May 8,  2003

Everyone who rents residential property in an unincorporated area of New Castle County might have to obtain a license to do so. They also might be required to, in effect, swear that their properties meet the standards of the housing code and be subject to perjury charges if they don't.

Those were two of new ideas put forth as members of the task group which has been attempting since last July to craft an ordinance intended to eliminate, or significantly reduce, the amount of substandard rental housing sought to reconcile its consensus approach with the practicalities of administering and enforcing whatever law is enacted.

After hearing several objections to some provisions in the latest in a series of drafts of a potential ordinance from county officials who would have the job of making it work, County Council president Christopher Coons established two sub-groups and asked them to address the concerns that were raised and work out the differences. Although he indicated he still is anxious to get something on the books to deal with a generally recognized 'quality of life' problem, he said he is willing to wait as long as necessary to get a measure that is both workable and fair to all the interests involved.

At this stage, there is general agreement about requiring property owners to register with the county Department of Land Use and to distribute to all tenants a comprehensive guide explaining what to do to have specific common problems corrected. There also is an acceptable provision to establish an advisory panel, along the lines of the task group, to monitor effectiveness of the law and recommend changes as needed. Unless Council renews it, the law would expire after three years.

The hang-up lies in the section setting up a system to randomly inspect properties in the absence of actual tenant complaints and levy fines for code violations, failure to register or not distributing the literature.

The land use department's code-enforcement section now inspects properties, rental or otherwise, only in response to complaints and concentrates its efforts on correcting violations rather than penalizing property owners. George Haggerty, assistant general manager of the department, told the group there were 350 rental properties found with violations of the code last year, but no one was fined because the violations were corrected.

He suggested taking a cue from the federal Internal Revenue Service and including a line on the property-registration form, similar to the one on tax returns, by which the filer certifies under penalties associated with perjury that the information submitted is accurate. There would be a question on the registration form asking if the property was in compliance with the county building code. If it was later found not to be in compliance and the case ended up in court, a conviction on the more serious offense would be relatively easy to obtain, he explained.

Licensing rental property owners would provide a further enforcement tool, Haggerty said. Instead of having to go to a justice of the peace to prosecute a serious offender, the department could administratively suspend or cancel the license. That would put the offender out of business at an offending property until violations were corrected.

Sherry Freebery, the county's chief administrative officer, endorsed both ideas, comparing the linking of inspections, registration and licensing with the state's motor vehicles system. "It's not arbitrary or discriminating," she said, adding that license fees would help pay for administering the law.

While not directly opposing those suggestions, Fred Quercetti, of the Delaware Apartment Association, said that a New Castle County rental code should be cast in the light of how the business operates here and avoid bringing it under the jurisdiction of a bureaucratic system. "We don't want to develop a system that puts us in the same category as those larger jurisdictions," he said, referring to Bergen County, N.J., and Santa Ana, Calif., which have been identified as having rental codes which New Castle could emulate.

The county officials came down heavily on the task group's proposed three-tier system of random inspections of properties which are not the objects of specific  tenant complaints. The system was devised on the assumption that the majority of violations go unreported because tenants either are unaware that they have an avenue of recourse or are intimidated by landlords who threaten eviction or other adverse consequences.

Haggerty said the land use department "has a tremendous amount of difficulty with a random process." He said inquiries to several counties which have rental codes and are comparable to New Castle found none that employ such a system.

Charles Baker, the department's general manager, said he is unable to estimate how much it would cost to administer the group's proposed random system. It calls for at least twice as many properties with a history of relatively minor violations to be inspected than those with no such history and at least twice as many with major violations than with minor ones.

"Tell me how many more [properties] you want us to inspect than we're doing now and we'll budget for it," he said, adding that County Council has to be willing to provide the money to hire the additional code enforcement officers that would be required.

Baker predicted that, apart from random inspection, the education component of the proposed ordinance would increase the number of complaint-initiated inspections to about 900, nearly triple the number last year.

At the same time, he said, assuming the accuracy of a just-published Delaware Housing Authority study which found about 7% of apartments to be below standard, the law would require the department to deploy its force knowing that officers would find no violations at 93 out of every 100 properties they visit. Haggerty called that a costly "waste of assets."

Baker said determining which and how many properties to inspect in each of the three categories invites error. "The more complex you make it, the easier it is to make mistakes," he said.

However, Steven Peuquet, of the University of Delaware, who chaired the committee which designed the random inspection system, defended it, saying that it would be easy to manage and a practical approach. Inspecting 400 properties a year would provide a statistically valid sampling of conditions in the county, he said.

Baker replied that that was irrelevant. "We're not trying to find out how many properties are substandard. The issue is to get the 7% that we [now] know are substandard up to standard," he said.

Michael Morton, the apartment association's lawyer, said that random inspections are the only way "to determine if we have a serious problem:" which requires a permanent program. Inspection fees for such a program would necessarily be "built into the rent" and thus passed on to tenants and, in most instances, to tenants of lower socio-economic status who can least afford to bear them.

Mary Jacobson, of the county Law Department, said that the random system, as proposed, would be difficult to defend in court. "You can't just have randomness; you have to have a concrete reason to knock on somebody's door [to inspect a property]," she said.

Among other things, determining whether a violation is major or minor, on which frequency of inspection is based, is a subjective matter. "You shouldn't give someone out in the field with a clipboard the burden of making that decision." she said.

At the extreme, she said, the system could be attacked on constitutional grounds as the violation of the Fourth Amendment prohibition against unreasonable search and seizure and probable-cause requirement. "There is a reason you don't see 'random' in [property] codes. The Constitution said the government can't go banging on doors saying, 'We're here'," she said.

On a very fundamental level, she pointed out, the proposed ordinance's requirement that a history of violations determine the frequency of inspection is mathematically impossible to implement. The number of properties in the lowest category would have to be zero because there would be no history on which to base placement of properties into the two higher categories which require twice as many inspections.

2003. All rights reserved.

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