From: Paul Smith
To: Mayor and Board of Aldermen
Date: January 7, 2009
Re: Overcrowding and the Property Maintenance Code
One item on today’s workshop agenda is a proposed property registration law. Any such registration would presumably include determining whether properties are in compliance with the City’s Property Maintenance Code (PMC). Having recently reviewed the City’s Property, I expect that at least half of the properties in the City are currently in violation of one or more of the requirements of the PMC. Even one violation of the PMC can bring about a fine to the property owner of $400/day of violation until the non-complying matter is corrected.
In light of this it is my recommendation (1) that only those property owners who are renting their property to non-family members be required to register; and (2) that we promptly amend the PMC to eliminate some of the oppressive requirements therein.
The PMC became the law in Frederick City on February 1, 2007. The text of the law is not found in our green, bound volume of laws, but is found in a separate book. While this law governs housing issues in the city, reference is not made to the PMC in the housing section of the City Code.
Three sections of the PMC give the City substantial powers to enforce overcrowding. The existence of these three powers should be sufficient to address the overcrowding problems that do occur in the city. These provision provide the city a “right of entry” (Section 104.4) and make it clear that non-compliance with the PMC is a violation that warrants fines and orders to bring the property into compliance (106.1 & 106.3). Fines can be as much as $400/day for each violation (106.3). This fully empowers the City to address overcrowding problems. It only needs to be enforced.
The right of entry is very important (104.4). It empowers the city officials to enter and inspect a property for compliance with the PMC. There is no need for city officials to take a lot of time to stake out a property. If there is a complaint, officials have the right to request entry for inspection. If entry is denied city officials would have to apply to the district court for a search warrant to inspect. Presumably the district court would require a showing of probable cause for such a search. Therefore, the application for a warrant would have to be supported by signed affidavits that would establish probable cause that one or more of the provisions of the PMC has been violated.
Not only is the PMC fully adequate to address overcrowding problems, but it is my opinion that the requirements are excessively strict and that they unduly interfere with personal privacy rights, such that all or at least parts of the PMC could be struck down as unconstitutional. And, even if a court would uphold all of the PMC provisions, I believe that a majority of the citizens of the city would find many of them to be excessively harsh, oppressive and offensive.
Accordingly, it is my recommendation that we amend the PMC to eliminate the harsh and offensive provisions.
Here is a list of the PMC provisions which I contend are excessive and offensive and which should be repealed:
105.4 If equipment or devises are repaired in the home, “materials, equipment and devices shall not be reused unless such elements are in good repair or have been reconditioned and tested when necessary, placed in good and proper working condition and approved.” These restrictions are unnecessary and oppressive. We don’t need “Big Brother” second-guessing everything we do to maintain and repair our homes. If the city should determine that what a resident did to repair something was inadequate, then that resident would be in violation of the PMC and could be fined up to $400/day.
106.1 It is unlawful for “an owner, occupant or tenant” to “occupy [or] permit another person to occupy any dwelling unit . . . in violation of any provision of this code.” This is an incredibly oppressive law. Some of the violations prescribed in the PMC are of such a minor, inconsequential nature that it is totally inappropriate to make it illegal to occupy or permit other to occupy a dwelling. Not all acts prescribed in the PMC warrant the same harsh penalty. Some rational differentiation should be made so that the penalty is appropriate for the violation.
106.3 The $400/day penalty is excessive—especially in light of the many specific violations that are covered by the PMC. Each day of violation is made to be a separate offense. That penalty amount should be reduced to $100/day or less.
107.5 It is unlawful to transfer (i.e., sell or even mortgage) a property for which the city has issued a non-compliance notice unless and until the non-compliance is first corrected.
302.4 It is a violation to allow grass or weeds to grow in excess of ten inches. I’m not sure what this has to do with overcrowding. But violation can bring a fine of $400/day.
302.8 This section makes it illegal to store and inoperative or unlicensed motor vehicle on your premises. In addition a vehicle cannot be in a state of major disassembly or disrepair. Neither is it legal to paint a vehicle “unless conducted inside an approved spray booth.” This provision is excessively harsh, overly broad, and downright oppressive. It would make it illegal to do touch-up paint on one’s car without doing so in an “approved spray booth.” That’s ridiculous!