This bill has been amended

Bill S6873-2009

Clarifies provisions relating to occupancy of class A multiple dwellings

Relates to clarifying provisions relating to occupancy of class A multiple dwellings.

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  • Feb 18, 2010: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT

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 BILL NUMBER:  S6873

TITLE OF BILL : An act to amend the multiple dwelling law and the administrative code of the city of New York, in relation to clarifying certain provisions relating to occupancy of class A multiple dwellings

PURPOSE : To clarify the definitions of terms used to describe the legal occupancy of class A multiple dwellings, to improve the ability of enforcement agencies to curtail the improper use of class A dwelling units as transient hotels, and to provide a pathway for the legalization of certain class A dwelling units constructed before 1929 for uses other than permanent purposes.

SUMMARY OF PROVISIONS : Sections 1, 4, 5 and 6 of this bill would amend provisions of (i) the Multiple Dwelling Law MDL § 4(8)(a)) and, (ii) the Administrative Code of the City of New York 1968 Building Code §27-265, New York City Building Code § BC 310.1.2 and New York City Housing Maintenance Code § 27-2004 (a)(8)(a) to delete the terms "as a rule" and "primarily" preceding the term "permanent residence purposes" or the description of month to month residence as used in such provisions.

Many owners of class A multiple dwellings have been illegally using Class A dwelling units as transient hotels. When called upon to justify this fundamentally unsafe and illegal practice, they have cited the ambiguity of the terms "as a rule" and "primarily" preceding the requirement of "permanent residence" or "long term" residence for such dwellings. These owners have also claimed that the permanent or long term residence requirement is met when the dwelling unit is leased by a corporate entity for more than 30 days even though the actual occupancy by individuals is less than 30 days. This bill would put an end to these spurious defenses by defining the term "permanent residence purposes" as occupancy by a natural person or family for 30 consecutive days or longer (the permanent occupants). Only the permanent occupants would be permitted to allow occupancy of the dwelling unit for less than 30 consecutive days and even then only by lawful boarders, roomers or lodgers or house guests living within the household of the permanent occupants or while the permanent occupants are temporarily absent for vacation or other personal reason if there is no monetary compensation for such use. (This would not restrict any right a landlord might have to limit such use.)

Section 2 of this bill adds a new subdivision 16 to Section 67 of the Multiple Dwelling Law that would permit legalization of the use of Class A dwelling units for other than permanent residence purposes in certain dwellings constructed pursuant to plans filed on or prior to April 18, 1929, subject to certain conditions relating to past and present hotel occupancy and fire safety requirements. Occupancy of such dwelling units for other than permanent residence purposes would be permitted to continue for up to two years after the effective date of such subdivision if that occupancy existed on and after January 1, 2009 and if the dwelling units are registered with the enforcing agency and the owner submits certification by an architect or engineer that the dwelling complies with the fire safety requirements of such subdivision. The owner must obtain a certificate of occupancy authorizing use of the dwelling for other than permanent residence purposes within two years after such effective date. If no such certificate of occupancy is obtained within such 2 year period all use of registered dwelling units for other than permanent residence purposes must thereafter cease.

Section 3 of the bill would amend subdivision 1 of Section 248 of the Multiple Dwelling Law and delete subdivision 16 of such section to clarify that a dwelling occupied as a class A dwelling pursuant to such section may only be occupied for permanent residence purposes in accordance with paragraph a of subdivision 8 of Section 4 of this Chapter, as amended by Section 1 of this bill.

JUSTIFICATION : The Multiple Dwelling Law and local Building, Fire and Housing Maintenance Codes establish stricter fire safety standards for dwellings such as hotels that rent rooms on a day to day (transient) basis than the standards for dwellings intended for month to month (permanent) residence. There are substantial penalties for owners who use dwellings constructed for permanent occupancy (Class A) as illegal hotels. However, the economic incentive for this unlawful and dangerous practice has increased, at the same time that it is easier than ever to advertise illegal hotel rooms for rent to tourists over the internet. This is especially so in New York City, which is attracting visitors and tourists from around the world in record numbers. In most cases tourists responding to such advertisements are unaware that the rooms are being offered in violation of the law. Not only does this practice offer unfair competition to legitimate hotels that have made substantial investments to comply with the law but it is unfair to the legitimate "permanent" occupants of such dwellings who must endure the inconvenience of hotel occupancy in their buildings and it decreases the supply of affordable permanent housing. It endangers both the legal and illegal occupants of the building because it does not comply with fire and safety codes for transient use.

Recently, law enforcement actions against illegal hotels have been hindered by challenges to the interpretation of "permanent residence" that enforcing agencies have relied on for decades. In City of New York v. 330 Continental, LLC. 60 AD3d 226, 231 (1st Dept. 2009) the Court held that the Multiple Dwelling Law allows a minority of the units in building classified as a Class "A" Multiple Dwelling to be occupied for nonpermanent or transient occupancy. The court based this holding, in part, on the definition of Class "A" multiple dwelling, as set forth under Section 4(8)(a) of the Multiple Dwelling Law. In interpreting Section 4(8)(a) of the Multiple Dwelling Law, the court held that "the statute's use of the phrase 'as a rule' indicates that a secondary use of the building, different from the specified primary use, is permitted." The court concluded that no violation of the Class A certificate of occupancy would result from use of a minority of the units in one of the buildings for nonpermanent or transient occupancy.

It is impossible to enforce the law against illegal hotels if the law is interpreted in the manner compelled in this case. This bill will fulfill the original intent of the law, as construed by enforcing agencies, including the New York City Department of Buildings, by modifying the specific provisions of the Multiple Dwelling Law and applicable local codes that have been cited by defendants in enforcement proceedings as authority for the use of Class A dwellings as illegal transient hotels. The only "secondary" transient use of class A dwelling units allowed would be use by the permanent occupants, natural persons not corporate entities, for house guests or boarders roomers or lodgers living within the household of the permanent occupants or for circumstances such as the occasional pet or apartment "sitter" when the permanent occupants are absent for personal reasons such as vacation or for medical treatment.

There is a small number of Class A buildings, constructed before 1929, currently operating as hotels that have a historic record of hotel use that precedes a zoning classification that prohibits such hotel use. These buildings would be allowed to convert to Class B occupancy and to continue to rent Class A dwelling units as hotel rooms during a two year conversion period commencing on the effective date of this bill. Hotel use of Class A dwelling units in such buildings during the conversion period would be subject to registration and stringent fire safety requirements and must cease at the end of such period unless the owner has obtained a Class B certificate of occupancy which the Department of Buildings could issue upon compliance with the building codes for transient occupancy.

There is a more than adequate supply of legitimate hotels with accommodations in all price ranges. Should the growth of tourism result in increased demand for hotel rooms in the future, commercially zoned areas of the city allow widespread opportunities for new legitimate hotels. The enactment of this legislation will protect public safety by assisting law enforcement efforts to curb the proliferation of illegal hotels.

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : Immediately.

Text

STATE OF NEW YORK ________________________________________________________________________ 6873 IN SENATE February 18, 2010 ___________
Introduced by Sens. KRUEGER, ADAMS, DUANE, HASSELL-THOMPSON, MONTGOMERY, PARKER, SQUADRON, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development AN ACT to amend the multiple dwelling law and the administrative code of the city of New York, in relation to clarifying certain provisions relating to occupancy of class A multiple dwellings THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph a of subdivision 8 of section 4 of the multiple dwelling law, as amended by chapter 562 of the laws of 1954, is amended to read as follows: a. A "class A" multiple dwelling is a multiple dwelling which is occu- pied[, as a rule,] for permanent residence purposes. This class shall include tenements, flat houses, maisonette apartments, apartment houses, apartment hotels, bachelor apartments, studio apartments, duplex apart- ments, kitchenette apartments, garden-type maisonette dwelling projects, and all other multiple dwellings except class B multiple dwellings. FOR THE PURPOSES OF THIS DEFINITION, PERMANENT RESIDENCE PURPOSES SHALL CONSIST OF OCCUPANCY OF A DWELLING UNIT BY THE SAME NATURAL PERSON OR FAMILY FOR THIRTY CONSECUTIVE DAYS OR MORE AND A PERSON OR FAMILY SO OCCUPYING A DWELLING UNIT SHALL BE REFERRED TO HEREIN AS THE PERMANENT OCCUPANTS OF SUCH DWELLING UNIT. THE FOLLOWING USES OF A DWELLING UNIT BY THE PERMANENT OCCUPANTS THEREOF SHALL NOT BE DEEMED TO BE INCONSIST- ENT WITH THE OCCUPANCY OF SUCH DWELLING UNIT FOR PERMANENT RESIDENCE PURPOSES: (1) OCCUPANCY OF SUCH DWELLING UNIT FOR FEWER THAN THIRTY CONSECUTIVE DAYS BY OTHER NATURAL PERSONS LIVING WITHIN THE HOUSEHOLD OF THE PERMA- NENT OCCUPANT SUCH AS HOUSE GUESTS OR LAWFUL BOARDERS, ROOMERS OR LODG- ERS; OR (2) INCIDENTAL AND OCCASIONAL OCCUPANCY OF SUCH DWELLING UNIT FOR FEWER THAN THIRTY CONSECUTIVE DAYS BY OTHER NATURAL PERSONS WHEN THE PERMANENT OCCUPANTS ARE TEMPORARILY ABSENT FOR PERSONAL REASONS SUCH AS
VACATION OR MEDICAL TREATMENT, PROVIDED THAT THERE IS NO MONETARY COMPENSATION PAID TO THE PERMANENT OCCUPANTS FOR SUCH OCCUPANCY. S 2. Section 67 of the multiple dwelling law is amended by adding a new subdivision 16 to read as follows: 16. A. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WITHIN A DWELLING TO WHICH THIS SECTION IS APPLICABLE THE USE OF DWELL- ING UNITS AS A HOTEL FOR OTHER THAN PERMANENT RESIDENCE PURPOSES, AS DEFINED IN PARAGRAPH A OF SUBDIVISION EIGHT OF SECTION FOUR OF THIS CHAPTER, THAT WOULD OTHERWISE BE PROHIBITED SHALL BE PERMITTED TO CONTINUE FOR A PERIOD OF TWO YEARS AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION PROVIDED THAT: (1) SUCH DWELLING UNITS WERE USED FOR OTHER THAN PERMANENT RESIDENCE PURPOSES ON JANUARY FIRST, TWO THOUSAND NINE AND ON THE EFFECTIVE DATE OF THIS SUBDIVISION AND FIFTY-ONE PERCENT OR MORE OF THE TOTAL NUMBER OF DWELLING UNITS IN SUCH DWELLING WERE USED FOR OTHER THAN PERMANENT RESI- DENCE PURPOSES ON SUCH DATES; (2) SUCH DWELLING WAS OCCUPIED AS A HOTEL FOR OTHER THAN PERMANENT RESIDENCE PURPOSES ON DECEMBER FIFTEENTH, NINETEEN HUNDRED SIXTY-ONE; (3) SUCH DWELLING IS OF FIREPROOF CONSTRUCTION AND WAS OF FIREPROOF CONSTRUCTION ON JANUARY FIRST, TWO THOUSAND NINE; (4) SUCH DWELLING UNITS USED FOR OTHER THAN PERMANENT RESIDENCE PURPOSES HAVE AT LEAST TWO LAWFUL MEANS OF EGRESS, INCLUDING EXIT STAIRS, FIRE TOWERS OR EXTERIOR STAIRS BUT EXCLUDING FIRE ESCAPES AND HAD SUCH LAWFUL MEANS OF EGRESS ON JANUARY FIRST, TWO THOUSAND NINE; (5) SUCH DWELLING HAS OPERATIONAL EXIT SIGNS AND A FIRE ALARM SYSTEM COMPLYING WITH THE PROVISIONS FOR EXISTING TRANSIENT OCCUPANCIES IN ACCORDANCE WITH LOCAL LAW AND HAD SUCH EXIT SIGNS AND FIRE ALARM SYSTEM ON JANUARY FIRST, TWO THOUSAND NINE; AND (6) SUCH DWELLING UNITS USED FOR OTHER THAN PERMANENT RESIDENCE PURPOSES ARE REGISTERED WITH THE DEPARTMENT WITHIN ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION IN A FORM AND MANNER TO BE PROVIDED BY SUCH DEPARTMENT, INCLUDING A REQUIREMENT THAT THE APPLICANT SUBMIT CERTIFICATION OF COMPLIANCE WITH SUBPARAGRAPHS THREE, FOUR AND FIVE OF THIS PARAGRAPH, SIGNED AND SEALED BY A REGISTERED ARCHITECT OR LICENSED PROFESSIONAL ENGINEER IN GOOD STANDING UNDER THE EDUCATION LAW. THE DEPARTMENT MAY ASSESS FEES TO COVER ALL COSTS ASSO- CIATED WITH SUCH REGISTRATION. THE DEPARTMENT MAY REFUSE TO REGISTER DWELLING UNITS OR MAY REVOKE SUCH REGISTRATION IF IT DETERMINES SUCH DWELLING UNITS OR DWELLING DO NOT COMPLY WITH THE CONDITIONS FOR REGIS- TRATION SET FORTH IN SUBPARAGRAPHS ONE THROUGH FIVE OF THIS PARAGRAPH. B. THE OWNER SHALL OBTAIN A CERTIFICATE OF OCCUPANCY FOR THE USE OF REGISTERED DWELLING UNITS FOR OTHER THAN PERMANENT RESIDENCE PURPOSES WITHIN TWO YEARS AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION. THE DEPARTMENT SHALL ISSUE SUCH CERTIFICATE OF OCCUPANCY UPON PROOF THAT SAID DWELLING CONFORMS IN ALL RESPECTS TO THE REQUIREMENTS OF THIS CHAP- TER AND ALL LOCAL HOUSING, BUILDING AND FIRE CODES FOR THE USE OF DWELL- ING UNITS FOR OTHER THAN PERMANENT RESIDENCE PURPOSES. IF NO SUCH CERTIFICATE OF OCCUPANCY IS ISSUED WITHIN SUCH TWO YEAR PERIOD ALL USE OF DWELLING UNITS FOR OTHER THAN PERMANENT RESIDENCE PURPOSES SHALL THEREAFTER CEASE. C. IF AFTER A CERTIFICATE OF OCCUPANCY IS ISSUED PURSUANT TO PARAGRAPH B OF THIS SUBDIVISION, THE USE OF SUCH DWELLING UNITS FOR OTHER THAN PERMANENT RESIDENCE PURPOSES IS DISCONTINUED, NOTHING IN THIS SUBDIVI- SION SHALL BE CONSTRUED TO LIMIT THE APPLICATION OF THE LOCAL ZONING RESOLUTION WITH RESPECT TO SUCH DISCONTINUANCE.
S 3. Subdivisions 1 and 16 of section 248 of the multiple dwelling law, subdivision 1 as amended by chapter 116 of the laws of 1950, are amended to read as follows: 1. It shall be unlawful to occupy any frame multiple dwelling for single room occupancy. It shall be unlawful to occupy any other existing class A dwelling or part thereof as a rooming house or furnished room house or for single room occupancy unless such dwelling or part shall conform to the provisions of this section and to such other provisions of this chapter as were applicable to such dwelling before such conver- sion. This section shall not be construed to prohibit the letting by a family of one or more rooms within their apartment to not more than a total of four boarders, roomers or lodgers provided, however, that every room in such apartment shall have free and unobstructed access to each required exit from such apartment as required by the provisions of para- graphs a, b and c of subdivision four of this section. A dwelling occu- pied pursuant to this section shall be deemed a class A dwelling AND DWELLING UNITS OCCUPIED PURSUANT TO THIS SECTION SHALL BE OCCUPIED FOR PERMANENT RESIDENCE PURPOSES, AS DEFINED IN PARAGRAPH A OF SUBDIVISION EIGHT OF SECTION FOUR OF THIS CHAPTER. [16. It shall be unlawful to rent any room in any such dwelling for a period of less than a week.] S 4. Section 27-265 of the administrative code of the city of New York is amended to read as follows: S 27-265 Occupancy group J-2. Shall include buildings with three or more dwelling units that are [primarily occupied for the shelter and sleeping accommodation of individuals on a month-to-month or longer-term basis] OCCUPIED FOR PERMANENT RESIDENCE PURPOSES AS DEFINED IN SUBPARA- GRAPH (A) OF PARAGRAPH EIGHT OF SUBDIVISION A OF SECTION 27-2004 OF THE HOUSING MAINTENANCE CODE. S 5. Section 310.1.2 of BC 310 of the New York City building code of chapter 7 of title 28 of the administrative code of the city of New York, as added by local law 33 of the city of New York for the year 2007, is amended to read as follows: 310.1.2 Group R-2. This occupancy shall include buildings or portions thereof containing sleeping units or more than two dwelling units that are occupied[, as a rule, for shelter and sleeping accommodation on a long-term basis for a month or more at a time] FOR PERMANENT RESIDENCE PURPOSES AS DEFINED IN SUBPARAGRAPH (A) OF PARAGRAPH EIGHT OF SUBDIVI- SION A OF SECTION 27-2004 OF THE NEW YORK CITY HOUSING MAINTENANCE CODE. Such occupancy shall be subject to the New York State Multiple Dwelling Law. This group shall include, but not be limited to, the following: Adult homes or enriched housing with 16 or fewer occupants requiring supervised care on a 24-hour basis in the same building, provided that the number of occupants per dwelling unit does not exceed the definition of a family Apartment houses Apartment hotels (nontransient) Class A multiple dwellings as defined in Section 27-2004 of the New York City Housing Maintenance Code and Section 4 of the New York State Multiple Dwelling Law, including the following: 1. Dwelling units where the resident of the unit provides custodial care to no more than four persons on less than a 24-hour basis and not overnight. 2. Dwelling units where the resident of the unit provides child custo- dial care as a family day care home registered with the New York City Department of Health and Mental Hygiene in accordance with the New York
State Social Services Law with no more than six children between the ages of 2 and 13, or with no more than five children if any are under the age of 2, receiving supervised care on less than a 24-hour basis and not overnight. Exception: Class A multiple dwellings classified in Group I-1. Convents and monasteries with more than 20 occupants in the building Student apartments S 6. Subparagraph (a) of paragraph 8 of subdivision a of section 27-2004 of the administrative code of the city of New York is amended to read as follows: (a) A class A multiple dwelling is a multiple dwelling which is occu- pied[, as a rule,] for permanent residence purposes. This class shall include tenements, flat houses, maisonette apartments, apartment houses, apartment hotels, bachelor apartments, studio apartments, duplex apart- ments, kitchenette apartments, garden-type maisonette dwelling projects, and all other multiple dwellings except class B multiple dwellings. FOR THE PURPOSES OF THIS SUBPARAGRAPH, PERMANENT RESIDENCE PURPOSES SHALL CONSIST OF OCCUPANCY OF A DWELLING UNIT BY THE SAME NATURAL PERSON OR FAMILY FOR THIRTY CONSECUTIVE DAYS OR MORE AND A NATURAL PERSON OR FAMI- LY SO OCCUPYING A DWELLING UNIT SHALL BE REFERRED TO HEREIN AS THE PERMANENT OCCUPANTS OF SUCH DWELLING UNIT. THE FOLLOWING USES OF A DWELLING UNIT BY THE PERMANENT OCCUPANTS THEREOF SHALL NOT BE DEEMED TO BE INCONSISTENT WITH OCCUPANCY OF SUCH DWELLING UNIT FOR PERMANENT RESI- DENCE PURPOSES: (1) OCCUPANCY OF SUCH DWELLING UNIT FOR FEWER THAN THIRTY CONSECUTIVE DAYS BY OTHER NATURAL PERSONS LIVING WITHIN THE HOUSEHOLD OF THE PERMA- NENT OCCUPANT SUCH AS HOUSE GUESTS OR LAWFUL BOARDERS, ROOMERS OR LODG- ERS; OR (2) INCIDENTAL AND OCCASIONAL OCCUPANCY OF SUCH DWELLING UNIT FOR FEWER THAN THIRTY CONSECUTIVE DAYS BY OTHER NATURAL PERSONS WHEN THE PERMANENT OCCUPANTS ARE TEMPORARILY ABSENT FOR PERSONAL REASONS SUCH AS VACATION OR MEDICAL TREATMENT, PROVIDED THAT THERE IS NO MONETARY COMPENSATION PAID TO THE PERMANENT OCCUPANTS FOR SUCH OCCUPANCY. S 7. This act shall take effect immediately and shall apply to all buildings in existence on such effective date and to buildings constructed after such effective date.

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