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.
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 number of inspectors have shown an interest in the case of the Aspen inspector charged with negligent homicide because a family died of carbon monoxide poisoning in a residence he had inspected and have asked me about the outcome. The good news for the inspector is that the case was dismissed in November but without a finding as to whether he was immune from prosecution under the law. Instead the case was dismissed because the indictment failed to show that the matter occurred within the time set by the statute of limitations. The prosecution failed to plead the date of the deaths in the indictment. It was an odd ending to a very troubling case. The civil suits are still pending.
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.
Insurance companies can be allies in the fight for life/safety compliance. They have considerable power over property. If persons insured by the companies don’t live up to the standards of the policy, they may lose their insurance benefits. A judge in Massachusetts has ruled that an insurance company does not have to pay for a fire that occurred at a restaurant because the owner did not properly maintain a fire suppression system. The Insurance Journal reports:
At issue is an exclusion in a commercial lines policy issued to the French King restaurant in Erving, which required the restaurant owner to maintain a fire suppression system. The insurer — Interstate Fire & Casualty Co., a subsidiary of Fireman’s Fund — claimed that the fire-suppression system installed at the restaurant was obsolete, and therefore triggered the exclusion and did not require them to indemnify the restaurant.
The court agreed and ordered the restaurant to pay back the $15,000 advance given to the owner before the investigation was completed. I’ve always wished there was a separate registry of properties and their insurance companies so inspectors could alert the insurance company about dangerous conditions. (I make no comment as to whether this might violate privacy laws in some states). Most owners will act so they don’t lose their insurance unlike the owner in this case. The article said that the owner could have upgraded his system for $3,250. Unfortunately, fire inspectors have to repeatedly try and obtain compliance because of the real threat of fire while some owners only see the extra cost to themselves when asked to comply.
There are consequences for the homeowner who has work done on his or her home without a permit beyond contending with the local building official. What if a fire breaks out and an insurance claim is filed. Will the insurance company pay? Sam Schneiderman, broker owner of Great Bostom Home Team recently addressed this issue on the Bostom.com’s blog, Boston RealEstateNow. He asked a number of insurance agents and brokers what would happen if someone finished off the attic of a home without permits and a fire destroyed part of the residence. One possibility was that the insurance company would pay the claim and then sue any prior owner responsible for work done if negligence were involved. (Often homeowners don’t realize that work was done without a permit unless they check with the local building department before buying a residence). Another insurance agent said that the company might not cover construction defects. Homeowners looking to save money are being penny-wise and pound foolish when they try to save a few dollars by not applying for a building permit. Having a professional inspect the property not only protects their safety but also protects against liability in the future when it comes time to sell the residence. Work performed without a permit must be disclosed at the time of sale. Failure to do so could result in legal complications for the seller down the road.
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.
It’s always disturbing when a code enforcement action is answered with a threatened or actual lawsuit on the part of the alleged offender. Instead of focusing on the violation, everyone’s attention is taken up with the new lawsuit. If a local governmental agency is in a tough economic position, it may decide to drop the enforcement action instead of incurring legal fees to defend itself against what is usually a frivolous lawsuit. This isn’t fair to the homeowner who responds by correcting a violation or the inspector who is just doing his or her job. When politics is thrown into the mix, it can get even worse. In Camano Island, Washington, a commissioner, who was notified of a violation for building a deck without a permit and a possible wetland violation, has filed a lawsuit against the local planning director and the candidate who ran against her in an election, alleging that the code enforcement action was political in nature. Inspectors need to make sure that they keep good notes if they are placed in a situation where there is political pressure from their superiors. If an inspector feels he or she is being asked to do something that isn’t right, he or she should try to get a response in writing (e.g. e-mail) from the person applying the pressure so that there is a paper trail. That way, if there is a lawsuit filed in the matter, the inspector can show that he or she was doing an action at the direction of a supervisor. Of course, if the action is illegal, the inspector should always insist that the order is vetted by the jurisdiction’s attorney before it is implemented. If the inspector’s request for a legal review is turned down, he or she has to decide whether keeping one’s job is worth going to jail for. It’ll be interesting to see what happens in the above case. Such situations usually end up with a settlement of some type.
Revoking a certificate of occupancy can be an important means of obtaining compliance. A strip club in Maine had its certificate of occupancy revoked recently. The Portland Press Herald said that the revocation occurred because
“of an inadequate sprinkler system and other violations.”
Prior to a certificate of occupancy being revoked, the owner/occupant is entitled to due process which means a hearing with the opportunity to be heard and a chance to present witnesses. This process is usually used after other less dramatic attempts at gaining compliance have failed, or if the danger to the public is substantial. In the guide books I have written, the Building Official and Inspector’s Guide to Codes, Forms and Complaints, the Fire Code Inspector’s Guide to Codes Forms and Complaints and the Residential Inspector’s Guide to Codes, Forms and Complaints, I have the necessary notices and appeal forms that fulfill the requirements of the model codes. It is important to follow the required steps to protect the local jurisdiction from liability.
There’s a very descriptive article about the worst bathroom in New York City at http://opinionator.blogs.nytimes.com/2010/12/08/the-worst-bathroom-in-new-york/
Justin said that a pipe had burst last January, gushing enough scalding water to turn the bathroom into a mold-filled, 24-hour steam room. Water damage had wrecked the floors. They were so rotted that you could dip your arm up to your elbow into the floorboard below the toilet. Meanwhile, huge chunks of the ceiling were missing, and you could see into the rafters above. I thought about Justin getting ready for school in the mornings. How did he take a shower?
It’s a sad reminder that without vigorous code enforcement, buildings deteriorate and people suffer. To think that a family would be better off in a shelter than in one of these buildings is tragic. Housing inspectors who make life better for people who are tenants should be proud of the work they do.
