Significantly Deficient & Questions

“Significantly Deficient”

The Heart of Inspection Reports
1. “Significant deficiency” is what our home inspecting law says we must report. Under our statute, a “home inspection report…shall include: (a) a report on any system or component inspected that, in the professional opinion of the inspector, is significantly deficient.” KRS 198B.700(6)(a).
Here’s the rub: “Significantly deficient” is not defined in the statute.
It’s pretty important. If the only thing home inspectors absolutely, positively must without fail report is a system or component that is “significantly deficient,” everyone should be crystal clear about what that means. But nooo. So what’s a home inspector to do?
We look to our standard of practice for a definition.
The statute also says a “home inspection” means giving a professional opinion about the home’s condition “for systems and components in the standards of practice established by the board.” KRS 198B.700(5). To put a sharper point on it, KRS 198B.706(13) says “the board shall…require all fee-paid home inspections be conducted in accordance with the standards of practice” of the three chosen national associations.
That’s OK, sorta, kinda. It’s OK, because each of the three national standards has a definition of what amounts to a “significant deficiency” (only ASHI uses exactly that phrase).
But it’s also a problem, because the three definitions are seriously different.
We pause here. Anyone who tells you all three standards are “the same,” or even “pretty much the same,” is just plain, flat, double-barreled, four-door, 24-carat, sterling wrong. Whoever says that has an opinion that cannot qualify as a “professional opinion.” Yet you hear it all the time. The folks who actually read the SOPs just wonder where people talking like that got their SOP CE credits. Wherever it was, steer clear of that provider or school. It’s just bunk.
Without ticking off the details, ASHI says, for example, that a “significant deficiency” includes whether the system is at or near death, while NACHI and NAHI both say to forget that.
The point is not just that the three standards are hugely different, in several ways. The most important point is that the public does not have a clue that there even is a difference.
That matters a lot. Our customers literally do not know what they’re getting. So they have to guess. The odds they will guess wrong are incredibly good.
As long as that’s true, the public almost always will expect something different from us than we are selling and delivering. Maybe it works out lots of the time. When it does not work out, though, it’s a formula for serious trouble – for everyone.
Worst of all, that’s man-made, totally unnecessary trouble from all sides.
BR 174 installs the simple fix. It adds a definition of “significantly deficient” to Kentucky’s law. It’s long overdue.
BR 174 keeps it simple too.
“‘Significantly deficient’ means that a system or component does not perform its intended function or does not adequately function.”
That leaves the NAHI inspectors on home turf. Their SOP has an equivalent plain Jane definition. At the same time, it captures the core of ASHI and Inter-NACHI. It leaves out an element from each of them, however. That means home inspectors who sign on to practice under ASHI or Inter-NACHI will be increasing the coverage in their reports.Most of all, though, it means consumers, allied professionals and the general public can reliably depend on one, basic, minimum reporting standard – no matter which home inspector they pick with a Kentucky license.
At last.
Oh, by the way, HB 250 is mum on the point.
Listing All Exclusions?
An Unwanted Pregnancy in Home Inspection Reports
Since the day our licensing law took effect, the law has required the KBHI to put out a regulation requiring home inspection reports “include a statement that the home inspection report does not address environmental hazards, which shall be listed with specificity by the board.” KRS 198B.706(1)(b).
It never has.
One board after another has ducked .. and bobbed…and weaved…and made one excuse after another. The result has been the same for seven long years. The legislature told the KBHI to do it and the KBHI did not do it. There’s no excuse.
This is not a matter of “professional opinion.” The General Assembly decided the issue. The KBHI has its running orders from its CO.
Well, if you’re gonna buck the CO, then “I can’t hear you” falls in the gray zone.
That’s what both bills say. SB 145 goes back to the legislature and asks for it to just delete the phrase “with specificity.”
HB 250 goes much further. It would delete the phrase “with specificity” too.
But then HB 250 goes on to say “require that a home inspection report include a statement” that it “does not address environmental hazards and list all other exclusions with specificity.”
Think about that.
Here we go again. “Exclusions” is not a defined term in the law. It’s not a defined term in any of the SOPs either. (There are part 3 sections on limitations or exclusions, etc., in all three SOPs, but there also are part 2 system & component sections on items an inspector is not required to inspect, describe or report, not to mention section limits/exclusions on scope or the definitional exclusions in the part 4 vocabularies/glossaries).
Kentucky law says that the definition is in the dictionary when it cannot be found in the law.
Begin with considering what a list of negatives – things that something is not – really tells anyone about what the thing actually is. For example, start a list of what “the moon is not.” The moon is not blue cheese, it’s not a banana, Coke or Diet Pepsi, an indoor air hazard…. We could go on. At the end of an encyclopedic listing of everything not included in what the moon is, we still know nothing about what the moon is – until we’ve listed absolutely everything else in the universe. By that time, you’d be dead – and wouldn’t care.
The list of everything excluded from a home inspection report is exhaustingly enormous. “I don’t do cars. Or boats. Or petunias. Or water quality. Or swimming pools. Or diving boards. Or bicycles. Or monocycles. Or motorcycles. Or pogo sticks. Or rubber duckies. Or lawn tidiness……”

“Private Admonishment”
Both bills add a option to disciplinary cases tagged “private admonishment.”
The idea is that current rules force the KBHI into heavy handed sanctions. Or no sanctions.
There have been several cases where the issue boiled down to a mistake that was no a big enough deal to warrant “probation” or sentencing the inspector to “additional CE.” Those are the two softest punishments in the KBHI arsenal today.
The main difference between the two bills is how it happens. This is a huge difference.
In HB 250, there are no rules. The rules turn up in the KBHI’s new disciplinary regulation. That means the KBHI generally can make up the rules from time to time, without having to assure a fair hearing or due process rights for anyone – consumers, clients, real estate agents, home inspectors – anyone.
In SB 145, the rules are in black and white. Complaints go to a neutral hearing officer who conducts a “fair hearing” and makes sure everyone is allowed to participate fully.
Getting the KBHI idea requires looking at how its proposed disciplinary regulation, 815 KAR 6:060, connects up.
The proposed regulation avoids saying a word about appointing a neutral hearing officer or providing guidance on conducting hearings.
Instead, it sets up a clumsily written procedure avoiding the hearing rules required under KRS 198B.730(1) and the Uniform Administrative Procedures Act, KRS 13B.
The proposed reg tries to wiggle around those laws by setting up something labeled “informal proceedings” – and then throwing in an “investigation” to boot. There are no rules for the so-called “investigation.”
It all boils down to a maneuver to let the Board strong-arm parties into giving up, and “settling” cases. No one needs to manufacture anything like that. Cases are routinely settled while 13B hearing procedures are underway.
The only reason to do the sort of maneuvers the KBHI regulation would do is to strip all the parties of key rights assured by KRS 13B to let the Board lord over the people involved. The reasons to do that include pressuring inspectors and complainants to settle no matter what, and hiding the pressure in non-public gyrations.
Why Not the Death Penalty?
The KBHI discussion when this was being written makes that clear. The board attorney then claimed it would let the Board settle cases with punishments our law does not allow the Board to inflict – like payments/fines.
HB 250 strongly suggests this motivation. Today, the Board’s disciplinary sanctions are “enumerated.” That means it has a short list to pick from. It has now power to do anything else. When it asked for the power to fine inspectors in 2008, the legislature turned it down.
But HB 250 throws in s sneaky wrinkle. It would amend the statute to say “disciplinary actions include” six specific penalties …. and who knows what else is included in “include”?
Get a load of just the new penalties that HB 250 says out loud. It adds “permanent revocation“ of a license – as if a 90-day suspension were not close enough to a death penalty for a home inspection business.
It adds a “written reprimand.”
It adds that “private admonishment.”
Oh, by the way, it sets out not one rule about how serious a purported violation has to be to lead to “permanent revocation.” It does not even require a complaint show that there was any damage to whack someone with “permanent revocation,” or any other penalty it dreams up. Presumably, the Board, or its committee, can threaten anyone with that for anything – to get its way. That’s HB 250’s idea of a fair hearing.
Think of what the people are left with. The rules the KBHI file a complaint. That action would take a vote of the majority of Board members. Then the rule says the complaint goes to a disciplinary committee – of three Board members. With seven people on the Board today – and even more vacancies for the last 2 years – those three votes would control any subsequent Board decision. That’s impartial, fair hearing for you.
The regulation says the committee makes a recommendation for a Board decision. Does anyone really believe it is not already decided – by the time the Board votes to file a complaint and the three-member committee votes to do something? Really?
So, if you know the dice are loaded like that, how many people will play the game out? If they do, guess what their chances look like. In short, it is just an effort to strip rights and protections from people that our laws assure. If it passes, it’s doomed – but it will take someone with enough at stake, and enough time, to get a court to drive a stake through it and call it what it is.
That whole rigmarole simply is against the law – and SB 145 says so out loud.
SB 145 follows statutes and procedures already reviewed in court cases. There are precedents there to guide parties in complaint situations. The KBHI has concealed five years of complaint precedents. SB 145’s procedures have been tested for around 30 years and found to work. They work in highly similar boards like the Kentucky Real Estate Commission (KREC), which also has a strong record chasing down unlicensed people in its field.
Now that’s a real help to everyone going through the process for the first time. And that will be absolutely everyone involved in KBHI complaints – from whenever a new disciplinary regulation takes effect.
They will be heard by an independent, impartial hearing officer – not the same board that has to vote on a final decision.
Everyone will have full access to everyone else’s papers and claims – something the KBHI regulation fails to guarantee, but SB 145 expressly does.
They will know the rules of evidence going in. There are no real rules of evidence now or under the KBHI proposed regulation either. So the board has taken up ancient complaints, more than two years old, and required inspectors to file evidence – even evidence against themselves.
Anyone will be able to challenge any proceeding with a motion to dismiss, at the beginning, before anyone has to spend a dime or time on anything else. To date, the KBHI basically has ignored motions to dismiss and made people keep churning through its pretend “process” instead. Its new regulation lets it keep making up rules like that willy-nilly.
Choosing between a Kangaroo Court and a genuine, impartial fair hearing, with clear rules for all, is not a very tough pick.

911 HELP for Home Inspectors – Questions & Answers 

Question
I just inspected a two-story single family residence with an attached garage. It’s two years old. The garage is underneath the second story bedrooms. It has a metal door to the first floor. The door does not appear to be fire rated. It’s a standard-type door, about 1 3/8 thick. The garage ceiling is unfinished. It is exposed to the first floor. You can see all the joists. Two questions: (1) Does the door have to be fire rated? (2) Does the ceiling have to be finished and fire rated? This report should go out today, so I could use answer ASAP. My Dad taught me that when you need an answer, go to the big fish at the top of the stream. You’re the “big fish” in this stuff. Thanks, C.D.
Faculty Rapid Reply:
1. Yes, preferably, but not necessarily.
2. And yes, period.
It’s fair to say this is a hot topic! Glad you got in touch to be sure.
The answer is plain for the ceiling. It’s less clear for fire doors. Here’s the latest update:
Q 1. It’s my opinion that recommending a 20-minute fire rated door is prudent and reasonable. However, any suggestion it was “required” goes too far. A solid wood door 1 3/8 inches thick met the express IRC standard, for example, but a 20-minute fire-rated door did too, and would have been a preferable choice.
A fire rated door, with automatic closer, is widely considered best practice in today’s home construction and supported by studies from several associations. That does not mean we should not imply that it is “required” however. Construction two years ago would have followed the minimum standards in the IRC aka Kentucky’s “building code” (and it allows for reasonable compliance), even there even is a building code actually being enforced where this home was built. A garage door to a residence does not have to be fire-rated under today’s IRC standards. Those would apply to a two year-old home. The IRC requires openings between the garage and the residence to be equipped with solid wood doors not less than 1 3/8 inches thick or “20-minute fire-rated doors.” Notice the “or.”
Association studies and action on this point have been spearheaded by the National Fire Protection Association (NFPA 80 is the standard for Fire Doors and Other Opening Protectives. The NFPA publishes the National Electrical Code (NEC). Where’s the a conflict between the NEC and the building code, Kentucky basically says the NEC wins. Many NFPA provisions also are included in Kentucky’s building code. On October 26, 2010, the NFPA Technical Committee on Residential Occupancy “accepted in principle” the garage separation requirement between garages and living spaces, amending Chapters 22, 23, 24 and 25 for building codes. Previously, the NFPA just looked for a “solid door” from the residential interior to the garage. (There’s a nice, downloadable 2009 NFPA Home Fire Safety checklist inspectors can hand out to clients, though it still uses the pre-2010 “solid door” phrase, at http://www.nfpa.org/assets/files/Safety/NFPAFireSafetySurvey2009.pdf).
Q.2. The garage ceiling, on the other hand, is settled. There’s no debate there.
“Garages beneath habitable rooms must be separated from all habitable rooms above by not less than 5/8 inch Type X gypsum board or equivalent.” That’s the IRC standard at R309. I know of no debate on that standard at all today. There continues to be conversation about structural issues around penetrations, such as garage doors, through those separation walls to resist the passage of flames. That resulted in the R309.1.2 amendment to Kentucky’s IRC in 2007, for example, though changes like that cannot be inspected by visual analysis by a home inspector.
Handy Sites
After we talked, I looked over the web site you mentioned in your area, http://www.hcpdc.com/pdf/FAQ%20Residential%20Code%20Requiremtns.pdf. It’s handy for all inspectors, some I’m tacking it on here. The FAQs section (if the link lets you down, just start at http://www.hcpdc.com/KYbuildingcode.asp). Of course, You can always download the corrected and current (9th edition) 2007 Kentucky Building Code at http://www.dhbc.ky.gov/NR/rdonlyres/0B6DAABF-C0D7-480F-8ABA-B42CD1FF32D4/0/2007KBC2ndPrinting.pdf or just click on the link at the bottom of http://www.dhbc.ky.gov/bce/fapbc.htm.
Good to hear from you! Steve

License Plates & Small Business

Now you can show support for small business by getting Kentucky’s new small business specialty license plate.
The plates have a storefront logo and say small business is “the foundation of Kentucky growth.”
Gov. Beshear unveiled the new small business license plates last week (1/27). The plates help show Kentucky is entrepreneur -friendly, the Gov. said. It even made The Wall Street Journal! The design was by a local printer, chosen in a statewide competition last fall.
Small business plates are $25 each (plus the usual $19 that goes to the county clerk). Proceeds are tagged to go to support small business development in our state. (Custom plates are the usual extra fee.)
There’s an irony too: the plates cannot be substituted for a regular commercial license on commercial vehicles. Small businesses own about 70% of Kentucky commercial vehicles. Go figure. (Gov. Beshear used to work at a Lexington law firm. It was a small business, but it didn’t own commercial vehicles.)
Oh, and while we’re at it, Gov., how about some small business tax breaks like the state has been handing out to big companies? Just a thought.
But we like the plates. It’s a step in the right direction. Thanks.

Did Drywall Kill?

Chinese drywall was not linked to the deaths of 11 people who lived in Chinese drywalled homes in a U.S. Centers for Disease Control (CDC) study, the Consumer Product Safety Commission (CPSC) reported 1/31.
It also renamed the stuff. It’s not “Chinese drywall” anymore. Now, it’s “problem drywall.” Never mind that the only way anyone can recognize the stuff is a roll stamp saying “Made in China.”
For additional findings from the Interagency Drywall Task Force’s investigation, visit www.DrywallResponse.gov

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