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.
