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November 21, 2001

Beginning Jan. 1, New Castle County will prosecute all property code case in Justice of the Peace Court No. 11 at Hares Corner. That is expected to strengthen the county's hand in enforcing the laws.

Eric Episcopo, acting chief attorney, said the county's law department and the state's chief magistrate, Patricia Griffin, agreed to the arrangement on a pilot basis to determine if having the cases heard before a small group of judges will provide more consistency in processing the cases and the sentences which are handed down.

Such cases will be heard on the second and fourth Thursday mornings of each month, with the option to add a third set time if that proves necessary, he said. Fewer than 5% of cases arising out of code enforcement complaints end up in court; most are resolved without enforcement officers having to bring criminal charges.

The agreement is based in a similar arrangement by which the city of Wilmington brings all such cases to the only magistrate court located in the city. City officials say they are satisfied with the results. The city has far more property cases than the county.

The agreement apparently resolves one of three major issues presented to a legislative committee chaired by state Representative Robert Valihura which was established after county officials complained that magistrates were not taking code enforcement seriously and were letting scofflaws off the hook with figurative slaps on the wrist, if that.

Proposed state legislation which Valihura drafted to strengthen the laws and limit the lower court judges' description toward leniency by setting minimum mandatory sentences bogged down for lack of consensus at a committee meeting on Nov. 20. Valihura agreed to modify it language and bring it back to the committee before the General Assembly reconvenes in January.

County Councilman Robert Weiner, who has led the charge for stricter enforcement, told the meeting that he is not yet satisfied that there is a procedure enabling him and his colleagues to track the disposition of property code complaints brought by their constituents.  He said the recent appointment of Marty Kirk as community governing administrator, with responsibility for code enforcement, promises improvement in that regard.

He said numerous continuances of court cases resulted in resolution of complains stretching out, in some instances, over a matter of years, giving people the impression the county was lax in enforcing its codes or was unable to do so. Weiner also acknowledged that judgments about whether to prosecute cases based upon such things as claims of personal hardship are responsible for some such situations.

"I have a very bad feeling that we're going to be back hearing complains from the public if we don't keep track," he said.

It also was disclosed at the committee meeting that the law department has determined that a long-standing situation involving a house literally smothered with ivy apparently does not violate the housing code. "The code does not authorize us to cite anyone for having ivy on their house," said Megan D'Iorio, a county lawyer.

In response to a comment during discussion that "a lot of Du Ponts would be unhappy" if it did, Valihura said the case in point went well beyond using the green vines as legitimate adornment for stately residences and other buildings and affected the health and safety of the surrounding community. That Claymont property owner has been cited numerous times for other code violations.

D'Iorio agreed to look again at the situation -- about which a Delaforum report lead, in part, to formation of the committee -- from that perspective.

While  presenting a draft of proposed legislation Valihura told the committee that, while he favored enacting such a law, "I doubt if it is going to fly politically."

Because it indirectly enables magistrates to impose jail sentences of up to 30 days, it is likely to be viewed as at least threatening to imprison someone for failure to cut their grass. State lawmakers, he indicated, are unlikely to agree with Weiner's characterization of it as "an ultimate weapon" whose presence, even if never used, would induce compliance with the codes.

Both county and city of Wilmington property codes provide for jail sentences, but state law, which takes precedence, does not specifically authorize that penalty for such offences. Griffin has concluded that, without such authorization, magistrates cannot do so.

Valihura's proposal would change that by establishing a new state crime which he calls "community nuisance." That is defined as the third or more offense against the same provision of a county or municipal building, housing, health or sanitation code within a three-year period. It would be designated as an 'unclassified misdemeanor', for which state law allows authorizes up to a month in jail.

Prosecutors would have the option of deciding whether they wanted to bring a charge under the state code or the local law. If brought under state law, the defendant would have the right to have the case transferred to the Court of Common Pleas, where he or she could have a jury trial.

While that got endorsement from the committee -- Valihura said he would not take votes but act only on consensus -- sections of the law setting minimum penalties for violations which would increase with repetition. The minimum fines, which could not be suspended in whole or in part, would range upward from $100. The maximum for a third or subsequent offence would be $2,000.

The discussion which followed centered on the wisdom of limiting judicial discretion and Valihura decided to table the issue pending modification of the language in the proposed law.

2001. All rights reserved.

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