Relates to the criminal enforcement of violations of the state's uniform fire prevention and building code

BILL NUMBER:S7235

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

This is a new bill.

Effective date

This act shall take effect immediately.