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Adam Leitman Bailey, P.C.
How the New Violation and Enforcement Procedures at the Environmental Control
Board May Affect Owners
5/15/2008
Adam Leitman Bailey, P.C.
Environmental Control Board Hearings
• The laws have changed, but the hearing process has not. The hearing officers will be administering the new laws but the hearing process will be business as usual—albeit a much more expensive business.
5/15/2008
Adam Leitman Bailey, P.C.
When Do the Changes Take Effect
• In effect July 1, 2008
• Mandated July 1, 2009
- “Mandated” means that for 12 months either the new
code or current code may be elected. This option may be crucial to prevailing at the Environmental control board.
• Existing buildings are grandfathered.
• Any violations issued before July 1, 2008 will receive a fine based on
the old rules
5/15/2008
Adam Leitman Bailey, P.C.
Greater Enforcement of Penalties
• New law mandates payment of outstanding penalties before issuance of a certificate of occupancy
• Eliminates outdated limitations on ECB jurisdiction• Current code 26-126.4 lists statute of limitations.• This statute disallows the commissioner from
designating certain provisions of the administrative code for enforcement by the ECB.
• Stop work orders• These have already been increasing and will be used
more aggressively under the new laws.
5/15/2008
Adam Leitman Bailey, P.C.
Reclassification of Violations
• The Old System
-First Offence
-Second Offence (rarely used)
-Hazardous• The Department of Buildings now relies on its “back
office” to notice when violations are being placed for a second time. As there is currently no working central database, in order to trigger a second offence violation, the issuing inspector had to be the inspector who placed the first violation as well.
5/15/2008
Adam Leitman Bailey, P.C.
The New• Three penalties phases• Immediately hazardous• Class 1
-Severe threat to life health and safety• Class 2
-Major
-Affects life, health safety but does not require immediate corrective action and is not severe
• Class 3
-Lesser
-Less serious violations including for example certificate of occupancy compliance, work without a permit (except new buildings which will fall with inspector’s discretion).
5/15/2008
Adam Leitman Bailey, P.C.
Aggravated penalties for repeat violations
• Two Categories: Aggravated 1 and Aggravated 2• Aggravated 1.
-From two and a half and up• Aggravated 2
-Five times the existing penalty. And additional daily and monthly penalties
-These will be “prepared cases” where government lawyers, inspectors, and analysts will inspect, prepare and conduct the trial.
• Examples of Aggravated 2 categories:
-Repeat violations
-Aggravated if same condition issued within the past three years.
-Fatality, serious injury or affects significant number of people
-Owner refuses to give DOB information
-False filings
-Owner has a history of non compliance
5/15/2008
Adam Leitman Bailey, P.C.
New rules Concerning Certificate of Occupancy
• Payment of outstanding penalties before issuance of certificate of occupancy.
• Certification
5/15/2008
Adam Leitman Bailey, P.C.
No more hazardous and non hazardous designations
5/15/2008
Adam Leitman Bailey, P.C.
Correcting violations
• Correction and certification of correction
• Many violations cannot be certified as corrected prior to a hearing
• One example is false certification
5/15/2008
Adam Leitman Bailey, P.C.
Mitigated and Zero Penalties
• Certificate of correction filed at dob within 40 days from date of order to correct.
• Cure constitutes an admission of the violation and dispenses with the need for a hearing at the Environmental Control Board
• This “admission” acts predicate notice for future violations Ergo, the catch 22.
5/15/2008
Adam Leitman Bailey, P.C.
Mitigation
• An eligible violation may be subject to mitigation where the respondent proves at the hearing that the condition was corrected prior to the first hearing date of ECB.
• Mitigation is half of the penalty amount.• Aggravated II category is never eligible for
mitigation.
5/15/2008
Adam Leitman Bailey, P.C.
Stipulation
• Eligible violation may be subject to stipulation where the commissioner offers to respondent stipulation --must admit the violation --agree to correct it __file an acceptable certification of correction --must be signed and delivered before or on first scheduled hearing date.
• --If at hearing then hearing stipulation.• Prehearing or hearing stipulation gives 75 days to
correct from scheduled hearing date. And file a certification of correction.
5/15/2008
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