City leaders debate liability, feasibility concerns for commercial inspections

Elected city leaders at their July 10 meeting continued to debate about whether the commercial inspection program should be eliminated. The Newton City Council and the mayor largely believe the program is more of a nuisance for business owners, but there are still many concerns and unanswered questions.

Council member Randy Ervin questioned what would happen if something devastating happened to a building after the city removed the commercial inspections ordinance, referencing the partially collapsed, six-story apartment building in Davenport that resulted in the deaths of three people.

“Since we had an ordinance to do an inspection, if we remove the ordinance to do the inspection and something serious like that would happen, would the city be liable in the courts?” Ervin asked city attorney Matthew Brick, who noted that being liable and the likelihood of getting sued are two different things.

Brick said the city would most likely be the target of a lawsuit because it has the deepest pockets, but “it would be difficult to establish liability” by just removing the commercial inspections program from city code. There are other factors to consider when determining liability.

“Speed limits, for example. If we had no speed limits, even then it’s still hard to establish that the city was ultimately responsible because there are so many other factors,” Brick said. “Like the building collapse — poor construction, poor maintenance, poor this that and the other.”

It would be very difficult determine the city was responsible.

Council member Vicki Wade wanted for further clarification from Brick, asking if the city would still be subject to lawsuits even with its commercial inspection program still in place. Brick confirmed the city would be subject to any kind lawsuit so long as there are individuals willing to pay the $300 fee to do so.

“Having an ordinance in place makes it less likely those things happen to those buildings,” Brick said. “…But it wouldn’t eliminate the potential for us being sued.”

Newton Mayor Mike Hansen noted again that the building in Davenport — along with a property the city is currently in litigation over — are rental properties. Thus, they would be subject to the rental inspection program rather than the commercial inspection program, which is currently suspended.

Council member Evelyn George recalled when the mayor formed an advisory committee in 2020, and the result of that group’s work is what ultimately established the commercial inspection program. The goals of the committee were public health and safety, improved curb appeal and compliance.

“It’s the compliance piece that was missing in the past,” George said. “If we blow up this code, where are we? We do not have a fire marshal. We, the people up here, approved the hiring of a fire marshal without that person having any inspection responsibilities. And we included it in the budget.”

George also pointed out that an ad hoc committee was created and worked for months trying to find a solution, but it has not been given the opportunity to produce any proposal for council consideration. The ad hoc committee had met with commercial property owners for feedback after the program was suspended.

Wade said the fire marshal position did have inspection responsibilities, contradicting George’s claim. Newton City Administrator Matt Muckler said the position would be in charge of code enforcement, but it would be up to the council to decide how much enforcement he or she would be doing.

“In a case where this ordinance is approved and the current program is repealed, then the fire marshal would have 100 percent of commercial building inspection responsibility,” Muckler said. “We’d likely go back to a similar program that we had prior to this being enacted.”

Which, George reminded, was the program that the city had difficulty enforcing compliance because there were not enough resources applied to it. Wade questioned whether it was actually inadequate and that the bad cases were just outliers. George maintained the fire marshal was overwhelmed by the program.

Between the inspections and the follow-ups and all of the other responsibilities that came with the job, George argued it was difficult for the fire marshal to keep up. The city is currently without a fire marshal but is in the process of searching for a fire prevention specialist, which would effectively serve as a fire marshal.

Hansen contends the data shared with the council shows a vast majority of commercial property owners are passing their first inspections.

“What we were doing in the past with fire inspection and life safety inspection was adequate for our business owners and adequate for us,” he said. “The resources that council member George speaks about, I agree with her. We don’t have the manpower we had in the fire department today.”

The mayor reiterated he is strongly against inspections that go beyond fire and safety. Plus, the funds council set aside to hire a fire marshal was not drawing the candidates the city wanted for its fire department. Hansen proposed to divert money currently used for commercial inspections to go towards that salary.

“If we need that money to hire a competent individual as a fire marshal, and what was adequate and served our community very well for the past umpteen years … all of a sudden that’s not adequate anymore?” Hansen said, noting that past inspection practices have worked for decades.

“Show me one incident that we had here in this community in the past 80 years that was a result of us not having a commercial inspection program that endangered the life our of public here in our community,” Hansen said. “Show me one. It’s all I’m asking. Show me one. You can’t.”

There is no reason for the city to be spending money on an inspection program “in the depths that we are doing it today,” he added.

It was not the fault of the fire marshal some of these inspections were not getting done adequately; Hansen said it was the fault of the city’s elected officials for not adequately funding the fire department. The mayor said the responsible thing to do would be to eliminate the current inspection program and create a new one.

Ervin reminded fellow council members that commercial inspections have been suspended for about four months now. He questioned how long it would take to get a fire marshal hired. Newton Fire Chief Jarrod Wellik said the department could fill the position within the next two weeks.

“Would one of them or all of the candidates at this point be able to assume the responsibility of (fire and safety) inspections?” Ervin asked.

Wellik answered, “The short answer is: No. The short answer is: They’re going to take some on-the-job training to get them to a position where they can do it.”

Throughout council discussion, there has been a lot of back-and-forth regarding the city not having a fire marshall. Wellik said this is not true.

“I am the fire marshal in Newton,” he said. “I delegate that to other people when I have the position available to do it. And I can tell you the fire marshal position is a heavy lift. It is one of the most public figures in the community behind my position. It is the face of the fire department for commercial businesses.”

Since 2019, Wellik has been pulling double duty as fire chief and fire marshal. It’s burned him down, he said, because it’s “too big a lift.” The two candidates the fire department has are internal, but it is still going to take time training them and making sure they earn specific certifications.

Muckler confirmed the city has budgeted funds for the fire prevention specialist/fire marshal position for this current fiscal year.

The second consideration to remove the ordinance passed in a 5-1 vote, with George voting no. Council will review the third and final consideration July 24.