The Art of Code Enforcement

The Art of Code Enforcement: A Practical Guide

Martin G. Collins

Copyright Martin G. Collins 2012

Published by the American Association of Code Enforcement at Smashwords

The American Association of Code Enforcement is the publisher per the terms of service of Smashwords and is granted all royalty income per the terms of the agreement with the author. By purchasing this text, you will have assisted in the support of AACE whose goals include the ongoing education of those in this field.

Table of Contents

1. Introduction

2. Outline of the Code Enforcement Process An overview

3. Definitions Definitions

4. Why Owners Do Not Comply With the Code Why owners do not comply

5. Setting the Appropriate Level of Code Enforcement Intensity Setting the appropriate level

6. Educational Efforts to Encourage Code Compliance Educational efforts

7. Using Volunteers to Obtain Code Compliance Volunteers

8. Informal Notice Policies to Obtain Code Compliance Informal notice

9. Periodic Inspection Programs Periodic inspection

10. Triggering the Code Enforcement Process by Complaint Response Complaint response

11. Point of Sale Inspection Programs Point of sale

12. Inspections Triggered by a Change in Tenants Change of tenant

13. Rental Unit Inspection Programs Rental unit inspection

14. Geographically Targeted Inspection Programs Geographically targeted

15. The Notice of Violation Notice of violation

16. The Art of Selling Code Compliance Art of selling

17. The Reinspection Reinspection

18. Extension Policies Extension policies

19. The Pre-court Hearing Alternative Pre-court

20. Hammers Hammers

21. Presenting your Case in Court Presenting your case in court

22. Post-Adjudication Noncompliance Post-adjudication

23. Funding Code Enforcement Programs Funding

24. Inspector Productivity Indicators Inspector productivity

25. Code Enforcement and Occupant Behavior Occupant behavior

26. Coping with Politics Politics

27. Inspector Safety Inspector safety

28. The Vacant Building Problem Vacant building

29. The Media Interview and the Code Official Media interview

30. Town/Gown Issues and Code Enforcement Town/gown

31. Building Support for Code Enforcement in your Community Support in community

32. Career Development: Characteristics of People Who Get Promoted Career development

33. Techniques for Implementing Change Implementing change

About the Author Author

Appendices

1. Advisory Letter for Complaint Response Appendix 1

2. Getting the Insurance Industry to Send the Message of Code Compliance Appendix 2

3. The Last Chance Agreement Invitation Letter Appendix 3

4. The Last Chance Agreement Text Appendix 4

5. The Inspectors Are Coming! The Inspectors Are Coming! Appendix 5

6. The Ask Nicely Letter Appendix 6

7. The Landlord’s Request to the Neighbors Letter Appendix 7

8. Advisory Letter after Exterior Survey Appendix 8

9. Plain Text Envelope Stuffer Appendix 9

Acknowledgements. I am in debt to many people for the knowledge that is contained in this book. I cannot list them all. I can thank a number of people that have assisted and inspired me directly or indirectly to write this book. My apologies go out to those that should be listed here but are not. I am grateful to John Baker, Mike Clemens, Kathy Davis, Jim and Linda Gough, John Henry, Lee Jensen, Robert Klein, Jeff Kronschnabl, Greg McKnight, Don Mercer, Tom Mischefske, Amy Odum, Dan Petersen, John Poole, Domingo Saucedo, Don Schaewe, Joe Schilling, Skip Seager, Ed Stenzel, Lisa Vatnsdal, Tracy Williams, Brenda Wood, and all of my former coworkers. My thanks to Sherri Johnston and Roy Fyffe for early reviews of the text and for encouraging me to continue writing, my wife Mary Lynne for her many hours of editing and most of all to both Mary Lynne and our son Kevin for their patience, encouragement and support. My sincere apologies to those who deserve to be mentioned here but who were inadvertently omitted due to my fading memory of years gone by.

Chapter 1

Introduction

If you are reading this, you probably are already employed in the field of code enforcement. As of this writing, to my knowledge there are no accredited colleges that grant degrees in code enforcement. There are classes solely dedicated to this topic that one can take in community colleges and at universities and classes offered by state code enforcement associations. Alas, unless they are nearby you, it is unlikely that you will uproot your life to attend a semester long class.

No one that I have ever known said to themselves as a child One day I am going to grow up and be a code enforcement officer! We enter this field from many different backgrounds. This book is for those who are in the field of code enforcement and would like to know more about it.

Most of the available written material is about building construction code enforcement. This book focuses primarily on the world of structures that have already been built. It is about existing building and property maintenance and preserving and improving the appearance of communities. It is also about working with the people who are currently not complying with a variety of codes in order to get them into compliance. It is relevant to those doing code enforcement work in the residential and commercial building fields, but also will be of value to those who work to enforce zoning, health and to some extent, criminal behavior-related codes which also affect property and neighborhoods. Code-related employees who perform the functions of plan review, permitting and related inspections are not the audience for whom this book is primarily intended.

For more than 28 consecutive years, as a side line to my code enforcement day job, I taught a short course at UW-Madison through their Engineering Professional Development Division. I was paired up with another instructor and we split up the task, helping each other along the way. Initially I taught the class as a lecture, but quickly learned that the collective wisdom of those in the class from all around the nation was far greater than mine. For most of those 28 years the class was a facilitated discussion of code enforcement-related topics. I would divide the class into small working groups at tables, introduce the problem, and let them discuss how they were currently addressing it. We would then reconvene the group for a collective sharing of the best of those ideas. When I had ideas that were not mentioned by others, I would add them to the discussion. In this way, we taught each other. My employer, the City of Milwaukee, benefited from my bringing back many of those concepts.

This book is based on my notes from teaching and on that which I learned from thousands of people in that class and other similar classes that I presented for state and national code enforcement associations. I have tried to distill the best of the ideas and have added my own insights from having been both an administrator and attorney in the field for over 34 years.

This is not a book of codes. There are model codes, such as the International Property Maintenance Code (IPMC) published by the International Code Council, and there are many unique property maintenance codes adopted by communities. This is primarily about how to administer those codes. It is also not about how to set up or structure a code enforcement office from scratch. You already have one if you are reading this. My intention is not to tell you how to run your department but rather, to give you ideas about how you might do it more effectively.

Because there is no single job description of code enforcement officer, it is likely that the reader will find things in this book that are not relevant to his/her everyday duties. It also may lack discussion on other topics that s/he finds important. I have tried to make the material as generic as possible. Some material is more relevant to those in management and some more relevant to those who work primarily in the field. Some readers will have responsibilities that others do not, but all need to deal with topics such as due process, convincing people to comply with the code and enforcement, to name a few such issues.

Nothing in this class will work in your community. That phrase usually got the attention of those people in the class that had come a long way to frozen Madison WI to take a class from me and my co-presenters. This is still true because each community has its own priorities, history, economics, culture, political sensibilities and existing laws. What I urge the reader to do is to take concepts found in these pages and weave them into the fabric of what works and what is needed in your community. Square pegs do not fit into round holes. It is the reader’s task to add value to the ideas found here and to shape them to work in your world. Think We could use this approach but it needs to be tweaked in order for it to work here. In this sense this book is not a cookbook of recipes but rather a list of ingredients and cooking techniques.

To continue the analogy, I have not included a great deal of references to existing codes (i.e. recipes). Codes change quickly and frequently. Some text is included for examples, but the reader should know that the cited text may have been subsequently changed in the community where it was enacted. I have focused more on concepts rather than exact code language as anyone seeking to use these concepts will need to have them written into code text that is legal and enforceable in a specific jurisdiction.

There are more references to Milwaukee’s program simply because I am most familiar with it. This does not imply that Milwaukee has the best program or that it does not have problems. It had problems when I was head of the department there and always will. The reason for that is because most problems can be managed, but not solved. Think carefully about this point. Anyone who promises to solve a problem, the roots of which lie in basic human behavior, will be promising the impossible. Problems can be reduced to a tolerable level, but rarely completely prevented. For example, tall grass and weed violations can be abated, but sooner or later, the problem will reoccur somewhere. This is a recurring theme in this text.

Every concept that I have included is, to the best of my knowledge, constitutionally permissible, but cannot necessarily be enacted in your jurisdiction. The U.S. Constitution delegates police power through the tenth amendment to the states and the states delegate that power in differing degrees and forms to local jurisdictions. The ability to enact local regulations based on police power is constrained by limits including state-enabling acts, state constitutions, the US Constitution’s equal protection and due process clauses as well as federal statutes. This means that the reader cannot consider the contents of this publication to be legal advice. It is intended to provide ideas for you to bring to your jurisdiction’s legal advisors and local decision-makers to be shaped into legal and enforceable tools for you to use.

For example, many states have delegated to local jurisdictions the ability to abate nuisances. Some have included the power to bill the owner for the cost and to place unpaid bills on the tax roll as a tax lien. However, some states, such as Florida for example, have only delegated local jurisdictions the right to place those costs as a property lien collectable upon sale of the property. The difference between a tax lien and a property tax lien in effectiveness in code compliance is huge. The immediacy of the abatement costs affects the degree of deterrence that the bill for your services offers, affects cost recoupment rates and affects compliance rates with notices of violation.

There are terms that are used in the book that may be foreign to the reader. I have used code enforcement officer to describe the title of the person charged with enforcing codes. In some communities the term code compliance officer or code inspector or other variations are used. Again, the term is not primarily intended to include permit inspectors.

Issue identification v. advice.

In law school I learned that knowing the law was not the purpose of going to law school. Anyone can look up a code or statute. It was much more about identifying issues and considering ways to resolve them. In the context of this book an example might be as follows. Foreclosed and vacant structures can become a blight on the community. Legal advice might set forth the limit of the authority of a jurisdiction to address the problem. Issue identification looks at problems such as location of the owner, registration of vacant structures and problems associated with timely identification of the nuisances that the problems create. If one can identify issues that need to be addressed and see possible alternatives, one is more able to prevent rather than just react to problems. Technology will change, laws will change, but the fundamental human behaviors that generate code enforcement issues will live on.

Why write this book?

This book is a continual work in progress. As new issues arise, as laws, technology and cultures change, as new concepts of approaching problems are invented, I hope to update it in future editions or pass the task on to others who will. I know that it is not perfect and that more could be added, but it would never have gotten to the stage where you are now reading this had I not just stopped writing. Some will disagree with my opinions and recommendations. Send me your well reasoned arguments to the contrary and I will consider what you have said in the next edition. I do not claim infallibility and I am sure that many of you could have done better, but I tried my best. My sincere goal is that at least one idea in this book will be useful as the basis for positive change in your community. If it does, it will have been worth my effort to write this book and your effort to read it. I believe that we are here in this life to, in part, make the world a little better because we were here. The ideas in this book helped me do that and I hope that it will help you do that also.

I have donated the proceeds from this book to the American Association of Code Enforcement and ask for no royalties or payments. It is my way of giving back to a profession that gave me much in life. AACE will use the income from the sale of the book for the benefit of its members.

Persist!

One of the things I heard many times when presenting classes is That is a great idea, but we cannot do that in my city! I have included a Chapter on how to help engineer change. It can be a very slow process and patience and persistence are needed. For example, it took me years to persuade the Wisconsin State Legislature to enact a statute to allow fire insurance proceeds on certain fire damaged structures to be used by cities to pay for demolition costs rather than having the proceeds paid to an owner who intends to stick the taxpayers with the demolition bill. It took years for me to do the same to make assault on a local code enforcement employee conducting official business to be treated as a felony. Keep plugging away! If you do not do it, who will?

Somebody has to do something, and it's just incredibly pathetic that it has to be us. - Jerry Garcia

Chapter 2

An Overview of the Code Enforcement Process

Code enforcement is carried out in America with many variations. This list is intended to illustrate the two most common variations are the sanction track and the abatement track. Many interim steps and actions, such as appeals, necessary to carry out the process have been omitted for simplicity. Not all of these steps are required by law.

The sanction track.

1. Discovery and documentation of the violation by the code enforcement official. This could be as a result of a complaint, a referral, an inspector-initiated inspection, a systematic inspection program, etc.

2. Voluntary compliance efforts by code enforcement officials. This includes advisory door hangers, letters or telephone calls, etc.

3. Notice of violation with a period of time to comply.

4. Reinspection after the time to comply.

5. Extension of the time to comply or an agreement to temporarily forego prosecution.

6. A pre-court hearing. A last chance agreement phase is sometimes included at this point.

7. Court hearing. This may be by a hearing officer or a judge. A reinspection just prior to the hearing date is typical.

8. Post Court Action. This may be an inspection to start the case over again or an alternative action.

The abatement track.

1. Discovery and documentation of the violation by the code enforcement official. This could be as a result of a complaint, a referral, an inspector-initiated inspection, a systematic inspection program, etc.

2. Voluntary compliance efforts by code officials. This may include advisory door hangers, letters or telephone calls.

3. Notice of violation with a period of time to comply.

4. Reinspection after the time to comply.

5. Extension of the time to comply or an agreement to temporarily forego abatement.

6. Abatement of the violation. The code official hires a public or private contractor to abate the violation. e.g. tall grass, litter, junk vehicles, condemned buildings.

7. Cost recovery phase

Chapter 3

Definitions

Landlord.

A rental property owner. This term is seen as pejorative by some. It is used as a short hand word in this book in order to avoid repeating the phrase rental property owner or investment property owner. No pejorative aspect is intended. There are both very responsible and very irresponsible landlords.

Notice of violation.

This is the official notification that initiates legally enforceable code enforcement action. It will typically contain a date of inspection, a period of time to comply, a description of the violation, a reference to the code section being violated, a set of appeal rights and times and the inspector’s contact information. Order to correct violation and notice and order to correct violations are terms that are sometimes used. The exact nature of the due process documents will vary from jurisdiction to jurisdiction.

Code enforcement officer.

A generic term used to describe the local employee charged with the responsibility for enforcing a variety of codes. The term inspector is used here also.

Owner.

The term owner here is intended to include all code violators. Most commonly they are owners of property but they could be others, such as tenants, trustees, net lessees, etc. The term violator or code violator is used here as well. Both are intended to describe the party that is or may be responsible for correcting the violation of the code.

Judge or Hearing Officer.

These are terms used to describe the independent third party that is involved in either the appeal or the sanction portion of a case.

Sanction.

Sanctions are penalties or other means of enforcement used to provide incentives for compliance with the code. These include court-imposed penalties, economic disincentives, and negative publicity.

Chapter 4

Why Owners Do Not Comply With the Code

There are many reasons for not complying with the code. By understanding them, code enforcement officials can more effectively tailor a motivation strategy that results in compliance.

They do not understand what the code requires.

Many