To help our clients navigate the coronavirus (COVID-19) outbreak, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, April 7, 2020.
In an effort to limit the transmission and spread of COVID-19, Governor Cuomo has issued successive Executive Orders limiting gatherings and non-essential businesses and services which are enforceable by local law enforcement and code enforcement officials. Executive Order 202.1, issued March 13, 2020, reduced the number of individuals who could legally occupy a place of business, public accommodation, or gathering or event to 50% of the location’s allowed occupancy. Executive Order 202.3, issued March 16, 2020, prohibited various businesses from operating (e.g., restaurants and bars serving patrons on premises, casinos, fitness centers, and movie theaters) and banned gatherings of more than fifty (50) individuals. Executive Orders 202.6, 202.7 and 202.8 directed a series of workforce reductions for all non-essential businesses and not-for profit entities. Executive Order 202.10, issued March 23, 2020, subsequently prohibited non-essential gatherings of individuals (e.g. parties, celebrations or other social events) of any size for any reason (the “Stay at Home Order”). On March 30, 2020, Governor Cuomo issued Executive Order 202.13 which modified the prior directive issued in Executive Order 202.6 to authorize the Empire State Development Corporation (“ESDC”) to determine which businesses and services are “essential” and thereby exempt from the workforce reduction requirements. During his April 6, 2020 news conference, the Governor announced he was extending the Stay at Home Order and closures of schools and non-essential businesses through April 29, 2020, and emphasized the importance of enforcement of his Executive Orders—indeed, the Governor stated that the maximum fine for such violations would be raised from $500 to $1,000.
Construction Projects Subject to the Executive Orders
All “non-essential” construction must cease, except for emergency construction. “Emergency” construction includes a project necessary to protect health and safety of the occupants, or the continuation of a project if it would be unsafe to allow it to remain incomplete until it is safe to shut the site or cease the project. At every site, if essential or emergency non-essential construction is proceeding, social distancing must be maintained, including for purposes of elevators/meals/entry and exit. “Construction work” does not include a single worker who is the sole employee/worker on a job site.
The ESDC released guidance on what is considered “essential” construction, which was evaluated in this office’s March 30, 2020 Legal Alert available here. As determining whether a construction project is “essential” will likely be evaluated on a case-by-case basis, local code enforcement officials should consult the ESDC guidance, as well as this office for assistance. In addition, it is our understanding that the ESDC is responding to inquiries relating to whether construction projects are deemed essential and thereby exempt from the in-person workforce prohibition. The ESDC Guidance can be accessed here; the webpage includes a link to a FAQ that should be consulted.
So, what authority exists for code enforcement officials to enforce these Orders?
Governor Authorizes Local Enforcement Actions
On March 27, 2020, Governor Cuomo issued Executive Order 202.11, that deemed any operation of a facility or occupancy of any space which has been limited by action of an Executive Order to be a violation of law, to wit: a violation of the Uniform Code (commonly known as the New York State Uniform Fire Prevention and Building Code) or other local building code in effect in the jurisdiction in which the facility or space is located. The Executive Order also authorized local code enforcement officials to enforce these violations.
Local code enforcement officials are authorized to issue an Appearance Ticket, a Notice of Violation, an Order to Remedy such violation (which must require immediate compliance), and/or a Do Not Occupy Order to any owner, operator, or occupant of any such facility or space. Furthermore, Executive Order 202.11 does not limit the authority of a municipality to take any other enforcement actions “to the extent necessary to ensure compliance with such occupancy-related directives or facility operation-related directives.”
Executive Order 202.11 specifies that local enforcement officials may issue Orders to Remedy which require immediate compliance. Although it does not explicitly say so, Executive Order 202.11 operates to supersede 19 N.Y.C.R.R. 1203.5, which requires that a person served with an Order to Remedy has thirty (30) days to comply with the Order to Remedy. Therefore, violations of the Uniform Code which typically require the code enforcement official to first issue an Order to Remedy providing 30 days for compliance may now require immediate compliance if the Order is seeking enforcement of the Governor’s Executive Orders. Should there not be immediate compliance or cure, the local code enforcement official could then issue an Appearance Ticket. Guidance received from the New York State Association of Towns and the New York Council of Mayors is consistent with this interpretation.
It is important to note that Executive Order 202.11 specifically authorizes any police officer to remove individuals from spaces and facilities where there is an occupancy limit or operation violation.
Where possible, local code enforcement officials should first attempt to obtain voluntary compliance from individual(s) who are occupying or operating in violation of an Executive Order. If the individual(s) continues to violate an Executive Order, local code enforcement should consider enforcement action in conjunction with the local police department. Furthermore, to the extent that local code enforcement officials are performing site visits or other inspections, they should practice appropriate social distancing. Photographs and videos, including live video feeds, have been used by some building department officials to conduct interior inspections where feasible based on the scope of work.
Issuing an Appearance Ticket or Notice of Violation
On April 4, 2020, the Department of State (“DOS”) issued a document entitled “Guidance for Code Enforcement Personnel Relating to the Governor’s Executive Orders During the COVID-19 Public Health Emergency.” A copy of this Guidance (referred to herein as the “DOS Guidance”) is attached to this Legal Alert. Enforcement could arise in the context of: (1) a non-essential business operating; (2) an essential business or non-essential business performing emergency work or securing a site in violation of social distancing requirements; (3) a non-essential, non-emergency construction project proceeding; or (4) individuals gathering in violation of Executive Order 202.10.
Among other recommendations, the DOS Guidance provides sample language for an Appearance Ticket or Notice of Violation charging a violation of the Governor’s Executive Order(s) as a violation of the Uniform Code. The Appearance Ticket or Notice of Violation should: (1) notify the property owner, operator, or occupant of the exact nature of the violation charged, (2) demonstrate to the Court that the violation is, in fact, a violation of a directive in an Executive Order; (3) state that pursuant to the Executive Order, the violation is deemed to be a violation of the Uniform Code; and (4) state the owner/occupant/operator guilty of the violation is subject to the penalties prescribed in the Executive Law.
The sample language provided in the DOS Guidance has been revised for clarity and reproduced below.
Once an Appearance Ticket is served, typically, the violation is filed in the local criminal court. As of January 1, 2020, Criminal Procedure Law §150.80 requires that a police officer or other public servant who issued and served an appearance ticket must, within twenty-four (24) hours of issuance, file or cause to be filed with the local criminal court both the appearance ticket and any contact information he/she collected before issuance of the appearance ticket. Furthermore, Criminal Procedure Law §150.40 mandates that an appearance ticket must be made returnable in court as soon as possible, but in no event later than twenty (20) days from the date of issuance.
Practically, both of these requirements may be difficult or impossible to comply with, as local criminal courts are consolidated, and handling only “necessary” matters. However, code enforcement officers should consider that even if an Appearance Ticket may ultimately be dismissed for failure to meet these requirements, Appearance Tickets should be issued anyway to send the appropriate message to individuals who are violating the Governor’s Executive Orders regarding operation and occupancy. The Westchester County Attorneys’ Office reached a similar conclusion in its March 30, 2020 guidance document regarding enforcement. Local code enforcement officers should still consult their municipal attorneys’ office prior to issuing the Appearance Ticket. To the extent there is a repeat offender that requires immediate judicial intervention, the municipality should consult their municipal attorney about how to coordinate judicial enforcement. It also should be noted that the 2021 New York State Budget Bill addressed discovery reform, which may impact code enforcement. This office is currently reviewing the matter and will issue a separate Legal Alert on this topic in the upcoming week.
Finally, the Governor established the New York State PAUSE Enforcement Complaint Line and webpage where individuals can file complaints regarding the operation of non-essential businesses or gatherings 24 hours a day, 7 days a week through an online form or by calling 1-833-789-0470. To the extent that local code enforcement officials are receiving complaints from residents, such officials could suggest that those residents file a complaint with the State. A copy of the New York State PAUSE Enforcement Fact Sheet is attached to this Legal Alert.
NYS Department of State Division of Building Standards and Codes:
Guidance For Code Enforcement Personnel Relating to the Governor’s Executive Orders During the COVID-19 Public Health Emergency
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Municipal Law Practice Group with questions regarding specific situations. Because of the frequent developments, you should consult counsel regarding specific questions.
Sample Language Alleging a Violation of Executive Order 202.3:
The <<local enforcement official>> observes that <<name of restaurant/bar>> is serving patrons on-premises at <<specify time and date>>, which is after 8:00 PM on March 16, 2020. The <<local enforcement official>> determines that the owner should be charged with violation of Executive Order 202.3.
Executive Order 202.3 provides as follows: “Any restaurant or bar in the state of New York shall cease serving patrons food or beverage on-premises effective at 8 pm on March 16, 2020, and until further notice shall only serve food or beverage for off-premises consumption.” Executive Order 202.11 provides that such violation shall be deemed to be a violation of law and in particular, but not by way of limitation, a violation of the New York State Uniform Fire Prevention and Building Code (the “Uniform Code”).