Codes UnenforcementLocal building code requires a final inspection of all new and renovated dwellings -- so why aren't city inspectors doing their job?
by Betty Bean
Looking for a new home out in the 'burbs where the grass is green and the swimming pools are blue? Or maybe a downtown condo in a charming old building within walking distance of the Tennessee Theater and a bunch of good restaurants?
If so, then consider adding a new maxim to the old "location, location, location" rule of real estate:
Inspection, inspection, inspection. And most importantly, the final inspection and the Certificate of Occupancy (CO) that are supposed to assure that new and renovated dwellings comply with all requirements of the Standard Building Code which our city and county governments are supposed to be enforcing.
Supposed is the operative word, because in all too many instances the final inspections required by the code never get made and the CO's never get issued. Even when they do, there are flagrant examples of what are tantamount to "Good Housekeeping Seals of Approval" being placed on structures that were unfit for habitation. This bureaucratic bungling is remindful of the old Soviet Union adage that "the workers pretend to work, and the government pretends to pay them." In similar fashion, city officials especially try to slip, slide, and duck their obligations under the Standard Building Code in ways that create the appearance not only of ineptitude but also of conflicts of interest and possible corruption.
The consequences of all this chicanery for home buyers might be far worse if it weren't for the fact that most mortgage lenders, rather than relying on governmental inspections, conduct their own before committing to finance a residential purchase. Even so, the city's watchdog from within, City Councilwoman Carlene Malone insists the damage done by dereliction is widespread.
"There are plenty of examples of new houses as well as condominium and apartment complexes whose occupants have incurred a lot of grief because inspection requirements aren't being adhered to," says Malone.
Despite numerous requests, oral and written, neither the city Department of Development nor the city's Office of Public Affairs was able or willing to furnish the number of final inspections completed or COs issued in a year, let alone the percentage of new residences that failed to get them. Malone says she is in the dark as well.
"Who the heck knows unless they tell you? And if they tell you it's above 30 percent, why would you believe them unless you had the resources to get in there and physically count them for yourself, under the present haphazard system in that department?"
In other words, no matter what the law says, caveat emptor rules.
Local inspections departments, both city and county, say they lack the resources to initiate final inspections on their own and therefore must depend on the builder/owner's notification that it's time for one to be conducted. Unlike the city, the county is apologetic about its failures.
"The reason we don't take a more active stance on pursuing CO's is because we don't have the people to do it," says Bruce Weuthrich, director of the county's department of code administration and inspection. "Our attitude is 'It's required.' And as time allows, when the building season is over, we'll go through old building permits and
follow them out. We'd like to do a better job..." One need look no farther than Chattanooga and Oak Ridge to learn that other cities have conquered the problem that has so hamstrung Knoxville. And the steps they've taken to do so appear readily doable here.
But they couldn't know their idyllic life would soon be disrupted. Absent a final inspection, a leaky roof caused by bad ridge vents, shingles placed backward, improperly installed heater vent pipes, missing flashing, "high nailing" (an improper nailing technique), puckered shingles, felt covering over vents, improper nails, improperly affixed ventilation pipes and roofing felt and shingles stretched over a hole big enough for a fireman to fall through would trigger a full-blown war with the developer, the city, and even some of their neighbors. The happily-ever-after part of the Blankenships' story is on indefinite hold.
Inwood II was developed by Dart & Company, which has since gone out of business. Co-owner Gerald L. McCoy has a new company under his own name and contends that problems at Inwood II would be easily solved if residents like the Blankenships had left attorneys and codes inspectors out of it.
"They've filed suit for $210,000--but we've agreed to fix all their known problems and extend their warranties for a year if they'd drop the lawsuit. We wanted to see the problems resolved."
McCoy contends that over-anxious buyers in a hurry to move in brought the problems on themselves: "People start running all their stuff in before the city can get there to inspect."
Farrell-Blankenship, who has kept detailed logs of her contacts with the city, says that before she made her first phone call to city building inspectors on April 17, it never occurred to her that her new home hadn't had a final inspection.
"I called the city and asked when the final inspection had been done. He (David Giles, city Building, Zoning and Plans review chief) told me it hadn't been done. You can't imagine how we felt..."
Wilson Blankenship says he couldn't believe what Giles was telling them. "Being familiar with the building codes elsewhere, I asked why the inspector didn't catch it [the leaky roof]. I was told the inspection department didn't do inspections. I said, 'This can't be. Everybody does final inspections.' And I was flatly told this doesn't happen in Knoxville..."
Giles did not respond to telephone messages or written questions.
On April 17, the Blankenships and other Inwood II residents met with Lloyd Norwood, a city building inspector. When quizzed about the final inspection, Norwood (as per Farrell-Blankenship's log) said "...if he had done the inspection, it would not have helped because he would have sat in his car and done it." "
Norwood did not respond to written questions or telephone messages. He has reportedly denied making these statements.
On April 24, Inwood II representatives met with Giles who, again, as recorded in Farrell-Blankenship's log, said "...final inspections of new buildings or Certificates of Occupancy of dwellings of people were not required by his department..."
On May 5, Farrell-Blankenship called Malone, who set up a May 7 meeting where she, the Blankenships and other Inwood II residents met with Charles Cummins, the city's chief building official, Giles, Norwood, city attorney Sharon Boyce, and Development Department head Susan Brown.
According to Malone, "Cummins said the only final inspections we do, unless we are called out by the contractor, are gas and electric. He said we don't issue COs unless one is requested. When the people from Inwood II asked why, Sharon Boyce said they had no answer for that, and that she couldn't disagree with claims that the law did require it..."
Cummins, who did respond numerous times to telephone calls, says he can't recall exactly what was said May 7; Boyce referred questions to city spokesman Craig Griffith, who was not present at the meeting.
"I assumed final inspections were taking place," Malone continues. "And at a city budget meeting around that time, I asked Susan Brown when we would be doing these--she said once they got a new information system up and running in October, but I suspect the answer will continue to be manana."
A note from Griffith says the Department of Development "is undertaking a review of the section [of the Standard Building Code that requires final inspections] to determine if changes should be made."
Bill Poston, past president of the Inwood II Homeowners' Association, shares the Blankenships' frustration:
"In our dealings with the codes people, we at first felt they would assist us because we were tax-paying citizens dependent on codes for protection. But when we went up there, they told us there was nothing they could do for us...
"They'd be down your throat in a hairy minute if you started building without a building permit...But they've absolved the contractor of responsibility...I believe if a code is on the books, it should be enforced. If it's not going to be enforced, it should be taken off the books..."
Malone is also dissatisfied with vague not-quite-promises of a computer-generated solution:
"You know when someone gets a permit; you know when you're doing rough inspections. And if we made people understand they have to do a final inspection and they have to comply or else no one occupies the building, inspections would be taking place..."
Nearly two years after moving in, the Blankenships got their final inspection June 11. On July 7, the Blankenships received (finally) a letter from Giles, confirming the results which turned up two violations in roof vent installation, a plumbing code violation, and a minor electrical violation.
Farrell-Blankenship is angry. There are no penalties recommended for the builder, no requirements for repairs, no mention of the improper ventilation system, no mention of improperly-installed vents which a consultant to the Inwood IIers had shown were nailed on incorrectly with nails that did not meet code requirements and have been blown off by the wind.
The Blankenships say they are ready to sue.
"If the city inspectors do not do their job and the contractor, Dart & Co., does not back up his shoddy work, we plan to take legal action against both of them..."
County law director Richard Beeler says the Blankenships could have a case if they show "...that a government official has simply refused to act in accordance with applicable law...Under state law, we [local governments] are immune for negligent inspections, but the state Supreme Court has narrowed that exception considerably over the years, and in my opinion, will continue to narrow it. There is a trend to hold communities liable...."
"We will give the builder a temporary meter for the purpose of construction, but when sale time comes, before a new contract can be filled out for a final electrical meter, that person must have a final CO. A residence should not be occupied without that certification. It's an insurance policy for the builder, too. I'm not trying to say how Knoxville should do business, but we used to have reliance on the builder to do what's right, and we were having builders moving people in without COs..."
Chattanooga's Chief Building Official Don Young says his department may miss a few small renovations, but they "do try to make final inspections on all habitable structures. We make every attempt to do them and are running about 95 percent..." Like Oak Ridge, Chattanooga figured out that the best way to ensure that builders asked for final inspections was to withhold power until the inspections were done.
"We had a very real problem with developers not calling for finals; the new owners wanted to move in; the developer would put them in, and we had to rely on them to call us, which they never got around to doing."
Ward, who serves in professional organizations along with Cummins, says that he is sure "if Charles Cummins had his way, they'd be issuing COs...No one works harder than he does toward promoting the profession of code enforcement."
Cummins says he has worked on a way to tie electrical meters to COs and final inspections for some time.
"The problem is both those cities own utilities. Here, KUB [the Knoxville Utility Board] is a separate entity, so we can't tell them what to do. Because of the way we're configured here, we just have to work it out with them. We just haven't been able to get all the dots on the i's. Every time we get near, we seem to back off for some reason. That's not to say they won't..."
Turns out, however, Chattanooga Electrical Power Board's structure is similar to that of KUB, says Larry Fleming, KUB's president and chief executive officer. He says he's not aware of any city overtures on the subject of final inspections and COs, although he says they could have happened without his knowledge.
"If the city would come to us and ask us to coordinate, we would be glad to cooperate in any way we legally could...At this point in time, I am not aware that the city has a CO program. It is not KUB's responsibility, but at such time they are ready to institute one, we are ready to help..."
Life would be good, she says, but for a plague of problems in her building. Knowing that city codes inspectors have financial interests in the building doesn't ease her mind.
Smith and other condo owners have joined in a suit previously filed by Sidney Gwyn, who owns three units in the building, against the building's developers--the Commerce Group--charging myriad code violations. The Commerce Group is made up of five partners, one of whom is Lloyd Norwood.
Gwyn says Commerce Group partner Steve Mosadegh, who is the building's contractor and also co-owns the Gay Street level of the building, has a silent partner in that unit, David Giles. Neither Norwood nor Giles answered questions about their involvement in 120 S. Gay Street. "We think there has been a lot of 'You scratch my back, I'll scratch yours' in this building. I have had several meetings with Mr. Cummins, and he was very candid. Those people should have been brought in and called in on the carpet and told this a conflict of interest," Gwyn says.
Smith moved into her new place in March, 1995, shortly before all seven floors of stairs were declared substandard and had to be torn out and rebuilt. A torrent of other problems followed. The roof (which she would later learn had been improperly anchored) blew off, causing water to cascade into her bedroom; she was told she couldn't have cable TV or a dryer. Recently, she lugged 20 bags of groceries up the stairs because the state condemned the elevator last fall.
"I would never have bought if there was no elevator," Smith says. "My biggest beef is this piece-of-trash building was allowed to go from day one with nothing up to code. I don't understand deliberately not doing what I know to be the right thing. They deliberately did not follow code. These were not five little old ladies who went to Shoneys after church one Sunday and said, 'Let's develop a building.'"
Smith and the other Commerce Building homeowners were notified that a CO was issued and signed May 15, 1997, for the common areas of the building "excluding operation of the elevators and finish of individual tenant spaces." Ironically, at about the same time, Bittle and Sons (a building supply company) filed suit against Smith and the rest of the Commerce Building Homeowner's Association for non-payment of $11,000. It seems the Commerce Group, when forced to replace substandard wooden doors with the required metal doors and frames, neglected to pay them. Smith is incredulous that the building was able to pass any sort of final inspection.
"All property owners are obviously not treated equally under the codes...I cannot imagine that our building was allowed to get into this shape with codes people involved, and I defy anyone to look at my back hallway and stairwell and tell me it's up to code. It's strange to me...I don't want to paint all the codes people with the same brush, but you've got to wonder when you see examples of strict enforcement in this neighborhood and compare it to the lax enforcement here..."
Mosadegh emphatically denies any preferential treatment from building inspectors. Giles, he says, was not involved in inspecting the building.
"From the point he made any verbal commitment to this building, he washed his hands of inspecting it...he kept his hands and his mind clear of anything to do on this project.
"On the surface, it looks like a big conspiracy, but if you look into it, it's an unfortunate situation. Now we have a partnership at each others' throats. There are so many buildings downtown that make this look like a precious jewel--look around."
Mosadegh points out that the state shut down the elevator, not the city, and says that city, state, and county inspectors need to coordinate their efforts.
Cummins says the question of Norwood's potential conflict-of-interest problems has already been dealt with. "We took that issue in front of the director, who removed him from inspections [of that building]. That was done probably two years ago. It's just like if your father does something wrong at the house he is building. There will always be a question of, 'Were you [the inspector] in on it?'"
He did not address Giles' financial interest in the building.
Chattanooga's Chief Building Official Young says that city strictly limits inspectors' side jobs: "What we are not to do is to be in competition with the people we are enforcing against. We try to get people who have been in the profession, but are not longer actively involved. I would tell [someone like Norwood] he would have to get out of the construction business while he was an inspector. I would tell him as a developer, that would be a conflict of interest..."
Roy Braden, Knox County's chief building official, says his inspectors may build one house every two years "for their own use." He says he knows some may spend a very brief period of time in residence before they sell these houses, but that he would suggest "that they might want to find another job," if they became more actively engaged in building projects of their own.
Gwyn's lawyer, Byron Bryant, says there is "...a lot of suspicion that a lot of codes are not being enforced because of an ownership connection with employees of the city codes department."
Despite the CO, problems at 120 S. Gay continue. The back hallways have not been finished, and front and back stairwells have not been redone with fire-rated sheet rock as required by code. Many "Hundred-block" residents, who would not speak for attribution, are deeply suspicious that such serious code violations would have been dealt with more seriously elsewhere.
"We make inspections on every building that we receive a request for...We make an inspection when a contractor makes a request...We have no way of knowing unless we are contacted...Certificates of Occupancy are issued upon request," says Cummins.
"The building code says buildings should not be occupied without a Certificate of Occupancy..."
And close inspection of the code provisions makes it clear that Cummins' use of the word "should" is no accident.
The 1994 Standard Building Codes, in Section 106.1.1, Building Occupancy, says "A new building shall not be occupied...until after the building official has issued a Certificate of Occupancy."
Knoxville's building code, based on the 1994 version of the SBC as adopted in 1995, makes an interesting change in that section. Instead of "shall not be occupied," the word adopted in Knoxville is "should," a small semantic change that allows city Public Affairs chief Craig Griffith to claim that the "language" governing the laws concerning COs are "permissive" rather than mandatory.
Nowhere, however, does the code make final inspections "permissive." The word there is "shall," not "should."
"The Code clearly says, 'The building official shall inspect or cause to be inspected...' Whether the law demands they issue a Certificate of Occupancy or says they should issue a Certificate of Occupancy doesn't make any difference. What we adopted does say there shall be final inspections prior to occupancy or completion..."
Ultimately, Malone believes informed and vocal consumers can force important changes.
"If the administration and the council decide that final inspections and COs are going to be part of doing business in this town, that process can be put in place. The requirement is already there-- without the need of a computer...
"The people of the city aren't aware of this. If they care, they should call the administration and the Council and express to them that they want this straightened out, with or without an information system. I don't think it takes an information system to do it."