Section 27-2153.
§ 27-2153. Alternative Enforcement Program. The department shall
establish an alternative enforcement program and identify distressed
buildings for participation in such program. Notwithstanding any other
provision of law, the department shall enforce violations of this code
and the multiple dwelling law pursuant to such program, as follows:
a. The department shall identify no fewer than two hundred different
distressed buildings for participation in the alternative enforcement
program in each of the first two years of such program. For purposes of
this subdivision the criteria used to identify distressed buildings
shall be:
(i) twenty-seven or more open hazardous or immediately hazardous
violations of record which were issued by the department within the
two-year period prior to identification of the building for such
program; and
(ii) a ratio of open hazardous and immediately hazardous violations
which were issued by the department within the two-year period prior to
identification of the building for such program that equal in the
aggregate five or more such violations for every dwelling unit in the
multiple dwelling; and
(iii) unpaid emergency repair charges, including liens, in a ratio of
one hundred or more dollars for each dwelling unit in the multiple
dwelling which were incurred within the two-year period prior to
identification of the building for such program.
b. In the third year of such program the department shall identify no
fewer than two hundred different distressed buildings for participation
in the alternative enforcement program. The criteria used to identify
distressed buildings in such year shall be:
(i) twenty-five or more open hazardous or immediately hazardous
violations which were issued by the department within the two-year
period prior to identification of the building for such program; and
(ii) a ratio of open hazardous and immediately hazardous violations
which were issued by the department within the two-year period prior to
such identification that equal in the aggregate five or more such
violations for every dwelling unit in the multiple dwelling; and
(iii) unpaid emergency repair charges, including liens, in a ratio of
one hundred or more dollars for each dwelling unit in the multiple
dwelling which were incurred within the two-year period prior to such
identification.
c. (1) In the fourth year and each succeeding year of such program the
department shall identify no fewer than two hundred different distressed
buildings for participation in the alternative enforcement program. The
criteria used to identify distressed buildings in such years shall be:
(i) in a multiple dwelling that contains not less than three and not
more than nineteen units, a ratio of open hazardous and immediately
hazardous violations which were issued by the department within the
two-year period prior to such identification that equals in the
aggregate five or more such violations for every dwelling unit in the
multiple dwelling, and in a multiple dwelling that contains not less
than twenty units, a ratio of open hazardous and immediately hazardous
violations which were issued by the department within the two-year
period prior to such identification that equals in the aggregate three
or more such violations for every dwelling unit in the multiple
dwelling; and
(ii) paid and unpaid emergency repair charges, including liens, which
were incurred within the two-year period prior to such identification,
of two thousand five hundred or more dollars in a multiple dwelling that
contains not less than three and not more than nineteen units, and paid
and unpaid emergency repair charges, including liens, which were
incurred within the two-year period prior to such identification, of
five thousand or more dollars in a multiple dwelling that contains
twenty or more units.
(2) Notwithstanding the provisions of paragraph one of this
subdivision, in the sixth year of such program, and for each succeeding
year, the department shall identify no fewer than two hundred different
distressed buildings for participation in the alternative enforcement
program and may by rule revise criteria related to the ratio of open
hazardous and immediately hazardous violations per dwelling unit and the
amount or ratio per dwelling unit of paid and unpaid emergency repair
charges which must exist for a building to qualify for participation in
the program.
d. For the purposes of subdivisions a and b of this section, those
buildings having the highest aggregate ratio of open hazardous and
immediately hazardous violations for every dwelling unit shall be the
buildings identified first for participation in the program. For the
purposes of subdivision c of this section, those buildings having the
highest amount of paid and unpaid emergency repair charges and liens
incurred within the two-year period prior to identification shall be the
buildings identified first for participation in the program.
e. Notwithstanding the criteria set forth in subdivisions a, b, and c
of this section, a building that is currently the subject of an in rem
foreclosure action by the city, or that was the subject of an in rem
foreclosure judgment in favor of the city and that was transferred by
the city to a third party pursuant to section 11-412.1 of the code
within the prior five years, or that is currently the subject of a court
order appointing or a proceeding brought by the department seeking the
appointment of an administrator pursuant to article 7-A of the real
property actions and proceedings law, shall not be included in the
alternative enforcement program.
f. Where there are fewer than two hundred buildings that meet the
applicable criteria only the buildings meeting such criteria shall
participate in the alternative enforcement program.
g. The department shall within thirty days of identifying distressed
buildings for participation in the alternative enforcement program
provide written notification to the owner of any building identified for
participation in the alternative enforcement program, the occupants of
such building and the council member in whose district the building is
located, that such building is subject to the requirements of such
program and the requirements of this article. The department shall
simultaneously provide to such owner information about correcting
violations related to mold and vermin, when such violations are
applicable to such multiple dwelling, as set forth in paragraphs ii and
iii of subdivision i of this section.
h. The department shall establish a process to provide the occupants
of buildings participating in the alternative enforcement program and
council members within whose districts such buildings are located with
information regarding the status of the building during participation in
such program.
i. (i) The owner of a building that is identified for participation in
the alternative enforcement program shall be required to respond in
writing to the notification provided pursuant to subdivision g of this
section whether he or she intends to correct the existing violations of
this code and the multiple dwelling law in such building. Such owner
shall correct the existing violations of this code and the multiple
dwelling law in such building no later than four months after written
notification by the department pursuant to subdivision g of this
section, provided, however, that the original correction date for any
violation issued in such building shall not be deemed to be changed or
postponed by such notification. Nothing in this subdivision shall
preclude the department from determining after such identification that
the provisions of subdivision k may be immediately implemented. Where
such owner believes that such violations have been corrected, such owner
shall request a reinspection of such violations for dismissal by the
department. The process to request a reinspection and dismissal of such
violations shall be prescribed in rules promulgated by the department.
The department shall perform a reinspection within sixty days of receipt
of a request for such reinspection by the owner and upon completion of
such reinspection the department shall assess whether such owner has
substantially complied with the requirements of this subdivision. The
department shall issue a notice of violation for any new violation
observed in the course of such reinspection. After completion of such
reinspection, the department shall within twenty days provide a written
determination to such owner. For the purposes of this subdivision,
"substantial compliance" shall mean that at the time of reinspection by
the department, all violations relating directly to providing heat and
hot water and all immediately hazardous violations related to mold,
eighty percent of all hazardous violations related to mold, eighty
percent of all vermin violations and eighty percent of all other open
hazardous and immediately hazardous violations have been determined by
the department to have been corrected. A violation relating to mold
shall only be deemed corrected if the violation has been corrected in
accordance with paragraph ii of this subdivision and a violation
relating to vermin shall only be deemed corrected if such violation has
been corrected in accordance with paragraph iii of this subdivision.
(ii) With respect to mold violations, the owner of a building
participating in the alternative enforcement program shall correct such
violations by investigating and correcting identified moisture problems
prior to or as part of the mold removal work; informing building
occupants about commencement of mold removal work; providing building
occupants with a copy of the department of health and mental hygiene's
brochure about mold and requiring, to the extent practicable, occupants
to leave the work area before work begins; removing, or securely
covering with plastic sheeting, any difficult-to-clean surfaces or items
in the immediate work area before mold removal work begins; ensuring
that all mold removal work is done in a manner that minimizes the
dispersion of dust and debris from the work area into other parts of the
dwelling; removing and throwing away porous materials that contain mold
growth and that cannot be cleaned, or materials that are saturated with
water and that cannot be dried; discarding any plastic sheeting,
materials with mold growth, and used sponges, mop heads and cleaning
wipe cloths in sealed heavy-duty plastic bags; cleaning any remaining
visible dust from the mold removal work using wet cleaning methods or by
HEPA-vacuuming and cleaning mold growth with soap or detergent and
water, not bleach or other biocide solutions. When such mold removal
work has been completed, such owner shall document all corrective
actions taken for identifying and repairing moisture sources and mold
removal work methods that were used, inform occupants of the building
that if mold growth or moisture recurs they should inform the building
owner, and shall provide a certification to the department that such
actions have been taken.
(iii) With respect to vermin violations, the owner of a building
participating in the alternative enforcement program shall correct such
violations by eliminating conditions conducive to vermin infestation,
including but not limited to, areas allowing access to vermin, leaking
plumbing, and uncontained garbage and debris, and eliminating sources of
water and food for pests. Owners shall inform building occupants about
the commencement of pest management treatment and provide occupants with
a copy of the department of health and mental hygiene's brochure on
controlling pests safely. Owners shall request that occupants support
the pest management treatment by preparing the kitchen, bathroom and
other areas as needed and that occupants be available to listen to
advice on how to maintain pest-free conditions, including clean up, food
storage, management of garbage, and selection of safer pest control
products. Such owner shall also address such violations by utilizing
pesticide applications or devices as permitted by state and federal law.
No person may perform pesticide applications unless that person is a
certified applicator pursuant to article 33 of the environmental
conservation law or is supervised by a certified applicator. An owner
shall caulk and seal small holes less than four inches in diameter,
cracks and crevices in or in between walls, cabinets, floors, and in
other locations where vermin may gain access. A HEPA-vacuum shall be
utilized in kitchens and bathrooms, including in cracks, crevices and
appliances in such rooms. When such pest management work has been
completed, such owner shall document all corrective actions taken to
address vermin violations including work methods and products used,
provide information to occupants of the building about ways to control
pests safely, inform building occupants that they should report
recurrent or persistent pest problems to the owner, and provide a
certification to the department that such actions have been taken. In
addition, for a multiple dwelling in which vermin infestation is
indicated the owner of such multiple dwelling shall submit a pest
management plan indicating continuing pest control measures to the
department of health and mental hygiene for approval which must be
approved by such department prior to the discharge of such building from
the program.
j. (i) Where an owner has received a written determination by the
department that he or she has substantially complied with the
requirements of subdivision i of this section, such owner shall pay to
the department all outstanding charges, including liens, for emergency
repair work performed by the department in such building that are due,
if any, or shall enter into an agreement with the department of finance
to pay such charges and liens, and shall register the building in
accordance with article two of subchapter four of chapter two of this
title if the building is not validly registered. Upon such payment, or
execution of such an agreement, and valid registration, where
applicable, the department shall notify the owner, the occupants in such
building and the council member in whose district such building is
located that the building has been discharged from participation in the
alternative enforcement program, provided, however, that the department
shall continue to monitor the building to ensure continued compliance
with this code. Such monitoring shall be performed not less often than
every three months for a period of at least one year with special
consideration given to any uncorrected immediately hazardous violations.
(ii) Except as provided in subdivision l of this section, the failure
by an owner to substantially comply with the provisions of subdivision i
of this section, or pay all outstanding charges, including liens, for
emergency repair work, if any, or enter into an agreement with the
department of finance to pay such charges and liens, or validly register
the building in accordance with article two of subchapter four of
chapter two of this title, where applicable, shall result in the
building remaining in the alternative enforcement program, and such
building shall continue to be subject to the fees and other requirements
applicable to such program. Upon such failure, the department shall
notify such owner that the building has not been discharged from the
alternative enforcement program.
k. (i) The department shall perform a building-wide inspection of a
building that is subject to the requirements of the alternative
enforcement program if: (1) the owner has been notified that such
building has not been discharged from the program pursuant to
subdivision i of this section, or (2) the owner has failed to respond to
written notification by the department in accordance with subdivision g
of this section. Such building-wide inspection shall be commenced no
later than thirty days after notice is given to the owner pursuant to
paragraph ii of subdivision j of this section. After such building-wide
inspection is completed, the department shall issue an order to such
owner to correct existing violations of this code and the multiple
dwelling law and any new violations written since the notification of
the owner in accordance with subdivision g of this section and repair
the related underlying conditions as shall be specified in such order,
provided, however, that if such inspection does not indicate that any
building systems must be repaired or replaced, the order may be limited
to requiring the owner to correct violations of this code and the
multiple dwelling law and any physical defects. Such building-wide
inspection shall be completed and such order issued within ninety days
of commencement of the building-wide inspection. Such order shall be
filed in the office of the county clerk in the county in which the
building is located. For purposes of this article, a "related underlying
condition" shall mean a physical defect or failure of a building system
that is causing or has caused a violation, such as, but not limited to,
a structural defect, or failure of a heating or plumbing system.
(ii) The department shall: (1) within thirty days of the filing of
such order prepare a scope of work necessary to correct the violations
and repair the related underlying conditions as are specified in such
order; (2) cause repair work to be commenced and expeditiously completed
unless there are circumstances beyond the control of the department such
as: the inability to obtain access to the building or any part thereof
necessary for the making of such repairs in which case the repairs
related to the portion of the building to which access could not be
obtained may be delayed until access is obtained; or the inability to
obtain necessary legal approvals, materials or labor; or there is
ongoing litigation with respect to the building that prevents such work
from being performed by the department; or the owner undertakes the
repair work in a manner that is satisfactory to the department; or
commencement or completion of the work is not practicable because a
vacate or similar order has been issued by the department or any city
agency and/or the cost of performing work necessary for restoring the
building pursuant to the order is economically infeasible; and (3)
monitor repair work as it is performed in accordance with subdivision m
of this section. For the purposes of this subdivision, "economically
infeasible" shall mean a determination by the department that the cost
of repairing a particular building exceeds the anticipated market value
of such building after all repairs have been completed. However, any
determination by the department that, for the purposes of this
subdivision, repairs to a particular building would be economically
infeasible for the department to undertake, shall not take into
consideration the owner's conduct with respect to the building.
(iii) When the department causes repair work to be commenced in
accordance with paragraph ii of this subdivision, in a multiple dwelling
in which vermin infestation is indicated, vermin violations shall be
corrected in accordance with paragraph iii of subdivision i of this
section. The department shall also require the owner of such multiple
dwelling to submit to the department of health and mental hygiene for
their approval a pest management plan indicating continuing pest control
measures. Such plan must be approved by the department of health and
mental hygiene prior to the discharge of such building from the program.
l. The owner or managing agent or other designated representative of a
building which is the subject of an order by the department pursuant to
subdivision k of this section may be required to participate in a course
of training relating to building operation and maintenance, approved by
the department.
m. The department shall reassess, at quarterly intervals, or more
often as necessary, each building that has been identified for
participation in the alternative enforcement program for which the
department has issued an order pursuant to subdivision k of this section
and in which the department or an owner has commenced repairs, to ensure
progress towards completion of such repairs. At each such reassessment
the department shall determine whether repairs are progressing in a
timely fashion. When conducting such reassessment the department shall
give special consideration to the correction of immediately hazardous
violations. No later than six months from the commencement of such
repair work, if the department determines that such repair work is not
progressing in a timely fashion, then the department shall expeditiously
complete the repairs.
n. The department may discharge from the alternative enforcement
program a building for which an order has been issued pursuant to
subdivision k of this section upon: (1) substantial compliance, (2)
payment of fees, (3) payment to the department of all outstanding
emergency repair charges, including liens, or entry into an agreement
with the department of finance to pay such charges and liens, and (4)
registration of such building in accordance with article two of
subchapter four of chapter two of this title or such other criteria as
may be established by rule which are not inconsistent with any of the
provisions of this article as are applicable. The department may also
discharge from the alternative enforcement program any building for
which an administrator is appointed pursuant to article 7-A of the real
property actions and proceedings law during the time period that such
building is participating in the program; any building that is vacant
for one year or more except for any building that contains six or more
units and is the subject of a vacate order; any building that becomes
the subject of an in rem foreclosure judgment in favor of the city and
that is transferred by the city to a third party pursuant to section
11-412.1 of the code; and any building in which the department has
completed the work it is required to perform pursuant to subdivision k
of this section. Where the department determines to discharge a building
from such program, it shall provide a written determination to the
owner, the occupants of such building and the council member in whose
district such building is located and shall file in the office of the
county clerk in the county in which such building is located, a
rescission of the order issued pursuant to subdivision k of this
section, where such order has been issued. For the purposes of this
subdivision, "substantial compliance" shall mean that at the time of
reinspection by the department, all violations relating directly to
providing heat and hot water and all immediately hazardous violations
related to mold, eighty percent of all hazardous violations related to
mold, eighty percent of all vermin violations and eighty percent of all
other open hazardous and immediately hazardous violations and the
related underlying conditions, have been determined by the department to
have been corrected. A violation relating to mold shall only be deemed
corrected if the violation has been corrected in accordance with
paragraph ii of subdivision i of this section and a violation relating
to vermin shall only be deemed corrected if such violation has been
corrected in accordance with paragraph iii of subdivision i of this
section and, when applicable, paragraph iii of subdivision k of this
section.
o. The department shall expeditiously undertake good faith efforts to
obtain access to any portion of the building where access is necessary
in order to perform an inspection, perform work to correct a violation
of this code or the multiple dwelling law or perform work to repair a
related underlying condition. If access is not obtained even after such
good faith efforts, the department shall seek an order of access in
accordance with the provisions of section 27-2123 of this code. Any time
period set forth in this section within which the department is required
to act shall be tolled during the period in which the department is
making such good faith efforts to obtain access or is seeking an order
of access.
p. An owner of a building who has been notified of participation in
the alternative enforcement program pursuant to subdivision g of this
section shall be subject to fees for any inspection, reinspection or any
other action taken by the department in relation to such building during
the time period that the building is in such program. A schedule of fees
for this purpose shall be prescribed in rules promulgated by the
department.
q. All amounts for expenses incurred and fees imposed by the
department pursuant to this article that remain unpaid by an owner,
shall constitute a debt recoverable from the owner and a lien upon the
building and lot, and upon the rents and other income thereof. The
provisions of article eight of this subchapter shall govern the effect
and enforcement of such debt and lien. The department may serve a
statement of account upon an owner for such amounts pursuant to section
27-2129 of this subchapter.
r. Any failure by the department to provide notification to occupants
of a building that is participating in the alternative enforcement
program or council members as required by this article shall not prevent
the department from taking any actions under or enforcing the provisions
of this article, except that the department shall attempt to remedy any
such failure immediately upon its discovery.
s. On or before February 15th of each year, the department shall
prepare and submit to the council a report on the results of the
alternative enforcement program. Such report shall be cumulative and
shall include the following: (i) the address and owner of each building
in the program; (ii) the council member in whose district the building
is located; (iii) for each building, the aggregate number of open
hazardous and immediately hazardous violations at the time the
alternative enforcement program was used as an enforcement mechanism for
such building, the ratio of such violations and unpaid and paid
emergency repair charges or liens, as is applicable, to the number of
dwelling units at such time, whether or not the building has been
discharged from the program and the reason for such status; and (iv) the
number of buildings for which substantial compliance has not been
achieved within twelve months from the start of their participation in
the program. Such report shall be posted on the department's website
within ten days of its submission to the council.
t. Nothing in this section shall prevent the department from enforcing
the provisions of this code or the multiple dwelling law pursuant to any
other provision of this code, the multiple dwelling law or any other law
where the department determines that additional enforcement mechanisms
are necessary to do so. Nothing in this article shall be deemed to
affect the duties of an owner, a tenant or the department under any
other article of this code or the multiple dwelling law.
u. Any notifications or information required by this section to be
provided to an owner or occupant of a building shall be in English, the
languages set forth in subdivision j of section 8-1002 of the
administrative code of the city of New York and in such other languages
as the department deems appropriate.
v. No later than July 31, 2012 and every two years thereafter the
department shall conduct a study to evaluate the effectiveness of the
alternative enforcement program. Such study shall examine, but shall not
be limited to examining, the following:
(1) the program's cost effectiveness, including the amount of fees
collected;
(2) whether the criteria established pursuant to subdivisions a, b or
c of this section were appropriate and if not, how they should be
adjusted;
(3) whether the monitoring undertaken by the department is appropriate
and if not, what modifications should be made;
(4) an evaluation of the use of the work practices identified in
paragraph ii of subdivision i of this section to address mold conditions
including the reoccurrence of mold;
(5) for those multiple dwellings in which a building-wide inspection
was conducted, an assessment of whether mold was identified in such
multiple dwellings and whether the criteria for the issuance of a
violation for mold should be revised or enhanced as a result;
(6) an evaluation of the use of the work practices identified in
paragraph iii of subdivision i of this section to address vermin
conditions;
(7) information on the compliance levels achieved by multiple
dwellings which remain in the program for failure to achieve substantial
compliance and recommendations on how to achieve higher compliance
levels for those multiple dwellings; and
(8) for those multiple dwellings that were discharged from the
program, information on the number of such buildings that were able to
correct all identified violations prior to discharge or that were able
to achieve a higher compliance level than required by this program in
order to be discharged and an assessment of why such buildings were able
to achieve such results.
Such study shall also include recommendations as to whether the
program should be continued or modified in any way and the reasons
therefore.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
Special thanks to Benjarmin Kallos and Thom Neale who made this content publicly available as a bulk download.