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.
When someone uses the defense of preemption, it means that a law is not valid because federal law does not allow states or local governments to regulate an area of the law. Federal law trumps state law if the defense is successful because the federal government has reserved the right to regulate a particular matter. Builders used this argument to attack the state of Washington’s building code. The Building Industry Association of Washington along with individual builders and contractors recently challenged the State of Washington’s Building Code, contending that the State’s 2009 requirement that new building construction meet heightened energy conservation goals was preempted by federal law, specifically The Energy Policy and Conservation Act of 1975 . The United States Court of Appeals for the Ninth Circuit held that the state of Washington had satisfied EPCA’s conditions, and therefore was not preempted. The court found that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law. This is an important decision that gives local jurisdictions a voice in reaching energy conservation goals. The case can be found at 2012 WL 2369304.
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.
One of the constant problems I run into with defendants is trying to make sure proper service of notices or citations occurs. Too frequently defendants refuse to accept these documents making it more difficult to obtain enforcement. When I teach Legal Aspects and discuss this issue, I suggest a few crafty options. For example, you do not have to put your return address on the outside of the envelope making it obvious the papers are coming from your jurisdiction. I’ve had inspectors who have sent envelopes with balloons imprinted on them with the heading, “Prize Headquarters”. One inspector I know collects greeting card envelopes in which to send notices. When I taught at Region III recently I discussed the various ways to serve these uncooperative individuals including amending the code to include service by private carrier (doesn’t everyone sign for FedEx or UPS?) Some of the women in my class went home and took my suggestions even further. They sent the notice in a box with items (like free pens, pads of paper and magnets) to further entice the defendant to accept service. And, it worked! Thanks to the folks in IA for this tip of the day.
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.
I’m sure that many building inspectors don’t give themselves enough credit for the important job that they do, making sure that structures meet the standards of the building code. Because of this important task, homeowners don’t think much about the safety of their homes. A couple in Southborough, MA weren’t so fortunate. The Metrowest Daily Newspaper reports that after buying their dream house they discovered that:
The garage was too small to fit their car. Weeks later, water began flooding the basement. Over time, doors couldn’t be shut, and floors started creaking. The Culleys didn’t know it, but their house was shifting.
Now the couple and their lawyer, Michael McLaughlin of Boston, say the house was built illegally on top of poor-quality fill material, and because the soil is shifting unpredictably, the structure is sinking into itself. To make matters worse, a retaining wall they say used to run in a straight line along the rear of the property is failing, slithering across the edges in serpentine fashion.
The builder didn’t even own the land when he took the couples’ deposit. The couple contended there were never any real building plans. The state Department of Public Safety’s Board of Building Regulations and Standards, found 22 building code violations. A temporary certificate of occupancy was obtained fraudulently. The engineer who signed a statement which said that the house had been built properly reportedly received $100 to do so but had nothing else to do with the project. There was no permit for the retaining wall. In a deposition, the building inspector admitted that he didn’t issue a cease and desist order when he discovered work had been done without a permit and he admitted he was never given any building detail design data. While a jury awarded the couple $1 million in damages, the judgment was set aside by the judge. It appears that the couple will be appealing.
