Candidate living in unfinished home can stay on ballot

06/06/2014 10:42 AM

08/08/2014 10:24 AM

A Wichita candidate living in an unfinished house won permission to stay on the August primary ballot Thursday when a state board said he met the intent to reside in the district where he is running.

But a building official said it is illegal for anyone to live in a house without a certificate of occupancy and that his department would pursue misdemeanor charges if the house continued to be occupied.

That led candidate John Whitmer to say he would rent an RV or trailer if necessary and park it at his lot to use as a temporary shelter.

“Heck, I may take up Joe’s (opponent Joe Edwards’) suggestion and put a tent out there,” Whitmer said. “But whatever I do, it will be done because my intention is to return. My intention is to reside there. So if I have to I’ll do something along those lines. I absolutely want to comply both with the election and with the city.”

Rep. Joe Edwards, R-Haysville, had challenged Whitmer’s candidacy in state House District 93 on the grounds that Whitmer has not obtained a certificate of occupancy for his house on West Red Rock Street in Wichita.

Whitmer’s attorney, Richard Macias, contended that the State Objections Board, which oversees election challenges, could only consider whether Whitmer was residing at the house and therefore qualified to run – not whether he was living in the house legally.

Secretary of State Kris Kobach said the election statute defines a residence as a domicile adopted by a person to which they intend to return.

Whitmer testified that he moved into the home under construction April 22 in an effort to comply with election guidelines. He did not having running water until a week later. He pointed to his mortgage as evidence of his intent to keep the home.

The board voted unanimously to deny Edwards’ objection and keep Whitmer on the ballot. Kobach was joined by Lt. Gov. Jeff Colyer and Deputy Attorney General John Campbell, who was serving as a proxy for Attorney General Derek Schmidt.

“The statute doesn’t say ‘adopted by a person and is legally permitted by the local jurisdiction to be inhabitable,’ ” Kobach said. “I certainly see Rep. Edwards’ point that there may be a violation of a city ordinance at issue here. I just don’t see a way the statute allows a way to disqualify a person because he’s in violation of a city ordinance. The statute is very permissive.”

Edwards said he was frustrated by the ruling.

“Violating the law does not give you the right to go live and work in a building that’s not ready to be inhabited,” he said. “I disagree with how they found it. But it’s what they’ve done and we’ll accept it.”

He said he would not drop the issue on the campaign trail.

“The man has violated his ethics,” Edwards said. He questioned how the board could discount local laws in its ruling. “I don’t think it’s right. We give control back to the local areas, and yet he’s violating the very codes that he’s supposed to live by.”

Edwards also contended during the hearing that Whitmer is still living part time in a house outside the district.

Whitmer said his wife still lives in their previous home, which is out of the district, and that he goes there to visit her and walk their dogs. He said he sleeps at the new home, which should be completed by the end of the month, every night of the week but one, which he spends with his wife.

Edwards said that according to inspection reports, Whitmer’s home does not have running water. This led to a somewhat surreal question from Kobach to Whitmer.

“Would it be accurate to state that the week of April 29 you had a functioning toilet?” Kobach asked Whitmer, who said he had running water by his second week at the home.

The ruling does not mean Whitmer’s housing situation has been fully resolved.

“When we were informed of this matter we contacted the contractor who had pulled construction permits for the job on W. Red Rock and informed him of the allegations,” Tom Stolz, director of the Metropolitan Area Building and Construction Department, which handles building inspections for Wichita and Sedgwick County, said in an e-mail.

“The contractor has informed the person staying in the house this action is illegal,” Stolz said. “If the person mentioned, or any other person, continues residing in this house after the above warning, we will immediately issue a UCC (uniform criminal complaint) and charge that person criminally.”

Whitmer needs to continue residing at the address to be eligible for the election, so he may live outside of the house, he said.

“We absolutely want to voluntarily comply,” he said.

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