If you are the Deputy Mayor of Puyallup and your tenant conducts an illegal marijuana grow operation, are you liable? No.
If you receive a photo-enforcement notice of a traffic infraction in Lakewood and you, as the registered owner of the offending vehicle, allege you were not the driver, must you identify who was behind the wheel at the time of the photograph? No.
But if you reside anywhere in the jurisdiction of the Puget Sound Clean Air Agency (PSCAA), as a landlord, you – the landowner – can be cited and fined up to $1,000 for having “caused or allowed” a BBQ conducted by your tenant using too much BBQ sauce (seriously) during a burn ban – whether or not you (a) “were the actual burner;” (b) “were even present at the time of the fire;” (c) had “knowledge of the violation;” and (d) had made previous “efforts to warn residents not to burn.”
The quotes immediately above are those of Kimberly Cole, Supervising Inspector, citing PSCAA’s legal leverage should you consider appealing your burn ban violation to the Pollution Control Hearings Board.
As to (d), above, wrote Cole, see “Saade v. Olympic Region Clean Air Agency, PCHB No. 02-183 (2003) – the owner of a trailer park is responsible for unlawful burning by a tenant despite his efforts to warn residents not to burn.”
You tenant grows marijuana but you didn’t know? If you’re not a politician you should be because you’ve no responsibility. Deny you were driving through that red light and refuse to tell who was? No problem. But a renter invites friends over to BBQ steaks on New Year’s Eve during a burn ban and who pays? The uninformed – and for that matter the uninvited – landlord.
Best accept the $500 half-off special the PSCAA offers by which to settle because while even that cut rate makes your choice cut BBQ’d steak quite expensive it’s relatively cheap considering the mounds of paperwork and court battle that lies ahead to win even a modicum of common sense for the powers-that-be.
Given the burn ban season is about to begin, consider this article a community service announcement. You have been warned.
On New Year’s Eve, 2012, one of Lakewood’s Code Enforcement Officers (CEO) – all of whom comprise the burn ban patrol for the PSCAA covering the City of Lakewood at an hourly rate ranging from $37.38 per regular hour to $54.25 per overtime hour, in addition to Community Service Officers (CSO) who also double as smoke detectors ($31.76 – $45.95), “compensated up to $24,875 for its burn ban patrol effort for the fiscal year 2013” – filed the following Public Disclosure Request-obtained (PDR) report:
“While doing burn ban patrol this evening we ran across somebody having a very nice BBQ, producing a lot of smoke; is that a violation that we should be documenting?”
Chiming in was a CSO: “My neighbor barbecues regularly and must use a huge amount of sauce or marinade. While he’s cooking, and when he burns the grill clean, he smokes-out the neighborhood.”
The answer for the CEO and the CSO from PSCAA’s Kimberly Cole: “Good question!! The answer is ‘yes,’ burning wood or coal for a cooking fire during a burn ban is prohibited. The use of any solid fuel burning device (burning wood, coal or anything other than gaseous or liquid fuel) is prohibited (unless using certified device or pellet stove during a stage 1 burn ban), along with outdoor fires.”
Some links by which to keep informed will follow here in a moment so please take notes because one thing is for sure: if you are found in violation of a burn ban do not expect to receive either (a) a phone call within 24 hours (“phone numbers are hard to obtain”), or (b) a day-of-incident contact (“too dangerous”).
In the Standard Operating Procedures established between the City of Lakewood and the PSCAA dated September 27, 2012, burn ban patrol members – police department personnel – are to surreptitiously drive about armed with specialized night-time vision cameras looking for BBQ’s, chimney smoke, etc. but “not to draw attention to yourselves by using flashlights or other devices that may draw attention to you.”
This is not Halloween after all where a knock on the door is protocol, there really are no tricks, and candy is the goal. No, burn ban patrols are about stealth; where clandestine, covert and ghost-like apparitions flit about; are as quickly gone as they appear; where the goal is a photograph – irrefutable proof that’ll you’ll be receiving in the mail that you are a destroyer of the planet, responsible for the hole in the ozone layer, a killer of polar bears – or simply that you are a landlord totally oblivious to the devious and sinister steak-sizzling tenants who didn’t even bother to invite you over to sink your fork into the prime rib.
On New Year’s Eve.
Just fork over the dough for the deed you didn’t even know was done.
Though PSCAA training protocol for burn ban patrol members requires observers to obtain, in addition to their camera, handout materials as part of their burn ban patrol kit – items including pamphlets entitled “Pierce County Has An Air Quality Problem;” “Leave Your Old Flame Behind;” “Don’t get burned – Violating burn bans can result in fines;” “Burn Bans – What’s banned during an air quality burn ban?” and Kim Cole’s business card, it is unknown what these handouts are for since going to the door is a no-no.
Even though the Agreement Document between the PSCAA and the City of Lakewood stipulates, “As directed by the Agency, distribute outreach materials provided by the Agency during or in relation to burn ban enforcement” burn ban patrol members might as well have left home without ‘em because “do not go onto private property” ensures safety. Meanwhile the fire burns.
Conversely, the absurdity of present policy is illustrated in an incident that occurred the next day following a field staff member’s observation of smoke exiting a chimney for which he was not able at the time to obtain a photograph correctly identifying the property.
In this – yet another – PDR, one of Lakewood’s CSO’s stated in his report to Cole dated January 14, 2013 that while he was attempting to “get a good front photo,” of an offending property, “the owner was outside today, and came over to chit-chat with me before I had a chance to snap one. Argh! I’ll try it again tomorrow. I’ve positively verified it’s the right house, but want a pic that will stand up to a challenge. Don’t want to lose one because all you can see is shrubbery and a smoking chimney thru the branches.”
Branches are indeed such a bummer but even worse is a nosy neighbor who – trying to be neighborly and with whom the burn ban patrol officer could have actually talked about why he was there taking pictures and maybe even have given him a handout or two, or three, or four – was such a bother.
But he would find out. Citation’s in the mail.
From the nice folks at the PSCAA, here’s some other ways you can find out how not to get burned in the coming burn ban.
“Call in to our toll-free Burn Ban Hotline, 24/7: (800) 595-4341. Learn more about these options and others by visiting our website. You can also learn the basics about burn bans. How do we know if a burn ban is in effect? You can go to our web site. We post the burn ban status on every page. You can sign up to receive burn ban e-mail notices. We also post it on our Twitter and Facebook accounts.”
Ken Upton says
As a property management company we were broadsided last year by this completely clandestine skulduggery conducted by the PSCAA! Property owners, some clear out of state, receiving letters threatening fines were obviously annoyed and perplexed at such an accusation was directed at them instead of the residing tenant who was responsible for the violation. After some frustrating conversations with those in charge we were forced to send letters to all tenants with any wood burning devices (AND to the owners of those properties) to be aware of these burn ban regulations to avoid getting nailed by the
“smoke busters” lurking in their neighborhoods this winter. This is one regulation that definitely needs an overhaul, in my opinion!
David Anderson says
I too of course believe there are good reasons for the Puget Sound Clean Air Agency (PSCAA) to review its methods of burn ban enforcement in keeping with its mission and message – “clean healthy air for everyone, everywhere, all the time.”
Letters have been sent to PSCAA Executive Director Craig Kenworthy and PSCAA Board of Directors member Ryan Mello (also a Tacoma City Councilman and of the 18 board members and management of the PSCAA, as well as the members of the Advisory Council, Mello was the only one who responded to my initial protest of agency practices on July 28), both of whom have promised – via email September 30 – that the PSCAA would review their policies. Normally the minutes of the PSCAA – where evidence of the promised review one would expect would be posted – are placed on their website but their website has changed and a record of their deliberations are not yet available to the public according to Kenworthy: “We are in the process of updating our web site and some things are temporarily offline” (email October 31).
It is a fairly sad commentary, but not necessarily atypical of a government agency, to bypass stated protocol (pamphlet distribution while on burn ban patrol) and resort for whatever reason – “safety” of the inspector, “difficulty” of obtaining phone numbers – to employ instead what amounts to financial expediency, i.e. citations which are more common than not as evidenced in this Public Disclosure Request in which PSCAA’s Supervising Inspector Kimberly Cole writes: “The 2011/12 winter season of burn bans totaled 19 days, 12 inspectors, four counties, and 145 citations out of 182 observations in just the first burn ban (11/25-11/28). The second burn ban, 12/30/12 to 1/3/13 netted 585 smoke observations which remain to be processed for violations (when the update was posted January 14, 2013).”
Evidently, whether pushback from your property management company or others, the PSCAA has been made aware of complaints questioning the agency’s dubious citation practices. PSCAA’s Kenworthy (PDR) “said if and when the time comes to evaluate the agency’s use of civil penalty fees, he will request additional feedback from the Advisory Council. He said there are good policy reasons for which we have been so restrictive in the use of civil penalties, the simplest reason being the perception that monies collected for citations will be used to pay the issuing inspector’s salary.”
That suspicion is correct. The time for substantive review has come.
Given Lakewood’s inspectors (CEO’s, CSO’s) alone were compensated $25,000 for fiscal year 2013, what is the total of all four counties in the PSCAA’s jurisdiction?
In addition to the vicarious liability with which PSCAA’s law is enforced (landlord, not tenant) with which we take exception and which law, no doubt legislatively, needs to be changed, also egregious in our experience with PSCAA was the delay between violation and notification.
Our tenant’s offending outdoor hotdog roast at our rental property occurred in the early evening of December 7, 2013 during a declared burn ban. Seventy-four days later – on February 21, 2014 – by mail, as landlords we first were alerted to the incident by way of a Notice of Violation (NOV). Far from the “16 days between Observation and NOV issue in 2013” much less “7 days in 2014” (“Smoke Reduction Zone Winter Report 2013-2014” – a presentation at the PSCAA Advisory Council meeting of July 9, 2014; slide 11) the delay in our case not only prevented anything by way of timely resolution, but the reason for the delay was never acknowledged by the PSCAA – never, that is, until the file constituting the case against us revealed on August 12, 2014 that the smoke observation patrol officer (a Lakewood Police Department CSO who has served our community for 13 years) had recorded the wrong address, wrong parcel number and thus the wrong owner of the property. By the time the NOV was received by us, three more burn bans would have been declared (December 25-26, 2013; January 13, 2014; and January 26-27, 2014) allowing for the opportunity of continued illegal burns.
All the ensuing court-appealed letters, emails and angst approaching hostility could have been avoided had this recommended change to PSCAA burn ban enforcement policy been in place: phone call within 24 hours and/or day-of-incident contact, the latter actually required – but evidently not administered – according to the contract between the PSCAA and the City of Lakewood.
Our fireplace has been sealed off in our house for the past ten years. A few weeks ago our furnace went out and we don’t have the money to get it fixed right now, because my husband was laid off last month. When the temps dropped into the teens a couple weeks ago we opened the fireplace to have a fire. I had no idea there was a burn ban. Bring on the dumb blonde jokes, but I’d only ever heard of burn bans during the summer months and had no idea they declared them during the cold season. Ignorance of the law is not an excuse to break it, but when it comes to using my own fireplace in my home it just never occurred to me that I’d be breaking any law.
My next door neighbor saw someone taking a picture of my house one of those cold nights and approached the person who identified himself as an agent for PSCAA. My neighbor then informed me that he’d seen them taking pictures the day before too.
I got the notice of violation in the mail today. If they had knocked on my door or dropped a flyer in my mailbox the first time they came out I would have stopped using the fireplace and bought a couple extra blankets. Hope they’ll take my fine in $5/month payments because that’s about all I can afford.