Construction Codes: Putting Your Vote Into Action

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[author: Juanita F. Ferguson, Esquire]

The upcoming presidential election has dominated the headlines.  As a nation, our attention has been focused on the state of current laws, the prospect of future laws, and even the need for certain laws.  As an industry, construction is no less affected by and subject to a myriad of laws that can and do impact the way developers, builders and other construction professionals operate on a daily basis.  Knowledge of the various codes is not only essential to operating a successful construction project, it is the foundation for a contractor to ensure improved communications with clients, other professionals and the enforcers of the various regulations by which the construction industry is governed.

What is the “Code?”

Depending upon the jurisdiction in which a construction project is located, construction professionals will be subject to at least one, and more likely, several codes.  Most projects in the Commonwealth are subject to the Virginia Uniform Statewide Building Code, referred to as the USBC, Virginia Code §§ 36-97 et seq.  The USBC prescribes building regulations that are to be complied with in the construction and the rehabilitation of buildings and structures, and the equipment used in construction.  The USBC also adopts and incorporates the International Building Code.  Local jurisdictions may also have building codes that are specific to a geographic area.

The Code is a Living Document

Just like the governing documents for the United States and the Commonwealth of Virginia, construction codes are not static documents.  They are subject to revisions and often, the impetus for the change is input received from those subject to and affected by the various code provisions.  The Virginia Building and Code Officials Association communicates the concerns and the desires of building safety professionals to the appropriate state legislative bodies regarding the USBC, which includes the Virginia Construction Code, the Virginia Rehabilitation Code, and the Virginia Maintenance Code.  The Associated Builders and Contractors (“ABC”) is a national organization that acts as a political advocate for the interests of its members, which includes general contractors, subcontractors, developers, and others working in the construction industry. ABC advocates for changes to laws that affect chapter members on both statewide and local levels.  The Associated General Contractors of America is a trade organization that educates general contractors and also acts as a proponent for change of those laws that are incongruous with the completion of construction projects.  All of these organizations have local chapters to encourage participation in the local communities where construction occurs. 

Ignorance of the Law is No Excuse

The average construction professional working on a project in the Commonwealth has a basic understanding of the USBC.  And while knowledge of its provisions is equally important, less contractors are aware of the Virginia Administrative Code (“VAC”), Va. Code §§ 54.1-1100 through 54.1-1143. The Department of Professional and Occupational Regulation (“DPOR”) is a governmental agency of the Commonwealth established to enforce the VAC.  DPOR governs everything from oversight of licensing of contractors, to review of complaints from consumers, to authority to require contractors to participate in remedial education, fine violators, or revoke or suspend licenses.  Despite the reach that the agency has to impact contractors’ ability to work not only in the Commonwealth, but also in other cities and states in the United States, it is surprising that so many large and small contractors do not have an appreciation of the need to be in full compliance with the VAC.  The likely reason for that is many consumers in the Commonwealth also do not appreciate, or even know, that DPOR exists to make sure that their construction interests are a concern of the Commonwealth.

Just a few of the violations for which a contractor’s license may be subject to suspension or revocation include:

  • Failing to comply with DPOR regulations;
  • Furnishing incomplete information in obtaining/renewing license;
  • Failing to report suspension/revocation in another jurisdiction;
  • False advertising;
  • Negligence in contracting;
  • Misconduct in contracting;
  • Failing to use a legible contract for residential projects;
  • Failing to include business name, address, and license number on contracts;
  • Failure to provide residents with Regulation Statement of Protection for door-to-door solicitations;
  • Allowing license to be used by another contractor;
  • Failing to disclose cancellation rights of parties;
  • Statement that any contract changes must be in writing;
  • Failing to retain contract documents for a period of five years;
  • Practicing in a classification in which contractor not licensed;
  • Failing to satisfy any judgments; and
  • Contracting with unlicensed/improperly licensed contractor.

Some of the violations are obvious (negligence) while others are less evident (failing to satisfy judgments).  In any event, it is imperative that contractors have a grasp of the existing laws as well as any proposed changes so their business operations are not unduly interrupted.

Construction codes are driven by past practices, the need for increased safety, and the advocacy of stakeholders in the construction process.  Understanding the laws will hopefully decrease the likelihood that construction professionals are actually in violation of the laws.  Irrespective of corporate or individual political affiliation, it makes good business sense for construction professionals to make their concerns known about construction codes – it is a dialogue that more likely than not will produce positive outcomes.

Juanita F. Ferguson is an Associate in the law firm of Bean, Kinney & Korman in Arlington, Virginia. She practices in the area of litigation and has litigated construction defects, mechanic’s liens, premises liabilities, negligence, and employment and insurance defense matters. She can be reached at jferguson@beankinney.com and 703-525-4000.