DOS-04-15-00004-ERP Fixing the Time for Compliance with an Order to Remedy Violation(s) of the State Uniform Fire Prevention and Building Code

8/26/15 N.Y. St. Reg. DOS-04-15-00004-ERP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 34

August 26, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

EMERGENCY/PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. DOS-04-15-00004-ERP

Filing No. 683

Filing Date. Aug. 07, 2015

Effective Date. Aug. 07, 2015

Fixing the Time for Compliance with an Order to Remedy Violation(s) of the State Uniform Fire Prevention and Building Code

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action Taken:

Amendment of section 1203.1; and addition of section 1203.5 to Title 19 NYCRR.

Statutory authority:

Executive Law, sections 381(1) and 382(2)

Finding of necessity for emergency rule:

Preservation of public safety and general welfare.

Specific reasons underlying the finding of necessity:

This rule is adopted as an emergency measure for the preservation of the public safety and general welfare.

Executive Law § 381(1) directs the Secretary of State to promulgate rules and regulations for the administration of the State Uniform Fire Prevention and Building Code (Uniform Code).

Executive Law § 382(2) provides, in pertinent part, that “any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the [Uniform Code], who shall fail to comply with such order within the time fixed by the regulations promulgated by the Secretary of State pursuant to [Executive Law § 381(1)], such time period stated in the order, shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both.”

Prior to January 12, 2015, the regulations adopted by the Department of State pursuant to Executive Law § 381(1) have never "fixed" a time within which a person served with an order to remedy must comply with that order. In most cases, the local government that issues an order to remedy determines a “reasonable time” within which compliance with the order would be required.

On September 22, 2014, the New York State Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, issued a decision in the matter of People v. Plateau Associates, LLC. The Court held that in the absence of a Department of State regulation fixing the time within which compliance with an order to remedy is required, a party served with such an order could not be charged under Executive Law § 382(2) for failure to comply with such order within the time fixed by regulation for such compliance. The Court rejected the argument that the local government that issued the order to remedy should be permitted to determine the “reasonable time” within which compliance with the order to remedy would be required.

In the absence of a Department of State regulation fixing the time for compliance with an Order to Remedy, the precedent established in People v. Plateau Associates, LLC could cause courts in the State to refuse to impose the penalties contemplated by Executive Law § 382(2). This, in turn, would seriously diminish the effectiveness of orders to remedy, resulting in inadequate enforcement of the Uniform Code, thereby potentially subjecting the people of this State to the real and present dangers to public health and safety posed by fire.¹ The Department of State determined that adopting a rule fixing the time to comply with an Order to Remedy on an emergency basis was necessary to halt such undesirable result at the earliest possible date.

On January 12, 2015, the Department of State adopted an emergency rule that fixed the time within which compliance with an order to remedy any condition found to exist in, on, or about any building in violation of the Uniform Code at thirty (30) days following the date of the order.

The initial emergency rule was also proposed for permanent adoption. The public comment period has closed, and the Department of State has completed its assessment of the comments received. The Department of State has made a number of changes to the original rule in response to the comments received. The Department of State believes that no single change constitutes a substantial revision of the rule. However, because of the number of clarifying changes that were made, the Department of State has elected to treat the revision of the rule, in its totality, as a substantial revision, requiring a Notice of Revised Rule Making.

The initial emergency rule was re-adopted twice. The second emergency re-adoption will expire on August 3, 2015. Adopting the revised rule on an emergency basis is necessary to assure that a regulation that fixes the time for compliance with an Order to Remedy will remain in effect during the time required for additional comment on the revised version of the rule.

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¹ See Executive Law § 371(1)(d): “The legislature hereby finds and declares that: . . . Whether because of the absence of applicable codes, inadequate code provisions or inadequate enforcement of codes, the threat to the public health and safety posed by fire remains a real and present danger for the people of the state;

Subject:

Fixing the time for compliance with an order to remedy violation(s) of the State Uniform Fire Prevention and Building Code.

Purpose:

Fix the time for compliance with an order to remedy any condition found to exist in buildings in violation of the Uniform Code.

Public hearing(s) will be held at:

10:00 a.m., October 14, 2015 at Department of State, 99 Washington Ave., Rm. 505, Albany, NY.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Text of emergency/revised rule:

1. Section 1203.1 of Part 1203 of Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended to read as follows:

1203.1 Introduction.

Section 381 of the Executive Law directs the Secretary of State to promulgate rules and regulations for administration of the Uniform Fire Prevention and Building Code (Uniform Code) and the State Energy Conservation Construction Code (Energy Code). These rules and regulations are to address the nature and quality of enforcement and are the subject of this Part.

2. Part 1203 of Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended by adding a new section 1203.5 to read as follows:

1203.5 Compliance with an order to remedy.

(a) Introduction and purpose. Section 381 of the Executive Law provides for the administration and enforcement of the Uniform Code and authorizes the promulgation of this Part to establish minimum standards for such administration and enforcement. In addition, subdivision 2 of section 382 of the Executive Law provides, in part, that any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the Uniform Code, who shall fail to comply with such order within the time fixed by the regulations promulgated by the Secretary of State pursuant to subdivision 1 of section 381 of the Executive Law, such time period to be stated in the order, shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both. The purpose of this section 1203.5 is to fix, for the purposes of subdivision 2 of section 382 of the Executive Law, the time within which a person or entity served with an Order to Remedy is required to comply with such Order to Remedy.

(b) Definitions. In this section 1203.5, the following terms shall have the following meanings:

(1) The term “Authority Having Jurisdiction” means any city, town, village, county, state agency or other governmental unit or agency responsible for administration and enforcement of the Uniform Code.

(2) The term “Order to Remedy” means an order to remedy any condition found to exist in, on, or about any building in violation of the Uniform Code.

(3) The term “comply with an Order to Remedy” means to remedy completely each violation described in the Order to Remedy.

(c) Time for compliance with Order to Remedy. For the purposes of subdivision 2 of section 382 of the Executive Law, the time within which a person or entity served with an Order to Remedy is required to comply with such Order to Remedy is hereby fixed at thirty (30) days following the date of such Order to Remedy.

(d) Statement to be included in Order to Remedy. For the purpose of complying with that part of subdivision 2 of section 382 of the Executive Law that provides “such time period to be stated in the order,” an Order to Remedy shall include a statement substantially similar to the following: “The person or entity served with this Order to Remedy must completely remedy each violation described in this Order to Remedy by _____ [specify date], which is thirty (30) days after the date of this Order to Remedy.”

(e) Service. An Order to Remedy shall be served personally or by certified or registered mail within five (5) days of the date of the order. For the purposes of this section 1203.5:

(1) if an Order to Remedy is served personally by any authorized means that requires more than one action by the person effecting service (such as service by “delivery and mail” similar to that authorized by CPLR 308(2)), the Order to Remedy shall be deemed to be served on the date on which the last required action is taken; and

(2) an Order to Remedy served by certified or registered mail shall be deemed to be served on the date it is mailed.

(f) Requiring immediate commencement of corrective action. Nothing in this section 1203.5 shall be construed as prohibiting any Authority Having Jurisdiction that issues an Order to Remedy from including in such Order to Remedy provisions ordering the person or entity served with such Order to Remedy:

(1) to begin to remedy the violations described in the Order to Remedy immediately, or within some other specified period of time which may be less than thirty (30) days; to continue diligently to remedy such violations until each such violation is fully remedied; and, in any event, to complete the remedying of all such violations within thirty (30) days of the date of such Order to Remedy; and/or

(2) to take such other protective actions (such as vacating the building or barricading the area where the violations exist) which are authorized by the code enforcement program of the Authority Having Jurisdiction or by any other applicable statute, regulation, rule, local law or ordinance, and which the Authority Having Jurisdiction may deem appropriate, during the period while such violations are being remedied.

(g) Other means of enforcing the Uniform Code. Nothing in this section 1203.5 shall be construed as requiring an Authority Having Jurisdiction to issue an Order to Remedy in a given situation where violations of the Uniform Code are found to exist if, in the judgment of the Authority Having Jurisdiction, such violations can be addressed adequately by the use of other enforcement tools or by other means. Nothing in this section 1203.5 shall be construed as limiting the authority of an Authority Having Jurisdiction to employ any other means of enforcing the Uniform Code and/or Energy Code, including, but not limited to:

(1) issuing notices of violation;

(2) issuing appearance tickets;

(3) commencing and prosecuting an appropriate action or proceeding pursuant to that part of subdivision 2 of section 382 of the Executive Law that provides that any owner, builder, architect, tenant, contractor, subcontractor, construction superintendent or their agents or any other person taking part or assisting in the “construction” (as defined in subdivision 4 of section 372 of the Executive Law) of any building who shall knowingly violate any of the applicable provisions of the Uniform Code or any lawful order of a city, village, town, county, state agency or the Secretary of State made thereunder regarding standards for construction, maintenance, or fire protection equipment and systems, shall be subject to a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both;

(4) commencing and prosecuting an appropriate action or proceeding pursuant to subdivision 3 of section 382 of the Executive Law which seeks, in a case where the construction or use of a building is in violation of any provision of the Uniform Code or any lawful order obtained thereunder, an order from a Justice of the Supreme Court directing the removal of the building or an abatement of the condition in violation of such provisions;

(5) issuing stop work orders;

(6) revoking or suspending building permits, operating permits and/or certificates of occupancy pursuant to the procedures established in the code enforcement program of the Authority Having Jurisdiction or pursuant to any other applicable statute, regulation, rule, local law or ordinance;

(7) commencing and prosecuting an appropriate action or proceeding to impose such criminal and/or civil sanctions as may be provided in any applicable statute, regulation, rule, local law or ordinance;

(8) condemning and/or placarding a building in accordance with the applicable provisions of the Uniform Code;

(9) taking any action authorized by the procedures for identifying and addressing unsafe structures and equipment as established in the code enforcement program of the Authority Having Jurisdiction or by any other applicable statute, regulation, rule, local law or ordinance; or

(10) issuing orders to remedy violations of the Energy Code pursuant to subdivision (1) of section 11-108 of the Energy Law.

(h) Office of Fire Prevention and Control. For the purposes of this section 1203.5, the term “Order to Remedy” shall not include any order issued by the Office of Fire Prevention and Control pursuant to section 156-e of the Executive Law (or pursuant to any regulation promulgated thereunder) requiring the remedying of any condition found to exist in, on or about any building under the jurisdiction of a public college or independent college (as these terms are defined in section 807-b of the Education Law) which violates the Uniform Code. Nothing in this section 1203.5 shall be construed as fixing the time within which a public college or independent college shall have to comply with any such order, or as requiring any such order to include the statement prescribed in subdivision (d) of this section.

This notice is intended

to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on January 28, 2015, I.D. No. DOS-04-15-00004-EP. The emergency rule will expire November 4, 2015.

Emergency rule compared with proposed rule:

Substantial revisions were made in section 1203.5(a)-(h).

Text of rule and any required statements and analyses may be obtained from:

Joseph Ball, Department of State, 99 Washington Ave., Suite 1120, Albany, NY 12231-0001, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

October 19, 2015.

Revised Regulatory Impact Statement

1. STATUTORY AUTHORITY

Adoption of this rule is authorized by Executive Law § § 381(1) and 382(2). Executive Law § 381(1) provides that the Secretary of State shall promulgate rules and regulations prescribing minimum standards for administration and enforcement of the Uniform Fire Prevention and Building Code (Uniform Code).

Executive Law § 382(2) provides, in part, that “(a)ny person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the [Uniform Code], who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to [Executive Law § 381(1)], such time period to be stated in the order, . . . shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both.”

2. LEGISLATIVE OBJECTIVES

This rule will add a new section 1203.5 to 19 NYCRR Part 1203. The new section 1203.5 to be added by this rule will effectuate the objectives of Executive Law § § 381(1) and 382(2) by promulgating a regulation that (1) fixes the time within which compliance with an order to remedy will be required at thirty (30) days following the date of the order and (2) requiring each order to remedy to include a notice that clearly states the time within which compliance with the order is required and the consequences of failure to comply with the order within that stated time.¹

3. NEEDS AND BENEFITS

When current Article 18 of the Executive Law was adopted in 1981, there was no single building code applicable in all parts of the state; local governments were free to adopt their own code, to “accept” the applicability of the State Building Construction Code, or to have no building code at all. When it adopted the current Article 18, the Legislature found and declared that “(w)hether because of the absence of applicable codes, inadequate code provisions or inadequate enforcement of codes, the threat to the public health and safety posed by fire remains a real and present danger for the people of the state” (Executive Law § 371(1)(d), emphasis added). The Legislature addressed the first two concerns (absence of applicable codes or inadequate code provisions) by providing, in Article 18, that the State Uniform Fire Prevention and Building Code (Uniform Code) would be applicable in all parts of the State except New York City. The Legislature addressed the third concern (inadequate enforcement of codes) by requiring local governments to administer and enforce the Uniform Code (Executive Law § 381(2)) and by providing a non-exclusive list of enforcement tools, including “the power to order in writing the remedying of any condition found to exist in, on or about any building in violation of the [Uniform Code]” (Executive Law § 382(1)).

As stated above, Executive Law § 382(2) provides, in part, that a person served with an order to remedy who fails to comply with such order “within the time fixed by the regulations promulgated by the [Secretary of State] pursuant to [Executive Law § 381(1)], such time period to be stated in the order” shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both.

The regulations adopted by the Department of State (DOS) pursuant to Executive Law § 381(1) currently contain no provision fixing the time for compliance with an order to remedy. DOS understands that a local government issuing an order to remedy will, in most cases, determine a reasonable time within which compliance with the order would be required. However, the recent case of People v. Plateau Associates, LLC, the Appellate Term for the Second Department, 9th and 10th Judicial Districts, held that in the absence of a DOS regulation fixing the time within which compliance with an order to remedy is required, the party served with such an order could not be charged under Executive Law § 382(2). The Court rejected the argument that the local government that issued the order to remedy should be permitted to determine the “reasonable time” within which compliance with the order to remedy would be required.

This rule adopts a regulation that fixes the time within which compliance with an order to remedy is required. This rule is necessary because in the absence of a regulation fixing the time within which full compliance with an order to remedy is required, courts may, under the precedent established by Plateau Associates, refuse to impose the penalties contemplated by Executive Law § 382(2) upon persons who are served with an order to remedy who fail to comply with the order to remedy. This, in turn, would seriously diminish the effectiveness of orders to remedy, resulting in inadequate enforcement of the Uniform Code and potentially subject the people of this State to the real and present dangers of to public safety posed by fire, as identified by the State Legislature in Executive Law § 371(1)(d).

4. COSTS

Costs to Regulated Parties

Pursuant to Executive Law § 382(2), a person served with an order to remedy who fails to comply with the order within the time fixed by this rule will be subject to the penalties prescribed by Executive Law § 382(2), viz., a fine not to exceed $1,000 per day of violation, imprisonment for not more than one year, or both.

A person served with an order to remedy is already required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. This rule will impose no additional initial capital costs on any person served with an order to remedy. This rule will impose no additional annual compliance costs on any person served with an order to remedy.

Upon learning of the decision in People v. Plateau Associates, LLC, the Department of State’s Division of Building Standards and Codes solicited information from local governments’ code enforcement officials from around the State. These officials were surveyed regarding times within which compliance with an order to remedy is typically required. Among those surveyed, the majority of participants affirmed that they included in orders to remedy, a specific date by which any violations must be corrected. On average, the time allowed before re-inspection or correction of the violations was reported to be twenty (20) days. The time fixed by this rule for compliance with an order to remedy (30 days from the date of the order) is actually slightly longer that this reported average.

This rule will expressly provide (1) that an order to remedy may provide that the person served with the order must begin to remedy the violation(s) immediately and (2) that new section 1203.5 does not limit any other enforcement tool. These provisions will allow a local government to address situations in which immediate action is required to protect health and safety.

Costs to the Department of State, New York State, and Local Governments

In general, local governments are responsible for enforcing the Uniform Code. In certain instances, the Department of State (DOS) is responsible for enforcing the Uniform Code.

This rule will require a local government (or DOS in those instances where it enforces the Uniform Code) to include in each order to remedy a statement substantially similar to the following: “Full compliance with this order to remedy is required by _____ [specify date], which is thirty (30) days after the date of this order.”

This rule will also require the local government or other enforcing agency that issues an order to remedy to serve the order (personally or by registered or certified mail) within 5 days of the date of the order.

The initial costs to be incurred by local governments that enforce the Uniform Code (and by DOS in those instances where it enforces the Uniform Code) will include (1) the cost of modifying their order to remedy forms to include the statement required by this rule and (2) the cost of training their code enforcement personnel on the requirements of this rule. However, DOS anticipates that the cost of modifying a local government’s order to remedy form to include the notice required by this rule will be negligible. In addition, code enforcement personnel are required by existing law to receive 24 hours of in-service training each year, and DOS anticipates that training on the requirements of the new this rule can be provided within the already required annual in-service training.

The annual or on-going compliance costs for local governments that enforce the Uniform Code (and by DOS in those instances where it enforces the Uniform Code) will include the costs associated with tracking service of orders to remedy to assure that service is made within the five day time limit established by this rule. However, DOS anticipates that a local government will be able to fulfill these obligations using its existing code enforcement personnel, at little or no additional cost to the local government. Further, local governments are authorized by existing law to charge fees to defray the cost of their code enforcement activities.

DOS does not anticipate that the State of New York will incur any costs for the implementation of, and continued administration of, this rule.

5. PAPERWORK

As stated above, this rule will require a local government (or DOS, in instances where it enforces the Uniform Code) to include a notice in each order to remedy specifying the date by which compliance with such order will be required and specifying the consequences of failure to comply with the order within that stated time.

6. LOCAL GOVERNMENT MANDATES

A local government that issues an order to remedy will be required to include in that order a notice specifying the date by which compliance with such order will be required and specifying the consequences of failure to comply with the order within that stated time. A local government that issues an order to remedy will also be required to see that the order is served (personally or by registered or certified mail) with 5 days of the date of the order.

Local governments that enforce the Uniform Code will be required to ensure that their code enforcement personnel receive training on the provisions of this rule.

DOS anticipates that any such additional training and enforcement obligations will have little or no impact on the code enforcement expenses incurred by local governments. In addition, local governments are authorized by existing law to charge fees to offset their code enforcement expenses.

7. DUPLICATION

This rule implements the requirements of Executive Law § 382(2). This rule does not duplicate any rule or other legal requirement of the State or Federal government known to DOS.

8. ALTERNATIVES

DOS considered a rule that would allow local governments to determine the time within which compliance with an order to remedy would be required on a case by case basis. However, the court in the Plateau Associates, LLC case cited above rejected this approach, and indicated that Executive Law § 382(2) requires DOS to adopt a regulation fixing a time within which compliance with an order to remedy would be required.

DOS considered a rule that would fix a period of time less than, or more than, 30 days as the time within which full compliance with an Order to Remedy would be required. However, as stated above, DOS’s survey of local code enforcement officials indicated that on average, the time allowed before re-inspection or correction of the violations was reported to be twenty (20) days. Taking into account the possibility of an Order being served on the last possible date (5 days after its date), and assuming that an Order served by mail might not be received until 5 days after the mailing, this rule will give the person served at least 20 days to remedy the violations in most cases. In cases where immediate action is required, this rule provides that the order may require the party served to begin to remedy the violations immediately.

9. FEDERAL STANDARDS

This rule does not exceed any known minimum standards of the Federal government for the same or similar subject areas.

10. COMPLIANCE SCHEDULE

DOS anticipates that local governments and other code enforcing agencies will be able to comply with this rule immediately.

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¹ This rule will also amend section 1203.1 of Title 19 of the NYCRR to include a reference to and definition of the term “Energy Code.”

Revised Regulatory Flexibility Analysis

1. EFFECT OF RULE.

Executive Law § 382(2) provides, in part, that any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the State Uniform Fire Prevention and Building Code (the Uniform Code), who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to Executive Law § 381(1), such time period to be stated in the order, shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both. This rule amends 19 NYCRR Part 1203 by adding Section 1203.5 (entitled “Compliance with an order to remedy”) which fixes the time within which compliance with an order to remedy is required. Under new Section 1203.5, the time within which compliance with an order to remedy is required is fixed at thirty (30) days following the date of the order.

New section 1203.5 will also require (1) that each order to remedy include a notice indicating the date by which compliance with the order is required and the consequences of failure to comply with the order by that date and (2) that each order to remedy be served (personally or by registered or certified mail) within 5 days of the date of the order.¹

The Uniform Code is applicable in all areas of the State except New York City. Therefore, this rule will affect any small business which owns or occupies a building or structure anywhere in the State except New York City and which is served with an order to remedy Uniform Code violation(s) found to exist in, on, or about such building or structure. The Department of State is not able to estimate the number of small businesses that will be served with such an order to remedy.

In general, local governments (cities, towns, and villages) are required to enforce the Uniform Code. In some cases, a county may enforce the Uniform Code. Therefore, this rule will affect any local government or county which enforces the Uniform Code and which chooses to issue an order to remedy. The Department of State estimates that approximately 1,600 local governments and counties enforce the Uniform Code, and that most of these local governments and counties issue orders to remedy from time to time.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES.

This rule will fix the time for compliance with an order to remedy at thirty (30) days from the date of the order. A person or entity (including a small business) served with an order to remedy is already required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. Failure to comply with an order to remedy within the time fixed by this rule will make the person or entity served with the order subject to the penalties prescribed by Executive Law § 382(2). This rule will impose no new reporting, recordkeeping or other compliance requirements on any person served with an order to remedy.

A person or entity (including a small business) served with an order to remedy may find it necessary or desirable to hire an engineer, architect or other professional who constructs or assists in the construction or maintenance of buildings to assist with compliance with the order; however, this rule will not increase the need for any such professional services.

Local government that enforce the Uniform Code and issue orders to remedy will be required to include in each such order a notice indicating the date by which compliance with the order is required and the consequences of failure to comply with the order by that date. Local governments will be required to modify their order to remedy forms to include this notice.

Local government that enforce the Uniform Code and issue orders to remedy will be required to serve each such order to remedy (personally or by registered or certified mail) within 5 days of the date of the order. Local governments will be required to track service of their orders to remedy to assure that they are served within the applicable five day period.

The Department of State anticipates that local governments will be able to comply with the new requirements added by section 1203.5 with their current code enforcement personnel, and will not require any significant additional professional services.

3. COMPLIANCE COSTS.

Pursuant to Executive Law § 382(2), a person served with an order to remedy who fails to comply with the order within the time fixed by this rule will be subject to the penalties prescribed by Executive Law § 382(2), viz., a fine not to exceed $1,000 per day of violation, imprisonment for not more than one year, or both. However, a person or entity (including a small business) served with an order to remedy is already required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. This rule will impose no additional initial capital costs on any person or entity (including any small business) served with an order to remedy.

This rule will impose no additional annual compliance costs on any person or entity (including any small business) served with an order to remedy.

The initial costs to be incurred by local governments that enforce the Uniform Code will include (1) the cost of modifying their order to remedy forms to include the statement required by this rule and (2) the cost of training their code enforcement personnel on the requirements of this rule. However, the Department of State anticipates that the cost of modifying a local government’s order to remedy form to include the notice required by this rule will be negligible. In addition, code enforcement personnel are required by existing law to receive 24 hours of in-service training each year, and the Department of State anticipates that training on the requirements of the new this rule can be provided within the already required annual in-service training.

The annual or on-going compliance costs for local governments that enforce the Uniform Code will include the costs associated with tracking service of orders to remedy to assure that service is made within the five day time limit established by this rule. However, the Department of State anticipates that a local government will be able to fulfill these obligations using its existing code enforcement personnel, at little or no additional cost to the local government. Further, local governments are authorized by existing law to charge fees to defray the cost of their code enforcement activities.

4. ECONOMIC AND TECHNOLOGICAL FEASIBILITY.

It is economically and technologically feasible for regulated parties to comply with the rule. No substantial capital expenditures are imposed and no new technology need be developed for compliance.

The Department of State anticipates that local governments will be able to comply with this rule using their existing code enforcement personnel.

5. MINIMIZING ADVERSE IMPACT.

This rule was designed to minimize any adverse impact on all affected parties, including small businesses and local governments, by: (1) fixing the time within which compliance with an order to remedy is required at 30 days from the date of the order, thereby enabling local governments easily to compute the date by which compliance is required and to state that date in the order to remedy, as required by Executive Law § 382(2); (2) specifying the form of the statement to be included in the order to remedy that will enable local governments to state the time within which compliance is required, which will facilitate local governments’ ability to comply with the requirements of Executive Law § 382(2); (3) providing that local governments can include in an order to remedy provisions requiring that the person or entity served with the order must begin to remedy the violation(s) immediately, and must diligently continue to remedy the violation(s), thereby allowing local governments to include appropriate provisions in an order to remedy to address a situation where immediate action is required to address life /safety concerns; and (4) providing a time within which compliance is required (30 days) which is longer than the average time currently specified by local governments that responded to the Department of State’s survey (20 days), thereby assuring that a person or entity served with an order to remedy will have a reasonable time to comply before being subject to the penalties prescribed by Executive Law § 382(2).

Approaches such as establishing different compliance or reporting requirements or timetables that take into account the resources available to small businesses and local governments and/or providing exemptions from coverage by the rule, or any part thereof, for small businesses and local governments were not considered because doing so is not authorized by the statute and would endanger the public safety and general welfare.

6. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION.

The Department of State gave small businesses and local governments an opportunity to participate in this rule making by posting a notice regarding this rule on the Department of State’s website and by publishing a notice regarding this rule in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry that is prepared by the Department of State and is currently distributed to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry.

This is a revised rule making. Interested parties throughout the State, including small businesses and local governments, were given an opportunity to submit comments regarding the original version of this rule during the public comment period established by the Notice of Emergency Adoption and Proposed Rule Making filed for the original version of this rule, and will be given an opportunity to submit comments regarding the revised rule during the public comment period to be established by the Notice of Emergency Adoption and Revised Rule Making submitted with this Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments.

7. VIOLATIONS AND PENALTIES ASSOCIATED WITH VIOLATIONS.

The applicable statute (Executive Law § 382(2)) establishes a violation (viz., failure to comply with an order to remedy) and establishes penalties associated with such violation (viz., a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both). While this rule will relate to the violation and penalty established by Executive Law § 382(2) in the sense that this rule will fix the time within which compliance with an order to remedy is required, this rule will not directly establish or modify a violation and this rule will not directly establish or modify penalties associated with a violation. Therefore, for the purposes of Chapter 524 of the Laws of 2011 and subdivision 1-a of section 202-b of the State Administrative Procedure Act, this rule is not required to include a cure period or other opportunity for ameliorative action, the successful completion of which will prevent the imposition of penalties on the party or parties subject to enforcement. It should be noted, however, that this rule will, in effect, include a cure period or other opportunity for ameliorative action in the sense that this rule will provide that a person served with an order to remedy will have at least 30 days to comply with the order before the statutory penalties can be imposed.

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¹ This rule will also amend section 1203.1 of Title 19 of the NYCRR to include a reference to and definition of the term “energy code.”

Revised Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.

This rule adds a new section 1203.5 to Title 19 of the NYCRR. New section 1203.5 fixes the time within which compliance with an order to remedy violations of the State Uniform Fire Prevention and Building Code (the Uniform Code) is required.¹

The Uniform Code applies in all parts of the State except New York City. Therefore, this rule will apply in all rural areas of the State.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES.

Executive Law § 382(2) provides, in part, that any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the State Uniform Fire Prevention and Building Code (the Uniform Code), who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to subdivision one of section three hundred eighty-one of this article, such time period to be stated in the order, shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both. This rule will add a new section 1203.5 to Title 19 of the NYCRR. New section 1203.5 fixes the time for compliance with an order to remedy at thirty (30) days from the date of the order.

A person served with an order to remedy in any part of the State, including any rural area, is already required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. Failure to comply with an order to remedy within the time fixed by this rule will make the person served with the order subject to the penalties prescribed by Executive Law § 382(2).

This rule will impose no new reporting, recordkeeping or other compliance requirements on any person served with an order to remedy.

A person served with an order to remedy may find it necessary or desirable to hire an engineer, architect or other professional who constructs or assists in the construction or maintenance of buildings to assist with compliance with the order; however, this rule will not increase the need for any such professional services.

New section 1203.5 will require a local government that issues an order to remedy to include in the order a statement indicating that full compliance with the order within thirty (30) days of the date of the order is required. Local governments (including local governments in rural areas) will be required to modify their order to remedy forms to include this notice.

New section 1203.5 will provide that an order to remedy must be served within five days of the date of the order. Local governments (including local governments in rural areas) will be required to track service of their orders to remedy to assure that they are served within the applicable five day period.

The Department of State anticipates that local governments will be able to enforce the new requirement added by section 1203.5 with their current code enforcement personnel, and will not require any significant additional professional services.

3. COMPLIANCE COSTS.

Pursuant to Executive Law § 382(2), a person served with an order to remedy who fails to comply with the order within the time fixed by this rule will be subject to the penalties prescribed by Executive Law § 382(2), viz., a fine not to exceed $1,000 per day of violation, imprisonment for not more than one year, or both. However, a person served with an order to remedy in any part of the State, including any rural area, is already required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. This rule will impose no additional initial capital costs on any person served with an order to remedy. This rule will impose no additional annual compliance costs on any person served with an order to remedy.

The initial costs to be incurred by local governments (including local governments in rural areas) will include (1) the cost of modifying their order to remedy forms to include the statement required by this rule and (2) the cost of training their code enforcement personnel on the requirements of this rule. However, the Department of State anticipates that the cost of modifying a local government’s order to remedy form to include the notice required by this rule will be negligible. In addition, code enforcement personnel are required by existing law to receive 24 hours of in-service training each year, and the Department of State anticipates that training on the requirements of the new this rule can be provided within the already required annual in-service training.

The annual or on-going compliance costs for local governments (including local governments in rural areas) will include the costs associated with tracking service of orders to remedy to assure that service is made within the five day time limit established by this rule. However, the Department of State anticipates that a local government will be able to fulfill these obligations using its existing code enforcement personnel, at little or no additional cost to the local government. Further, local governments are authorized by existing law to charge fees to defray the cost of their code enforcement activities.

4. MINIMIZING ADVERSE IMPACT.

This rule was designed to minimize any adverse impact on all areas of the State, including rural areas, by: (1) fixing the time within which compliance with an order to remedy is required at 30 days from the date of the order, thereby enabling local governments easily to compute the date by which compliance is required and to state that date in the order to remedy, as required by Executive Law § 382(2); (2) specifying the form of the statement to be included in the order to remedy that will enable local governments to state the time within which compliance is required, which will facilitate local governments’ ability to comply with the requirements of Executive Law § 382(2); (3) providing that local governments can include in an order to remedy provisions requiring that the person or entity served with the order must begin to remedy the violation(s) immediately, and must diligently continue to remedy the violation(s), thereby allowing local governments to include appropriate provisions in an order to remedy to address a situation where immediate action is required to address life /safety concerns; and (4) providing a time within which compliance is required (30 days) which is longer than the average time currently specified by local governments that responded to the Department of State’s survey (20 days), thereby assuring that a person or entity served with an order to remedy will have a reasonable time to comply before being subject to the penalties prescribed by Executive Law § 382(2).

Establishing different compliance requirements for public and private sector interests in rural areas and/or providing exemptions from coverage by the rule for public and private sector interests in rural areas was not considered because doing so is not authorized by the statute and would endanger the public safety and general welfare.

5. RURAL AREA PARTICIPATION.

The Department of State notified interested parties throughout the State, including interested parties in rural areas, of the proposed adoption of this rule by means of notices posted on the Department’s website and published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code/Energy Code and the construction industry which is prepared by the Department of State and which is currently distributed to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry.

This is a revised rule making. Interested parties throughout the State, including interested parties in rural areas, were given an opportunity to submit comments regarding the original version of this rule during the public comment period established by the Notice of Emergency Adoption and Proposed Rule Making filed for the original version of this rule, and will be given an opportunity to submit comments regarding the revised rule during the public comment period to be established by the Notice of Emergency Adoption and Revised Rule Making submitted with this Revised Rural Area Flexibility Analysis.

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¹ This rule will also amend section 1203.1 of Title 19 of the NYCRR to include a reference to and definition of the term “energy code.”

Revised Job Impact Statement

The Department of State has concluded after reviewing the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities in New York.

Executive Law § 382(2) provides, in part, that any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the State Uniform Fire Prevention and Building Code (the Uniform Code), who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to Executive Law § 381(1), such time period to be stated in the order, shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both. This rule will add a new section 1203.5 to Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York. New section 1203.5 fixes the time for compliance with an order to remedy at thirty (30) days from the date of the order.

A person served with an order to remedy is required by existing law to comply with that order. This rule merely fixes the time within which compliance with the order is required. Failure to comply with an order to remedy within the time fixed by this rule will make the person served with the order subject to the penalties prescribed by Executive Law § 382(2).

Therefore, the Department of State concludes that it is apparent from the nature and purpose of this rule that it will have no substantial adverse impact on jobs and employment opportunities.

Assessment of Public Comment

COMMENTS REGARDING TIME TO REMEDY

Summary and analysis

Several comments raised concerns about fixing the time within which a party must comply with an Order to Remedy (OTR) at 30 days. Comments argued (1) that the 30 day time to remedy is too long for certain code violations; (2) that the 30 day time to remedy is too short for certain violations; (3) that the rule should establish a range of time to remedy periods; or (4) that the time to remedy should be left to the discretion of the authority having jurisdiction (AHJ).

DOS Response

This rule was developed in response to People v. Plateau Associates, LLC, which held that in the absence of a Department of State (DOS) regulation specifically fixing a time for compliance with an OTR, a municipality issuing an OTR could not charge the person served with the Order under the part of Executive Law § 382(2) which provides that “any person, having been served. . . with an order to remedy any condition found to exist in, on, or about any building in violation of the [Uniform Code], who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to [Executive Law § 381(1)], such time period to be stated in the order, . . . shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both.”

The Plateau Associates decision rejected the argument that allowing an AHJ to determine, on a case-by-case basis, a “reasonable” time for compliance with an OTR satisfied the requirements of the above-quoted provision of Executive Law § 382(2). Hence, it is necessary to adopt a regulation fixing a specific time.

Upon learning of the Plateau Associates holding, DOS surveyed local government officials regarding the times within which compliance with an OTR is typically required. The average of the reported times was 20 days.

DOS set the time for compliance at 30 days after the date of the OTR because (1) an OTR can be served by registered or certified mail, (2) an OTR can be served as late as 5 days after the date of the OTR, and (3) DOS presumes that in most cases, an OTR served by mail will be received within 5 days of the mailing (see CPLR 2103(b)(2)). Therefore, even if an OTR is served by registered or certified mail on the fifth day after the date of the OTR, the OTR should be received by the addressee no later than 20 days before the date fixed by the OTR for full compliance.

To address concerns that certain code violations must be addressed in less than 30 days, section 1203.5 provides that (1) an OTR may include a provision requiring the immediate commencement of remedial actions and (2) nothing in the section 1203.5 limits the authority of the AHJ to use any other means of enforcing the Uniform Code.

In a situation where the AHJ believes a condition may take longer than 30 days to remedy, nothing in this rule would prohibit the AHJ from sending a “caution” letter to the owner notifying the owner of the existence of the violation(s) and advising the owner of the AHJ’s intention to serve an OTR on or about some specified future date.

COMMENTS REGARDING MANNER OF SERVICE

Summary and analysis

Comments (1) argued that the rule should expand the permissible methods of service of an OTR; (2) expressed concern over the cost of serving “over 2,000 violation notices a year” by registered or certified mail; (3) expressed concern that the failure of the addressee to sign for an OTR served by registered or certified mail within 5 days of the mailing would invalidate the service; and (4) noted that documentation indicating that the addressee refused to accept delivery of a registered or certified mailing, or that the mailing was otherwise undeliverable, is typically received several weeks after the mailing.

DOS Response

Executive Law § 382(2) provides that an OTR must be served “either personally or by registered or certified mail.” DOS cannot adopt a rule authorizing service of an OTR by any means other than those specified in the statute.¹

Concerns regarding the cost of service by registered or certified mail cannot be addressed by a rule adopted by DOS.

The rule addresses only OTRs. This rule does not require service of Notices of Violation by registered or certified mail.

DOS added provisions to the rule to clarify that an OTR served by registered or certified mail is “served” on the date of mailing. Failure of the addressee to sign for the mailing within 5 days of the mailing will not invalidate service.

Regarding concerns that OTR served by registered or certified mail may be refused by the addressee, or may otherwise be undeliverable, DOS notes that service of legal process of any type is subject to Constitutional due process concerns. If an AHJ learns that an OTR it served by certified or registered mail was not actually received by the addressee, the AHJ may be required to issue and serve a new OTR. However, these concerns exist as a matter of Constitutional law, and are not created or expanded by this rule.

COMMENTS REGARDING ALTERNATIVE PENALTIES

Summary and analysis

Comments recommended (1) providing for a fine of a flat $1,000 per day of violation, rather than a fine of “not more than” $1,000 per day of violation; (2) treating all violations as “strict liability offenses regardless of the intent;” and (3) providing for suspension or revocation of operating permits, building permits, and certificates of occupancy for those who fail to comply with an OTR.

DOS Response

The purpose of the rule is to fix the time for compliance with an OTR. This rule does not purport to establish the penalties for failure to comply.

Executive Law § 382(2) provides that the penalty for failure to comply with an OTR is a fine of “not more than” one thousand dollars per day of violation, or imprisonment “not exceeding” one year, or both. DOS has no authority to adopt a rule limiting the discretion of a judge to determine the amount of the fine, or length of imprisonment, to impose in a given case.

With regard to revocation or suspension of permits and certificates of occupancy, each local government that enforces the Uniform Code is required to establish its code enforcement program, and to include the features described in 19 NYCRR Part 1203 in that program. Those features include provisions for issuing operating permits, building permits, and certificates of occupancy, and provisions for revoking or suspending those instruments. Nothing in section 1203.5 will limit the authority of an AHJ to revoke or suspend a permit or certificate pursuant to the provisions of its code enforcement program.

COMMENTS REGARDING THE APPLICABILITY OF THIS RULE TO STATE AGENCIES

Summary and analysis

A comment raised questions about the applicability of section 1203.5 to enforcement of the Uniform Code by State agencies. The comment suggested that the provisions of 19 NYCRR 1204.12(c)-(d) may conflict with section 1203.5.

DOS Response

In general, each State agency that has custody of one or more buildings is required to enforce the Uniform Code with respect to such building(s). DOS believes that it is highly unlikely that a State agency will ever issue an OTR to itself.

In some cases, one State agency serves as the construction-permitting agency for a building constructed by another State agency. In those rare occasions when an enforcing State agency finds it necessary to issue an OTR to another State agency, having a DOS regulation that fixes the time for compliance with such OTR is necessary to make such Order enforceable.

19 NYCRR section 1204.12 (c) provides that State agencies shall correct all code violations within a reasonable amount of time after their discovery. When a State agency is served with an OTR, that “reasonable time” will necessarily be no later than 30 days after the date of the OTR.

19 NYCRR section 1204.12 (d) provides that each State agency shall prepare and maintain a correction plan for all code violations which remain uncorrected 60 days after their discovery. That plan must provide for an accelerated correction schedule for any violation specified in an OTR.

MISCELLANEOUS COMMENTS

One comment expressed concern regarding the ability of the public to submit comments between the date when DOS posted a notice that it was developing this rule and the date of the initial emergency adoption of this rule. DOS Response: This comment appears to be based on the incorrect assumption that the initial emergency adoption of this rule was the “final” adoption of this rule.

One comment expressed concern about the impact of this rule on the portion of Executive Law § 382(2) which provides that “any owner, builder, architect, tenant, contractor, subcontractor, construction superintendent or their agents or any other person taking part or assisting in the construction of any building who shall knowingly violate any of the applicable provisions of the [Uniform Code]. . . shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both.” DOS Response: This rule provides that nothing in this rule shall be construed as limiting the availability of any other code enforcement tool, and includes the above quoted provision of Executive Law § 382(2) on the non-exclusive list of other available code enforcement tools.

One comment noted that a code enforcement officer “assists” in the construction of a building by reviewing the plans and issuing a building permit, and suggested that code enforcement officials could be charged under the above-quoted portion of Executive Law § 382(2). DOS Response: DOS doubts that any court would hold that a CEO is liable under Executive Law § 382(2) because he or she “assisted” in the construction of a building by reviewing plans and issuing a permit. In any event, DOS does not have the authority to adopt a rule purporting to amend Executive Law § 382(2).

One comment requested additional training for code enforcement officials. DOS Response: This rule does not address the amount of training code enforcement officials are required to have or the content of courses code enforcement officials are required to take. However, DOS will consider this request in connection with its preparation of code enforcement official training courses.

One comment expressed concerns regarding the ability of an AHJ to enforce the Uniform Code effectively in cases where the local judge fails to impose significant fines because he or she is “elected” and/or because he or she “knows everyone” in town. The comment asked if a judge could be held liable if “someone gets injured.” DOS Response: DOS has no authority to adopt a rule limiting the discretion of a judge to determine the amount of a fine to impose in a given case, or making a judge liable if a person is injured because a code violation is not corrected. Allegations of judicial misconduct should be reported to the Office for Court Administration.

One comment asked if the 30-day time to remedy provision of this rule would apply to a person charged with violation of a town’s local law that makes any violation of the Uniform Code or the Energy Code a “violation” as defined in the Penal Law. DOS Response: Section 1203.5 provides that nothing in section 1203.5 shall be construed as limiting the authority of any AHJ to use any other available means of enforcing the Uniform Code. Section 1203.5 would not apply in any situation where the AHJ has not issued an OTR.

DESCRIPTION OF CHANGES MADE IN THE RULE AS A RESULT OF COMMENTS

Captions: Subdivision captions were added.

Subdivision (a): A new sentence that expressly states the purpose of section 1203.5 to clarify that section 1203.5 applies only to OTRs was added.

Subdivision (b): A new subdivision (b), defining the terms, was added.

Subdivision (c): The provision fixing the time for compliance with OTRs was moved into a new, separate subdivision (c).

Subdivision (d): Former subdivision (b) was renumbered as new subdivision (d). The statement intended to satisfy the statutory requirement that an OTR “state” the time for compliance was revised.

Subdivision (e): Former subdivision (c) was revised as new subdivision (e). New paragraphs were added to clarify the date on which an OTR is deemed to be “served.”

Subdivision (f): Former subdivision (d) was renumbered as new subdivision (f). The subdivision was revised to clarify its meaning. A new paragraph providing that an OTR can direct the person or entity served to take other protective actions was added.

Subdivision (g): Former subdivision (e) was renumbered as new subdivision (g). Paragraphs (6) and (7) were revised and new paragraphs (8) and (9) were added to clarify and expand the non-exclusive list of the other code-enforcement tools that remained unaffected by this rule. A sentence stating that nothing in section 1203.5 shall be construed as requiring an AHJ to issue an OTR in all cases was added.

Subdivision (h): This new subdivision provides that orders issued by the Office of Fire Prevention and Control (OFPC) pursuant to Executive Law § 156-e are not covered by this rule.

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¹ DOS notes that “personal service” of a legal document is not necessarily limited to personal delivery of the document to the person named in the document. See, for example, CPLR 308, which authorizes “personal” service of a summons by personal delivery or by any one of several other means.