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.

What can be done when a defendant refuses to obey a court order, whether it’s fixing up properties or turning over documents?  The solution is the contempt power of the court which is the way that the court enforces its orders.  Without it, court orders would be toothless and unenforceable.  The court can order the defendant to be jailed until he or she complies or impose daily fines until there is compliance.  Most defendants will comply if there is such a threat.  The prosecutor usually begins the process by filing a document known as a rule to show cause why the defendant should not be held in contempt of court.  The defendant then gets an opportunity to show why he or she shouldn’t, usually by complying with the order.  This is why it’s so important to have the court issue an order and then set a deadline for compliance.  Once that date passes without compliance, the prosecutor can file such a motion and begin the process.  Without it, justice would grind to a halt.  In a Milwaukee case, a court appointed manager is asking the court to hold a defendant in contempt for failing to turn over records so the manager can do his job regarding the defendant’s properties. Every court is vested with this power so it can enforce its orders. Without it, enforcement against recalcitrant owners would be impossible.

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.

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.

Serving a corporation that owns property is supposed to be easy.  Every corporation doing business within a state must appoint a registered agent.  The name and address of the registered agent is listed with the agency of the state that deals with business corporations. In many states it is the Secretary of State.  When an inspector needs to serve an owner that is a corporation, the paperwork is delivered to the registered agent and the case can proceed to hearing.  But, what happens if the registered agent cannot be found?  In such a situation, the Secretary of State will accept service on behalf of the corporation if the party can show it used due diligence to serve the registered agent but the person cannot be found.  Special forms must be submitted to the Secretary of State but once he or she is served, the court has jurisdiction over the corporation and can issue a default judgment if the corporation does not appear at the hearing.

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.