Appeal No. 2100138 DOB v. Chen Xue Huang March 17, 2021

APPEAL DECISION

The appeal of Respondent, premises owner, is denied.

Respondent appeals from a recommended decision by Hearing Officer J. Handlin (Bklyn.), dated December 3, 2020, sustaining a Class 1 charge of § 28-207.2.2 of the Administrative Code of the City of New York (Code), for continuing work while on notice of a stop work order. Having fully reviewed the record, the Board finds that the hearing officer’s decision is supported by the law and a preponderance of the evidence. Therefore, the Board finds as follows:

Summons Law Charged Hearing Determination Appeal Determination Penalty 35488852J Code § 28-207.2.2 In Violation Affirmed – In Violation $5,000

In the summons, the issuing officer (IO) affirmed observing on July 20, 2020, at 32-14 106th Street, Queens: [T]wo workers at cellar level working on boiler while on notice of stop work order #052318C0303JW.” At the telephonic hearing, held on December 1, 2020, the attorney for Petitioner, Department of Buildings (DOB), relied on the IO’s affirmed statement in the summons and also the Complaint Overview for the premises, which documented Petitioner’s issuance of a full SWO on June 28, 2019, still in effect on the date of inspection. Respondent’s representative stated as follows. Respondent knew about the full SWO; however, Petitioner issued it in conjunction with a job that Respondent withdrew. Respondent then filed a new job that superseded the previous application and for which DOB issued a work permit. In the decision sustaining the charge, the hearing officer found that because Respondent offered no evidence that he ever applied to Petitioner to rescind the SWO, the work observed by the IO resulted in the cited violation.

On appeal, Respondent repeats the assertions made by his representative at the hearing. Petitioner did not answer the appeal.

The Board affirms the hearing officer’s decision. Code § 28-207.2.2 prohibits any person with knowledge or notice of an SWO from continuing work except such work that may be required by order of the Commissioner. Per Code § 28-207.3.1, upon application, the DOB Commissioner shall rescind the SWO when a respondent corrects the condition that gave rise to its issuance and pays all related fines. Here, Respondent did not dispute that he knew about a full SWO in effect on the date of inspection. Although Respondent appears to argue that Petitioner must have automatically rescinded the SWO when he filed for a new permit, or that the SWO only covered work associated with the prior application, by definition, Petitioner’s issuance of an SWO requires that all work immediately stop unless otherwise specified. See Code § 28-207.2.1. Respondent offered no evidence that he ever applied to Petitioner to partially or fully rescind the SWO, so as to allow him to perform the work observed. See Code § 28-207.3.1. Consequently, and as the hearing officer correctly found, any work performed results in a violation of Code § 28-207.2.2.

Accordingly, the Board affirms the hearing officer’s decision sustaining a Class 1 violation of Code § 28-207.2.2 and imposing a civil penalty of $5,000.

By: OATH Hearings Division Appeals Unit

PNL: 3/17/2021 DATE MAILED: ATTY: REW/1101