Section 102-01 of Subchapter B Enforcement of Chapter 100 is known as the Violation classification and certification of correction. Pursuant to section 28-204.1 of the Administrative Code, it specifies that any person who shall violate or fail to comply with the provisions of law enforced by the Department shall be liable for a civil penalty that may be recovered in a proceeding before the Environment Control Board or ECB. In turn, such proceeding shall be commenced by service of a notice of violation or NOV which may be issued and served by Department employees or a licensed process server, and other city agencies designated by the Commissioner. Each respondent of the NOV are obligated to correct the condition constituting the violation and afterwards, must file the required certification with the Department that the condition has been corrected. A violation for filing a false certification cannot be certified as corrected prior to a hearing before the ECB. The respondent must appear at the ECB hearing for all violating conditions unless those charges are cured or a pre-hearing stipulation is offered, accepted by the respondent, and approved in writing by the ECB.
There are three (3) classifications of violations. First is the Immediate Hazardous Violations which are denominated as Class 1 violations. These are specified as those violating conditions that warrant immediate corrective action due to the severity of the threat posed by such violations. The next classification is known as Major Violations. They are specified as those where the violating conditions affect life, health, safety, property, or the public interest but do not require immediate corrective action. Thus, they shall be denominated as Class 2 violations. Violations that are denominated as Class 3 are known as Lesser Violations. These are violations where in the conditions have a lesser effect compared to those of the 1st and 2nd class.
A cure is an admission of a violation. It constitutes a predicate violation for subsequent violations and it dispenses with the need for a hearing at ECB. An eligible violation may be cured by correction prior to the first scheduled hearing date at the ECB. For Class 3 violations or Class 2 violations that are eligible for a cure, respondents are may avoid a hearing by submitting a certification of correction accepted and received by the Department within forty (40) days from the date of the order to correct indicated in the NOV. As for the violations classified as Class 1, the Department must accept and receive the certification submitted by the respondent. A stipulation is offered by the Commissioner to the respondent prior to or at a hearing to extend the time of compliance upon such terms and conditions as the Commissioner prescribes. The respondent must admit the violation, agree to correct it, and then file a certificate of correction with the Department. When a stipulation is signed and submitted to the ECB before the first scheduled hearing date, it is considered a pre-hearing stipulation and it dispenses the need for a hearing at ECB. The penalty imposed on a pre-hearing stipulation is reduced to half the amount of the standard hearing penalty set forth in the ECB Buildings Penalty Schedule. When a stipulation is signed and submitted to the ECB on the first scheduled hearing date but prior to any actual hearing on that date, then it is considered a hearing stipulation and the standard hearing penalty is imposed. When the respondent proves at the hearing that the condition was corrected prior to the first scheduled hearing date at ECB, then the violation may be subject to mitigation. The penalty imposed on mitigation is reduced to half the amount of the standard hearing penalty set forth in the ECB Buildings Penalty Schedule.
Additional daily penalties may be imposed in connection with certain continuing and uncorrected Class 1 violations. Additional monthly penalties may be imposed in connection with certain continuing and uncorrected Class 2 violations. If the Department seeks such penalties in connection with a particular Class 1 or Class 2 charge, that will be indicated on the NOV.
On and after July 1, 2008 any work performed without a required permit will be presumed subject to enforcement under the New York City Construction Codes. Thus, the option afforded by 28-101.4 to use the either the 1968 Building Code or the New York City Construction Codes applies only to work for which an application is filed with the Department. If and when the work is the subject of an application to legalize, the option will be available once again.