1. How the New Violation and
Enforcement Procedures at the
Environmental Control Board
May Affect Owners
5/15/2008 Adam Leitman Bailey, P.C.

2. 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.

3. 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.

4. 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• Eliminates outdated limitations on ECB jurisdiction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.

5. 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.

6. 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.

7. 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.

8. 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.

9. No more hazardous and non hazardous
designations
5/15/2008 Adam Leitman Bailey, P.C.

10. 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.

11. 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.

12. 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.

13. 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 Adam Leitman Bailey, P.C.