January 19, 1995

Honorable Alan G. Hevesi
Comptroller of the City of New York

Honorable Franz S. Leichter
New York State Senate
c/o Comptroller of the City of New York
1 Centre Street
New York, New York 10007-2341


This letter responds to your January 6th letter, which I received on January 10th, in which you raise issues regarding the Code Enforcement system of self-certification of violation correction by owners. Although HPD and others have long recognized that problems exist, to characterize those issues as demonstrating a "...potential for a total breakdown of the housing code violation process" is inaccurate and ignores statutory and financial limitations on our ability to enforce violation correction. Accusations of "inviting fraud" and "abetting disregard for the law" scapegoats HPD while ignoring the State's role in creating yet another unfunded mandate and the City's significant history of efforts to make the system more effective.

The State Legislature enacted the Code Enforcement system in 1972. It allows an owner varying periods of time, depending on the seriousness of the violation, to correct the violation and certify to its correction. As you know, while State Law provides for certification by owners of the correction of violations, it only provides for a civil penalty of $250 per false certification. (While the statute does provide for criminal penalties of $1000 as well, HPD has no authority to impose criminal penalties, since they must be pursued through the District Attorney's Office. Requests to enforce this law through criminal penalties have been repeatedly rejected.) In contrast, Class B and C violations have cumulative penalties of $10 to $150 a day. We have long believed that penalties for false certification have been inadequate. At HPD's request, legislation was introduced to the City Council last year which would have increased the civil penalty to $1000 and increased the time for HPD to reinspect certifications from 70 to 90 days. The Council did not pass the bill.

Your letter repeatedly points out that HPD does not take action to collect penalties for falsely certified violations. However, as your research no doubt uncovered, HPD has no ability to impose penalties for failure to correct or falsely certify except by bringing a full plenary action in housing court. The legal work required to bring a case against an owner for one false certification is the same as that required to bring a case against an owner with hundreds of uncorrected, serious violations that constitute an immediate danger to tenants. Given the limited number of lawyers available to bring such cases, HPD cannot address every uncorrected violation and must make tough choices in resource allocation based on a determination of which choices best serve the interests of tenants and the City. In practice, we must focus on bringing cases to housing court where the physical condition of the buildings and threats to tenants require immediate legal action. Nonetheless, where a false certification is among the violations of record for such buildings, it is included in the lawsuit.

By law, HPD lacks the statutory authority to enforce any substantial portion of the violations we place annually. The Administrative Tribunal bill, which would ensure that the vast majority of uncorrected violations would result in the imposition of fines, has been annually introduced, including last year, in the New York State Legislature as a New York City program bill. As you and Senator Leichter can confirm, the State Legislature has never passed an Administrative Tribunal bill.

In addition to consistently failing to act to put teeth into its enforcement mechanisms, the State also withdrew all funding for the Code Enforcement mandate. The State's withdrawal of $8 million a year has significantly contributed to the reduction in the number of Code Inspectors from more than 425 in 1991 to fewer than 200 today. A predictable result of the reduction in staffing is that fewer inspections, let alone reinspection to audit self certifications, can be performed. At this time HPD can only respond to and address emergency conditions, including lack of heat and hot water, cascading water leaks, and structural impairment. We no longer have the staff capacity to respond to any other conditions or to reinspections except the most serious instances which result in housing court cases. As you are aware, our lobbying efforts for additional funds were rejected.

In spite of the fact that the State Legislature has failed to provide HPD with the tools necessary to fully support the Housing Maintenance Code in New York City, we have developed a program that targets our limited resources to achieve maximum results to protect the public's life, health and safety. Code Inspectors address the most serious conditions (398,020 inspections were completed in FY94), and the Housing Litigation Bureau follows up by bringing court actions against many owners whose buildings pose threats to tenant health and safety (10,468 cases were opened by HLB in FY94). And in order to obtain additional resources to hire inspectorial staff, the City has applied to the Federal Department of Housing and Urban Development for Community Development Block Grant funding to support code enforcement activities.

Even if we should obtain CDBG funding that permits us to retain existing inspectors or add additional staff, the current system will remain ineffective in imposing meaningful fines for false certifications. As long as the only mechanism for so doing is a full housing court action, it will always be more effective, efficient, and logical for us to target those inspectors to the most serious housing conditions in support of our housing litigation efforts.

In your letter you support your statement that HPD "invites fraud" with a misleading description of HPD's reinspection process. Your statement that inspectors are instructed to make only two unannounced attempts to reinspect a building is inaccurate. In fact, if an inspector cannot gain access on the first visit, a card is left announcing the date for a second inspection visit. Finally, your description of the problem erroneously implies that access is denied by the owner. In most cases, access is denied by the tenant, and it would be grossly unfair to penalize an owner who says he made repairs because a tenant would not grant an inspector access.

On another issue, your letter makes note of the Notices of Violations (NOV) that are undelivered and that are returned to the borough offices. Certainly, some number of the NOVs for the more than 300,000 violations that are mailed every year will be undeliverable and returned to the agency, but what your letter does not reflect is that the number of undelivered NOVs is relatively small and that we expect that the number will be reduced as a result of HPD's intensive efforts to improve the accuracy of the owner registration system.

At HPD's request, the City Council passed legislation in 1993 that converted the triennial registration system to an annual one. We believe an annual registration dramatically increases the likelihood that the ownership information available to the agency is current and correct, and thus the likelihood that we can contact a responsible party when a violation must be corrected. In the end, however, the system ultimately depends on owners providing accurate information when they register the buildings yearly. Failure to register a building has been and continues to be a violation. We remain committed to ensuring that the registration system is as accurate and accessible as possible to maximize owner notification and compliance.

We are taking other steps to administratively enhance our ability to provide services with ever decreasing resources. We are exploring ways to further expand the number of single-person code enforcement teams throughout the City; we are in the final stages of contracting out for hand held computers to issue and track violations; and we are strengthening our links to community boards and local community based organizations to help us identify and monitor housing conditions.

The State Legislature has created a mandate for cities without the appropriate funding level or enforcement authority. And the current budget picture at the City, State and Federal levels does not offer a silver bullet for increasing our capacity to inspect or reinspect. Despite this burden, we are working hard on our links to preservation activities in communities and productivity improvements among our staff. On the enforcement side I have outlined a number of legislative proposals at the City and State levels that would begin to address your concerns and ours.

If you are individually or collectively interested in making improvements to code enforcement for the citizens of New York a priority, I would be happy to explore the statutory and other available options.


Deborah C. Wright

First Deputy Mayor Peter Powers
Deputy Mayor John Dyson
Martha Hirst
Robert Harding