Law 38
On November 12, 1999 the City of New York has declared effective Local Law 38 of the City of New York which amends and/or adds new sections to The Administrative Code of the City of New York, concerning Lead Poisoning Prevention and Control. ("The Law").
This Law makes it the duty of every owner of a multiple dwelling erected prior to January 1, 1960 to inspect all multiple dwelling units occupied by a child under 6 years of age for lead-based paint hazards and to address such hazards on a case by case basis, as the conditions may warrant, taking such actions that are necessary to prevent a child from becoming lead poisoned.
An owner shall correct all lead based paint hazards notwithstanding any other provision of law. The inspection and correction of lead based-paint hazards must be corrected whether a violation has or has not been issued with respect to the said hazards.
I. Vacant Apartments
"When an apartment defined as a dwelling unit becomes vacant in a multiple dwelling, erected prior to January 1, 1960, the owner of the apartment shall have a duty to perform the following measures":
Inspect the apartment for Peeling Paint. "Peeling", shall mean that the paint or other surface coating material is curling, cracking, scaling, flaking, blistering, chipping, chalking or loose in any manner, such that a space or pocket of air is behind a portion thereof or such that the paint is not completely adhered to the underlying surface. The visual inspection shall include every surface in every room for lead based paint and shall include every room including interior of closets and cabinets, checking all windows and doors to ensure they are properly hung and painted surfaces that do not bind. Upon completion of the visual inspection, the owner shall perform, as necessary the following:
1. where practicable and not otherwise prohibited, seal off the work area to restrict access or entry to such work area until all work and clean-up are achieved;
2. wet scrape all peeling paint using a scraper and water misting to reduce dust and other work-related debris and repair all deteriorated subsurfaces where such subsurfaces are covered with paint;
3. HEPA-vacuum all affected surfaces and the floors in the work area or wash all surfaces in the work area with a detergent prior to repainting to remove any dust that may have accumulated and provide for the disposal of any peeling paint or materials that may contain peeling paint, paint chips, dust and other work-related debris in accordance with all applicable laws, rules and regulations;
4. repaint all areas affected and provide that all paints, thinners, solvents, primers, chemical strippers or other such flammable materials in the work area shall be kept in their original containers;
5. make all bare floors in the dwelling unit smooth enough so that dust can be removed by normal cleaning without special equipment;
6. adjust all doors including cabinet doors, to ensure that they are properly hung, so that no painted surfaces bind;
7. adjust all windows to ensure that they are properly hung, so that no painted surfaces bind; and
8. provide that any supplies, materials, equipment or disposable clothing used in the work area that may contain peeling paint, paint chips, dust and other work-related debris shall be stored and disposed of in a safe and workmanlike manner to minimize exposure of the occupants of the multiple dwelling to such supplies, materials, equipment or disposable clothing during the course of work;
9. Any owner who fails to comply with the provisions of this section in accordance with the rules of the Department of Housing Preservation and Development ("The Department") shall be liable for a class C immediately hazardous violation.
II. Lease or Rental Commencement
Owner's Duty to Notify, Inspect and Correct. The owner of the apartment(s) in a multiple dwelling erected prior to January first, nineteen hundred sixty shall provide to an occupant of a dwelling unit in such multiple dwelling at the signing of the lease, if any, or upon any agreement to lease, or at the commencement of occupancy if there is no lease, a notice inquiring as to whether a child under six years of age resides or will reside therein. The occupant shall have the duty to complete such notice at the time of such signing or agreement or at the commencement of such occupancy. Such notice must be printed on a single form and in a manner approved by the Department, the content of which shall be in English and Spanish at a minimum. The pamphlet developed by the Department pursuant to section 17-179 of the Administrative Code shall be delivered by the owner to the occupant of a dwelling unit in a multiple dwelling at the time the occupant signs a lease to reside in such multiple dwelling unit, or if there is no lease, at the commencement of occupancy.
III. Annual Notice to Residential Units in Multiple Dwelling
1. Each year the owner of a multiple dwelling erected prior to January 1st, 1960 shall cause to be delivered to each residential unit no earlier than January 1st and no later than January 16th a notice inquiring as to whether a child under six years of age resides therein and advising the occupant of his or her duty pursuant to the Law. Such notice must be printed on a single form and in a manner approved by the Department, the content of which shall be in English and Spanish at a minimum.
2. The owner shall satisfy the annual notice requirements by delivering said notice by any one of the following methods:
(i) by first class mail addressed to the occupant of the dwelling unit;
(ii) by hand delivery to the occupant of the dwelling unit;
(iii) by enclosure with the January rent bill, if such rent bill is delivered after December fifteenth but no later than January sixteenth;
(iv) by delivering said notice in conjunction with the annual notice required pursuant to section 17-123 of the Administrative Code and the regulations of the Department pertaining to the installation of window guards;
(v) Upon receipt of such notice the occupant shall have the duty to deliver a written response to the owner indicating whether a child under six years of age resides therein;
(vi) If by March first of the year in which the notice was sent an owner has not received a written communication by the occupant, the owner shall be deemed to have complied with this section unless such owner subsequently receives actual knowledge or subsequent written communication that a child under six years of age resides therein;
3. Where an occupant has responded to the notice provided by the owner by indicating that no child under six years of age resides therein, in the interim period between the date of such response and the delivery of the notice provided by the owner during the immediately following year, the occupant shall have the duty to inform the owner in writing of any new child under six years of age that comes to reside therein during such interim period.
4. In any dwelling unit for which the occupant has responded to the notice provided by the owner pursuant to this section and informed the owner that a child under six years of age resides therein, or in any dwelling unit for which the occupant has not responded to such notice but for which the owner has actual knowledge that a child under six years of age resides therein, including written communication provided pursuant to this section, the owner shall perform or cause to be performed an annual visual inspection for lead-based paint hazards. Nothing in this provision shall preclude an owner from conducting any additional types of inspections for lead-based paint hazards if such owner so chooses.
5. An owner shall correct all lead-based paint hazards identified pursuant to the visual inspection and, if applicable, any additional inspections conducted pursuant to this section.
6. In the event of any action for civil penalties arising from a violation of this section or in the event of any claim by or on behalf of the occupant of the dwelling unit or a child under six years of age who resides therein, such owner may in defense or mitigation of such owner's liability show that (1) the owner did not receive a written communication from the occupant responding to the notice given by the owner pursuant to this Law and the owner and did not have actual acknowledge that a child under six years of age resided therein, (2) the owner did receive a written communication from the occupant responding to the notice given by the owner pursuant to the Law which stated that a child under six years of age did not reside therein, (3) the occupant failed to provide access to the owner at a reasonable time to any part of the premises for the purposes of inspection and repair of lead-based paint hazards, or (4) the owner visually inspected the dwelling unit but the lead-based paint hazard arose subsequent to such inspection and the occupant did not provide notice to the owner of such hazard.
An owner shall have no obligation to perform or cause to be performed an annual visual inspection for lead-based paint hazards unless the occupant has complied with the Law or the occupant has otherwise provided written notice to the owner that a child under six years of age resides therein, or where the owner has actual knowledge that a child under six years of age resides therein.
7. The owner shall maintain or transfer to a subsequent owner a record of any visual inspections conducted and a record of any work performed pursuant to this Law. Such records shall be maintained for a period of three years and made available to the Department upon request.
IV. Presumption that all paint in a Multiple Dwelling erected prior to 1960 is Lead Based Paint.
There is a presumption under the Law that in any multiple dwelling unit erected prior to January 1st 1960, in which a child under six years of age resides, that the paint or other similar surface coating material in the interior of the dwelling unit is lead based-paint solely for the purposes of the Law. The presumption established in this section may be rebutted by the owner of such multiple dwelling by submitting to the Department a sworn written statement, supported by a lead based paint testing or sampling result, a sworn written statement by the person who performed the testing if performed by an employee or agent of the owner, and such other proof that the Department may require. The Department shall determine as to whether or not such proof is adequate to rebut the presumption established by the Law.
1. The owner of the multiple dwelling may apply to the Department to have the multiple dwelling exempted from the presumption contained in this section when substantial alterations have been made to such multiple dwellings and such alterations have resulted in the removal or containment of lead based -paint in the dwelling unit of such multiple dwelling. The Department shall determine the requirements needed to qualify for such exemption.
2. The existence of lead based-paint hazards shall constitute a class C immediately hazardous violation.
3. The dry scraping or dry sanding of lead-based paint or paint of unknown lead content in any dwelling unit is pursuant to the Law is declared to constitute a public nuisance and a condition dangerous to life and Health. For the purpose of this Law, dry scraping and dry sanding shall mean the removal of paint or similar surface-coating material by scraping or sanding without using water misting or other method approved by the Department to reduce dust levels. The Department may promulgate such additional rules as necessary for the enforcement of this section.
V. Where no Violation has been issued, an owner shall correct all Lead Paint Hazards using the following exclusive interim controls
l. where practicable and not otherwise prohibited, seal off the work area to restrict access or entry to such work area by the occupant(s) until all work and clean-up are achieved;
2. prepare the work area by either (i) covering all moveable objects in and adjacent to the work area and covering the floor adjacent to the work area with polyethylene, plastic or equivalent sheeting or removing all movable objects in and adjacent to the work area and HEPA-vacuuming all such objects prior to removing such objects and covering the floor with polyethylene plastic or equivalent sheeting;
3. provide that any polyethylene, plastic or equivalent sheeting, drop cloths and other supplies, materials, equipment or disposable clothing used in the work area that may contain peeling paint, paint chips, dust and other work-related debris shall remain in the work area or be stored or removed from the work area in a safe manner to minimize exposure of occupants to such sheeting, cloths, and other supplies during the period that the work is being performed;
4. wet scrape all peeling paint using a scraper and water misting to reduce dust and other work-related debris and repair all deteriorated subsurfaces where such subsurfaces are covered with paint;
5. HEPA vacuum all affected surfaces and the floors in the work area or wash all surfaces in the work area with a detergent prior to repainting to remove any dust that may have accumulated and provide for the disposal of any peeling paint or materials that may contain peeling paint, paint chips, dust and other work-related debris in accordance with all applicable laws, rules and regulations;
6. repaint all areas affected and provide that all paints, thinners, solvents, primers, chemical strippers or other such flammable materials in the work area shall be kept in their original containers;
7. thoroughly wet-mop or HEPA-vacuum the work area and conduct a visual examination at the end of each workday to ensure that no peeling paint, paint chips, dust or other work-related debris have been released, from such area;
8. arrange and supervise the work area so as to minimize the dispersion of peeling paint, paint chips, dust and other work-related debris from the work area and advise occupants not to enter the work area until the work has been completed in such work area;
9. upon the completion of the work, provide that any remaining polyethylene, plastic or equivalent sheeting, drop cloths or other materials shall be removed in a safe manner, and all surfaces exposed to peeling paint, paint chips, dust or other work-related debris during the course of work shall be HEPA-vacuumed or detergent washed beginning with ceilings, then down the walls and across the floors;
10. adjust all doors, including cabinet doors, to ensure that they are properly hung, so that no painted surfaces bind;
11. adjust all windows to ensure that they are properly hung, so that no painted surfaces bind;
12. the owner shall maintain or transfer to subsequent owners records of any work performed pursuant to this Law. Such records shall be maintained for three years and made available to the Department upon request.
13. an owner may, at such owners discretion correct a lead-based paint hazard by using the more strict methods as specified in Section 173.14 of the Health Code of the City of New York in lieu of the less strict requirements of this law.
VI. If a Violation is issued for a Lead Paint Hazard, it shall be the responsibility of the owner to correct such violation using the following exclusive interim controls:
A. 1. where practicable and not otherwise prohibited, seal off the work area to restrict access or entry to such work area by the occupant(s) until all work and clean-up are achieved;
2. prepare the work area by either (i) covering all moveable objects in and adjacent to the work area and covering the floor adjacent to the work area with polyethylene, plastic or equivalent sheeting or removing all movable objects in and adjacent to the work area and HEPA-vacuuming all such objects prior to removing such objects and covering the floor with polyethylene, plastic or equivalent sheeting;
3. provide that any polyethylene, plastic or equivalent sheeting, drop cloths and other supplies, materials equipment or disposable clothing used in the work area that may contain peeling paint, paint chips, dust and other work-related debris shall remain in the work area or be stored or removed from the work area in a safe manner to minimize exposure of occupants to such sheeting, cloths, and other supplies during the period that the violation is being corrected;
4. wet scrape all peeling paint using a scraper and water misting to reduce dust and other work-related debris and repair all deteriorated subsurfaces where such subsurfaces are covered with paint;
5. HEPA vacuum all affected surfaces and the floors in the work area or wash all surfaces in the work area with a detergent prior to repainting to remove any dust that may have accumulated and provide for the disposal of any peeling paint or materials that may contain peeling paint, paint chips, dust and other work-related debris in accordance with all applicable laws, rules and regulations;
6. repaint all areas affected and provide that all paints, thinners, solvents, primers, chemical strippers or other such flammable materials in the work area shall be kept in their original containers;
7. thoroughly wet-mop or HEPA-vacuum the work area and conduct a visual examination at the end of each workday to ensure that no peeling paint, paint chips, dust or other work-related debris have been released;
8. arrange and supervise the work area so as to minimize the dispersion of peeling paint, paint chips, dust and other work-related debris from the work area and advise occupants not to enter the work area until the work has been completed in such work area;
9. upon the completion of work, provide that any remaining polyethylene, plastic or equivalent sheeting, drop cloths or other materials shall be removed in a safe manner, and all surfaces exposed to peeling paint, paint chips, dust or other work-related debris during the course of work shall be HEPA-vacuumed or detergent washed beginning with ceilings, then down the walls and across the floors;
10. adjust all doors, including cabinet doors, to ensure that they are properly hung, so that no painted surfaces bind;
11. adjust all windows to ensure that they are properly hung, so that no painted surfaces bind;
12. when lead-based paint hazards have been corrected on any interior wood trim or door, a surface dust test shall be conducted on the floor immediately adjacent to the work area In addition, when lead-based paint hazards have been corrected on any interior wood trim or door on, near or immediately adjacent to a window, a surface dust test shall be conducted on the window sill and window well immediately adjacent to the work area. In addition, when lead-based paint hazards have been corrected on any window, a surface dust test shall be conducted on the floor, window sill and window well immediately adjacent to the work area Any surface dust tests required pursuant to this Subdivision shall be conducted after final clean-up, and after any repainting, if necessary, has been completed. All such surface dust tests shall he completed by an individual who has passed a course approved by the Department of Health on how to conduct a surface dust wipe test. All such surface dust test samples shall be forwarded to an independent state certified laboratory for analysis.
13. the owner shall maintain or transfer to a subsequent owner records of any work performed pursuant to this Subdivision. Such records shall be maintained for three years and made available to the Department upon request.
14. an owner may, at such owners discretion correct a lead-based paint hazard by using the more strict methods as specified in Section 173.14 of the Health Code of the City of New York in lieu of the less strict requirements of this law.
B. Where an Owner receives a violation pursuant to this Law, it must be corrected and the condition abated within 21 days of the receipt of the violation as specified in the Notice of Violation using the interim controls set forth above. If the violation is not corrected within the 21 day period, then the owner will be required to correct the violation using the more stringent and costlier Department of Health Regulations pursuant to Health Code Section 173.14, within 15 days after the expiration of the 21 day period.
C. The Owner may request an additional 45 days to correct the violation, but must request the extension of time within the 21 days allowed to correct the violation. The Department may grant this postponement of up to 45 days.
This postponement will only be granted to Owners who have taken steps to correct the violation, but have encountered serious difficulty in correcting the hazard e.g. access or difficulty in procuring materials.
VII. Work Practices and Violations Notices
1. The Department of Health shall develop a pamphlet listing the interim controls set forth in the Law and the work practices specified in section 173.14 of the Health Code of the City of New York. Such pamphlet shall be delivered by the Department in conjunction with all notices of violation issued pursuant to the Law. Failure to include such pamphlet with such notices of violation shall not render null and void the service of such notices of violation. Such pamphlet shall also be made available to any member of the public upon request.
2. The Department shall develop a notice which shall be addressed to the unit in the multiple dwelling for which such violation was issued. Such notice shall include a telephone number for the Department of Health. The Department shall also refer to the Department of Health the address of the unit in the multiple dwelling for which such violation was issued, the name of the complainant, if any, and the complainant's telephone number, if available. The Department of Health shall refer to appropriate medical providers any person who requests assistance in blood lead screening, testing, diagnosis or treatment, and upon the request of a parent or guardian, arrange for blood lead screening of any child who requires screening and whose parent or guardian is unable to obtain a lead test because the child is uninsured or the child's insurance does not cover such screening.
VIII. Service and Certification of Violations
When the Department shall serve a notice of violation to correct and certify a condition that constitutes a violation of this law, the notice of violation shall be served within twenty days of inspection and shall specify the date by which the violation shall be corrected, which shall be twenty-one days after service of the notice of violation, and the procedure by which the owner, for good cause shown, may request a postponement.
The notice of violation shall be served by personal delivery to a person in charge of the premises or to the person last registered with the City of New York as the owner or agent, or, by registered or certified mail, return receipt requested to the person in charge of the premises or to the person last registered with the Department as the owner or agent; provided, that where a managing agent has registered with the Department, such notice of violation shall be served on the managing agent. Service of the notice of violation shall be deemed completed three days from the date of mailing. Notification, in a form to be determined by the Department, of the issuance of such violation shall be sent by regular mail to the complainant at the dwelling unit that is the subject of such notice of violation. The Department may postpone the date by which a violation shall be corrected upon a showing, made within the time set for correction in the notice, that prompt action to correct the violation has been taken but that full correction cannot be completed within the time provided because of serious technical difficulties, inability to obtain necessary materials, funds or labor, inability to gain access to the dwelling unit wherein the violation exists or such other part of the building as may be necessary to make the required repair. Such postponement shall not exceed forty-five days from the date set for correction in the notice of violation and may not be extended by the Department. The Department may require such other conditions as are deemed necessary to insure correction of the violations within the time set by the postponement. The Department shall provide to the owner and the complainant a written statement signed and dated by the person making the decision regarding the availability of postponement provided for in this paragraph. Such written statement shall set forth the reasons for the postponement of the date by which a violation shall be corrected or the reason for the denial of such application for postponement. Such written statement shall be part of the record of the Department.
IX. Waiver of Lead Law is void.
Any agreement by the occupant of a dwelling unit purporting to waive the benefit or protection of any provision of this Law is Void. Any owner who violates this Law or the rules promulgated thereunder shall be guilty of a misdemeanor punishable by a fine of up to $500.00 or imprisonment for up to six months or both. In addition, any owner who violates this section shall be liable for a civil penalty of not more than $500.00 per violation. Notwithstanding any provision hereof to the contrary, nothing herein shall be construed to alter existing or future agreements which allocate responsibility for obligations under this Law between a tenant/shareholder and a cooperative corporation of between the owner of a condominium unit and the Board of Managers of such condominium.
X. Certification of Compliance with Notice of Violation
A. The notice of violation shall direct that the correction of each violation cited therein shall be certified to the Department. Such certification shall be made in writing, under oath by the registered owner, a registered officer or director of a corporate owner or by the registered managing agent. Such certification shall include a statement that the violation was corrected in compliance with the Law. Where an owner corrects a violation in accordance with Section 173.14 of the Health Code, such certification shall include a statement that the work standards used to correct the violation complied with the Health Code. All certifications shall be delivered to the Department and acknowledgment of receipt therefor obtained or shall be mailed to the Department by certified or registered mail, return receipt requested no later than five days after the date set for correction, and shall include the date when each violation was corrected. Such certification of correction shall be supported by a sworn statement by the person who performed the work if performed by an employee or agent of the owner. A copy of such certification shall be mailed to the complainant by the Department not more than twelve full calendar days from the date of receipt of such certification by the Department. Failure to file such certification shall establish a prima facie case that such violation has not been corrected.
B. When an owner has failed to correct a violation issued pursuant to the Law, the Department shall correct such violation within sixty days of the date of failure by such owner to certify correction of such violation, or within sixty (60) days of the date that the Department mails a notice of invalidated certification to such owner.
C. The Department shall reinspect each violation which has been certified as corrected within thirty days of receipt of such certification. Such violation shall be deemed corrected seventy days from the date of receipt of such certification by the Department unless the Department has determined by reinspection pursuant to this paragraph that the violation still has not been corrected. The Department shall record such determination upon its records, and shall provide a notice of invalidated certification by registered or certified mail to the registered address or to the address of the person who executed such certification to the address stated in the certification that it has been set aside and the reasons therefore, within thirty days of such determination. The Department may commence an action for false certification against such owner at any time following mailing of such notice of determination.
D. The time periods provided for correction of a violation by the Department and for reinspection of a violation which has been certified as corrected shall not apply where the Department has attempted and is unable to gain access to the dwelling unit, which is the subject of such violation.
E. Notwithstanding any other provision of law, a person making a false certification of correction with regard to a notice of violation, in addition to any other civil penalty, shall be subject to a civil penalty of not less than ten thousand dollars nor more than twenty-five thousand dollars for each false certification made, recoverable by the Department in a civil action brought in a court of competent jurisdiction. If the person making such false certification is an employee of the owner than such owner shall be responsible for such civil penalty. In addition, any such person making a false certification of correction shall be guilty of a misdemeanor punishable by a fine of up to one thousand dollars or imprisonment for up to one year or both.
F. A person who violates this Law by failing to correct such violation shall be subject to a civil penalty of two hundred fifty dollars per day for each violation to a maximum of ten thousand dollars from the initial date set for correction in the notice of violation until the date the violation is corrected and certified to the Department.
XI. Department Inspections
A. When a complaint is made with regard to the existence of peeling paint in a dwelling unit in a multiple dwelling erected prior to January first, nineteen hundred sixty in which a child under the age of six resides, the Department shall attempt to gain access to such dwelling unit to conduct an inspection not later than ten days after the Department’s receipt of such complaint, provided, however, that during the time period from October first of each year through May thirty-first of the following year, the Department shall attempt to gain access to such dwelling unit to conduct an inspection not later than fifteen days after receipt of such complaint. If, after conducting such inspection, the Department determines the existence of a condition constituting a violation of this chapter, the Department shall serve a notice of violation upon the owner of such multiple dwelling.
B. The time periods in Subdivision A of this section for an attempt by the Department to gain access to conduct an inspection shall not apply where the Department has attempted and is unable to gain access to the dwelling unit that is the subject of such complaint.
C. The pamphlet developed by the Department of Health shall be left at the premises of the dwelling unit at the time of an inspection made by the Department pursuant to this section.
D. The Department shall develop a pamphlet listing the interim controls and the work practices specified in section 173.14 of the Health code of the City of New York. Such pamphlet shall be delivered by the Department in conjunction with all notices of violation issued pursuant to this Law. Failure to include such pamphlet with such notices of violation shall not render null and void the service of such notices of violation. Such pamphlet also be made available to any member of the public upon request.
XII. Remedies against The City of New York for Non-Compliance.
Notwithstanding any provision of law to the contrary, the sole remedy against the City of New York, the Department, or the Department of Health, or any officer or employee of such city or Departments, by any person for the failure to perform any regulatory duty related to a lead-based paint hazard pursuant to this chapter shall be a proceeding pursuant to Article Seventy-Eight of the Civil Practice Law and Rules to compel compliance with such chapter. An action or proceeding may be brought against the Department or the Department of Health to compel compliance by such Departments with this article and the rules and procedures promulgated pursuant thereto. Nothing in this section shall be deemed to prevent any tenant or group of tenants from bringing a proceeding authorized by Subdivisions H and I of section 27-2115 of the Administrative Code.
XIII. Annual Reports by the City of New York
Within four months after the close of the first full fiscal year after which this law takes effect and for every fiscal year thereafter, the Commissioner shall provide to the City Council of the City of New York a written report on the Department’s implementation of this article during the preceding year. Such report shall include, at a minimum, an analysis of the Department’s program, a detailed statement of revenue and expenditures and statistical section designed to provide a detailed explanation of the Department’s enforcement including, but not limited to, the following:
(1) The number of complaints for peeling paint in pre-1960 dwelling units where a child under six years of age resides, disaggregated by city or non-city ownership of the building which is the subject of the complaint.
(2) The number of inspections by the Department pursuant to this article, disaggregated by city or non-city ownership of the building where the inspection occurred;
(3) The number of violations issued by the Department pursuant to this Law;
(4) The number of violations issued pursuant to this Law that were certified as corrected by the owner, the number of such certifications that did not result in the removal of such violations, and the number of civil actions brought by the Department against such owners, and;
(5) The number of jobs performed in which violations issued pursuant to this article were corrected by the Department, the total amount spent by the Department to correct the conditions that resulted in the violations, and the average amount spent per dwelling unit to correct such conditions.
XIV. Fines and Penalties
A failure to correct a violation under the Law or Section 173.14 of the Health Code shall subject the person to a civil penalty of two hundred fifty dollars per day for each violation to a maximum of ten thousand dollars from the initial date set for correction in the notice of violation until the date the violation is corrected and certified to the Department, and in addition to any civil penalty shall, whenever appropriate, be punished under the provisions of article three of subchapter five of the Administrative Code. There shall be a presumption that the condition constituting a violation continues after the service of the notice of violation. The owner shall be responsible for the correction of all violations noticed pursuant to article fourteen of subchapter two of this chapter, but in an action for civil penalties pursuant to this Subdivision may in defense or mitigation of such owner’s liability for civil penalties show:
(i) That the condition which constitutes the violation did not exist at the time the violation was noticed; or
(ii) That such owner began to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of serious technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurred, or such other portion of the building as might be necessary to make the repair, provided that a postponement was obtained in accordance with paragraph one of this Subdivision; or
(iii) That such owner was unable to obtain a permit or license necessary to correct the violation, provided that diligent and prompt application was made therefor; or
(iv) That the violation giving rise to the action was caused by the act of negligence, neglect or abuse of another not in the employ or subject to the direction of the owner, except that the owner shall be precluded from showing in defense or mitigation of such owner’s liability for civil penalties evidence of any acts occurring, undertaken, or performed by an predecessor in title prior to the owner taking control of the premises.
Where the aforesaid allegations are made by way of mitigation of penalties, the owner shall show by competent proof, pertinent financial data and efforts made to obtain necessary materials, funds or labor or to gain access, or to obtain a permit or license and such other evidence as the court may require.
If the Court finds that sufficient mitigating circumstances exists, it may remit all or part of any penalties arising from the violation, but may condition such remission upon a correction of the violation within a time period fixed by the Court.
Notwithstanding any other provision of law, failure by the Department to comply with any time period provided in article fourteen of subchapter two of this chapter relating to responsibilities of the Department, or with any such time period provided in this Subdivision, shall not render null and void any notice of violation issued by the Department pursuant to such article or such subdivision, and shall not provide a basis for defense or mitigation of an owner’s liability for civil penalties for a violation of such article.
XV. Registration of Lead Paint Violations and Enforcement
A. The Department shall maintain a register in each borough of all certification of lead paint violations made to it by the Department of Health and such register shall also be open to the public. The Department of Health shall maintain a register in each borough for recording all complaints, inspections, examinations and laboratory tests with respect to lead paint levels in housing accommodations which are determined to be violations. Such register shall indicate the date of the complaint, the address of the dwelling premises, the action taken pursuant thereto and shall be open for inspection to the public.
B. Whenever a complaint has been made with respect to lead paint levels in housing accommodations which would constitute a violation or such condition has been otherwise determined to be possibly present, the Department of Health shall make an inspection to determine if the condition is at a level which constitutes a danger to life, health or safety. If the owner of a multiple dwelling fails to comply with an order of the Department of Health to correct lead paint hazards [the violation], the Department of Health shall certify such conditions to the Department. The procedure of certification shall be completed within sixteen days from receipt of complaint or inspection or examination, whichever occurs first. The conditions so certified shall be corrected within eighteen days after certification by the Department of Health to the Department and continue to exist in excess of seventy-two hours thereafter and are also the subject of an Article Seventy-Eight proceeding commenced by the tenants, the Supreme Court, after a hearing which shall be held under Subdivision (H) of section Seven Thousand Eight Hundred Four of the Civil Practice Law and Rules, shall order and direct the Department to correct such conditions within a period fixed by the Court which shall not exceed the minimum time reasonably required to remedy such conditions.
XVI. Department Screening Diagnosis and Treatment
A. The Department shall refer to appropriate medical providers any person who requests assistance in blood lead screening, testing, diagnosis or treatment, and upon the request of a parent or guardian, arrange for blood lead screening of any child who requires screening and whose parent or guardian is unable to obtain a lead test because the child is uninsured or the child’s insurance does not cover such screening.
B. The Department shall develop a pamphlet explaining the hazards associated with lead-based paint and describing the procedures to be used in order for a violation of Subdivision A of Section 27-2056.5 of the Administrative Code to be corrected. The pamphlet shall include appropriate telephone numbers to obtain lead poison screening, diagnosis and treatment information and to report unsafe lead-based paint work practices. Such pamphlet shall be made available for use in accordance with Subdivision C of Section 27-2056.7 of the Administrative Code. Such pamphlet shall also be made available to any member of the public upon request.
