Article 204: Environmental Control Board

§ 28-204.1 General.

Any person who shall violate or fail to comply with any of the provisions of this code, the 1968 building code, the zoning resolution or other laws or rules enforced by the department or with any order issued pursuant thereto shall be liable for a civil penalty that may be recovered in a proceeding before the environmental control board. Such proceeding shall be commenced by the service of a notice of violation returnable before the board. Such notice of violation may be issued by employees of the department or of other city agencies designated by the commissioner and may be served by such employees or by a licensed process server.

§ 28-204.1.1 Violations of section 3321 of the New York city building code.

In addition to any other penalties or remedies provided by law or rule, the following items shall apply to violations of section 3321 of the New York city building code:

   1.   Upon determining that a worker at a building site is not in compliance with section 3321.1 of the New York city building code:

      1.1.   The commissioner shall issue a notice of violation to the owner of such site, each permit holder responsible for ensuring that such worker complies with such section at such site and the person who employed or otherwise engaged such worker at such site if such person can reasonably be identified. Each such worker shall constitute a separate violation that shall be noticed and charged separately and shall be punishable by a separate civil penalty. It shall be an affirmative defense to such a violation that such worker provided such owner, permit holder or the person who employed or otherwise engaged such worker at such site with an SST card, SST supervisor card, limited SST card, temporary SST card or documentation establishing training in compliance with such section, as appropriate, that reasonably appeared to be valid and applicable to such worker and such owner, permit holder or such person reasonably relied thereon.

      1.2.   In addition to the requirements of any other law or rule, such violation shall not be deemed corrected until the commissioner determines that, for each such worker, the recipient of such violation shows, in a form and manner established by the commissioner, that such owner, a person acting on behalf of such owner, a permit holder responsible for ensuring that such worker complies with such section at such site or the person who employed or otherwise engaged such worker at such site has entered into a binding agreement that satisfies each of the following conditions:

         1.2.1.   Pursuant to such agreement, such owner, a person acting on behalf of such owner or a permit holder responsible for ensuring that such worker complies with such section at such site or the person who employed or otherwise engaged such worker at such site shall pay, either directly or indirectly, for the costs of such worker to obtain the training required to comply with such section or will otherwise arrange for such worker to receive such training at no cost to such worker.

         1.2.2.   Pursuant to such agreement, and provided that such worker is diligently endeavoring to complete the training required by such section, such worker shall continue to be employed or otherwise engaged under the same terms and conditions that applied before such determination by the commissioner until (i) such worker successfully completes the training required to comply with such section, (ii) work for which such worker was employed or otherwise engaged at such site concludes or (iii) 60 days elapses after such determination, whichever occurs earlier, except that, during such period, such worker shall be paid as if such worker were working at such site 40 hours each week at the same hourly or effective hourly wage such worker was paid before such determination by the commissioner.

   2.   Upon determining that a permit holder at a building site has not maintained a daily log in compliance with section 3321.2 of the New York city building code, a notice of violation shall be issued to the owner of such site and such permit holder. Failure to maintain such a log establishes a rebuttable presumption that each worker for whom such permit holder is responsible for ensuring compliance with section 3321 of the New York city building code is not compliant with such section and shall result in the issuance of notices of violation under Item 1.

   3.   Upon a finding by the office of administrative trials and hearings, acting pursuant to section 1049-a of the charter, or a court of competent jurisdiction that a second or subsequent violation of section 3321 of the New York city building code has occurred at a building site, the commissioner shall conduct at least one unannounced inspection of such site at least once every three months to determine compliance with such section. Such inspections shall continue until at least two consecutive inspections do not result in the issuance of a notice of violation of such section.

   4.   Upon a finding by the office of administrative trials and hearings, acting pursuant to section 1049-a of the charter, or a court of competent jurisdiction that the owner of a building site, a permit holder at such site or a person employing or otherwise engaging workers at such site has violated section 3321 of the New York city building code and such violation is a second or subsequent violation of such section by such owner, permit holder or person, the commissioner shall conduct at least one unannounced inspection of (i) each building site owned by such owner, if such violation is a second or subsequent violation by such owner, (ii) each building site where such permit holder works, if such violation is a second or subsequent violation by such permit holder and (iii) each building site where such person works, if such violation is a second or subsequent violation by such person.

(L.L. 2017/196, 10/16/2017, eff. 10/16/2017; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

§ 28-204.1.2 Notice of violating conditions outside of occupied dwelling units.

An owner must post a copy of a notice of violation that relates to a violating condition outside of an occupied dwelling unit, including in a common area or affecting all residents, of such owner's building in a conspicuous manner in the building's lobby until such violation has been closed. In addition, such owner shall post a flyer or pamphlet, created by the department, with information about the adjudication process. Such notice of violation and flyer or pamphlet shall be posted as soon as practicable, but no later than five calendar days after it has been served.

(L.L. 2019/110, 6/8/2019, eff. 12/5/2019)

§ 28-204.1.3 Notice to occupants of violating conditions in occupied dwelling units.

An owner must distribute a copy of a notice of violation to the resident of an occupied dwelling unit where such violation relates to a violating condition that is present within such dwelling unit, and to residents of occupied dwelling units adjacent to such dwelling unit. In addition, such owner shall provide such residents with a flyer or pamphlet, created by the department, with information about the adjudication process. Such notice of violation and flyer or pamphlet shall be distributed to such occupied dwelling units as soon as practicable, but no later than five calendar days after it has been served.

(L.L. 2019/110, 6/8/2019, eff. 12/5/2019)

§ 28-204.2 Order to certify correction.

Each such notice of violation shall contain an order of the commissioner directing the respondent to correct the condition constituting the violation and to file with the department electronically or in such other manner as the department may authorize by rule a certification that the condition has been corrected. Unless otherwise provided by rule, such order shall require that violations classified as major or lesser be corrected within 30 days from the date of the order, that violations classified as immediately hazardous be corrected forthwith. Such order shall also require that certification of the correction of the violation shall be filed with the department in a manner and form and within such period of time as shall be established by the department. In any proceeding before the environmental control board, no civil penalty shall be imposed for a lesser violation or for a first-time violation of the major violations listed in items 1.1 through 1.7 of this section if the respondent complies with the commissioner's order to correct and to certify correction of the violation within the applicable time period. However, such violation may serve as a predicate for purposes of assessing aggravating factors attributable to multiple offenses.

   1.   As described in this section, no civil penalty shall be imposed upon correction of the following first-time major violations:

      1.1.   Failure to post, or post in accordance with the restrictions and prohibitions set forth in section 28-105.11, a building permit or a copy thereof for work at a work site in violation of section 28-105.11, or violation of a corresponding rule promulgated by the department;

      1.2.   Failure to maintain a sign in accordance with the requirements of title 27, title 28, the zoning resolution of the city of New York, or the rules of the city of New York in violation of section 28-301.1, or violation of a corresponding rule promulgated by the department;

      1.3.   Failure by an owner of a boiler to file a complete boiler inspection report in violation of section 28-303.7, or violation of a corresponding rule promulgated by the department;

      1.4.   A sign in a commercial, or C, district exceeds surface area restrictions in violation of section 32-64 of the zoning resolution of the city of New York, or violation of a corresponding rule promulgated by the department;

      1.5.   A sign in a specified commercial, or C, district projects across the street line limitation in violation of section 32-652 of the zoning resolution of the city of New York, or violation of a corresponding rule promulgated by the department;

      1.6.   A sign displayed on an awning, canopy or marquee in a commercial, or C, district in violation of the restrictions set forth in section 32-653 of the zoning resolution of the city of New York, or violation of a corresponding rule promulgated by the department; and

      1.7.   Miscellaneous sign violation under the zoning resolution of the city of New York, or violation of a corresponding rule promulgated by the department.

(Am. L.L. 2021/080, 7/18/2021, eff. 11/15/2021)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/080.

§ 28-204.3 Failure of proof.

In any proceeding before the environmental control board, if it is found that the commissioner has failed to prove the violation charged, the order requiring the respondent to correct the condition constituting the violation and to file a certification of correction shall be deemed dismissed.

(Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

§ 28-204.4 Failure to certify the correction of a violation.

Failure to comply with an order of the commissioner issued pursuant to section 28-204.2 or pursuant to any provision of law or rule enforced by the department in effect at the time the order was issued to correct and to certify correction of a violation within the applicable time period shall be a violation of this code for which penalties may be imposed in addition to the penalties that may be or have been imposed for the violation referred to in such order. Upon application, for good cause, the commissioner may extend the time for filing the certification of correction of a violation, but not for more than 30 days for each extension.

§ 28-204.5 False statements in certification of correction.

For the purposes of this section, if the environmental control board finds that a certification of correction filed pursuant to section 28-204.2 contained material false statements relating to the correction of a violation, such certification of correction shall be null and void and the penalties set forth in this code for the violation may be imposed as if such false certification had not been filed with and accepted by the department. It shall be an affirmative defense that the respondent neither knew nor should have known that such statements were false.

(Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.