By Adam Leitman Bailey
Here’s some odd advice: when your building gets a violation, 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.”
Eliminating the Violation
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 the Department of Buildings responds to emergency complaints in just under 17 hours on average, according to the city’s most recent figures, this gives managers a window of opportunity to address a complaint before an inspector arrives and issues a violation.
Challenging a Violation
But let’s say you can’t fix something in time and a violation is issued. How do you challenge it – or even 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.
Appealing the Violation
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. Make sure to supply the issuing agency with a copy of the request. 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, which is often “contacted by managing agents and attorneys, as well as commercial tenants and house-owners,” says Sam Pruyn, who, with his stepbrother Matt Calvo, runs the company.
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 a sanitation violation, for example, costs $30, while fire and elevator violations are $185, commercial noise and lead paint violations are $300, up to heat and hot-water violations at roughly the same hourly rates your co-op or condo board’s attorney might charge. Pruyn declined to specify prices, but suggested that his rates also are much lower than those of board attorneys.
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,” say Hochman. “It’s there to raise revenue.”
You Can Fight City Hall!
Here are nine ways to get Environmental Control Board violations dismissed:
1. Certify that a correction was made.
If you get a violation notice for a nonhazardous condition and you’re in the process of repairing it when the violation is issued, you can certify its correction and avoid a fine. Bring to the hearing any proof you have, such as dated photographs or an affidavit from the contractor.
2. Show that you tried to repair the condition but could not gain access.
For example, one owner claimed he couldn’t immediately correct a basement violation because an illegal tenant was living there, and he showed that before the violation was issued, the tenant repeatedly had denied access for repairs.
3. Show that the condition was temporary, caused by an emergency situation.
For example, with a violation for doing roof work without a permit, you may be able to show there was no time to obtain the permit because the roof was in danger of collapsing.
4. Show that the violation duplicates a prior violation.
If you get more than one notice about a violation at the same time and they cover the same condition, you should be able to get the extra violation dismissed and avoid paying more than one fine by arguing that you got duplicate violations.
5. Show that the violation was improperly served.
The agency must file an “affidavit of service” with the ECB to prove the notice was delivered to you. At the hearing, you or your representative should ask for that affidavit, which should be attached to the back of the copy of the violation notice in the case file. If the affidavit isn’t attached, the violation can be dismissed on the spot based on “improper service.”
6. Show that you were not served at the correct address.
If the agency in unable to personally deliver a violation notice, the law allows what’s known as “nail and mail.” The inspector posts a notice at the building and mails the violation to you at the building address listed on the notice. But the agency must check whether you’re listed on other city agencies’ records at a different address. If so, you must also get a violation notice mailed to you at that address.
7. Show that the name of the association on the violation is incorrect.
If the corporation’s or association’s name isn’t correctly stated on the violation notice, you may be able to get the violation dismissed. Usually this will happen only if the incorrectly stated name causes confusion. For example, you didn’t receive the violation notice because of the incorrect name. If LLC appears on the ticket instead of the accurate PC, the case could go either way.
8. Show that the date of the violation is incorrect.
If the violation notice incorrectly states when the violation occurred, you should be able to get it dismissed.
9. Show that no violation occurred.
Sometimes the inspector was wrong and no violation existed. Bring proof and dated pictures. One building won its case because the inspector claimed a sixth-floor window was missing window guards. The building’s lawyer gave the inspector an eye test on cross-examination, asking if he could see certain things outside the small courtroom. He could not. The violation was dismissed.
Most violations give you a chance to correct the cited condition. Once you provide a certificate of correction, the violation disappears. Remember: the best way to deal with a valid violation is to correct it.
– Adam Leitman Bailey and Frank Lovece