|Action||Update the Uniform Statewide Building Code|
|Comment Period||Ends 6/26/2020|
Notice of Violation Changes Weaken the Code Officials Ability to Properly Enforce Code
The changes to Section 115.2 to remove the “Responsible Party” are on dangerous legal ground.
First, one must recognize that according to Section 115.1, violation of the Building Code is a criminal offense (non-classed misdemeanor). “In accordance with § 36-106 of the Code of Virginia, it shall be unlawful for any owner or any other person, firm or corporation, on or after the effective date of any code provisions, to violate any such provisions.” Further, the Code intentionally employs language specifying that it is unlawful for “any person, firm or corporation to violate the code.” This purpose of this language to eliminate the possibility of a loophole for that would otherwise allow for work without a permit or work performed by contractors without a license where the code official would only have the option to charge the property owner with a criminal act.
Second, this change ignores the requirements set forth in 112.1 which states in relevant part: “It shall be the duty of any person performing work covered by this code to comply with all applicable provisions of this code and to perform and complete such work so as to secure the results intended by the USBC.” This language places a legal duty on the individual performing the work to comply with the Code and is intentionally worded in such a way that one cannot claim that they are not legally responsible simply because they are not the name listed on the permit. It is this section of the Code that defines for code officials who the "Responsible Party" is.
By removing the requirement to issue the Notice of Violation to the “Responsible Party” you get 2 very negative outcomes. First, this would result in issuing what amounts to a criminal citation to a homeowner simply because an unlicensed contractor duped them into obtaining the permit in their name. This is the legal equivalent of the police issuing a citation to the victim of a robbery simply because they failed to lock their door. Second, the real “criminal” (i.e. the unlicensed contractor) gets away with the criminal act because this change would redefine legal responsibility to the victim of the criminal act. Furthermore, simply allowing for the issuance of a Notice of Violation to other parties through permissive language while directing the issuance of of the notice to the permit holder ignores our responsibility as code enforcement officials to hold those performing the work accountable for proper, code compliant construction.
To illustrate the potential for serious legal implications, I will share an example from a locality that occurred when the NOV was incorrectly issued to a homeowner rather than the “Responsible Party.” The property owner was told by the “contractor” that if he obtained the permit, it would be cheaper and easier, as the County was more forgiving of homeowners than contractors. The unsuspecting owner obtained the permit in his name listing “Owner as Contractor” on the issued permit. The contractor was not properly licensed for the scope of work to be performed. There were numerous problems with the work that eventually led to the issuance of a NOV. The NOV was improperly issued to the homeowner, even though he was not the one performing the work and creating the violation condition. Meanwhile, the real violator was not cited and eventually simply walked off the job with money in hand and no legal ramifications. All that was bad enough, but it gets worse. The owner held a high-level security clearance with the Federal Government which was put at risk due to the improperly issued citation. The unlicensed contractor, because no legal action was brought against him, was free to continue to victimize other unsuspecting property owners without consequence.
Finally, Code already recognizes that the ultimate purpose of the correction and Notice of Violation process is to achieve compliance with the Code – even when we are no longer able to pursue the “Responsible Party” to that end. That is why there is language differentiating to whom the NOV is to be issued, and who is to be copied. That is precisely why Section 115.2 contains the statement: “When the owner of the building or structure, or the permit holder for the construction in question, or the tenants of such building or structure, are not the responsible party to whom the notice of violation is issued, then a copy of the notice shall also be delivered to the such owner, permit holder or tenants.” This portion of the process insures that the property owner/tenant (permit holder) is aware of the situation and provides a path forward to compliance should the real criminal (the Responsible Party) disappear.
It is critical to the proper enforcement of Code that we, as code officials, are diligent in pursuing the “Responsible Party.” This change does not help to promote that end. In fact, it does quite the opposite, and weakens our enforcement position in the long run. I urge you to maintain the strong legal support for the issuance of citations to those who create the violation condition by rejecting this amendment.