Reactive v Proactive Code Enforcement

Enforcement agencies throughout California are looking for better ways to encourage private property owners to comply with health and safety regulations. Traditional approaches to code enforcement tend to be reactive, relying on complaints from the public to spark action. This approach has been referred to by some courts as a “passive enforcement scheme” and has been upheld as against a challenge based on the selective enforcement concept.  See Wayte v. United States, 470 U.S. 598 (1985).

Another means of enforcement is the proactive code enforcement model.  This method is typically not used city or community wide but is used to target a particular blighted area for improvement. Proactive methods can change the dynamics of code enforcement in remarkable ways.

What is proactive code enforcement?

Adopting proactive strategies for code enforcement can require a shift in thinking within enforcement agencies. The traditional role of responding to public complaints continues, but it becomes only one part of a broader effort to foster a stronger engagement with citizens to build a community-wide appreciation for the benefits of compliance.

Agencies can choose from a variety of proactive enforcement strategies as they develop programs suited to their communities and agency resources. Some of the common strategies we’ve seen include these:

  • Community patrols.

Many agencies have had success sending enforcement agents into neighborhoods to engage with the public and look for potential violations. The importance of public engagement should not be underestimated. Officers serve as educators and ambassadors. When they see an unsafe condition, like a fire escape that needs repair or a yard piled with unsafe debris, they may have the opportunity to resolve the problem with the landowner without needing to escalate to formal action.

For many agencies, labor time is the chief cost of deploying agents into the field without specific enforcement objectives. Rather than focusing solely on reviewing complaints and keeping enforcement actions moving through administrative and judicial proceedings, agents now may spend substantial time simply walking the streets. Some agencies find they need additional headcount to ensure the back-office work still gets done.

The safety of agents in the field can be an additional concern. Hostility from some property owners is nothing new to code enforcement officers. More time in the field means more potential for injury. Localities with heightened concerns may want to coordinate code enforcement patrols with law enforcement. Indeed, many agencies have found it beneficial to cross-train its police officers to be able to notice significant code enforcement issues while not only patrolling their beats but when responding to radio calls inside someone’s home or business and then bringing those observations to the attention of the code enforcement.  Bear in mind, however, that one of the goals of proactive efforts is to encourage the public to see agents as advocates of health and safety, which in some communities may be undermined by the presence of a police officer.

  • Harnessing today’s technologies.

Integrating web portals, mobile devices, and online databases into code enforcement improves the quality of data agencies use to allocate resources. Agencies have broadly adopted online systems for collecting citizen complaints. Many of these systems are merely an evolution of traditional tactics: they rely on citizen reports, and though they can improve process management they can remain trapped in the reactive paradigm.

Data analysis can transform an otherwise passive database into a tool of proactive enforcement. By shaping their strategies around concrete, real-world data, agencies can make smarter choices about where to focus their agents’ work and their legal resources. In part, this protects decisionmakers from relying too much on professional instinct, with its potential for bias and blind spots.

The more information an agency has in its database, the more potent it becomes as an enforcement tool. Agencies using community patrols can ask agents to note specific concerns, even if they don’t justify formal enforcement action. With deliberation, a database can provide policymakers both within the agency and throughout a jurisdiction’s government a clearer picture of the real condition of the community.

  • Fostering a culture of voluntary compliance.

Agencies that take steps to build greater awareness of code requirements can harness the latent interest communities have in building safer, healthier neighborhoods. Some simple tools are available to raise the profile of code matters within a community, such as these:

  • Regular newsletters mailed to property owners.
  • A steady stream of code-related content on the agency’s website.
  • Educational email campaigns.
  • Development of online resources, like downloadable handbooks and information sheets, to help interested citizens find the information they’re looking for.

Once again, the other ideas we’ve explored in this article can become components of proactive community engagement. Property owners are more likely to retain what they learn directly from a code enforcement officer who knocks on their door to warn them about a problem. Information campaigns can be targeted using insights gleaned from the agency’s database.

The legal framework of proactive code enforcement

The good news for code enforcement agencies is that many of the proactive strategies available to them can fit within their existing administrative scope. Some approaches may require careful consideration of legal obligations. For example, collection of information online may implicate privacy laws, data security requirements, and other concerns. Sending agents into the field may have implications for an agency’s labor rules, as well as implications for workers’ compensation liability and more.

Jones & Mayer counsels local government agencies on how to structure and leverage their code enforcement efforts, what liabilities need to be addressed and how systems can support those efforts.  We would be happy to discuss your agency’s needs. If you have any questions about potential liabilities or appropriate procedures, please contact Jones & Mayer senior associate Greg Palmer at, or by calling our office at (714) 446-1400.