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HomeMy WebLinkAboutR-2014-032 RCW Amendment Legislation to Authorize Issuance of Administrative Search Warrants Enforcing Life Safety Codes RESOLUTION NO. R- 2014 -032 A RESOLUTION authorizing the City manager to prepare proposed legislation to amend the Revised Code of Washington to authorize issuance of administrative search warrants for the enforcement of building codes, housing codes, abatement codes and other codes protecting property and life safety of persons. WHEREAS, cities in the State of Washington are authorized and mandated to adopt and enforce uniform codes and other codes regulating the construction and maintenance of buildings and structures, and the provision of safe housing for residents and occupants of such buildings and facilities; and WHEREAS, the purpose of such codes is to preserve, promote and protect the life, health and safety of persons occupying such structures and adjoining properties, and to preserve, promote and protect the property of such persons; and WHEREAS, courts in the State of Washington have ruled that city code enforcement officials cannot seek and obtain administrative search warrants to enforce the provisions of such life safety codes unless specific statutory authority or court rule exists authorizing issuance of such warrants; and WHEREAS, the provisions of the International Fire Code contain specific statutory authorization for issuance of search warrants to enforce the provisions of such fire code, but the building codes, housing codes and other life safety codes of the city, including the Uniform Code for the Abatement of Dangerous Buildings, contain no such specific authorization; and WHEREAS, the only other specific statutory authorization for issuance of an administrative search warrant for enforcement of life safety building, housing and abatement codes is found in Chapter 59.18 RCW for properties subject to the Residential Landlord- Tenant Act (RCW 59.18.150); and WHEREAS, court decisions describing the authorization necessary to obtain search warrants for the enforcement of such life safety codes have referenced statutes adopted by other states, including the States of California, Texas, Tennessee and Vermont; and WHEREAS, a copy of the statute adopted by the State of Tennessee is attached hereto as Exhibit "A" as an example of such authorizing statute; and WHEREAS, the City Council finds and determines that appropriate staff of the City of Yakima should be authorized and directed to prepare proposed legislation to amend the Revised Code of Washington to provide for issuance of administrative search warrants for the enforcement of the life safety codes of cities and local jurisdictions within the State of Washington, and that such proposed legislation should be presented for consideration and action by the Washington State Legislature; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to direct staff to research, prepare and present to the state legislature proposed legislation amending the Revised Code of Washington to authorize issuance of administrative search warrants to enforce the provisions of the life safety codes of cities and local jurisdictions within the State of Washington. Such proposed legislation shall be substantially in the form set forth in Exhibit "A" attached hereto and incorporated herein by this reference, with reference as deemed necessary and appropriate to similar statutes adopted by other states, and modified as necessary and appropriate to conform to requirements of the laws of the State of Washington ADOPTED BY THE CITY COUNCIL this 18 day of February, 2014. C/ i�zid ATTEST: Micah Caw y, Mayor ATA I I City Clerk ti ': w � t , • ' w45 Westlaw TN ST § 68- 120 -117 Page 1 T. C. A. § 68- 120 -117 West's Tennessee Code Annotated Currentness Title 68. Health, Safety and Environmental Protection Safety 9 Chapter 120. Building Regulations Part 1. General Provisions �§ 68- 120 -117. Administrative inspection warrants; definitions; penalties (a)(1) "Issuing officer," as used in this section, means either: (A) Any official authorized by law to issue search warrants; or (B) Any court of record in the county of residence of the agency making application for an administrative inspection warrant; (2) "Building official," as used in this section, means any local government building official certified pursuant to . 68- 120 -113; provided, that such official is acting in their capacity as an official of a municipality or county, and provided that the official is seeking to enforce the ordinances or codes of such local government; and (3) "Agency," as used in this section, means any county, city, or town employing a building official certified pursuant to § 68- 120 -113. (b) In the event that a building official is denied permission to make an inspection and a warrant is required by the Constitution of the United States or the state of Tennessee to perform such inspection, a building official may obtain an administrative inspection warrant in accordance with the procedures outlined in this section. The provisions of title 40, chapter 6, part 1, shall not apply to warrants issued pursuant to this section. (c) The issuing officer is authorized to issue administrative inspection warrants authorizing a building official to inspect named premises. In so doing, the issuing officer must determine from the affidavits filed by the building official, acting as an officer of the agency requesting the warrant, that: (1) The agency has the statutory authority to conduct the inspection; (2) Probable cause exists to believe that a violation of law has occurred or is occurring. For the purposes of this section, probable cause is not the same standard as used in obtaining criminal search warrants. In addition to a showing of specific evidence of an existing violation, probable cause can be found upon a showing of facts justifying further inquiry, by inspection, to determine whether a violation of any state law or local building, fire, or life safety code is occurring. This finding can be based upon a showing that: (A) Previous inspections have shown violations of law and the present inspection is necessary to determine whether those violations have been abated; (B) Complaints have been received by the agency and presented to the issuing officer, from persons who by status or position have personal knowledge of violations of law occurring on the named premises; (C) The inspection of the premises in question was to be made pursuant to an administrative plan containing neutral criteria supporting the need for the inspection; or (D) Any other showing consistent with constitutional standards for probable cause in administrative inspections; (3) The inspection is reasonable and not intended to arbitrarily harass the persons or business involved; © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. TN ST § 68- 120 -117 Page 2 T. C. A. § 68- 120 -117 (4) The areas and items to be inspected are accurately described and are consistent with the statutory inspection authority; and (5) The purpose of the inspection is not criminal in nature and the agency is not seeking sanctions against the person or business for refusing entry. (d) The issuing officer shall immediately make a finding as to whether an administrative inspection warrant should be issued and if the issuing officer so determines, issue such warrant. No notice shall be required prior to the issuance of the warrant. (e) All warrants shall include at least the following: (1) The name of the agency and building official requesting the warrant; (2) The statutory or regulatory authority for the inspection; (3) The names of the building official or officials authorized to conduct the administrative inspection; (4) A reasonable description of the property and items to be inspected; (5) A brief description of the purposes of the inspection; and (6) Any other requirements or particularity required by the constitutions of the United States and the state of Tennessee regarding administrative inspections. (f) All warrants shall be executed within ten (10) days of issuance. (g) Any person who willfully refuses to permit inspection, obstructs inspection or aids in the obstruction of an inspection of property described in an administrative inspection warrant commits a Class C misdemeanor. (h) Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may in any judicial or administrative proceeding move to suppress any evidence or information received by the agency pursuant to such inspection. (i) If the court or the administrative agency finds that the inspection was unlawful, such evidence and information shall be suppressed and not considered in the proceeding. Added by 2003 Pub.Acts, c. 326, 1, eff. June 11, 2003. HISTORICAL AND STATUTORY NOTES 2003 Pub.Acts, c. 326, § 2, provides: The provisions of this act shall only apply in jurisdictions that require enforcement of building ordinances or codes and make inspections of premises to implement and enforce such ordinances or codes." T. C. A. § 68- 120 -117, TN ST § 68- 120 -117 Current through end of 2005 First Reg. Sess. © 2005 Thomson/West END OF DOCUMENT © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: 2/18/2014 ITEM TITLE: Resolution authorizing preparation and submission of proposed legislation to amend the Revised Code of Washington to provide for issuance of administrative search warrants for the enforcement of building, housing and life safety codes and statutes. SUBMITTED BY: Mark Kunkler, Senior Assistant City Attorney SUMMARY EXPLANATION: Cities in the State of Washington have authority to adopt and enforce building codes, housing codes, fire codes, abatement codes and other codes intended to safeguard the life, health and safety of its residents. In fact, in the case of building and fire codes, the city is mandated to adopt and enforce provisions of the International Building Code and International Fire Code. The City of Yakima has previously adopted such codes and several others, including the Uniform Code for the Abatement of Dangerous Buildings (Title 11 YMC). Courts in the State of Washington have held that administrative search warrants to enforce such codes are not available unless a specific statute or court rule exists authorizing issuance of such "administrative search warrants." The International Fire Code contains a specific provision authorizing designated fire officials to seek a search warrant for inspection of buildings and property, but no specific statute exists granting code administrative officers the authority to seek an administrative search warrant to enforce provisions of the city's building codes, housing codes, abatement codes or other life safety codes. (The only exception is a provision of the Residential Landlord- Tenant Act, RCW 59.18.150, which authorizes code enforcement officers to seek and obtain an administrative search warrant for enforcement of building codes, housing codes and life safety codes in the context of residential tenancies.) The attached Resolution seeks authorization from the City Council to research and prepare proposed legislation to be submitted to the state legislature. The proposed legislation would amend the Revised Code of Washington to add a new section authorizing issuance of administrative search warrants in these circumstances. Attached to the Resolution is an example of such legislation adopted by the State of Tennessee — which was cited by Washington courts as the type of statute that would grant administrative search warrant authority. We are also researching comparable statutes from the States of California, Texas and Vermont. • Resolution: X Ordinance: Other (Specify): Contract: Contract Term: Start Date: End Date: Item Budgeted: NA Amount: Funding Source /Fiscal Impact: Strategic Priority: Improve the Built Environment Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: City Manager RECOMMENDATION: Adopt Resolution. ATTACHMENTS: Description Upload Date Type Resolution- Proposed Amend Search Warrant Feb 2/11/2014 Resolution 18 2014 0 TENN insp warrant statute 2006 2/11/2014 Backup Material