Frank Lovece in Building Operations on September 13, 2016
Here’s some odd advice: when your building gets a violation from the Department of Buildings (DOB), don’t pay it. At least not automatically.
“Owners and boards probably spend thousands on fines and penalties that many times can be reduced,” says Ron Finger, president of Finger Management. “They get a ticket and think, ‘Oh, God, I’ve got to pay this.’ But, you don’t have to just lie down and roll over,” he says. “Go down with a fight.”
How do you fight City Hall? Step one is to head off complaints before they turn into violations. At least three companies compile data from city agencies and offices: DOB Alerts; Jack Jaffa & Associates, with its Alert Service Plus; and SiteCompli. Delivered to managing agents via e-mail alerts and text messages, this data includes, among other things, “311” complaints about your building. Since DOB responds to emergency complaints in just under 17 hours on average, this gives managers a window of opportunity to address a complaint before an inspector arrives and issues a violation.
But if a violation is issued, how do you challenge it – or get it dismissed?
It starts with the “Notice of Violation” – colloquially, “the ticket” – that lists a hearing date. A board member can attend the hearing, which takes place at a specified office of the Environmental Control Board (ECB), but most co-op and condo boards send a representative to handle it. Intrepid souls can contest certain violations by mail, by phone, or through the online “One-Click Hearing.” With some tickets – and the front of the violation will say if it applies – you can skip the hearing altogether and simply pay the penalty, which constitutes an admission of guilt.
A hearing officer records the hearing, takes statements from the agency that issued the violation, and lets you or your representative respond. The officer will look at any documents and hear any witnesses or legal arguments you or your rep might offer. Afterward, you’ll get a “Decision and Order” in the mail. Be warned: if attendance is required and no one attends the hearing, your co-op or condo could be found in default, which means an additional fine and possibly a judgment against you in civil court.
If you’re found in violation, you must pay the fine and, if ordered, correct the problems stated in the ticket. Or, within 30 days, you can file an appeal with the ECB. Since the ECB is an administrative court, your representative is not required to be an attorney. You can save money by using an expediting firm, such as Building Brothers.
Not surprisingly, attorneys would argue that you need an attorney. “Why would you send a non-attorney down when you have a law office that can do it inexpensively?” asks Robert Hochman, a partner at Cohen, Hochman & Allen, a law firm that specializes in what some call “city law” – the administrative courts handling quality-of-life issues. Hochman’s firm offers a menu of services, contesting violations for sanitation, fire and elevator codes, commercial noise and lead paint.
In the end, say many of those involved in the process, boards should be methodical in their approach and wary when dealing with the DOB or the ECB. “It’s not a fair system,” says Hochman. “It’s there to raise revenue.”
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