How to Respond to ECB Violation for Working Without a Permit
If a New York City agency such as the Department of Buildings (DOB) believes that you have violated one of the city's laws, the agency will issue you a Notice of Violation (NOV) that summarizes the charge and tells you what to do next.
In some cases, you may have an opportunity to correct the violation and avoid a hearing altogether. However, if you believe that you did not commit the violation or that it was not your fault, or if you have some other defense, you should appear at the Environmental Control Board (ECB) on the hearing date and at the hearing location listed on your NOV to contest the charge. You may also have the option to respond by mail. Your mailed or in-person response will be heard by an administrative law judge (ALJ), who will consider the evidence you have submitted, and make an impartial decision on behalf of the ECB.
The law requires that all NOVs must be complete, properly filled out, and properly served by the issuing officer. Going through the following safeguards may help you decide whether to contest the charge, and help you prepare your argument if you decide to do so.
Working Without a Permit Basics: Non-Hazardous Condition
Building Code Section 27-147 governs when work permits are required. It says that permits are required for all building construction or alteration work, foundation or earthwork, demolition or removal work, or plumbing work. However, it provides an exception for minor alterations and ordinary repairs.
Working without a permit is one of the top violations issued by DOB inspectors. A working-without-a-permit violation is usually issued either as a result of a complaint, a scheduled inspection for an application, or as part of a review of previously issued violations.
This violation is considered a non-hazardous condition, which means that first-time offenders can avoid paying a fine and appearing at an ECB hearing by correcting the violation and certifying its correction within 35 days of the NOV's issuance date.
Improper Service of NOV
An owner might be able to get a violation dismissed if he can show that the NOV was served or delivered improperly. When a NOV is filed at the ECB, it must be accompanied by an affidavit of service that describes how the NOV was delivered to or “served on” you. The affidavit of service is signed by the issuing officer and is then filed with your NOV at the ECB.
“The owner or the owner's lawyer can request and examine the DOB's original affidavit of service at the ECB hearing,” says attorney Daniel Roskoff of Horing, Welikson, & Rosen P.C. If the NOV was personally given to the owner or an employee of the owner at the apartment building, then mailing the NOV may not be required.
According to Roskoff, common errors by the DOB relating to service include:
Giving the NOV to an independent contractor who is not an “employee” of the owner;
Mailing the violation only to the apartment building and not to an address listed on NYC Housing Preservation and Development or NYC Department of Finance records; or
Not filing the affidavit of service with the ECB.
In each of these instances of improper service, an owner may defeat a NOV.
An owner may also get a NOV dismissed if it is defective because it is missing required information. A NOV must include the following:
Your name or corporation name, or a brief identifier such as the term “Owner”;
Day, month, and year of the violation;
Place of occurrence;
The law alleged to have been violated (working without a permit is covered in Section 27-147 of the New York City Administrative Code); and
A brief written description of the violation.
If your NOV is missing any of the information listed above, it may be dismissed by the ALJ hearing your case.
Evidence Presented at Hearing
If the violation is not dismissed on the basis of improper service or defective notice, then the outcome will depend on the evidence presented at the hearing. The inspector may have seen the work being done on your property and just got the law wrong. The work you may have been doing may not have required a permit. It may qualify for minor alterations or ordinary repairs. To prove your case, you are entitled to submit several kinds of evidence, or facts, during your hearing: (1) you may testify; (2) you may bring witnesses with you to testify on your behalf; 3) you may cross-examine or question the DOB's witnesses, including the issuing officer, if he is present at the hearing; and 3) you may bring documents with you for the ALJ to review while hearing your case.
When you submit a document as evidence, it is called an exhibit. Exhibits may include: deeds, drawings, maps, licenses, permits, envelopes (to show mailing or receipt dates), and photographs. The ALJ may label, mark, and keep all relevant exhibits.
Violation by Prior Owner
You may receive a NOV for a violation the prior owner of your building may have made. But if you show the right evidence, you should be able to get the violation dismissed. In various cases involving a prior owner's failure to get a permit for work, the ECB has ruled that the current owner isn't responsible.
In one case, the DOB hit the current owner with a violation for not getting a permit to remove an elevator in the building and imposed a $350 fine. The ECB revoked the fine, finding that, since the current owner neither started nor continued the work, it wasn't responsible for the violation [17 Orchard St., August 1995].
To help you contest a violation for work done by a prior owner, without a permit, we've created a Model Letter: Send Letter to ECB Contesting Work-Without-a-Permit Violation, that you can adapt and use. Your letter should include proof that work was done before you bought the building. To prove this, include two types of documents:
1. One that shows when you bought the building. For example, submit a copy of the closing statement or deed of sale; and
2. One that shows that, as of the date you bought the building, the work done without a permit was already in place. That document, such as an appraisal of the building or a statement describing the building from the real estate agent who brokered the sale, should describe the building (including the work) at the time you bought it.
Getting a Fine Reduced
In situations where you cannot show improper service, a defective NOV, or enough evidence that you did not perform work without a permit, you may still be able to get a reduced fine if you are able to correct a violation within 35 days.
One way to qualify for a reduced fine is to correct the condition before the scheduled hearing date. The hearing date is usually 10 days after the deadline date for certifying the correction of the violation. You will still have to appear at a hearing before the ECB's ALJ. At that hearing, submit proof (such as bills, receipts, a signed and notarized statement describing the work by the person who did it) that you did the work needed to correct the violation.
You can then ask the ALJ to impose a reduced fine (called a “mitigated penalty”) of one-half the regular fine, since you corrected the condition cited in the violation notice before the hearing date. After the hearing, you must submit a certificate of correction to the DOB to get the violation removed from its records.
Another method is to sign a “Stipulation by Mail.” Whenever a first-offense, non-hazardous violation gets logged in to the ECB's computer, the ECB automatically mails out a document called a “Stipulation by Mail” to the respondent listed on the violation notice.
In this stipulation, an owner agrees to do the work needed to correct the violation and to pay a stated fine of one-half the regularly imposed fine. If you sign the stipulation, the DOB gives you 75 days from the original deadline for certifying the correction of the violation to correct the condition and certify its correction with the DOB.
However, you must sign and mail back the stipulation to the ECB so that it gets there at least five days before the first scheduled hearing date listed on the NOV. You must also include payment of the reduced fine with the signed stipulation. The violation will remain on the DOB's records until you certify its correction.
If you don't certify the correction within 75 days, you run the risk of getting a second-offense violation for that condition. Also, you could get hit with an additional violation for not complying with a commissioner's order.
If you don't sign and return the stipulation to the ECB on time, you'll have to appear at the ECB hearing. At that time, you can still sign the stipulation, but you won't be eligible for the reduced fine.
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