The Department of Buildings just released a proposed rule clarifying previous DOB penalty waivers for small businesses, and narrowing definitions of who would be considered a “small business”.
Here’s what’s covered, and what’ll be reviewed at a hearing in September:
Small Business Reminders
Like we mentioned in our first blog announcing small business-focused waiver rules, it’s important to remember the definition of “small business,” per the Work Without a Permit rule:
Where an owner of a business that employs fewer than one hundred employees
That said, definitions for boiler filings get even more specific, listing small businesses as a business that “employs fewer than 100 persons and provides goods or services onsite.” This language is also referenced explicitly in the Work Without a Permit waiver section as a required condition. It effectively limits the teams that can apply for waivers in both cases.
We’ll go into more detail below, but the scope of who can apply for waivers appears much smaller.
Work Without A Permit Waivers
New language has been added to clarify situations where waivers will be granted to small businesses for Work Without a Permit-related penalties. Here’s the proposed text:
“….The Department may waive a civil penalty for work without a permit in the following instances…where an owner of [a small business] has been issued a violation for unpermitted work and all of the following conditions are met:
- The violation for which the waiver is requested was not issued for a sidewalk shed installed without a permit or a sidewalk shed installed with a valid permit and the permit has expired;
- The applicant demonstrates, in a form and manner determined by the Department, that the individual or entity requesting the waiver is the owner of the small business;
- The business provides goods or services onsite;
- The work without a permit violation was issued on or after November 20, 2022;
- The applicant demonstrates, in a form and manner determined the by the Department, that the space in which the unpermitted work was performed is occupied exclusively by the small business;
- A small business waiver was not previously granted to the small business owner for unpermitted work performed on behalf of or for the benefit of such business; and
- The sole or primary purpose of the business is not filing representative or expeditor services, real estate, real estate development, property management, construction or other related services as determined by the Department.
Per the above, it looks like waivers may be granted to specific small business tenants or similar named respondents, but not overall management – and not if it’s related to a sidewalk shed.
Boiler Inspections
Language for both low pressure and high pressure boiler violations is the same, even though they’re in different parts of the RCNY. Here’s what you need to know, similar to Work Without a Permit requirements:
“An owner of a small business may be granted a one-time waiver of the civil penalty for a violation issued for failure to file an annual boiler inspection report where all of the following conditions are met:
- The applicant demonstrates, in a form and manner determined by the Department, that the individual or entity requesting the waiver is the owner of the small business;
- The failure to file for which the violation was issued occurred on or after November 20, 2022;
- The applicant demonstrates, in a form and manner determined by the Department, that the owner of the small business owns or has responsibility for the boiler and such boiler exclusively serves the space occupied by the small business;
- A small business waiver was not previously granted to the small business owner for any boiler at the subject building that is owned by the small business or for which the small business is responsible;
- A small business waiver was not previously granted to any small business for the boiler for which the waiver is being requested; and
- The sole or primary purpose of the business is not filing representative or expeditor services, real estate, real estate development, property management, construction or other related services as determined by the Department.”
Like Work Without a Permit, waiver relief for missing boiler inspections is limited to small businesses providing “goods or services.”
Next Steps
A hearing for this proposed rule will take place on September 12th, 2024. Check out the proposed rule page for more details on how you can attend or submit commentary in advance. We’ll let you know what happens if and when these rules move from the proposed to accepted stage.
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