There’s a new set of DOHMH proposed rules, released before the end of the year. Read on to find out which penalties are being waived for first time offenses, and how the department is ramping up water tank enforcement going forward.
Cured Violations & Waived Penalties
Local Law 80 of 2021 asked agencies to take a look at violations and enforcement in the interest of reducing “red tape” and burdens on businesses. Since then, key agencies have been passing adjustments to violations and penalty schedules (see the DOB’s updates here), with the DOHMH being the latest to release their updates.
Here’s a breakdown of their proposed changes:
Key Enforcement Definitions Added
DOHMH is adding new definitions to enable named respondents to cure first-time violations. These definitions would be added to Chapter 7 of Title 24 of the Rules of the City of New York (Adjudicatory Hearings and Violation Fines and Penalties, see here). They include:
- Cure: Cure means that the respondent has submitted proof of having corrected a first-time violation and the Department has accepted such proof.
- First-time violation: First-time violation means a violation of law, listed in Appendix 7-A of this Chapter, committed by a respondent for the first time and cited on a summons that either is pending or has not been adjudicated by OATH as defaulted or sustained.
- Summons: Summons means a document, including a notice of violation, issued by the Department to a respondent, that specifies the charges forming the basis of an adjudicatory proceeding at the Office of Administrative Trials and Hearings.
While they’re pretty straightforward (and align with other departments, generally), these definitions set up the second part of DOHMH’s changes regarding correction and acceptance.
Proof Of Correction And Acceptance
Section 7-10 has been added to the rules, explicitly listing the process for submitting proof of correction for eligible first-time violations. Section 7-11 then reviews the department’s process for accepting said correction. Here’s the language straight from the rule:
- Submission of proof of correction must be in writing in a form approved or provided by the Department.
- The proof must be submitted to the Department electronically or in person within seven (7) calendar days of the date the violation was issued as recorded on the summons.
- The proof must be affirmed by the permittee or their authorized representative that it is complete and accurate to the best of such person’s knowledge.
- Submission of any false statements in support of a proof of correction may be subject to penalties prescribed for violations of Health Code § 3.19 and other applicable law.
- A permittee whose first-time violation is pending at OATH for adjudication is not eligible to submit a proof of correction for a subsequent identical violation.
- Basically, if you received a second violation for the same infraction as your first offense, you won’t be able to cure the second one
There’s some room for further clarification here. For example, the form approved or provided by the department remains to be seen. That said, the process seems to be similar to DOB & FDNY in that cured violations will not have associated penalties, and owners can avoid paying fines in these cases. Here’s more from Section 7-11:
- The Department must accept proof of correction if it determines that the proof is adequately documented and submitted timely in accordance with § 7-10 of this Chapter. Acceptance of proof of correction constitutes a cure and an admission of the violation for all purposes, except as provided in subdivision (b) of this section.
- A first-time violation whose proof of correction has been accepted by the Department will not be subject to a civil penalty.
- The determination of whether a violation is a first-time violation shall be based solely on the records of the Department.
- The Department may require further documentation in addition to the proof of correction and may inspect the establishment or take any other action as it deems necessary before acceptance or rejection of such proof.
- Nothing in this Chapter limits the authority of the Department to conduct other inspections or take any other action it deems necessary to enforce any provision of law within the jurisdiction of the Department.
New And Adjusted Infractions
The DOHMH has also added some entries to Appendix 7-A for new DOHMH infractions, and related penalties. Noticeable infractions include failing to test drinking water for lead ($400/$800 default), failure to post permit in a clean, transparent cover clearly visible to the public ($100 per day), and failure to conspicuously post required notices (also $100 per day). The latter two violations are explicitly subject to cure, per the proposed rule.
You can see the full changes here in the proposed rules, on page 6.
Water Tank Enforcement
DOHMH has also released a proposed rule amending drinking water tank inspection penalties, currently in Chapter 31 of Title 24 RCNY. The proposed rule creates new penalties in addition to adjusting current ones.
As a reminder, and quoted in the proposed rules,
Section 17-194 requires an owner of a building with a water tank that provides potable water to submit documentation of an annual drinking water tank inspection report to the Department. The inspection report must be submitted by the water tank inspector and must state whether all applicable regulations were met at the time of inspection and provide a description of any noncompliance with the requirements.
Annual inspections are due on January 15th for the previous year. You can find more details and FAQs on the city’s site, here.
Going forward, there would be increased fines for failure to submit the report, and failure to provide specifics as required in the law as part of the report. Here’s some of what’s changing:
|Failure to submit report by 1/15||Increase from $250 to $500||Increase from $500 to $1000|
|New: Failure to provide documentation that displays visual depiction of the water tank||$250||$500|
|New: Drinking water tank inspected by someone other than a water tank inspector||$500||$1000|
|Not changed: Failure to post notice of availability of inspection reports||$250||$250|
|New: Failure to report water tank’s unsafe conditions to DOB in writing||$250||$500|
What’s Next For These Proposed Rules?
As with most NYC rules, there’s a bit of a process before they’re finalized. These rules are currently in the proposed stage (comment period), and may have some tweaks before they’re enforced. Both rules are set to have a hearing after the holidays in 2023, so there’s still time to leave comments on either:
- Waived Penalties: Tuesday, January 3rd – click here for the full text of the proposed rule, and more information on leaving comments
- Water Tank Enforcement: Friday, January 6th – click here for the full text of the proposed rule, and more information on leaving comments
We’ll keep you posted when these rules are finalized, and if anything changes in the interim.
Questions? Let us know at email@example.com. We’ll be covering this rule and others in our upcoming January webinar for 2023 compliance changes – register here!