County takes inspection fees, but not responsibility
By HOWARD TROXLER
Published September 9, 2004
This might be a bad week to bring it up, but Pinellas County just won a court case by arguing that its building inspections are not intended to ensure public safety.
You read that right. The county argued that it's not promising anything to the public when it inspects a construction site, approves each stage of that construction and issues a final Certificate of Occupancy.
"The county is not an insurer of public safety," argued Thomas E. Spencer, the assistant county attorney who won the case. "The government is not an insurer of buildings."
How encouraging.
The case in question involves the now-infamous Nature's Watch townhome community in the East Lake area of Pinellas.
The place was built so shoddily that owners faced up to an extra $92,000 apiece in repairs.
Among the complaints: The upper floors of some buildings were not properly connected to the ones below. A three-story chimney had only a two-story flue and could have burned the place down. (By the way, the blaze would have been helped along by the absence of fire stops in the walls.)
The builders also used non-pressure-treated lumber where they weren't supposed to, and then compounded the problem by not capping off the right places, so that water got inside and rotted everything out.
Naturally, there are a lot of lawsuits flying around. So earlier this year some of the homeowners decided to take a legal whack at the county, too, for approving the buildings.
The result is the case of William Isaacs, et. al., vs. County of Pinellas.
The county's defense was simple: You can't sue the government for this kind of stuff. The Florida Supreme Court said so in a landmark 1985 case from Hialeah.
That case said a citizen can't sue the government for the way it exercises, or fails to exercise, its "police powers" to help regulate society. Building inspections would count.
So the local judge who heard the Pinellas case, John C. Lenderman, rightly threw out the lawsuit.
And yet ...
And yet, this result feels unjust. It leaves the government largely unaccountable.
The government, remember, collects millions of dollars of revenue from the private sector in the form of permits and fees to pay for these inspections, under the pretense that it is doing something worthwhile.
But if the inspection process doesn't mean anything, if the public can't count on the government's word - well, then why do it?
County Attorney Susan Churuti, whom I love to torment with such matters, paused for a few seconds when I posed that question.
"I guess ..." she began, and then laughed. "I guess the answer is, for the public good." Surely inspections have some societal value even if buyers can't sue, she said.
Churuti said if the government were legally liable for its inspections, then it probably would stop performing them altogether. The public would be in more danger.
More danger? As opposed to the "protection" the county provided for the Nature's Watch homeowners? At least if buyers knew that there were no rules, they might be better positioned to protect themselves. Maybe we should rely on private inspectors, hired by buyers - and liable for negligence, too.
The homeowners are appealing. Henry A. Stein, their lawyer, hopes the Supreme Court will take this case to clear matters up. After its 1985 ruling that protected government, the court later issued other rulings that might have reopened the door. For example, in 1988, the court said the state could be sued for failing to protect an abused child.
"They're arguing," Stein said of the county's position, "that a duty to all is a duty to none."
True. The county's position is that the government would not be liable even if its employees were accepting sacks of cash to approve faulty buildings that were then sold to an unsuspecting public.
The 2nd District Court of Appeal should kick this case up to the Florida Supreme Court, which should accept it and craft a common-sense standard. Surely there is a point at which government negligence or incompetence must be answered for. If not, then the government's seal of approval means nothing, and it should be abolished.
