Retaliatory Building Inspector? How to handle this situation.

[Yankee Chronicler]

One of the issues with writing a code section for every violation is the time commitment. In my previous jurisdiction, if I took the time to write a code section for each violation, I would have been missing inspections. However, most of our construction was done by our regular developers, so we were able to cultivate a psychologically safe environment where they knew they could ask questions when we wrote a violation. We were always happy to do further research when a correction was questioned. We got maybe 2-3 questions on corrections a year from them out of 2400 inspections a year. I'm not trying to disparage anyone from writing code sections, just highlighting that there is a tradeoff there.

Pre-COVID, building officials and fire marshals had to attend an annual all-day training session presented by the chief prosecutor for builidng code issues from the State's Attorney's Office. Every year she repeated, over and over again, that because violating the codes is an offense for which people can be fined and even go to prison, we ARE law enforcement officers, and we DO have to cite a code section.

"If you don't have a code section, you don't have a violation."

In reality, under the law, we are no different from a cop making a traffic stop. How would you feel if a cop stopped you and handed you a ticket for $500, with nothing entered for what you supposedly did wrong. Maybe he just writes, "Unsafe driving." How can you defend yourself in court if you don't know the section of the motor vehicle code you supposedly broke?

Building codes and fire codes are the same. "If you don't have a code section, you don't have a violation." Yes -- it takes time to look up the sections and enter them on the inspection report. That's part of the process. If you don't have time to do that, your department isn't allowing enough time per inspection, and is probably under-staffed.

 

[ICE]

your department isn't allowing enough time per inspection, and is probably under-staffed.

Well there’s your problem!!!!

 

[Yankee Chronicler]

One last point: How many of the code officials in this discussion have been sued for doing their job? I have -- along with my boss (the Building Official), the Zoning Enforcement Officer, the Mayor, and someone else in the town administration. I was dragged in because I was the plan reviewer. Each one of us who were named as defendants had to sit through an all-day deposition. The deposition -- for those not familiar with the process -- is the other guy's attorney asking you questions, which you have to answer under oath. Your attorney (which should be the municipality's attorney, since you're being sued as an agent of the municipality) sits in and can object to the form of a question, but in depositions you have to answer anyway -- the transcript simply notes that your attorney objected. The other guy's attorney WILL hammer you on each and every alleged violation you listed, and WILL twist words to make it look like you're the worst idiot in the universe and that you just made stuff up as you went along.

The other guy's attorney didn't have much luck in my deposition, because I had cited code sections. That left him unable to claim I just made things up, so he was reduced to arguing that I had misinterpreted the sections I cited. Since he didn't know nearly as much about codes and construction as I did, that didn't work very well. I also take the time to do memos to file if I have a telephone conversation with an owner or a design professional, because that way I have a contemporaneous record of what was said. Yes, it's one-sided in that I prepare the memos -- but, because it's contemporaneous and will be a year or years old by the time something gets to the point of a lawsuit, it will generally be considered as admissible in court. It takes extra time, and it's a complete waste of time -- until the one case when you're in court, and those memos save your butt. Suddenly they look like time well-spent.

 

[Mark K]

Comments on some of the issues raised in this thread.

Some have assumed that the inspector is always right and the engineer is always wrong. Things are not always so clear and anybody with that attitude has no business plan checking or inspecting.

Keep in mind that inspectors typically were not trained as an engineer or architect and thus likely have a more limited understanding of what the code says. Such ignorance has allowed me to show the checker he was wrong by properly referencing the code. Resolving these disputed is only possible if we understand the code section being invoked.

It is near impossible to intelligently respond to a comment from an inspector or plan checker who has not listed the code provision in question. On one occasion I politely asked a plan checker what was the code section to support his comment and his response was that there was no code section but I either did what he said or we would not get a permit. That plan checker was a bully.

Several comments suggested the need for the engineer to approve what was done. Such statements reflect a misunderstanding of the role of the engineer. The architect or engineer can render a professional opinion and can provide information. The engineer or architect by stamping a document accepts some responsibility for what he did. The building department can approve the permit but has no authority to make the engineer or architect responsible Establishing legal responsibility is something that is usually reserved to the courts. The building department should focus on code compliance and not worry about assigning responsibility. That is not their job.

Sovereign immunity only applies when the building department personnel are performing a properly adopted governmental function. Thus when a inspector or plan checker imposes a requirement not properly adopted he has no immunity. Another reason to document the code provisions and to focus on code compliance. The architect or engineer has a duty to protect the owner/client but this is not a duty that the building department has.

A reading of the code and the California statutes make it clear that the purpose of the code is to protect the public. While the home owner may benefit from a code compliant building the intent of the code is not to protect the homeowner. Focus on enforcing the code, not what you believe is fair.

 

[tmurray]

Pre-COVID, building officials and fire marshals had to attend an annual all-day training session presented by the chief prosecutor for builidng code issues from the State's Attorney's Office. Every year she repeated, over and over again, that because violating the codes is an offense for which people can be fined and even go to prison, we ARE law enforcement officers, and we DO have to cite a code section.

"If you don't have a code section, you don't have a violation."

In reality, under the law, we are no different from a cop making a traffic stop. How would you feel if a cop stopped you and handed you a ticket for $500, with nothing entered for what you supposedly did wrong. Maybe he just writes, "Unsafe driving." How can you defend yourself in court if you don't know the section of the motor vehicle code you supposedly broke?

Building codes and fire codes are the same. "If you don't have a code section, you don't have a violation." Yes -- it takes time to look up the sections and enter them on the inspection report. That's part of the process. If you don't have time to do that, your department isn't allowing enough time per inspection, and is probably under-staffed.

Your comparison is flawed. I do not issue a ticket with each failed inspection.

A better comparison might be a police officer stopping someone and giving them a warning. Generally, they would not give the section of the law being violated if they are only giving a warning. Similarly, in most instances for us, we are simply identifying things that were missed during construction. The contractor repairs the issue(s) and moves on.

You are correct that when you move into a legal enforcement environment that a code section is required. In our province, you would not move immediately from an inspection report to prosecution. You would issue an order after the identified deficiencies were not corrected. The order is required to have the code section.

 

[tmurray]

Keep in mind that inspectors typically were not trained as an engineer or architect and thus likely have a more limited understanding of what the code says. Such ignorance has allowed me to show the checker he was wrong by properly referencing the code. Resolving these disputed is only possible if we understand the code section being invoked.

This statement is interesting. Here, architects are not required to have any training in the code as part of their degree program and engineers only take a small portion of the code in a single course (structural design). I'm wondering if the degree program requirements are different in the US.

Building officials on the other hand must take courses on almost every portion of the code.

 

[steveray]

Building officials on the other hand most take courses on almost every portion of the code.

And 30hrs continuing ed a year here....

 

[Beniah Naylor]

Keep in mind that inspectors typically were not trained as an engineer or architect and thus likely have a more limited understanding of what the code says.

That is rarely what I come across. We specialize in the code - we do nothing else. Where code is concerned, an architect or engineer does need to know some code, but they get much less training on it than we do, and they deal with many other details that do not relate to the code - which creates more of a jack-of-all-trades knowledge of the code.

An inspector that is applying themselves and mastering their trade will occasionally have a design professional point out a code section they have never noticed before, but that shouldn't have to happen more than once per subject. I remember the handful of times I have been schooled by an engineer vividly...

 

[Beniah Naylor]

This statement is interesting. Here, architects are not required to have any training in the code as part of their degree program and engineers only take a small portion of the code in a single course (structural design). I'm wondering if the degree program requirements are different in the US.

It's pretty much the same here.

 

[Inspector Gadget]

The other guy's attorney didn't have much luck in my deposition, because I had cited code sections. That left him unable to claim I just made things up, so he was reduced to arguing that I had misinterpreted the sections I cited.

^^^^
This.

I've seen some commentary that providing code references is too time-consuming. For frequent infractions, it's not too hard to have a 'cheat sheet' for things that are screwed up regularly.



When a more complex violation is found, going to the code reference is an exceptional way of verifying "am I right?" For the seasoned inspectors who are experts in their area of code, it prevents the "oh, crap, that changed with the 2015 edition???" failure; for the rookie, it's a valid way of ensuing that hey, I'm right.

This is an example of an inspection report from our office.



This was for a barrier-free (disability access) washroom. It took me maybe 45 seconds to write (2), which I did because I'd given the contractor and the owner all of the documents/guidelines to meet Code, and denied the application until the designer had given a Code-compliant breakout, and they had still frigged up. Writing the report took me - if I exaggerate - six minutes. That six-minute process also included uploading the report and pictures to our cloud-based server, which emails the client and contractor with the report.

 

[mtlogcabin]

The architect or engineer can render a professional opinion and can provide information.

We ask for their opinion sometimes; we ask that it be in writing on their letterhead and no stamp. By not requiring a stamp I have never had an issue or objection when asked for their opinion.

 

[Yankee Chronicler]

Keep in mind that inspectors typically were not trained as an engineer or architect and thus likely have a more limited understanding of what the code says. Such ignorance has allowed me to show the checker he was wrong by properly referencing the code. Resolving these disputed is only possible if we understand the code section being invoked.

Correct

It is near impossible to intelligently respond to a comment from an inspector or plan checker who has not listed the code provision in question. On one occasion I politely asked a plan checker what was the code section to support his comment and his response was that there was no code section but I either did what he said or we would not get a permit. That plan checker was a bully.

Agreed.

Several comments suggested the need for the engineer to approve what was done. Such statements reflect a misunderstanding of the role of the engineer. The architect or engineer can render a professional opinion and can provide information. The engineer or architect by stamping a document accepts some responsibility for what he did. The building department can approve the permit but has no authority to make the engineer or architect responsible Establishing legal responsibility is something that is usually reserved to the courts. The building department should focus on code compliance and not worry about assigning responsibility. That is not their job.

Technically, incorrect. An architect's or engineer's stamp does nothing other than attest the the document was either prepared by him/her, or was prepared by someone under the A/E's direct supervision. [In my state, there is limited provision for engineers to seal work prepared by others, but this does not apply to architects.] As to responsibility -- an architect or engineer creates and accepts responsibility and liability by performing the work, not by putting a seal and signature on it.

Sovereign immunity only applies when the building department personnel are performing a properly adopted governmental function. Thus when a inspector or plan checker imposes a requirement not properly adopted he has no immunity. Another reason to document the code provisions and to focus on code compliance. The architect or engineer has a duty to protect the owner/client but this is not a duty that the building department has.

This probably varies by state, but in my state building departments -- and municipalities -- do NOT enjoy sovereign immunity. Only the state government has to grant permission before it can be sued. I know this very well. When I was at a former position, I was sued, my boss (the BO) was sued, the ZEO was sued, and the mayor was sued. The case was NOT dismissed over sovereign immunity. It went to trial, and we were exonerated completely -- largely because I had fully documented the code issues, and they were irrefutable.

You may be confusing sovereign immunity with indemnification, which is addressed in IBC 104.8:

[A] 104.8 Liability. The building official, member of the
board of appeals or employee charged with the enforcement of
this code, while acting for the jurisdiction in good faith and
without malice in the discharge of the duties required by this
code or other pertinent law or ordinance, shall not thereby be
civilly or criminally rendered liable personally and is hereby
relieved from personal liability for any damage accruing to
persons or property as a result of any act or by reason of an act
or omission in the discharge of official duties.

The BO can still be sued, but this means that even if he/she is sued personally, the code says he/she has no personal liability. The employer (the municipality or county) has to pay to defend the BO, and has to pay any judgment against the BO. [Note: in adopting the ICC codes, my state modified this language, but it still says the BO is indemnified -- as long as he/she is acting in good faith.]

A reading of the code and the California statutes make it clear that the purpose of the code is to protect the public. While the home owner may benefit from a code compliant building the intent of the code is not to protect the homeowner. Focus on enforcing the code, not what you believe is fair.

I certainly agree that we should enforce the code. If you do that objectively and uniformly, I don't see how that could be anything other than fair. When people complain that I'm being too harsh by not allowing violations to go unciited, I tell people I'm an equal opportunity offender -- I piss everyone off by following the code as objectively as I can.

 

[Yankee Chronicler]

This statement is interesting. Here, architects are not required to have any training in the code as part of their degree program and engineers only take a small portion of the code in a single course (structural design). I'm wondering if the degree program requirements are different in the US.

Building officials on the other hand must take courses on almost every portion of the code.

In the U.S., building codes are required as part of the curriculum in order for any school of architecture to be accredited by the NAAB (National Architecture Accrediting Board).

So it is required. It is also painfully obvious that most architects slept through those classes.

 

[Yankee Chronicler]

This was for a barrier-free (disability access) washroom. It took me maybe 45 seconds to write (2), which I did because I'd given the contractor and the owner all of the documents/guidelines to meet Code, and denied the application until the designer had given a Code-compliant breakout, and they had still frigged up. Writing the report took me - if I exaggerate - six minutes. That six-minute process also included uploading the report and pictures to our cloud-based server, which emails the client and contractor with the report.

Never underestimate a contractor's ability to screw up. At my former job we had a clubhouse in which the contractor got the grab bars wrong in the handicapped toilet rooms. We went to the site (me and the boss) and drew the compliant locations on the wall. The contractor re-mounted the grab bars -- wrong.

Later, when the complex got around to installing a poolhouse for the swimming pool the architect took an isometric diagram I had created in AutoCAD that showed all the required grab bars, with dimensions, in a single 3-d-like illustration, and he incorporated that drawing into the construction documents. The contractor still got the grab bars all wrong.

 

[wwhitney]

1. There shall not be any rear wall exit for conductors or raceway if the equipment enclosure is surface mounted.
R703.1

How is this necessarily a violation? At most R703.1 just says the rear exit cable or raceway needs to be flashed in accordance with R703.4 as it passes through the exterior wall.

14. Multi-wire branch circuits breakers shall open simultaneously by use of two-polebreakers or listed handle ties. 210.4(B)

Handle ties do not necessarily cause both poles to open when one pole opens internally (from short circuit/ground fault/overload). They do cause both poles to open when manually operated, which is all 210.4(B) requires.

26. Install a jumper between the cold, hot and gas pipes at the water heater. 250.4(A)

While doing that is a commonly imposed requirement by building inspectors in CA, and a convenient way to confirm that some of the NEC required bonding is present, the NEC does not require that. And using 250.4(A) to support the requirement would not pass muster in a court case.

Otherwise, very nice list.

Cheers, Wayne

 

[Yankee Chronicler]

We ask for their opinion sometimes; we ask that it be in writing on their letterhead and no stamp. By not requiring a stamp I have never had an issue or objection when asked for their opinion.

That's a potential issue (depending on the state). In my state, the laws and regs governing the practice of professional engineers require that anything leaving the engineer's office other than routine correspondence MUST bear the engineer's seal and signature. This includes reports and statements of professional opinion. If I were to ask for a statement of professional opinion without a seal and signature, I would be asking the engineer to violate the law -- and I should be very worried about the competence of any engineer who would accede to such a request.

 

[ICE]

How is this necessarily a violation? At most R703.1 just says the rear exit cable or raceway needs to be flashed in accordance with R703.4 as it passes through the exterior wall.

The rear entry is a common problem that the County sought to overcome. There are a bunch of electrical code sections to employ. I have lost track of that list and haven't a need for recreating it. Here are some pictures of what happens so often that the electrical permit has a warning that states "No rear entry of surface mounted equipment is allowed".

I understand the position that we can't arbitrarily outlaw a legal method. Alrighty then, go ahead and request an inspection showing that the former flush panel has been removed and there are no splices in the wall cavity. Then request another inspection when the wall has been lathed. Show the various nipples and clamps for the cable. Then request an inspection after the stucco has been applied. Now we are getting somewhere and you can request an inspection of the MPU.

What do you mean you didn't do any of that and I should trust you for all of it? Did you not see the warning on the permit? Few inspectors in So. California enforce anything like this. The last picture is what is considered good enough. That holds true for most of the County inspectors as well as several in the same district office that I worked in.

I realize that the list that I posted is not correct enough for publication so I have removed it.












The attachment is a drawing of one way to skin the cat.

 

[Mark K]

Correct

Agreed.

Technically, incorrect. An architect's or engineer's stamp does nothing other than attest the document was either prepared by him/her, or was prepared by someone under the A/E's direct supervision. [In my state, there is limited provision for engineers to seal work prepared by others, but this does not apply to architects.] As to responsibility -- an architect or engineer creates and accepts responsibility and liability by performing the work, not by putting a seal and signature on it.

This probably varies by state, but in my state building departments -- and municipalities -- do NOT enjoy sovereign immunity. Only the state government has to grant permission before it can be sued. I know this very well. When I was at a former position, I was sued, my boss (the BO) was sued, the ZEO was sued, and the mayor was sued. The case was NOT dismissed over sovereign immunity. It went to trial, and we were exonerated completely -- largely because I had fully documented the code issues, and they were irrefutable.

You may be confusing sovereign immunity with indemnification, which is addressed in IBC 104.8:

The BO can still be sued, but this means that even if he/she is sued personally, the code says he/she has no personal liability. The employer (the municipality or county) has to pay to defend the BO, and has to pay any judgment against the BO. [Note: in adopting the ICC codes, my state modified this language, but it still says the BO is indemnified -- as long as he/she is acting in good faith.]

I certainly agree that we should enforce the code. If you do that objectively and uniformly, I don't see how that could be anything other than fair. When people complain that I'm being too harsh by not allowing violations to go unciited, I tell people I'm an equal opportunity offender -- I piss everyone off by following the code as objectively as I can.

Yes the engineer has liability for his actions but this does not mean that the engineer has to approve what the contractor has done. The engineers liability typically arises when he did not exercise the normal standard of care and was found negligent. It is not the role of the building department to determine whether the engineer was negligent.

My understanding is that the engineer's errors and omissions insurance does not cover guarantees. So if the building official could force the engineer to approve/grantee something, and if the engineer was negligent then the E&O policy would not be available to pay for the damage.

More to the point the plan checker does not have the authority to decide when the engineer is responsible. Responsibility is established by the courts not the plan checker or the building official. The building department should focus on code compliance.

 

[Sifu]

That's a potential issue (depending on the state). In my state, the laws and regs governing the practice of professional engineers require that anything leaving the engineer's office other than routine correspondence MUST bear the engineer's seal and signature. This includes reports and statements of professional opinion. If I were to ask for a statement of professional opinion without a seal and signature, I would be asking the engineer to violate the law -- and I should be very worried about the competence of any engineer who would accede to such a request.

I have wondered about this. I have been told several times that there are two prices...one for sealed documents, and one for unsealed documents.

 

[Yikes]

Yes the engineer has liability for his actions but this does not mean that the engineer has to approve what the contractor has done. The engineers liability typically arises when he did not exercise the normal standard of care and was found negligent. It is not the role of the building department to determine whether the engineer was negligent.

My understanding is that the engineer's errors and omissions insurance does not cover guarantees. So if the building official could force the engineer to approve/grantee something, and if the engineer was negligent then the E&O policy would not be available to pay for the damage.

More to the point the plan checker does not have the authority to decide when the engineer is responsible. Responsibility is established by the courts not the plan checker or the building official. The building department should focus on code compliance.

in California, we have a specific clause in the B&P code that defines the limits of professional certifications:

Business and Professions Code - BPC
DIVISION 3 - PROFESSIONS AND VOCATIONS GENERALLY
CHAPTER 3 - Architecture
ARTICLE 3 - Application of Chapter
Section 5536.26.​

Universal Citation: CA Bus & Prof Code § 5536.26 (2022)
5536.26. The use of the words “certify” or “certification” by a licensed architect in the practice of architecture constitutes an expression of professional opinion regarding those facts or findings that are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied. Nothing in this section is intended to alter the standard of care ordinarily exercised by a licensed architect.

(Added by Stats. 2001, Ch. 728, Sec. 51. Effective January 1, 2002.)

 

[Mark K]

in California, we have a specific clause in the B&P code that defines the limits of professional certifications:

Business and Professions Code - BPC​

DIVISION 3 - PROFESSIONS AND VOCATIONS GENERALLY​

CHAPTER 3 - Architecture​

ARTICLE 3 - Application of Chapter​

Section 5536.26.​

Universal Citation: CA Bus & Prof Code § 5536.26 (2022)
5536.26. The use of the words “certify” or “certification” by a licensed architect in the practice of architecture constitutes an expression of professional opinion regarding those facts or findings that are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied. Nothing in this section is intended to alter the standard of care ordinarily exercised by a licensed architect.

(Added by Stats. 2001, Ch. 728, Sec. 51. Effective January 1, 2002.)

But this does not stop building departments from trying to impose liability on engineers and architects. This is often done by forms the design professional is expected to sign. The building department should focus on code compliance, not on who should be responsible.

 

[ICE]

The building department should focus on code compliance, not on who should be responsible.

Most building departments do both. Asking an engineer to answer a question in writing makes an engineer responsible for that answer. How could it be otherwise?

Comparing the work to an engineer’s structural observation report indicates that many engineers aren’t all that concerned about responsibility .

 

[klarenbeek]

But this does not stop building departments from trying to impose liability on engineers and architects. This is often done by forms the design professional is expected to sign. The building department should focus on code compliance, not on who should be responsible.

Real situation I currently have: Mechanical contractor added (not replaced) a rooftop unit to an existing restaurant, no other work being done. I have a correction for needing structural analysis by a structural engineer to make sure the roof can support the extra weight. My entire professional background is HVAC, so I'll be the first to admit I'm not qualified for that analysis. That's why I'm asking for it. What other means would I have to ensure code compliance?

 

[ICE]

Real situation I currently have: Mechanical contractor added (not replaced) a rooftop unit to an existing restaurant, no other work being done. I have a correction for needing structural analysis by a structural engineer to make sure the roof can support the extra weight. My entire professional background is HVAC, so I'll be the first to admit I'm not qualified for that analysis. That's why I'm asking for it. What other means would I have to ensure code compliance?

What is the weight of the equipment?