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Home inspection outfit wins OK to operate in Hurricane

WINFIELD, W.Va. -- A Putnam County judge agreed Monday to let a home inspection company operate in Hurricane, at least temporarily, after the company argued it was unfairly denied a city business license and one of its employees was fined.

Circuit Judge Phillip Stowers granted a temporary injunction Monday against the Hurricane city ordinance, passed earlier this year.

According to the complaint, Advantage Home Environment and Inspection Services Inc. was denied a business license in Hurricane and one of its employees was cited and fined because the ordinance makes it "unlawful for any person, firm, or corporation to perform building inspections, either residential or commercial, without proper certification from the International Code Council (ICC) and the West Virginia Fire Marshal's Office."

According to attorney Henry Glass, who represented the company, there are nearly 120 home inspection companies operating in the state, and none is required by state law to have ICC certification.

The ICC certification is required for code enforcement and inspections, Glass said, but "home inspection is a totally different animal.

"[Home inspectors] have no obligation to report to anybody as to whether a particular dwelling is within code," Glass said. "They're doing a broad, thorough inspection of the dwelling concerning its general inhabitability, the suitability of it for a prospective buyer, things of that nature.

"What the city has done is basically usurped the power and authority exclusively reserved by the state Fire Commission."

Danny Brickles, Hurricane's code enforcement officer, is the only official in the city with ICC certification. Johnnie Brown, the attorney representing the city in the suit, said Hurricane City Council passed the ordinance in order to avoid confusion among its citizens.

"We fear, and the council fears, that citizens may be confused by what they were getting, and this [ordinance] helps to clarify that," Brown said. "We are not changing the definition of a home inspector. They're certainly free to operate elsewhere in Putnam County, Kanawha County, and the state of West Virginia; we're just saying that when you come into the city of Hurricane, not only do we want you to have your home inspector's license, we want you to have ICC certification."

Glass said the ordinance causes damage to Advantage Home by limiting its ability to do business and overstepping state law, and the injunction was necessary to protect the company's right to perform home inspections.

"We have clear harm to individuals whose constitutional right it is to do their profession," Glass said.

Stowers said his injunction would apply to "existing homes" in the city -- homes that are already properly permitted, given the right to build and in possession of a certificate of occupancy. The injunction will also prevent Hurricane from citing or fining home inspectors through the ordinance until a trial date is set and the case is decided.

"As we go on and explore this case later on, we'll be looking at the rational basis, and the constitutional basis, for this type of ordinance," Stowers said. "We'll also have to explore how it alters the relationship of private citizens as it relates to their rights to alienate property, sell their homes, and conduct private contracts."

Reach Lydia Nuzum at lydia.nuzum@wvgazette.com or 304-348-5189.


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