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Penalty for Failure to Certify Correction of Immediately Hazardous Violations

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Rule status: Adopted

Agency: DOB

Effective date: December 18, 2024

Proposed Rule Full Text
Proposed-Rule-Penalty-for-failure-to-certify-correction-of-immediately-hazardous-violations.pdf

Adopted Rule Full Text
Final-Rule-Penalty-for-Failure-to-Certify-Correction-of-Immediately-Hazardous-Violations.pdf

Adopted rule summary:

Local Law 50 of 2022 amended section 28-219.1 of the New York City Administrative Code to remove the minimum penalty for failure to certify correction of an immediately hazardous condition and to exempt 1-4 family homes. The local law also limited the violations eligible for the penalty to those issued for an immediately hazardous condition at construction sites.

Section 102-05 is amended to conform to the provisions of Local Law 50/22.

In addition, Local Law 126 of 2021 added a requirement to section 28-219.1 that the civil penalty be paid before a certificate of correction can be accepted for the violation that led to the civil penalty. Similar language is added to the rule to conform it to this provision.

The rule codifies the process by which the department imposes such penalties and the manner in which such penalties may be challenged.

Comments are now closed.

Online comments: 1

  • Adam Roberts

    Thank you for holding this hearing today. I am Adam Roberts, testifying on behalf of the New York Apartment Association (NYAA). NYAA is a newly formed trade group representing multifamily housing providers across NYC. Our diverse membership consists of long-term owners and operators of rental housing. They collectively provide more than one million units of rental housing, most of which are subject to rent-stabilization and built before 1974, meaning they do not receive 421a or other subsidies. Our mission is to ensure the rental housing stock is abundant, safe, and desirable to live in so that New York can be affordable for generations to come. We are here to testify on the proposed rule for penalties for failure to certify correction of immediately hazardous violations.

    Penalties are necessary for DOB to enforce safety standards, including when owners do not correct violations. For owners who fail to correct violations or refuse to do so timely, DOB should use penalties to hold them accountable. Local Law 50 gives DOB discretion to set a penalty structure based on the severity of the violation, building size, type of construction site, regulatory status, and other factors.

    Rather than taking a thoughtful approach in the spirit of the law, DOB is codifying its recent practice of imposing the maximum $5,000 penalty in all situations and for all buildings with more than four units. This creates unjust results. An immediately hazardous violation for an apartment with a bathroom renovation is treated the same as an immediately hazardous violation at a major construction site, such as where an entire building is being demolished.

    There are also concerns regarding the requirement to pay the full civil penalty before a hearing on the validity of the underlying violation can be conducted. Environment Control Board (ECB) hearings are typically not scheduled until months after a violation is issued, meaning a project is delayed for months while challenging the violation. DOB could use its discretion in penalty setting to allow for a mitigated penalty where the owner waives their right to challenge the violation. This is done by other agencies that have civil penalties associated with their violations. For example, a heat violation issued by HPD comes with a civil penalty, but the agency provides a mitigated penalty for owners to pay rather than go through the ECB process. The DOB now has discretion to take a similar approach under LL 50, which is highly recommended now that LL 129 requires payment of the penalty before accepting a certificate of correction or rescinding a stop work order, even if the condition has been corrected. The only alternative is for construction projects to languish for months, even as New York faces a housing shortage. To make matters worse, the ECB often treats payment of the penalty as acquiescence to the legitimacy of the violation, leaving little opportunity as a practical matter to challenge the violation if the penalty is paid.

    We hope that DOB will redraft these rules to comply with the spirit of LL 50 and mitigate the unintended consequences of LL 129 by providing greater discretion and flexibility in its penalty schedule. We welcome further conversation with DOB on how to craft a more equitable penalty structure. Thank you.

    Comment attachment
    10.7.2024-DOB-Hearing-Testimony.pdf
    Comment added October 7, 2024 9:17am