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• Eliminates outdated limitations on ECB jurisdiction• Current code 26-126.4 lists statute of limitations.• This statute disallows the commissioner from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