Code Attorney

Yesterday I had the privilege of teaching Advanced Legal Aspects of Code Enforcement for Property Maintenance Inspectors for the Missouri Association of Code Enforcement at Lake of the Ozarks, MO.  Today I read the headlines about the 8 children killed in a fire in a building in Chicago with code violations.  The owner was already in court for this building that the Chicago Sun-Times said was without working smoke detectors.  I remember telling the inspectors yesterday that they save lives by doing their jobs and that rental inspection programs are a key part of enforcement. It is just so sad that this loss of life happens when these tragedies can be prevented yet some landlords resist spending the money necessary to ensure their buildings are safe.  In Illinois we have tried to get legislation passed so that non-home rule communities can license landlords but the proposed bills always die because of opposition by those who do not care enough about the safety of the public. What a waste of young lives.

Moreno Valley, CA spent $1.2 million dollars in a settlement after employees alleged that they were retaliated against for following the law and pursuing code cases. A former building official and code compliance manager each received $600,000 after allegedly being fired  for carrying out code-enforcement actions involving building-code violations by a former councilman.  http://www.pe.com/articles/city-760079-former-council.html

It’s important for an inspector to document attempts made to thwart him or her from carrying out official duties.   Emails, letters, notes regarding witnesses, and summaries of conversations may be useful at a later time. Even if an inspector doesn’t get a written reply to an email regarding a sensitive matter, being able to show that there was an attempt by the inspector to get guidance from a supervisor or a response from a governmental official may be valuable.  People often say dumb things in emails, never realizing that those types of communications are discoverable in a lawsuit.

In my last couple of Tweets, I pointed inspectors to articles involving the explosion of the fertilizer plant in West Texas and a tragic fire in England.  It’s a shame we wait until people die before there is interest in better prevention and regulation.  It’s human nature to cut corners to save money which is why we need consistent oversight to prevent these foreseeable tragedies.  After these terrible events which catch the attention of the public, we always see a flurry of enforcement but eventually that fades until the next preventable occurrence. These are opportunities though to educate the public and why safety inspections are so important.

One of the biggest problems facing local governments these days is finding the resources to maintain vacant properties.  These homes are empty because of the foreclosure crisis and for the most part, lenders with mortgages on the property are reluctant to pay for the upkeep so the problem falls on the city, town or village.  One would think that during the worst housing disaster in our life time, state government would help local governments deal with these properties by passing legislation that makes it easier to hold lenders responsible.  Unfortunately, in Illinois, little is being done by the General Assembly.  Bills that would help us fail year after year.  At least now we have some information as to why it’s so difficult.  The Chicago Tribune this week published a long article detailing how the Speaker of the House, Michael Madigan, represents numerous banks in his private legal practice.  In Illinois he pretty well controls what legislation sees the light of day and what bills do not.  When I travel out of the state to do trainings, I am ashamed to say that I am from Illinois when I hear what other states are doing.  For example, in some other states, if the local government cuts the grass, the cost goes on next year’s tax bill.  When the taxes are paid, the local government gets paid.  That doesn’t happen in Illinois.  There is a law the purports to allow this process but it was drafted as to be unenforceable.  Illinois is becoming a punchline to a joke that isn’t very funny.

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.

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.

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?

There’s a bill pending in Illinois which would allow local governments to pass ordinances that would make lenders responsible for the upkeep of vacant properties in foreclosure.  Needless to say, the lenders are fighting the bill.  They’ve proposed a $50 fee per foreclosure that would go into a pool that local governments could draw from to reimburse themselves for their costs.  $50 per property, hmmmm, that’ll go really far. Maybe it’ll cover half a lawn being cut, once.   They must really think we’re stupid.  I’m disheartend that when I contacted my state rep, I received a nice “thanks for your e-mail” message, completely ignoring the expertise on this issue I’ve developed.  The banks say that they just wouldn’t be able keep up with all of the municipal ordinances that might be passed; maybe they would then know what it’s like to be an inspector who is desperately trying to reach a live human being at a lender when a property has 6 feet of water in the basement of a vacant home under foreclosure.  I wish I wasn’t so cynical about the political process.  I wish I believed it was possible that politicians would do the right thing and help local government preserve neighborhoods.  I want to believe that if they only knew about the problems we face, they’d give us some meaningful tools.  But, if they ignore our attempts to educate them, how can they make an informed decision?

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.

If a local jurisdiction doesn’t have an effective enforcement system, whether it’s in court or at an administrative level, there will be no incentive for bad landlords to fix up their properties.  There can be a lot of flaws in the system, prosecutors who aren’t aggressive enough, political pressure, courts that are overburdened with a variety of cases, or just an ineffective process for collecting fines.  In Brooklyn, a landlord has amassed 8,000 violations but it has not resulted in an improvement in the buildings.  Attempts to remedy the enforcement process at the state level results in heavy lobbying by special interests to prevent change.  The tenants are the ones who suffer because they don’t have the lobbying power that those with polictical clout have.