CHAPTER 386

FORMERLY

HOUSE BILL NO. 394

AS AMENDED BY SENATE AMENDMENT NOS. 1, 2, 3, 4 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 41, TITLE 31 OF THE DELAWARE CODE AND CHAPTER 29, TITLE 10 OF THE DELAWARE CODE RELATING TO THE DELAWARE STATE HOUSING CODE AND ITS ENFORCEMENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each House thereof concurring therein):

Section 1. Amend §4105(c) including paragraphs (1) and (2), Title 31, of the Delaware Code by deleting the existing subsection in its entirety and substituting in lieu thereof the following:

"(c) The Delaware State Housing Code shall not apply to any existing single family owner-occupied residential structure. The provisions shall become and remain applicable upon the rental or sale of such residential structure after the effective date hereof. The Delaware State Housing Code shall not apply to any existing resort residential structure with an occupancy limited to the months of May through September inclusively."

Section 2. Amend Section 4105, Chapter 41, Title 31 of the Delaware Code by adding a new subsection (d) as follows:

When there are practical difficulties involved in carrying out the provisions of this code, such that the literal application of the requirements of the code would cause undue hardship or the displacement of low income occupants with no affordable housing alternatives, the code official is permitted to vary or modify such provision(s) upon written application of the owner or the owner's representative, provided that the spirit and intent of the law shall be observed and public welfare and safety be assured."

Section 3. Amend Section 4105, Chapter 41, Title 31 of the Delaware Code by adding thereto a new subsection, designated as subsection (e), to read as follows:

"(e) The State Housing Code shall not be administered in any community which has enacted its own code which contains minimum standards for the promotion and protection of the safety and health of the public which are equal to or exceed the standards established by Subchapter II hereof and administration and enforcement procedures which are substantially equivalent to those set forth in Subchapter III hereof, as determined by the Housing Director. At the request of any community which has adopted a housing code, the Housing Director shall provide written notice to the community of its determination, stating the reasons therefore. Provided, however, that if such community thereafter seeks to amend, alter, or otherwise change its housing code, it shall provide the Housing Director with a copy of such proposed change. In such a case, the Housing Director shall notify such community in writing within sixty (60) days of receipt of such proposed change of its determination whether such proposed change meets the standards set forth in this subsection (e), and, in such case, the State Housing Code shall not be administered in such community, notwithstanding such amendment or change.

Section 4. Amend Section 4106(b)(5), Chapter 41, Title 31 of the Delaware Code by striking the existing subsection in its entirety and substituting in lieu thereof a new section which shall read as follows:

"(5) Code Official. The official who is charged with the administration and enforcement of this Chapter, or any duly authorized representative. The Housing Director, or any duly authorized representative thereof, shall be the Code Official for the State of Delaware."

Section 5. Amend Section 4106(b), Chapter 41, Title 31 of the Delaware Code by redesignating the current sub-subsections (18) through (44) thereof as (19) through (45) and by inserting a new sub-subsection (18) to read as follows:

"(18) Housing Director. - The Director of the Delaware State Housing Authority."

Section 6. Amend Section 4106, Chapter 41, Title 31 of the Delaware Code by deleting newly designated subsection (40) in its entirety and redesignating the remaining subsections accordingly.

Section 7. Amend Section 4109, Chapter 41, Title 31 of the Delaware Code by deleting the word "Secretary" and inserting in lieu thereof "the Housing Director."

Section 8. Amend Section 4122, Chapter 41, Title 31 of the Delaware Code by inserting at the end of the existing paragraph the phrase as determined by the Code Official."

Section 9. Amend Section 4124, Chapter 41, Title 31 of the Delaware Code by deleting the last sentence thereof in its entirety.

Section 10. Amend Section 4126, Chapter 41, Title 31 of the Delaware Code by adding to the existing subsection (c) the following:

The fee for inspections performed by the Housing Director, when acting as a code official for the enforcement of the Code in areas which have not adopted the Code shall be $25 for the initial inspection and $10 for each subsequent inspection related to the same complaint.

At the discretion of the Housing Director and for good cause shown, such inspection fees may be waived."

Section 11. Amend Section 4128(b), Chapter 41, Title 31 of the Delaware Code by

deleting subsection (5) thereof in its entirety and redesiganting the remaining subsections accordingly.

Section 12. Amend Section 4128, Chapter 41, Title 31 of the Delaware Code by deleting subsection (c) in its entirety and substituting in lieu thereof the following:

"(c) Service. Such service shall be deemed properly served upon such owner and/or occupant if a copy thereof is delivered to the owner and/or occupant personally; or by leaving the notice at the usual place or abode, in the presence of someone in the family of suitable age and discretion who shall be informed of the contents thereof; or by certified or registered mall service addressed to the owner and/or occupant at his or her last known address. If the owner, agent or person in control is not found, a copy of the notice posted in a conspicuous place on the premises shall be deemed the equivalent of personal service, upon posting. Any notice herein shall, if mailed, be deemed to be effective upon mailing."

Section 13. Amend Section 4130(b), Chapter 41, Title 31 of the Delaware Code by deleting it in its entirety.

Section 14. Amend Section 4131(b), Chapter 41, Title 31 of the Delaware Code by deleting it in its entirety and substituting in lieu thereof the following:

"(b) Penalty for Violation; jurisdiction. - Any person who shall violate this Chapter or who fails to comply with any notice or order issued by a Code Official pursuant to this Chapter, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25 nor more than $1,000 or imprisoned for a term not to exceed thirty days, or both. Each day of a separate and continuing violation shall be deemed a separate offense under this section. The Justice of the Peace Court in the county in which the property is located shall have exclusive jurisdiction over offenses prosecuted under this Chapter."

Section 15. Amend Section 4131, Chapter 41, Title 31 of the Delaware Code by deleting the existing subsection (c) in its entirety and substituting in lieu thereof the following:

"(c) Prosecution. - In the event any violation order is not promptly complied with, a Code Official with constable powers pursuant to Title 10, Delaware Code, Section 2901, may issue a citation, and in cases involving first offenders of this Code, may assess a fine of $100 or, in the alternative, may direct that the owner or occupant appear in the court of law having jurisdiction over the alleged violation. In those jurisdictions in which the code officials do not have constable powers, the code official may institute an action in the appropriate court, or may request the City Solicitor or community attorney-at-law to institute such action to seek the penalties provided in Section 4131(b) of this Title."

Section 16. Amend Section 4132, Chapter 41, Title 31 of the Delaware Code by deleting said section in its entirety and redesignating the remaining sections accordingly.

Section 17. Amend Section 2901, Chapter 29, Title 10 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new section 2901 which shall read as follows:

"The chief executive officer of any county or municipal corporation, or the Housing Director, in the case of the enforcement of the State Housing Code contained in Chapter 41, Title 31 of the Delaware Code, may appoint and employ such numbers of code enforcement constables as shall be necessary to enforce all ordinances pertaining to building, housing, sanitation or public health codes."

Section 18. Amend Section 2902(b), Chapter 29, Title 10 of the Delaware Code, by inserting the following language at the end of the existing section:

"Provided, however, that a code enforcement constable appointed by the Housing Director shall have jurisdiction throughout the State to enforce the provisions of the State Housing Code in a county or municipality which has not adopted and/or undertaken to enforce the State Housing Code after July 12, 1988. In addition to the other powers set forth herein, such housing code enforcement constables may impose a voluntary assessment of $100 in cases involving first offenders of the State Housing Code."

Section 19. Amend Section 2902, Chapter 29, Title 10 of the Delaware Code, by adding thereto a new subsection to be designated as subsection "(e)" with said subsection to read as follows:

"(e) Any summons issued by a housing official with constable powers may, in cases involving first offenders, provide that in lieu of appearing in court, the offender may remit a voluntary assessment of $100."

Section 20. This Act shall become effective upon enactment into law.

Approved July 17, 1990.