Fines for Article 151 violations and a new player

Remember Article 151, the revised pest prevention and management section of the New York City Health Code?

The Environmental Control Board, an administrative tribunal, will handle hearings for pest violations. I came across this proposed rule to set fines (PDF). This is interesting and a bit puzzling in places.

This is from the statement of purpose:

To better protect the public health, ECB is adding penalties for violations under Article 151. The separate charges will help inform the public of what needs to be done to prevent pests and other rodents. These violations include:

  • Failure to comply with DOHMH orders
  • Maintaining or failing to correct nuisances
  • Violations relating to rodents, bed bugs and other pests
  • Maintaining conditions conducive to pest harborage
  • Failure to develop and maintain pest management plans

Here are some of the proposed fines:

NYC Health Code 151.02(a)
Failure to properly and thoroughly eliminate conditions conducive to pests and to the presence of pests other than rodents or mosquitoes.
Penalty: $300
Default: $600

NYC Health Code 151.02(c)
Failure to comply with Department or Commissioner’s Order; pest management plan not complied with; no inspections and/or exterminator visits documented.
Penalty: $1000
Default: $2000

NYC Health Code 151.02(c)
Failure to comply with Department or Commissioner’s Order; pest management plan not complied with; no notice to tenants posted or provided.
Penalty: $1000
Default: $2000

NYC Health Code 151.02(c)
Failure to comply with Department or Commissioner’s Order; pest management plan not complied with; pests and/or conditions conducive to pests, access and harborage not eliminated.
Penalty: $2000
Default: $2000

NYC Health Code 151.02(e)
Using pesticides alone in the management of pest infestations.
Penalty: $300
Default: $600

I am told, by someone knowledgeable about the new policy, that the proposed fines are approved, though the final rule is not available so it’s not clear if any changes were made after comments were received. And, yes, this will be used as a potential tool to correct bed bug violations.

This confirms two things: one, that the New York City Department of Health, however reluctantly and sparingly perhaps, intends to use Article 151 for bed bugs, and two, that there may be something after all (however tenuous for the moment) to their expressed intention, announced last summer, to hold property owners to “enhanced expectations.”

The Health Department hopes to increase efficiency with Environmental Control Board hearings, which is good, but when I asked about the proposed fine for “using pesticides alone” the response is that they will not fine people for using pesticides alone but that the goal is to have a comprehensive approach for managing pests and reduce and eliminate the use of pesticides when possible. And yet there it is, a proposed fine for using pesticides alone! Perhaps it has been deleted, or else it is a tool to be held in reserve. I am frankly amazed by it.

Anything can be done badly, but we have strongly advocated the use of Article 151. I hope it makes a difference, where and when it is used.

Obviously, in order for HPD and the Health Department to identify a property as a candidate for the supervisory tools of Article 151, they have to become aware of its problems. But I would not expect the Health Department to become involved with bed bug-distressed buildings except in severe cases, due to resource constraints. To underscore, it seems likely that a building would not come under the elevated scrutiny of the Health Department via the authority of the NYC Health Code unless and until a significant number of residents report bed bugs in that building. In what numbers? No thresholds of number of complaints for a property to be so identified have been announced, and so this tool remains something apparently to be used at their discretion, but the frequent problem of residents who are reluctant to file formal complaints — something that is often a significant obstacle for other tenants in the building — seems an obvious challenge here.

What role ECB hearings could have in alleviating the pressures on housing court then seems a premature question.

This could be a step forward nonetheless.

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