Virginia Administrative Code › Title 13 - HOUSING › Agency 5 - DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT › Chapter 63 - VIRGINIA UNIFORM STATEWIDE BUILDING CODE › Part III - Maintenance › Section 13VAC5-63-480 - Section 104 Enforcement, generally

Current through Register Vol. 40, No. 24, July 15, 2024
A. Section 104.1 Scope of enforcement. This
				  section establishes the requirements for enforcement of this code in accordance
				  with subdivision C 1 of §
										36-105
				  of the Code of Virginia. The local governing body may also inspect and enforce
				  the provisions of the USBC for existing buildings and structures, whether
				  occupied or not. Such inspection and enforcement shall be carried out by an
				  agency or department designated by the local governing body.
In accordance with subdivision C 3 of §
											36-105
					 of the Code of Virginia, if the local building department receives a complaint
					 that a violation of this code exists that is an immediate and imminent threat
					 to the health or safety of the owner, tenant, or occupants of any building or
					 structure, or the owner, occupant, or tenant of any nearby building or
					 structure, and the owner, occupant, or tenant of the building or structure that
					 is the subject of the complaint has refused to allow the code official or his
					 agent to have access to the subject building or structure, the code official or
					 his agent may make an affidavit under oath before a magistrate or a court of
					 competent jurisdiction and request that the magistrate or court grant the code
					 official or his agent an inspection warrant to enable the code official or his
					 agent to enter the subject building or structure for the purpose of determining
					 whether violations of this code exist. After issuing a warrant under this
					 section, the magistrate or judge shall file the affidavit in a manner
					 prescribed by §
											19.2-54
					 of the Code of Virginia. After executing the warrant, the code official or his
					 agents shall return the warrant to the clerk of the circuit court of the city
					 or county wherein the inspection was made. The code official or his agent shall
					 make a reasonable effort to obtain consent from the owner, occupant, or tenant
					 of the subject building or structure prior to seeking the issuance of an
					 inspection warrant under this section.
Note: Generally, official action must be taken by the local
					 government to enforce the VMC. Consultation with the legal counsel of the
					 jurisdiction when initiating or changing such action is advised.
B. Section 104.1.1 Transfer of
				  ownership. In accordance with subdivision C 4 of §
										36-105
				  of the Code of Virginia, if the local building department has initiated an
				  enforcement action against the owner of a building or structure and such owner
				  subsequently transfers the ownership of the building or structure to an entity
				  in which the owner holds an ownership interest greater than 50%, the pending
				  enforcement action shall continue to be enforced against the owner.
C. Section 104.2 Fees. In accordance with
				  subdivision C 7 of §
										36-105
				  of the Code of Virginia, fees may be levied by the local governing body in
				  order to defray the cost of enforcement and appeals. For the purposes of this
				  section, "defray the cost" may include the fair and reasonable costs incurred
				  for such enforcement during normal business hours, but shall not include
				  overtime costs unless conducted outside of the normal working hours established
				  by the locality. A schedule of such costs shall be adopted by the local
				  governing body in a local ordinance. A locality shall not charge overtime rate
				  for inspections conducted during the normal business hours established by the
				  locality. Nothing in this provision shall be construed to prohibit a private
				  entity from conducting such inspections, provided the private entity has been
				  approved to perform such inspections in accordance with the written policy of
				  the code official for the locality.
D. Section 104.3 State buildings. In
				  accordance with §
										36-98.1
				  of the Code of Virginia, this code shall be applicable to state-owned buildings
				  and structures. Acting through the Division of Engineering and Buildings, the
				  Department of General Services shall function as the building official for
				  state-owned buildings.
E. Section
				  104.3.1 Certification of state enforcement personnel. State enforcement
				  personnel shall comply with the applicable requirements of Sections 104.4.2 and
				  104.4.3 for certification.
Note: Continuing education and periodic training
					 requirements for DHCD certifications are set out in the VCS.
F. Section 104.4 Local enforcing agency. In
				  jurisdictions enforcing this code, the local governing body shall designate the
				  agency within the local government responsible for such enforcement and appoint
				  a code official. The local governing body may also utilize technical assistants
				  to assist the code official in the enforcement of this code. A permanently
				  appointed code official shall not be removed from office except for cause after
				  having been afforded a full opportunity to be heard on specific and relevant
				  charges by and before the appointing authority. DHCD shall be notified by the
				  appointing authority within 30 days of the appointment or release of a
				  permanent or acting code official and within 60 days after retaining or
				  terminating a technical assistant.
Note: Code officials and technical assistants are subject
					 to sanctions in accordance with the VCS.
G. Section 104.4.1 Qualifications of code
				  official and technical assistants. The code official shall have at least five
				  years of building experience as a licensed professional engineer or architect,
				  building, fire or trade inspector, contractor, housing inspector or
				  superintendent of building, fire or trade construction or at least five years
				  of building experience after obtaining a degree in architecture or engineering,
				  with at least three years in responsible charge of work. Any combination of
				  education and experience that would confer equivalent knowledge and ability
				  shall be deemed to satisfy this requirement. The code official shall have
				  general knowledge of sound engineering practice in respect to the design and
				  construction of structures, the basic principles of fire prevention, the
				  accepted requirements for means of egress and the installation of elevators and
				  other service equipment necessary for the health, safety and general welfare of
				  the occupants and the public. The local governing body may establish additional
				  qualification requirements.
A technical assistant shall have at least three years of
					 experience and general knowledge in at least one of the following areas:
					 building construction, building, fire or housing inspections, plumbing,
					 electrical or mechanical trades, fire protection, elevators or property
					 maintenance work. Any combination of education and experience which would
					 confer equivalent knowledge and ability shall be deemed to satisfy this
					 requirement. The locality may establish additional certification
					 requirements.
H. Section
				  104.4.2 Certification of code official and technical assistants. An acting or
				  permanent code official shall be certified as a code official in accordance
				  with the VCS within one year after being appointed as acting or permanent code
				  official. A technical assistant shall be certified in the appropriate subject
				  area within 18 months after becoming a technical assistant. When required by a
				  locality to have two or more certifications, a technical assistant shall obtain
				  the additional certifications within three years from the date of such
				  requirement.
Exception: A code official or technical assistant in place
					 prior to April 1, 1995, shall not be required to meet the certification
					 requirements in this section while continuing to serve in the same capacity in
					 the same locality.
I.
				  Section 104.4.3 Noncertified code official. Except for a code official exempt
				  from certification under the exception to Section 104.4.2, any acting or
				  permanent code official who is not certified as a code official in accordance
				  with the VCS shall attend the core module of the Virginia Building Code Academy
				  or an equivalent course in an individual or regional code academy accredited by
				  DHCD within 180 days of appointment. This requirement is in addition to meeting
				  the certification requirement in Section 104.4.2.
Note: Continuing education and periodic training
					 requirements for DHCD certifications are set out in the VCS.
J. Section 104.4.4 Conflict of interest. The
				  standards of conduct for code officials and technical assistants shall be in
				  accordance with the provisions of the State and Local Government Conflict of
				  Interests Act, Chapter 31 (§
										2.2-3100
				  et seq.) of Title 2.2 of the Code of Virginia.
K. Section 104.4.5 Records. The local
				  enforcing agency shall retain a record of applications received, permits,
				  certificates, notices and orders issued, fees collected and reports of
				  inspections in accordance with The Library of Virginia's General Schedule
				  Number Six.
L. Section 104.5 Powers
				  and duties, generally. The code official shall enforce this code as set out
				  herein and as interpreted by the State Review Board and shall issue all
				  necessary notices or orders to ensure compliance with the code.
M. Section 104.5.1 Delegation of authority.
				  The code official may delegate powers and duties except where such authority is
				  limited by the local government. When such delegations are made, the code
				  official shall be responsible for assuring that they are carried out in
				  accordance with the provisions of this code.
N. Section 104.5.2 Issuance of modifications.
				  Upon written application by an owner or an owner's agent, the code official may
				  approve a modification of any provision of this code provided the spirit and
				  intent of the code are observed and public health, welfare and safety are
				  assured. The decision of the code official concerning a modification shall be
				  made in writing and the application for a modification and the decision of the
				  code official concerning such modification shall be retained in the permanent
				  records of the local enforcing agency.
O. Section 104.5.2.1 Substantiation of
				  modification. The code official may require or may consider a statement from a
				  professional engineer, architect or other person competent in the subject area
				  of the application as to the equivalency of the proposed
				  modification.
P. Section 104.5.3
				  Inspections. The code official may inspect buildings or structures to determine
				  compliance with this code and shall carry proper credentials when performing
				  such inspections. The code official is authorized to engage such expert opinion
				  as deemed necessary to report upon unusual, detailed, or complex technical
				  issues in accordance with local policies.
Q. Section 104.5.3.1 Observations. When,
				  during an inspection, the code official or authorized representative observes
				  an apparent or actual violation of another law, ordinance, or code not within
				  the official's authority to enforce, such official shall report the findings to
				  the official having jurisdiction in order that such official may institute the
				  necessary measures.
R. Section
				  104.5.3.2 Approved inspection agencies and individuals. The code official may
				  accept reports of inspections or tests from individuals or inspection agencies
				  approved in accordance with the code official's written policy required by
				  Section 104.5.3.3. The individual or inspection agency shall meet the
				  qualifications and reliability requirements established by the written policy.
				  Reports of inspections by approved individuals or agencies shall be in writing,
				  shall indicate if compliance with the applicable provisions of this code have
				  been met, and shall be certified by the individual inspector or by the
				  responsible officer when the report is from an agency. Reports of inspections
				  conducted for the purpose of verifying compliance with the requirements of the
				  USBC for elevators, escalators, and related conveyances shall include the name
				  and certification number of the elevator mechanic performing the tests
				  witnessed by the third-party inspector or agency. The code official shall
				  review and approve the report unless there is cause to reject it. Failure to
				  approve a report shall be in writing within five working days of receiving it,
				  stating the reasons for rejection.
S. Section 104.5.3.3 Third-party inspectors.
				  Each code official charged with the enforcement of this code and who accepts
				  third-party reports shall have a written policy establishing the minimum
				  acceptable qualifications for third-party inspectors. The policy shall include
				  the format and time frame required for submission of reports, any
				  prequalification or preapproval requirements before conducting a third-party
				  inspection, and any other requirements and procedures established by the code
				  official.
T. Section 104.5.3.4
				  Qualifications. In determining third-party qualifications, the code official
				  may consider such items as DHCD inspector certification, other state or
				  national certifications, state professional registrations, related experience,
				  education, and any other factors that would demonstrate competency and
				  reliability to conduct inspections.
U. 104.5.4 Manufactured home park tenant
				  notification. If a notice of violation is issued to a manufactured home park
				  owner for violations of this code that jeopardize the health or safety of
				  tenants of the park, a copy of the notice shall be provided to each affected
				  tenant of the manufactured home park. The terms, "manufactured home park" and
				  "owner," as used in this section, shall be as defined in the Manufactured Home
				  Lot Rental Act (Chapter 13.3 (§
										55-248.41 et seq.) of Title 55 of
				  the Code of Virginia).
Statutory Authority: §
												36-98
						of the Code of Virginia.