Relates to the criminal enforcement of violations of the state's uniform fire prevention and building code.

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S901-2013 Actions

• Jan 9, 2013: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT

S901-2013 Memo

BILL NUMBER:S901

TITLE OF BILL:
An act
to amend the executive law, in relation to the criminal enforcement of
violations of the state's uniform fire prevention and building code

PURPOSE:
To clarify the procedures for commencing a criminal action for
violating the State's Uniform Fire Prevention and Building Code
(Uniform Code). The provisions of Executive Law � 382 have proven to
be ineffective at serving as a deterrent to ensure compliance with
the fire prevention and building code. The ambiguous and vague
provisions have led courts to reach the conclusion that criminal
actions may not be commenced against a defendant until a notice of
violation (NOV) has been issued, see People v. Caravousanos, 2
Misc.3d 138(A) (Sup. Ct. App. Term 2004). Such a reading of Executive
Law � 382 significantly hampers local government officials' ability
to enforce the uniform code and deter flagrant violations of
regulations designed to protect the public's health, safety and
welfare.
The amendment also creates a "violation" for a uniform code
infraction, as some judges have expressed reservations about finding
defendants guilty of misdemeanors for building and fire code
violations.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends � 382 of the Executive Law, removing
superfluous language, which the Courts have erroneously interpreted
as requiring local governments to issue a NOV as a prerequisite to
commencing a criminal action. In addition, subdivision 2 of
Executive Law � 382 states that notices of violations must allow
violators an opportunity to comply with an order to correct a
violation "within the time fixed by the regulations promulgated by
the secretary of state" even though the secretary of state has
never promulgated such regulations.

The bill also amends � 382 of the Executive Law to clarify that
individuals who "knowingly" violate the state's uniform fire
prevention and building code may be found guilty of a misdemeanor.

JUSTIFICATION:
The Courts have erroneously interpreted Section 382 of the Executive
Law as requiring local governments to issue a notice of violation as
a prerequisite to commencing a criminal action.
In addition, the fact that the Secretary of State has never fixed a
schedule of times for Complying with the regulations has caused
problems in prosecuting individuals for failing to comply with an NOV
issued by a code enforcement officer. Moreover, the reference later
in this subdivision to "lawful order" makes the first part of
subdivision 2 unnecessary.

This bill also clarifies that a knowing violation of the uniform code
is a misdemeanor. Furthermore, this bill creates a strict liability
"violation" for a uniform code infraction. Some Judges are reluctant
to find individuals guilty of a misdemeanor for a building code
violation. This would give the courts the option of finding


defendants guilty without giving them a criminal record, particularly
in those instances when properties come into quick compliance. It
also allows defendants to enter into plea agreements to "Violations"
instead of misdemeanors.

LEGISLATIVE HISTORY:
S.7235 (2012)

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall become a law.

S901-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     901

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen. MARTINS -- 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 executive law, in relation to the criminal enforce-
    ment of violations of the state's uniform fire prevention and building
    code

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.  Subdivision  2  of  section  382 of the executive law, as
  amended by chapter 135 of the laws  of  1997,  is  amended  to  read  as
  follows:

    2. [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  fire
  prevention  and  building 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, and]
    (A) ANY PERSON, LIMITED LIABILITY COMPANY, LIMITED LIABILITY  PARTNER-
  SHIP,  OR  CORPORATION  OWNING,  IN CONTROL OF, AGENT FOR, TENANT OF, OR
  OTHERWISE RESPONSIBLE FOR A PROPERTY OR BUILDING,  HAVING  BEEN  SERVED,
  EITHER  PERSONALLY  OR  PURSUANT  TO  SUBDIVISION  FOUR OF SECTION THREE
  HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND  RULES,  WITH  AN  ORDER  TO
  REMEDY ANY CONDITION FOUND TO EXIST IN, ON, OR ABOUT THE PROPERTY OR ANY
  BUILDING ON THE PROPERTY IN VIOLATION OF THE UNIFORM FIRE PREVENTION AND
  BUILDING CODE, WHO FAILS TO COMPLY WITH SUCH ORDER WITHIN THE TIME STAT-
  ED  THEREIN  OR  any  owner,  builder, PROPERTY MANAGER, PROPERTY AGENT,
  architect, tenant, contractor, subcontractor,  construction  superinten-
  dent  or  their  agents or any other person [taking part or assisting in
  the construction of any building], LIMITED  LIABILITY  COMPANY,  LIMITED

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD03347-01-3

 S. 901                              2

  LIABILITY  PARTNERSHIP,  OR  CORPORATION  PARTICIPATING  OR ASSISTING IN
  EITHER THE CONSTRUCTION OF ANY BUILDING OR THE MAINTENANCE, CONTROL,  OR
  OVERSIGHT  OF  A  PROPERTY  OR  BUILDING who [shall] knowingly [violate]
  VIOLATES  any  of  the  applicable provisions of the uniform code or any
  lawful order of a local government, a county or the secretary made ther-
  eunder  regarding  standards  for  construction,  maintenance,  or  fire
  protection  [equipment  and systems, shall be], IS GUILTY OF A MISDEMEA-
  NOR, punishable by a fine of not more than [one]  TWO  thousand  dollars
  per day of violation, or imprisonment not exceeding one year, or both.
    (B)  ANY PERSON, LIMITED LIABILITY COMPANY, LIMITED LIABILITY PARTNER-
  SHIP OR CORPORATION WHO OWNS, IS IN CONTROL OF, IS AN AGENT  FOR,  IS  A
  TENANT  OF,  OR  IS  OTHERWISE  RESPONSIBLE  FOR A PROPERTY OR BUILDING,
  HAVING BEEN SERVED, EITHER PERSONALLY OR PURSUANT TO SUBDIVISION FOUR OF
  SECTION THREE HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, WITH AN
  ORDER TO REMEDY ANY CONDITION FOUND TO EXIST IN, ON, OR ABOUT THE  PROP-
  ERTY  OR  ANY  BUILDING ON THE PROPERTY IN VIOLATION OF THE UNIFORM FIRE
  PREVENTION AND BUILDING CODE, WHO FAILS TO COMPLY WITH SUCH ORDER WITHIN
  THE TIME STATED THEREIN OR ANY OWNER, BUILDER, PROPERTY MANAGER, PROPER-
  TY AGENT, ARCHITECT,  TENANT,  CONTRACTOR,  SUBCONTRACTOR,  CONSTRUCTION
  SUPERINTENDENT  OR  THEIR  AGENTS OR ANY OTHER PERSON, LIMITED LIABILITY
  COMPANY, LIMITED LIABILITY PARTNERSHIP, OR CORPORATION PARTICIPATING  OR
  ASSISTING IN EITHER THE CONSTRUCTION OF ANY BUILDING OR THE MAINTENANCE,
  CONTROL,  OR OVERSIGHT OF A PROPERTY OR BUILDING WHO VIOLATES ANY OF THE
  APPLICABLE PROVISIONS OF THE UNIFORM CODE OR ANY LAWFUL ORDER OF A LOCAL
  GOVERNMENT, A COUNTY OR THE SECRETARY MADE THEREUNDER  REGARDING  STAND-
  ARDS  FOR  CONSTRUCTION, MAINTENANCE, OR FIRE PROTECTION, IS GUILTY OF A
  VIOLATION, PUNISHABLE BY A FINE OF NOT MORE THAN  ONE  THOUSAND  DOLLARS
  PER  DAY  OF  VIOLATION,  OR IMPRISONMENT NOT EXCEEDING FIFTEEN DAYS, OR
  BOTH.
    S 2. This act shall take effect on the first of November next succeed-
  ing the date on which it shall have become a law.