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.

Having prosecuted many owner/landlords, I have heard lots of excuses for the violations on their properties but they are all very similar.  I started pondering this after reading an article about an owner/landlord in West Virginia who complained he was being harassed and singled out over properties he owned.  These “defenses” fall into the following categories:

1. The inspectors don’t know what they’re doing and the (fill in the blank) is perfectly fine.
2. The inspectors are out to get me because of (choose one – politics, they don’t like me, I am a  ______ and I’m being discriminated against).
3. I’m being harassed.
4. The inspectors aren’t going after other people who commit violations (sometimes illustrated with photos).
5. I’ve put $$$ into the properties and the inspectors aren’t giving me time to fix things or I don’t have the money to fix the properties.
6. The city wants to put something else where my property is and is trying to drive me out.
7. The tenants destroy my property.

Some of these may be legitimate reasons but often not legal defenses.  My response to these types of arguments are:

1. Did you appeal the inspectors decision to a higher authority?
2. Did you report the harassment to the police?
3. There is no such crime as “harassment”.
4. If the inspectors have been smart and notified other violators at the same time as a troublesome owner, I point out that he/she is the only one who didn’t comply after notification.
5. Please give the photos to the inspectors so they can follow up on enforcement against the offender (usually met with, “I don’t want to get anyone in trouble.”
6. If he/she can’t afford to keep the property up, maybe it’s time to consider other options.
7. What proof does he/she have of the city trying to have something else built on the property.
8. Perhaps screening tenants would be a good way of saving money on repairs in the future.
9. Do you agree there are violations on the property in addition to the reasons you think you’re being harassed?

Rarely does anything legitimate come up in these conversations. Do any of my readers have other great excuses?  I will publish the best ones.

Failure to retrofit older residential high rises with sprinklers continues to be controversial given the recent publicity surrounding the death of a man because of a fire in Trump Tower in New York. Building owners contend the cost of retrofitting is too expensive and that other safety measures can be taken.  The Society of Fire Protection Engineers (SFPE) discusses the problem in an article entitled High-rise Buildings: What Should We Do About Them? 

While the article is not recent, it is a thoughtful analysis of the history involved in this struggle.

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.

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.

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.

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?