Relates to the criminal enforcement of violations of the state's uniform fire prevention and building code.
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.
STATE OF NEW YORK ________________________________________________________________________ 901 2013-2014 Regular Sessions IN 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, LIMITEDEXPLANATION--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.