OAG Testimony on the Proactive Inspection Program Act of 2022

Statement of Monique Cobb
Assistant Attorney General
Office of Attorney General for the District of Columbia
Before the
Committee of the Whole
Chairman Phil Mendelson, Chairperson
Public Hearing
Bill 24-947, the Proactive Inspection Program Act of 2022
November 3, 2022

Good morning, Chairman Mendelson, Councilmembers, staff, and residents of the District. My name is Monique Cobb, and I have the privilege of serving as an Assistant Attorney General in the Office of the Attorney General for the District of Columbia (OAG) in the Social Justice Section of OAG’s Public Advocacy Division. The Office of the Attorney General strongly supports Bill 24-947, the Proactive Inspection Program Act of 2022. This important bill will ensure that the newly created Department of Buildings (DOB) will have an effective proactive inspection program, which is critical to ensuring safe housing for the District’s most at-risk residents.

OAG Works to Protect the District’s Most At-Risk Residents
The District is in the midst of a housing crisis, with too many residents struggling to access safe and affordable places to live. OAG has made it a priority to use the law to preserve existing housing and to protect District tenants. One of OAG’s core missions is to preserve affordable housing and disrupt the business model that drives out long-term residents for quick profits. As part of OAG’s focus on protecting tenants, OAG aggressively enforces the Tenant Receivership Act; the Consumer Protection Procedures Act; the Lead-Hazard Prevention and Elimination Act; the Drug, Firearm, or Prostitution Nuisance Abatement Act; and the DC Human Rights Act, which together protect tenants from civil rights or housing code violations. This bill will help support this work by ensuring reliable and effective enforcement of the District’s housing code.

The Importance of a Proactive Inspection Program
Implementation of an effective proactive inspection program is critical to ensuring rental housing is habitable and safe, particularly in underserved communities.1 Proactive inspection plans are more effective than complaints-based inspection systems because many of the most at-risk residents do not complain about unsafe housing conditions. They may, for example, not know their rights or may face a language barrier. Some may be afraid that if they complain about their housing conditions, their landlord will retaliate against them. Residents who are undocumented may fear contacting a government agency. Because complaints-based systems have been shown to result in under-enforcement of the housing in neighborhoods most in need of enforcement, jurisdictions across the country have implemented proactive inspection programs.

In 2009, the director of DC’s Department of Consumer and Regulatory Affairs testified before the Council on the importance of an effective proactive inspection plan in the District of Columbia. She said, “[i]t’s quite clear that a complaint-based system is no longer sufficient if we want to maintain safe housing conditions for all residents, especially our most vulnerable – the poor, the elderly, the non-English speakers.” She noted that “[f]or the vast majority of properties named in the slumlord lawsuits [initiated by the Attorney General], DCRA had not received any recent complaints from residents of those buildings. And for the worst of the properties, we never received a single complaint.” In recognition of the need for such a plan, the Council included in the legislation that created the Department of Buildings a requirement that it conduct both proactive and complaint-based residential housing inspections.

The Proactive Inspection Plan Should be Codified
Although DCRA established a proactive inspection plan in 2010, neither the plan nor its implementation has effectively addressed housing code violations. DCRA inspects a relatively small percentage of units, and the current plan does not ensure proactive inspections prioritize communities and properties most likely to have housing code violations. Additionally, the inspections DCRA has conducted have not been effective at discovering and abating unsafe conditions. Fines and penalties have been insufficient to bring problem landlords into compliance with the housing code. Through our work enforcing District housing law, OAG has seen that DCRA’s housing inspection plan has failed to uncover and remediate dangerous conditions in rental housing.

This bill will increase the effectiveness of the newly created Department of Buildings’ inspection program by codifying a robust strategic plan for proactively inspecting properties within DC; increasing transparency as to what is in the plan; providing a risk-based algorithm to target properties and focus resources; and creating an enforcement scheme that will help deter potential bad actors from not maintaining their properties.

Proposed Modifications to the Bill to Increase its Effectiveness
OAG, however, recommends, several changes to the bill to ensure it is effective at protecting the most at-risk communities.

First, the proactive inspection program should be designed to ensure public inspection resources are focused on Wards 5, 7, and 8, because these wards have the highest poverty rates and because residents living in these wards may be less likely to make complaints about housing conditions. The formula currently in the bill is based, in part, on past complaints, and therefore may continue to result in underenforcement of the code in these Wards.

Next, the program should require more frequent inspections and include additional factors in prioritizing properties for inspection. The bill contemplates that multi-family rental properties in the District will be divided into tiers based on specified factors, with properties in each successive tier receiving more frequent inspections. Properties in tier one, however, will only be proactively inspected every eight years, which is not frequent enough. OAG recommends that properties in this tier be inspected every 5 years. The bill also should be more specific as to how properties are placed in each tier and should include additional factors in determining in which tier to place a property, for example the severity of prior violations, as opposed to the number of violations, and whether the property owner has a Basic Business License.

The program also should prioritize buildings whose owners have a history of non-compliance, because these owners may own multiple properties that are in violation of the housing code. In OAG’s case against Sanford Capitol,8 for instance, OAG learned that Sanford Capitol owned multiple properties with significant housing code violations, including the presence of pests, mold, leaks, and insufficient security. Where an owner has exhibited a pattern of non-compliance with the housing code, DOB should classify its properties to require more frequent inspections.

The bill requires that proactive inspections include a certain percentage of units depending on the size of the building. But these provisions should be modified to include a requirement that the sample include a diversity of type of unit on the property. For instance, if a property includes multiple buildings, at least one unit in each building should be inspected. Properties with multiple floors should have at least one unit on each floor inspected. In one case OAG handled, for example, inspecting units on multiple floors revealed that there were leaks from higher level units into the units beneath them.

The bill should also be modified to clearly include a requirement that vacant properties be included in the proactive inspection plan. Through enforcement of the Drug-, Firearm- and Prostitution- Related Nuisance Abatement Act, OAG has seen that vacant properties attract drug-, firearm- and prostitution-related nuisance activity. Moreover, vacant properties could create health issues for neighboring properties, like rodent infestation, gas leaks, and fires.

The bill also should require that some proactive inspections be conducted without advance notice. Currently, the bill requires inspectors to give owners notice that their property will be inspected. OAG has seen owners work to hide violations from inspectors without addressing the underlying issue. For example, in one OAG case, on the day before the DCRA inspection, the owner replaced drywall and painted walls to hide leaks and mold growth. Signs of mold quickly resurfaced after the inspection. A proactive inspection plan should therefore include some inspections that are noticed ahead of time, as well as some surprise inspections of common areas and allowing tenants to agree to have their units inspected if they choose, so the true condition of a property can be ascertained.

Lastly, because OAG plays a critical role in the overall enforcement scheme, particularly to address buildings whose owners who fail to address unsafe conditions or who fail to timely respond to DC inspectors’ Notices of Infractions, OAG should be included in any reporting to Council related to the list of properties inspected during proactive inspections.

Thank you for holding a hearing on this important bill. This bill will help ensure that the Department of Buildings implements an effective proactive enforcement plan, which is critical to protecting at-risk residents from unsafe living conditions. OAG strongly supports the bill but urges the Council to modify it to ensure the proactive inspection plan will be effective. OAG looks forward to working with the Council and the Department of Buildings to ensure effective and fair enforcement of the District’s housing code to provide safe housing for District residents. Thank you, and I welcome any questions.