New York City Council Header
File #: Int 1410-2019    Version: Name: Requiring a certification of no harassment prior to the approval of construction documents or the issuance of permits for demolition or renovation of certain commercial buildings & expanding the acts & omissions that constitute commercial tenant harassmen
Type: Introduction Status: Laid Over in Committee
Committee: Committee on Small Business
On agenda: 2/13/2019
Enactment date: Law number:
Title: A Local Law to amend the administrative code of the city of New York, in relation to requiring a certification of no harassment prior to the approval of construction documents or the issuance of permits for demolition or renovation of certain commercial buildings and expanding the acts and omissions that constitute commercial tenant harassment
Sponsors: Vanessa L. Gibson, Rafael Salamanca, Jr., Andy L. King, Diana Ayala , Helen K. Rosenthal, Carlina Rivera , Ben Kallos
Council Member Sponsors: 7
Summary: This bill would create a three-year certification of no harassment (CONH) pilot program for commercial buildings, which would require building owners to apply for a CONH before obtaining Department of Buildings (DOB) approval for construction documents or permits for covered work. Buildings would be those where a court finds commercial tenant harassment or those in a community district with a city-sponsored neighborhood-wide rezoning in the 60 months before or after bill enactment. When an owner applies for a CONH, DOB and Department of Small Business Services would conduct a survey and investigation and assess if criteria defining harassment are met. If DOB denies or rescinds a CONH, the owner would pay a fine of $100 to $1,000 and not be approved for construction documents or permits for 12 to 24 months, with a building harassment index determining the fine and time period. The bill would also broaden the acts and omissions that constitute commercial tenant harassment.
Indexes: Agency Rule-making Required, Report Required, Sunset Date Applies
Attachments: 1. Summary of Int. No. 1410-B, 2. Summary of Int. No. 1410-A, 3. Summary of Int. No. 1410, 4. Int. No. 1410, 5. February 13, 2019 - Stated Meeting Agenda with Links to Files, 6. Hearing Transcript - Stated Meeting 2-13-19, 7. Proposed Int. No. 1410-A - 3/5/19, 8. Committee Report 3/18/19, 9. Hearing Testimony 3/18/19, 10. Hearing Transcript 3/18/19, 11. Proposed Int. No. 1410-B - 5/22/19
Date Ver.Prime SponsorAction ByActionResultAction DetailsMeeting DetailsMultimedia
3/18/2019*Vanessa L. Gibson Committee on Small Business Hearing Held by Committee  Action details Meeting details Not available
3/18/2019*Vanessa L. Gibson Committee on Small Business Amendment Proposed by Comm  Action details Meeting details Not available
3/18/2019*Vanessa L. Gibson Committee on Small Business Laid Over by Committee  Action details Meeting details Not available
2/22/2019*Vanessa L. Gibson City Council Re-referred to Committee by Council  Action details Meeting details Not available
2/13/2019*Vanessa L. Gibson City Council Referred to Comm by Council  Action details Meeting details Not available
2/13/2019*Vanessa L. Gibson City Council Introduced by Council  Action details Meeting details Not available

Proposed Int. No. 1410-B

 

By Council Members Gibson, Salamanca, King, Ayala, Rosenthal, Rivera and Kallos

 

A Local Law to amend the administrative code of the city of New York, in relation to requiring a certification of no harassment prior to the approval of construction documents or the issuance of permits for demolition or renovation of certain commercial buildings and expanding the acts and omissions that constitute commercial tenant harassment

 

Be it enacted by the Council as follows:

 

Section 1. The heading of article 505 of chapter 5 of title 28 of the administrative code of the city of New York, as added by local law 1 for the year 2018, is amended to read as follows:

CERTIFICATION OF NO HARASSMENT RESIDENTIAL PILOT PROGRAM

§ 2. Chapter 5 of title 28 of the administrative code of the city of New York is amended by adding a new article 506 to read as follows:

ARTICLE 506

 

CERTIFICATION OF NO HARASSMENT COMMERCIAL PILOT PROGRAM

 

§ 28-506.1 Definitions. As used in this article, the following terms have the following meanings:

 

BUILDING HARASSMENT INDEX. The term “building harassment index” means an index that the department and the department of small business services shall create and promulgate in rules, based on a survey of tenants of the pilot program commercial building and further investigation by the department and the department of small business services with respect to commercial tenant harassment. The index shall be used to determine the amount of a fine that the pilot program commercial building owner who is denied a certification shall pay and the period during which the department shall not approve a construction document or issue or renew a permit for covered categories of work in such building.

 

CERTIFICATION OF NO HARASSMENT. The term "certification of no harassment" means a certification by the department that no harassment of any lawful tenants of a pilot program commercial building occurred during the 60-month period prior to the filing of an application for such certification pursuant to this section.

 

CITY-SPONSORED NEIGHBORHOOD-WIDE REZONING AREA. The term “city-sponsored neighborhood-wide rezoning area” means an area of the zoning map for which:

 

1.                     Amendments to the zoning regulations pertaining to such area were proposed by the

      city;

 

2.                     The city planning commission approved or approved with modifications such amendments for a matter described in paragraph 3 of subdivision a of section 197-c of the charter;

 

3.                     The city planning commission decision was approved or approved with modifications by the council pursuant to section 197-d of the charter and is not subject to further  action pursuant to subdivision e or f of such section; and

 

4.                      The amendments involved at least 10 blocks of real property in such area.

 

COMMERCIAL BUILDING. The term “commercial building” means a building in the city occupied for non-residential purposes pursuant to a valid commercial lease.

 

COMMERCIAL TENANT. The term “commercial tenant” means a person or entity lawfully occupying, pursuant to a lease or other rental agreement, any building or portion of a building (i) that is lawfully used for buying, selling or otherwise providing goods or services, or for other lawful business, commercial, professional services or manufacturing activities, and (ii) for which a certificate of occupancy authorizing residential use of such building or such portion of a building has not been issued.

 

COMMERCIAL TENANT HARASSMENT. The term “commercial tenant harassment” means any act or omission by or on behalf of an owner of a pilot program commercial building that causes or intends to cause a commercial tenant to vacate such building or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such building; and includes one or more of the following:

 

1.                     using force against or making express or implied threats that force will be used against a tenant or a tenant's invitee;

 

2.                     causing repeated interruptions or discontinuances of one or more essential services;

 

3.                     causing an interruption or discontinuance of an essential service for an extended period of time;

 

4.                     causing an interruption or discontinuance of an essential service where such interruption or discontinuance substantially interferes with a tenant's business;

 

5.                       repeatedly commencing frivolous court proceedings against a tenant;

 

6.                     removing from such building any personal property belonging to a tenant or a tenant's invitee;

 

7.                     removing the door at the entrance to such building; removing, plugging or otherwise 

     rendering the lock on such entrance door inoperable; or changing the lock on such           

     entrance door without supplying a key to the new lock to a tenant;

 

8.                     preventing a tenant or a tenant's invitee from entering such building;

 

9.                     substantially interfering with a tenant's business by commencing unnecessary  construction or repairs on or near such building;

 

10. engaging in any other repeated or enduring acts or omissions that substantially interfere with the operation of a tenant's business including, but not limited to, being unresponsive to a tenant regarding lease negotiations or building operations or providing vague or untimely notices to a tenant regarding lease negotiations;

 

11. threatening any person lawfully entitled to occupancy of such unit based on such person’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, sexual orientation, alienage or citizenship status, status as a victim of domestic violence, status as a victim of sex offenses or stalking; or

 

12.  requesting identifying documentation for any person lawfully entitled to occupancy or patronage of such unit that would disclose the citizenship status of such person.

 

COVERED CATEGORIES OF WORK. The term “covered categories of work” means the following categories of work at the pilot program commercial building:

 

1. Demolition of all or part of such building;

 

2.                      Change of use or occupancy of all or part of such building;

 

3. Any change to the layout, configuration, or location of any portion of such building;

 

4. An application for a new or amended certificate of occupancy; or

 

5. Such other types of alteration work to such building as shall be prescribed by rule of the commissioner.

 

Exceptions:

 

1.                     Work solely for the purpose of either (i) making the public areas of a pilot program commercial building accessible to persons with disabilities without altering the configuration of a building or (ii) making the interior or the entrance to such building accessible to persons with disabilities shall not be covered by this article.

 

2.                      Other categories of work that are excluded from the definition of covered categories of work by rule of the department shall not be covered by this article.

 

ESSENTIAL SERVICE. The term “essential service” means a service that a landlord must furnish to a commercial tenant pursuant to a lease or other written or oral rental agreement between such commercial tenant and landlord, or pursuant to applicable law.

 

PILOT PROGRAM COMMERCIAL BUILDING. The term “pilot program commercial building” means a commercial building included on the pilot program list. 

 

PILOT PROGRAM LIST. The term “pilot program list” means a list of commercial buildings meeting the criteria set by the department that shall not include any building as shall be prescribed by rule of the commissioner. A building shall remain on such list until expiration of the local law that added this section. Such list shall be published and maintained on the websites of the department and the department of small business services.

 

§ 28-506.2 Pilot program list. The department shall compile and publish a pilot program list. The commercial buildings to be included on such list shall be promulgated by the department in rules and shall be limited to buildings:

 

1.                     In a community district that has been subject to a city-sponsored neighborhood-wide  rezoning in the past 60 months or is subject to such rezoning after the date of enactment of the local law that added this section; or

 

2.                     Where there has been a final determination by any court having jurisdiction that an act of commercial tenant harassment, pursuant to section 22-903, was committed at such building within the 60 months prior to the effective date of the local law that added this section or on or after such date.

 

§ 28-506.3 Certification of no harassment required. A pilot program commercial building shall be required to obtain a certification of no harassment or a waiver of such certification as a condition of obtaining approval of construction documents or an initial or reinstated permit in connection with any covered categories of work.

 

§ 28-506.4 Application and notice. An application for a certification of no harassment shall be in such form and contain such information as shall be prescribed by the department. Upon receipt of such application, the department shall provide notice of the outstanding application.

 

§ 28-506.4.1 Content of notice. Notice of an outstanding application for a certification of no harassment shall contain the following:

 

1.                      The location and general description of the pilot program commercial building for which the certification is sought;

 

2. A description of the certification procedure and purpose;

 

3. The period of time covered by the inquiry, which shall be 60 months prior to the filing of the application for a certification of no harassment; 

 

4. A description of conduct constituting commercial tenant harassment; and

 

5. That the owner and any tenants or former tenants of the building for which such certification is sought, any government agencies as designated by the department, local community-based organizations and the local community board may submit comments about the application in writing or orally at a designated location, within 45 days of the date of notice, which the department may, for good cause, extend for an additional 15 days.

 

§ 28-506.4.2 Method of notice. The department shall provide notice as follows:

 

1. Publish notice in a publication of general circulation for a period of seven consecutive days;

 

2. Post notice in a conspicuous place at such building for which the certification is sought;

 

3. Publish notice in English and in any other language prevalent in the community district, as determined by the department and the department of small business services, including a statement that such notice is available in any covered language, as defined in subdivision j of section 8-1002; and

 

4. Mail notice to:

 

4.1. The owner of such building at the address provided on the application and the    address provided in the last registration with the department;

 

4.2. The owner who appears on the last deed recorded on the records of the department of finance;

 

4.3. Any tenants that the department shall identify;

 

4.4. Any community groups designated by the department of small business services  to survey such building;

 

4.5. The community board and council member representing the district in which such building is located; and

 

4.6. Any government agency designated by the department and department of small business services.

 

§ 28-506.5 Investigation regarding harassment. The department of small business services and its designated community groups may conduct a survey of the tenants of the pilot program commercial building with respect to commercial tenant harassment. The department of small business services shall provide a copy of the notice required by this subdivision to the tenants. Based upon the survey’s findings, the department and the department of small business services and other government agencies, as designated by the department, may determine it is necessary to conduct a further investigation with respect to commercial tenant harassment at such building.

 

§ 28-506.6 Determination of harassment. Upon the completion of any survey and further investigation, the department and the department of small business services shall assess whether any of the criteria that define commercial tenant harassment have been established and:

 

1. Determine that no commercial tenant harassment occurred within the stated period of time and grant a certification of no harassment;

 

2. Deny a certification of no harassment without a hearing if there has been a finding by any court having jurisdiction that there has been commercial tenant harassment, pursuant to section 22-903; or

 

3. Determine that commercial tenant harassment has occurred within the stated period of time and deny a certification of no harassment with a hearing at the office of administrative trials and hearings in which the department:

 

3.1. May receive testimony from tenants, community groups and any other interested

                     parties;

 

3.2. Give notice of such hearing to the applicant in the manner prescribed by the office of

                     administrative trials and hearings; and

 

3.3. Either grant or deny a certification, within 45 days after the office of administrative trials and hearings issues a report and recommendation.

 

§ 28-506.7 Granting a certification of harassment. Before a certification of no commercial tenant harassment may be granted, an applicant shall submit a sworn statement, in such form as the department shall prescribe, by all the owners of the pilot program commercial building representing that there will be no commercial tenant harassment by or on behalf of such owners. An owner may not use such statement to circumvent a future determination of harassment. The corporation counsel may institute any action or proceeding in any court of competent jurisdiction that may be appropriate for the enforcement of this representation and agreement. Nothing contained herein shall preclude a tenant of a building from applying on his or her own behalf for similar relief.

 

§ 28-506.8 Denial or rescission of a certification. Where the department has denied or rescinded a certification of no harassment for a pilot program commercial building:

 

1.                      The department shall mail such denial, accompanied by written findings indicating the grounds for denial to the applicant and owner of record, and file such in the office of the city register or the Richmond county clerk;

 

2.                      A final determination by the department shall be subject to review pursuant to article 78 of the civil practice law and rules; and

 

3.                      The building owner shall be subject to the following penalties, based on the building harassment index:

 

3.1. The department shall not approve construction documents or issue or renew permits for covered categories of work in such building for a period of 12 to 24 months; and

 

3.2. A fine of not less than $100 nor more than $1,000 dollars.

 

§ 28-506.9 Suspension and rescission. If the department has reasonable cause to believe that harassment occurred at the pilot program commercial building during the effective period of a certification of no harassment, the commissioner shall suspend the certification, and the department shall:

 

1. Not approve any construction documents or issue an initial or reinstated permit in connection with covered categories of work or, if such documents have been approved or such permit  has been issued, issue a stop-work notice and order;

 

2. Mail notice of such suspension to the applicant, the owner of record of the building and the known commercial tenants of the building and file such notice with the city register or Richmond county clerk;

 

3. Commence a proceeding at the office of administrative trials and hearings, as soon as reasonably possible after a request for a hearing by an owner of a pilot program commercial building, but not later than 30 days after such suspension, in which the department shall:

 

3.1. Give notice of a hearing to the applicant and known tenants of such building in the manner prescribed by the office of administrative trials and hearings;

 

3.2. Receive testimony from tenants, community groups and other interested parties;     

       and 

 

3.3. Determine whether to rescind the certification within 45 days of receiving the report and recommendation from the office of administrative trials and hearings;

 

4. Not rescind a certification of no harassment and:

 

4.1. Immediately vacate any stop work notice and order issued by the department;

 

4.2. Mail notice of such determination to the owner of record of the pilot program commercial building and the known tenants of such building; and

 

4.3. File such notice with the city register or the Richmond county clerk; or

 

5. Rescind a certification without commencing a proceeding at the office of administrative trials and hearings, where there has been a final determination by any court having jurisdiction that an act of commercial tenant harassment, pursuant to section 22-903, occurred at the pilot program commercial building after certification was granted. The department shall provide notice of such rescission by:

 

5.1. Mailing notice of such determination accompanied by written findings indicating the grounds for such determination to the owner of record of such pilot program commercial building; and

 

5.2. Filing notice with the city register or the Richmond county clerk with such determination subject to review pursuant to article 78 of the civil practice law and rules.

 

§ 28-506.10 Waiver. The commissioner may grant a waiver of a certification of no harassment if such commissioner determines that harassment occurred at the pilot program commercial building during the 60-month period prior to the date of submission of an application for a certification, and that either:

 

1. While the owner of such building acquired title pursuant to a bona fide transaction that is not intended to evade the provisions of this section, the owner was not the owner during any period in which commercial tenant harassment occurred and did not at such building: (i) engage or participate in harassment; (ii) with intent that harassment be performed, agree with one or more persons to engage in or cause harassment; or (iii) with intent that another person engage in conduct constituting harassment, either solicit, command, importune or otherwise attempt to cause such person to engage in harassment; or

 

2. The owner of record of such building: (i) acquired such building by sale pursuant to foreclosure of a mortgage or pursuant to a deed in lieu of foreclosure of a mortgage, provided that such conveyance was a bona fide transaction for the purpose of enforcing the debt and not intended to evade the provisions of this section; and (ii) a certification of no harassment or a waiver was granted with respect to such building within a 60-day period prior to the date of the recording of the mortgage, and no suspension or rescission was recorded prior to such date.

 

§ 28-506.10.1 Waiver pursuant to bona fide transaction. In determining whether a transaction was bona fide, the commissioner may consider: (i) whether the owner of such building otherwise engaged or participated in commercial tenant harassment; (ii) with intent that such harassment be performed, agree with one or more persons to engage in or cause such harassment; or (iii) with intent that another person engage in conduct constituting such harassment, either solicit, command, importune or otherwise attempt to cause such person to engage in such harassment.

 

§ 28-506.10.2 Contents of waiver. Such waiver shall state the commissioner’s findings and be mailed to the applicant of the certification of no harassment and owner of record and be filed in the office of the city register or the Richmond county clerk. 

 

§ 28-506.10.3 Revocation of waiver. The department may revoke such waiver if the department

finds commercial tenant harassment occurred after granting the waiver.

 

§ 28-506.11 Required submittal documents. The commissioner shall not approve any construction documents, nor issue an initial or reinstated permit in connection therewith, for a pilot program commercial building for the covered categories of work unless the applicant provides the department with the following:

 

1. A sworn affidavit by or on behalf of all the owners of such building, which states that there will be no harassment of the lawful tenants of such building by or on behalf of such owners during the construction period; and either of the following documents from the commissioner:

 

1.1. A current certification of no harassment that there has been no harassment of the lawful occupants of such building within the 60-month period prior to submission of an application for such certification; or

 

1.2. A waiver of such certification.

 

§ 28-506.12 Time period for approval or rejection of construction documents. The time period in which the commissioner shall approve or reject an application for construction document approval or resubmission shall commence from the date that the commissioner receives the documents required.

 

§ 3. Section 22-902 of the administrative code of the city of New York, as added by local law 77 for the year 2016, is amended to read as follows:

a. A landlord shall not engage in commercial tenant harassment. Except as provided in subdivision b of this section, commercial tenant harassment is any act or omission by or on behalf of a landlord that (i) [is intended to] causes or intends to cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes one or more of the following:

1. using force against or making express or implied threats that force will be used against a commercial tenant or such tenant’s invitee;

2. causing repeated interruptions or discontinuances of one or more essential services;

3. causing an interruption or discontinuance of an essential service for an extended period of time;

4. causing an interruption or discontinuance of an essential service where such interruption or discontinuance substantially interferes with a commercial tenant’s business;

5.  repeatedly commencing frivolous court proceedings against a commercial tenant;

6. removing from a covered property any personal property belonging to a commercial tenant or such tenant’s invitee;

7. removing the door at the entrance to a covered property occupied by a commercial tenant; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying a key to the new lock to the commercial tenant occupying the covered property;

8. preventing a commercial tenant or such tenant’s invitee from entering a covered property occupied by such tenant;

9. substantially interfering with a commercial tenant’s business by commencing unnecessary construction or repairs on or near covered property; [or]

10. engaging in any other repeated or enduring acts or omissions that substantially interfere with the operation of a commercial tenant’s business[.] ;

11. threatening any person lawfully entitled to occupancy of such unit based on such person’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, sexual orientation, alienage or citizenship status, status as a victim of domestic violence, status as a victim of sex offenses or stalking; or

 

12. requesting identifying documentation for any person lawfully entitled to occupancy or patronage of such unit that would disclose the citizenship status of such person.

b. A landlord’s lawful termination of a tenancy, lawful refusal to renew or extend a lease or other rental agreement, or lawful reentry and repossession of the covered property shall not constitute commercial tenant harassment for purposes of this chapter.

§ 4. Chapter 9 of title 22 of the administrative code of the city of New York is amended by adding a new section 22-905 to read as follows:

§ 22-905 Certification of no harassment commercial pilot program. a. The department, with the department of buildings, shall administer the certification of no harassment commercial pilot program described in article 506 of chapter 5 of title 28 of the code. 

§ 5. Twelve months after the pilot program required by § 2 of this local law has commenced, the department of buildings and the department of small business services, with the advice and assistance of any community group described in section 28-506.5 of the administrative code, shall conduct a study to evaluate the effectiveness of such program in reducing commercial tenant harassment. Such study shall be completed and a report shall be submitted to the Speaker of the Council no later than 24 months after the effective date of this local law. Such report shall, at a minimum, contain the following information:

a. The number of pilot program commercial buildings where the owner applied for a certification of no harassment disaggregated by whether the department of buildings issued such a certification or a waiver of such certification;

b. The location of such buildings where the department of buildings determined that such harassment occurred, disaggregated by community board and council district;

c. The metrics that the department of buildings and the department of small business services determine appropriate to determine the preventive impacts of such program in curtailing such harassment;

d. A determination, using such metrics, as to whether such program curtailed such harassment;

e. The estimated costs of such program to the city; and

f. Any recommendations for improving such program if such program is to continue.

§ 6. This local law takes effect 270 days after it becomes law except that the department of buildings and the department of small business services may promulgate rules or take other administrative action for the implementation of this local law prior to such date. This local law shall expire and is deemed repealed 36 months after it takes effect or 90 days following the submission of the report required by section 4 of this local law, whichever is later. Notwithstanding the repeal of this local law, the provisions of this local law shall remain in effect for any pilot program commercial building which submits an application for construction document approval pursuant to section 28-506.6 of the administrative code prior to the repeal of such section. This local law shall not apply to work relating to applications for construction document approval filed with the department of buildings prior to the inclusion of a commercial building on the pilot program list pursuant to section 28-506.2 of the administrative code, as added by section 2 of this local law.

 

 

 

NLB

LS 7582 7918

3/4/2019