested on suspicion of accepting bribes. The Los Angeles Times reports that 2 inspectors accepted $9,000 and $6,000 each from an undercover informant. The informant said that in some cases payment was the only way to avoid delays and to pass inspections. According to court documents, inspectors never even looked at the properties many times. More developments are expected because the informant said that the corruption was systemic.
When an inspector accepts a bribe, it raises the issue as to whether these properties contain dangerous conditions due to this type of corruption. Unfortunately, honest inspectors suffer a loss of respect in the eyes of the public due to this criminal activity.
It’s not unusual for one agency to stumble upon evidence that would interest another department in the local jurisdiction. Firefighters in Columbia, Pennsylvania recently found a marijuana growing operation when they responded to a fire. Police investigated and found plants growing and bags of weed. The police have to be careful before they enter a building though. Unless it’s an emergency (and the destruction of drugs is not usually considered to be one), the police cannot enter a building without consent from the owner or occupant or without a search warrant. Just because an inspector has a right to be on the premises, doesn’t mean personnel from another agency can join him or her. The information uncovered by an inspector can be communicated to the police and used as the basis for a criminal search warrant.
