Regulating The Construction Industry
Op- Ed
BY JOHN J. COX

Last weekend's crane accident in Midtown was the most recent and deadly among a plethora of construction mishaps in recent months, and it underscores the need for a careful and dispassionate review of the way building construction laws are enforced in this city. In the past year alone, the city's building boom has been accompanied by an incredible 83 percent increase in accidents. Frustration with what appears to be an alltoo lax system of building enforcement has mounted with each report of yet another fatal construction accident. "We've closed restaurants that have fruit flies," a visibly angry Manhattan Borough President Scott Stringer told reporters after this latest disaster, "but we don't close construction sites that have major safety violations." Indeed.

Until 20 years ago, building and fire code violations were routinely prosecuted by city attorneys in the criminal court. Although most of the statutes enforced in this way were misdemeanor offenses or less and provided for fines rather than imprisonment, nevertheless the use of the criminal process to deal with such violations of the local building codes added a certain dimension of seriousness: a person or corporation accused of violating such regulations was treated no differently than someone accused of committing a crime. But the system had its drawbacks. First, the cases were assigned to the summons parts of the criminal court, which means that they were adjudicated in the "low end" of the criminal system. District attorneys did not regularly appear in these parts and the judges (most but not all) treated these cases with a disdain associated with the prosecution of a parking ticket. Second, the code violations carried limited penalties so that for many construction companies the inevitable fine was treated as just another cost of doing business. Third, there was little or no distinction made for the relative seriousness of the violation. And last, there was no distinction made between the kinds of offenders- a criminal court judge in one moment would be dealing with a corporation engaging in hazardous activity which threatened hundreds of people, and in the next moment dealing with a hapless homeowner with a swimming pool too close to a neighbor's fence.

In an effort to eliminate some of these problems, the city created the Environmental Control Board, an administrative agency that would adjudicate city code violations. Although many of the code provisions could still be enforced in the criminal courts (and, in fact, some such cases continued to be heard in the criminal courts) the overwhelming majority of cases was now "decriminalized" and was instead shepherded through a process not unlike the Parking Violations Bureau. This, to be sure, pleased the real estate industry. Moreover, the new adjudication process even allowed self-certification of code compliance. In other words, a person given a ticket for a code violation could in certain instances reduce or eliminate a fine merely by filing a notarized statement that the violation had been corrected. This, to be sure, pleased the real estate industry even more.

This, regrettably, is the current state of affairs.

But it need not remain this way. In the early 1980s a young woman was killed in Downtown Brooklyn when a piece of loose brickwork fell from a building and struck her as she was walking to work. The outrage following this led to the enactment of a local law that required owners of large buildings to conduct periodic inspections of the exteriors of their buildings by professional engineers, to file the results of those inspections with the city, and to correct any problems cited by the engineers in the reports filed with the city. The real estate industry was furious and non-compliance with the new law was rampant until the city decided to get serious and to prosecute the violators in criminal court. Fines were increased, a unit of city attorneys was created specifically to prosecute the cases and suddenly throughout the city sidewalk sheds were erected as building owners scrambled to fix their buildings.

If, finally, as Borough President Stringer said, "Enough is enough," then it is only for the citizens of this city to demand of their Mayor and City Council that the flagrant violation of safety codes be made felony offenses punishable by more than just monetary sanctions but by significant periods of incarceration. The real estate industry will react predictably, until a few of their number are relocated to places like Attica. Then, also predictably, there will be a mad scramble to obey the law.

In the mid-1980s John J. Cox served as an Assistant New York City Corporation Counsel, a Special Prosecutor for the city Buildings Department and chairman of the city Electricians License Board. For a decade and a half thereafter, he practiced criminal law in New York City and is presently a New York State Administrative Law Judge. He is a resident of Woodside.