Rental safety and health inspections began in Bellingham in the summer of 2016. In an August 2017 report to the Bellingham City Council [See report below], the director of planning indicated that inspections of 2,700 units had been conducted by both city and private inspectors. Approximately 1,000 (37%), of those inspections were done by private inspectors, but we know nothing (the black hole) about those inspections other than that, as of the day of the director’s report, 148 had not yet passed. We know this only because an inspection had been scheduled but no certificate of compliance had yet been received from the private inspector. These units were still “works- in-progress.” At least, we can deduce that a minimum of 15% (148/1,000) of private inspections begin with a failure, as opposed to those done by city inspectors which initially fail at a rate of nearly 50%.
The 50% figure is the result of a hand count of inspection reports done after several neighborhoods were inspected in 2016. Unfortunately, the data base of inspection results was not adequate to produce statistics regarding initial failures, failures at re-inspections, and ultimate approvals. The city is working on data base improvement to allow more sophisticated searches. However, because the city receives absolutely no reports from private inspectors, except notification of a final pass, there is a permanent black hole of information on the condition of those rentals and on the performance of the private inspectors themselves.
The simple solution is for the City Council to amend the rental inspection ordinance to require that private inspectors provide, along with the certification of compliance, a copy of the inspection checklist of the deficiencies found. Not so easy in Kafkaland, AKA Washington state where the Revised Code of Washington allows jurisdictions to demand private inspection checklists, but where language in a prior court case involving the city of Pasco indicates that this MIGHT pose 4th Amendment - illegal search and seizure - problems.
“Whether state action has occurred depends on the circumstances of a given case. E.g., id. (quoting State v. Clark, 48 Wash.App. 850, 856, 743 P.2d 822 (1987)); see also State v. Thetford, 109 Wash.2d 392, 401, 745 P.2d 496 (1987). A person is a state actor if that person functions as an agent or instrumentality of the state. Walter, 66 Wash.App. at 866, 833 P.2d 440 (citing Clark, 48 Wash.App. at 856, 743 P.2d 822). …
“The Pasco ordinance requires a landlord to submit a certificate of inspection, but it does not authorize the city itself to search for housing violations. The petitioners point to Kuehn v. Renton School District No. 403, 103 Wash.2d 594, 600, 694 P.2d 1078 (1985), in which we held that parent chaperones of a high school student trip acted with enforcement authority of school officials when they searched student bags. However, under the Pasco ordinance a landlord can engage private inspectors in order to further the private objective of obtaining a certification needed to maintain a business license. Significantly, if a private inspector finds code violations, the ordinance does not require the inspector to turn his or her findings over to the city. Thus, a landlord can remedy any violations found by an independent inspector, submit to another inspection, and obtain a license based on the new inspection, without the city ever being notified of the original violations. The city insists only upon the certificate that an inspection has been successfully completed. Landlords first and foremost further their own ends when they engage in the inspections contemplated by the ordinance. In sum, the petitioners have not met their burden of showing that landlords and their privately engaged inspectors are state actors. Absent state action, neither the Fourth Amendment, nor article I, section 7 was violated.”
So in Pasco at least, 4th Amendment “Armageddon” was avoided. Might I now remind those reading this that local landlords trotted out this risible 4th Amendment argument in an attempt to defeat Bellingham’s rental licensing ordinance at its outset. Fortunately, balderdash remains balderdash and they lost. But the slightest risk of engagement in a lawsuit is feared by city hall, even over ensuring protection for Bellingham’s tenant population. Oft-quoted Danton (“Audacity, more audacity, always audacity…”) would be sorely disappointed.
But Danton’s words are alive and well in Seattle where the Seattle City Council recently passed updates to the rental registration and inspection ordinance. They adopted that part of the Revised Code of Washington (RCW) that allows cities to demand inspection checklists and certificates of compliance if any unit under the private inspection fails the first inspection. The state law reads:
“RCW 59.18.12 5(e) If a rental property owner chooses to hire a qualified inspector other than a municipal housing code enforcement officer, and a selected unit of the rental property fails the initial inspection, both the results of the initial inspection and any certificate of inspection must be provided to the local municipality.”
The Seattle council added this to their ordinance this summer:
“If a rental property owner chooses to hire a private qualified rental housing inspector and a selected unit of the rental property fails the initial inspection, both the results of the initial inspection and any certificate of compliance must be provided to the Department. The Department shall audit inspection results and certificates of compliance prepared by private qualified rental housing inspectors. Based on audit results, the Department may select additional units for inspection in accordance with subsection 22.214.050.G.3. If the Department determines that a violation of this Chapter 22.214 exists, the owner and qualified rental housing inspector shall be subject to all enforcement and remedial provisions provided for in this Chapter 22.214.”
Bellingham should follow the example of Seattle and drop its timid approach to health and safety issues. Adding language similar to that of Seattle gives Bellingham additional information that would allow city hall to compare the initial failure rates of private inspectors to the failure rates under city inspectors, which is currently about 50%. If the private inspection failure rate is not at the same level as that of the city code enforcers, an immediate flag is raised.
Concomitantly, Bellingham could also change the rental ordinance to require audits of private inspections on a random basis, performed by city inspectors at no cost to the landlord. An additional provision could allow that discovery of deficiencies surfaced by other means, such as the fires on Jersey St. and the code complaints on Lakeway Dr., would automatically trigger an audit of units that had been inspected by a particular privately contracted inspector.
We do not have to wait until Bellingham’s first three year rental inspection cycle is finished to amend our ordinance. In fact, if we do wait, another several years worth of information about private inspections will be lost.