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HomeMy WebLinkAboutHo decision & ltr Denis Law Mayor City Clerk-Jason A.Seth,CMC August 20, 2018 Mr. Harvey Ho 11128 Rainier Av S Seattle, WA 98178 Re: Hearing Examiner's Decision Code Case No: CODE-18-000148 Dear Mr. Ho: Attached is your copy of the Hearing Examiner's Decision dated August 18, 2018 in the above- referenced matter. If you have any questions, please feel free to call Jason Seth, City Clerk at 425-430-6502. Sinc rel , an Gregor, CMC Deputy City Clerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Robert Shuey, Code Compliance Inspector Kevin Louder, Code Compliance Inspector 1055 South Grady Way,Renton,WA 98057 • (425)430-6510/Fax (425)430-6516 • rentonwa.gov BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: CODE18-000148 ADDRESS of APPEAL SITE: 900 South Third Street Renton, WA 98057 PROPERTY OWNER: Harvey Ho Hugo Boss, LLC 11128 Rainier Ave. S. Seattle, WA 89178 REVIEW AUTHORITY: City of Renton TYPE OF CASE: Appeal sustained; no fine due. SUMMARY Harvey Ho appeals a Finding of Violation for mechanical code violations involving the relocation of a ventilation duct. Since the Finding of Violation fails to identify the code provision that Mr. Ho has violated and the code violation isn't reasonably self-evident from the record, the appeal must be dismissed. RMC 1-3-2(C)2(ii) requires a Finding of Violation to identify the "section or sections that form the basis of the violation." For good reason, this requirement enables a code enforcement defendant to understand exactly what is alleged against them and enables the hearing examiner to assess whether such a violation occur. Even without the RMC I-3-2(C)2(ii) requirement, due process would compel the dismissal of an appeal if there was any valid confusion over what code section applied to an alleged violation. In this appeal, the Finding of Violation doesn't identify any code section and instead generally identifies the violation as "Roof Top Exhaust Relocation." Two Warnings of Violation for this appeal identify Sections 506.3.11 and 507.2 of the International Mechanical Code("IMC")as the alleged code violations. These two sections specify design standards for ventilation ducts. If that is the violation, the City failed to prove it. The City presented no evidence that the ventilation duct design failed to comply with the design standards of the IMC. The corrective action to the Finding and Warnings of Violation require the submission of construction documents to assist the City in assessing whether the ducts are compliant with IMC 506.3.11 and 507.2, but there is no evidence or even allegation in the record that supports a finding that the ventilation duct actually fails to comply with these standards. Appeal - I Mr. Ho's tenant submitted an application for a mechanical permit to relocate the ventilation duct. Rather than presenting evidence on compliance with IMC 506.3.11 and 507.2,the City focused its entire case on the fact that Mr. Ho failed to supply construction drawings requested by the City for the mechanical permit. If the City's sole basis for the Finding of Violation is failure to provide construction documents, then the applicable code section would appear to be IMC 106.3. IMC 106.3 requires a mechanical permit applicant to submit construction documents. Even that section is questionable, however, since the remedy for failing to submit required application materials is typically denial of the permit, not punitive fines. What would make more sense is that the City considers the violation to be mechanical work that was unauthorized by permit and/or inspection. There was no evidence in the record as to whether the ventilation duct was already in use and little was identified about the amount of work completed other than a statement in the Finding and Warnings of Violation that the grease duct had been relocated. If duct work was done beyond the point authorized by inspection,then perhaps the violation would be IMC 702.2.3, which prohibits work to be done beyond that which is authorized by inspection. As is evident, the basis of the violation is highly speculative. The examiner cannot assess the appeal because it's unclear what code provision forms the basis of the violation. Even though the appeal must be dismissed on procedural grounds, this does not excuse Mr. Ho's behavior. Mr. Ho was issued two Warnings of Violation with two separate compliance dates for supplying construction documents. The evidence in this appeal shows that Mr.Ho failed to comply with both compliance dates and never responded in any manner to the Warnings of Violation. The Finding of Violation under appeal is the second Finding of Violation involving a serious public health and safety violation for which Mr. Ho was alleged or found to be noncompliant and uncooperative. Due to the egregious nature of Mr. Ho's alleged negligence, the City is invited to refile its Finding of Violation with correct citation to code. As noted in RMC 1-3-1(E), each day of noncompliance constitutes a separate violation. The Finding of Violation under appeal identifies April 24, 2018 as the date of violation. The City can pick any other date in which Mr. Ho still had an obligation to provide the construction documents as another day of violation. HEARING The appeal hearing was held on June 26, 2018 at the Renton City Hall Council Chambers„ 1055 South Grady Way, Renton, WA 98057. TESTIMONY Donna Locher, Renton Code Enforcement Officer, went over the code compliance narrative, Ex. 1. Two warnings of violation were mailed to Mr. Ho for failing to provide information needed to review a mechanical permit for the installation of a Type I Hood grease duct for the Yummy Juan's restaurant. The Applicant ultimately scheduled a final permit inspection for the day of the hearing. If the City had not persisted in getting the necessary information, it would never have received it and the code violation, which was for equipment already installed, was a safety hazard. The information wasn't submitted until June 8, 2018, more than two months after it was initially requested on March 16, 2018. This is not the first time the Appellant has failed to provide necessary information. A couple years ago a similar problem arose with a sanitary sewer system that needed repair. The City does not wish to waive fines because of the considerable time it took staff to acquire compliance and also because of the Appellant's past history in failing to cooperate Appeal -2 in the permitting system. In response to examiner questions, Ms. Locher confirmed that the duct had already been installed when the information was requested and the information was necessary to conduct a final inspection to verify compliance with the mechanical code. Harvey Ho, Appellant, noted he's the owner of the property but not the owner of the restaurant. He noted that when he's approached with a permitting issue from the City he's told by the tenant that everything is fine. Carlos Canvelas, tenant of the subject property, stated that he initially set up the hood and Mr. Ho asked him to relocate it. Because of this Mr. Canvelas had to get a new company, Newcastle Mechanic, to relocate the fan to the second floor where Mr. Ho wanted it. Newcastle Mechanic was responsible for the permits. Mr. Canvelas became involved when problems occurred with the City on two other permits. Permits were pulled and Newcastle Mechanic ultimately did the job right and got the work done to code. In response to examiner questions, Mr. Canvelas was unable to explain why it took so long to provide requested information. Jim Givens of Newcastle Mechanic stated that one of his employees put in for the permit over the counter and asked for what information was wanted. They were advised no drawings were necessary. Upon inspection the City discovered the permit was not what it understood the application was for and at that time pulled the permit. Mr. Givens wasn't aware that the City had requested additional information for the permit until the end of May. In response to examiner questions, Mr. Ho stated that he emailed Mr. Canvelas the information request he received from the City the day after he received it on March 17, 2018. Mr. Canvelas stated he forwarded all of the emails from Mr. Ho to his contractor as soon as he received it. In response to questions from Ms. Locher, Mr. Ho stated he didn't let Ms. Locher know he was working on the information request because he thought his contractor was working on it. Mr. Locher explained that the City issued the fine because there was no communications to the City that he was working on the problem. Ms. Locher noted that this wasn't the first time Mr. Ho has failed to work with the City on compliance. In response to examiner questions, Mr. Ho was fined $600 for three violations in 2016 because of a sewer leak on his private system and Mr. Ho failed to repair it despite multiple requests from the City. There have also been solid waste violations that didn't result in fines. Mr. Ho stated that the sewer problem was caused by his neighbor. In response to examiner questions, Mr. Locher confirmed that failure to construct the hood to code could create a fire hazard. EXHIBITS Exhibits 1-6 identified in the"File Table of Contents,"presented by staff, was admitted during the June 26, 2018 hearing. FINDINGS OF FACT Appeal - 3 1. Appeal. Harvey Ho appeals a Finding of Violation issued on May 22, 2018. Mr. Ho filed his appeal on June 1, 2018. 2. Finding of Violation. The Finding of Violation identifies the violation as "Roof Top Exhaust Relocation." The corrective action in the Finding of Violation required Mr. Ho to submit construction drawings for a relocated ventilation duct in a restaurant. 3. Failure to Provide Construction Drawings. Mr. Ho failed to provide the construction drawings required by the Finding of Violation despite at least three requests for such documents. Rick Lee, a City of Renton Building Plan reviewer,emailed Mr. Ho on March 16,2018 requesting the construction drawings. A Warning of Violation was then issued on March 19,2018 requesting the documents. The Warning of Violation gave a compliance deadline of April 2, 2018. Mr. Ho made no response to the email or Warning of Violation and the construction documents were not submitted by the required compliance date. A second Warning of Violation was then issued on April 24, 2018. The second Warning gave a compliance deadline of May 9, 2018. Again, Mr. Ho did not respond or submit the required construction drawings by the May 9, 2018 compliance date. The required construction drawings were finally provided after the subject Finding of Violation was issued and the relocated ventilation duct passed final inspection prior to the June 26, 2018 appeal hearing. 4. Failure to Establish Design Violations. As identified in the Summary section of this decision, the Warnings of Violation issued for this case identified the code violations at issue as IMC 506.3.11 and 507.2. The City provided no evidence of any failure to comply with these standards. There is no basis for concluding that the ventilation duct failed to comply with IMC 506.3.11 and 507.2 or any other City design standard. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-3-2. 2. Incomplete Finding of Violation. As identified in the Summary section of this decision, RMC 1-3-2(C)2(ii) requires a Finding of Violation to identify the codesection that serves as the basis of the violation. The Finding of Violation does not identify the code section and it is unclear what code section the City believes to be in violation. For these reasons, the appeal must be dismissed. DECISION The appeal is sustained and the Finding of Violation is reversed. No fine is due, no violation is found. Decision issued August 18, 2018. Appeal -4 Phi A.Olbrechts Hearing Examiner NOTICE OF RIGHT TO APPEAL Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days,as required by the Land Use Petition Act,Chapter 36.70C RCW. Appeal -5