Audit Report on the Department of Buildings’ Response and Follow-up to Complaints
Executive Summary
The Department of Buildings (DOB) promotes the safety of all people who build, work, and live in New York City (the City or NYC) by regulating the lawful use of over one million buildings and construction sites across the five boroughs.
Members of the public can report illegal and unsafe construction work and improper building use to DOB by filing a complaint through 311 by phone or online. DOB also receives complaints from other City agencies and internally from DOB inspectors while they perform inspections. Each complaint DOB receives is routed to the appropriate DOB unit for inspection. Depending on the type and severity of a complaint, DOB assigns it one of four priority codes: A, B, C, or D. Priority A complaints are hazardous and present an imminent risk to public safety (e.g., shaking building), and should be inspected within 24 hours. Priority B complaints are serious (e.g., illegal conversion, inadequate sidewalk shed or scaffolding, and work without a permit) but do not present an imminent risk to public safety in DOB’s judgment and should be inspected within 40 days. Priority C complaints allege violations that DOB considers non-hazardous (e.g., building without certificate of occupancy), while priority D complaints involve quality-of-life problems (e.g., illegal curb cuts).[1] Although DOB has not established required time frames for its inspection of priority C and D complaints, its internal goal is to inspect them within 60 and 90 days, respectively.
When an inspection reveals a code violation within DOB’s enforcement authority, DOB may issue an Office of Administrative Trials and Hearings violation/summons (OATH violation) and/or a DOB violation. An OATH violation is issued when a property does not comply with a provision of the NYC Construction Codes and/or Zoning Resolution. A DOB violation is a notice that a property is noncompliant with a cited provision of law and includes the DOB Commissioner’s order to the responsible party to correct the violating condition.
OATH violations are more commonly issued than DOB violations and consist of three classes: Class 1 (Immediately Hazardous), Class 2 (Major), and Class 3 (Lesser).[2] To resolve an OATH violation, respondents must: (1) correct the condition cited and certify its correction with DOB by submitting a certificate of correction (C of C), including a notarized statement specifying how the violation was corrected and, when applicable, supporting documents (e.g., photographs, work receipts, permits, etc.) evidencing the correction; (2) admit the violation or contest it at an OATH hearing; and (3) pay any applicable penalties.
DOB must re-inspect Class 1 OATH violations that have not been certified as corrected (i.e., where no C of C was submitted) within 60 days of the violation’s being served, and every 60 days thereafter until the condition has been corrected, as required by § 28-219.2 of the NYC Administrative Code.[3] DOB’s system of record for tracking the history of all complaints, including the inspections performed and the violations issued, is DOB’s Buildings Information System (BIS).
DOB received a total of 150,812 unduplicated complaints during Fiscal Year 2019.[4] For purposes of DOB’s public reporting in the Mayor’s Management Report (MMR), the agency reports whether DOB’s average response time was within 1 work day for priority A complaints and within 40 work days for priority B complaints.[5]
Audit Findings and Conclusion
DOB’s controls over its handling of complaints need improvement, specifically with regard to its timeliness in responding to and following up on complaints at every stage of its process.
Our review found that DOB met its MMR reporting benchmarks, which are measured as an average of work days. Based on the BIS data DOB provided as of October 18, 2019, on average, DOB responded to priority A and priority B complaints in 0.7 and 13.4 work days respectively, well within its MMR reporting benchmarks of 1 and 40 work days.
However, when we examined the performance times of responses to individual complaints, we found that DOB missed its internal performance targets—to respond to each priority A complaint within 1 day, each priority B complaint within 40 calendar days, and each priority C complaint within 60 calendar days—in a significant number of cases. For complaints DOB received during Fiscal Year 2019, its initial inspection attempts for 16.9 percent of priority A complaints, 17.7 percent of priority B complaints, and 30.3 percent of priority C complaints—thousands of complaints altogether— were late by periods that ranged from 1 to 348 days based on its internal time frames. In addition, when inspectors are unable to gain access to the property on their initial inspection attempt, DOB requires that they make a second attempt, but the agency has not set a target time frame in which they must do so. Using as benchmarks the internal time frames DOB established for the initial inspection attempts, we found that a significant percentage of the required second attempts were also untimely, including for 24.9 percent of the priority A complaints—the most serious category.
With respect to DOB’s efforts to re-inspect substantiated safety hazards, our review found that after DOB issued Class 1 violations for “immediately hazardous” conditions, it failed to attempt 56 percent of the legally mandated initial “hazardous re-inspections” either timely or, in some cases, at all. Furthermore, DOB did not attempt 53 percent of the required follow-up “hazardous re-inspections” within 60 days of the previous attempt. By not performing or attempting to perform the required “hazardous re-inspections” timely, DOB diminishes its enforcement ability to require correction of the hazardous conditions, which increases the risk that they will remain uncorrected and places public safety at risk.
We also found that respondents did not submit C of Cs timely:
For Class 1 violations, which are supposed to be corrected and certified “forthwith,” we found that DOB received the C of Cs on average 71 days after it served the violations. Consequently, DOB has no assurance that the violating conditions were corrected in a timely manner.
With respect to Class 2 and 3 violations, the 40-day period for correction and certification that DOB requires is met in roughly half the cases. Specifically,
- DOB received 51 percent of the C of Cs for Class 2 violations late; and
- DOB received 43 percent of the C of Cs for Class 3 violations late.
Furthermore, when DOB receives C of Cs, it does not review them timely. Of the 9,895 C of Cs that were either dropped off or submitted by mail between July 1, 2018 and October 18, 2019, DOB did not review 5,659 (57 percent) of them within the required 21 days. Failing to review C of Cs timely increases the risk that DOB will not promptly detect violations that were not corrected appropriately and thereby allow the violating conditions to remain unresolved.
In addition, DOB does not ensure that random audit re-inspections of violating conditions are performed timely, if at all. DOB did not conduct timely re-inspections for 73 percent of the C of Cs it selected for audit, including some that received no re-inspections for at least 639 days as of June 17, 2020, the date we received updated data from DOB.
Audit Recommendations
Based on the audit, we make 11 recommendations, including:
- DOB should assess its current efforts, including the performance of managers, supervisors, and inspectors, to identify areas where improvements can be made to ensure that it inspects or attempts to inspect the conditions reported in all complaints timely in accordance with its existing internal time frames.
- DOB should establish written procedures detailing (a) the required internal time frames for its personnel to respond to each individual complaint, by priority code, and (b) the specific responsibilities of inspectors, supervisors, and managers for meeting those requirements, and should monitor all units’ compliance with those procedures.
- DOB should establish, disseminate, and require all personnel to comply with written time frames for second inspection attempts when initial inspection attempts are unsuccessful.
- DOB should ensure that it re-inspects hazardous violations within 60 days and every 60 days thereafter until the violation has been found upon inspection to be corrected or until the respondent certifies it as such.
- DOB should consider re-negotiating with City officials and stakeholders to modify the Administrative Code to establish a specific time frame for certifying Class 1 violations.
- DOB should work with the City to develop legislation that would authorize and require DOB to issue violations and fines for Class 2 and Class 3 violations that are not properly certified as corrected within the required time frame.
- DOB should create and disseminate written procedures detailing the time frame requirements for personnel to review C of Cs and ensure that C of Cs are reviewed timely.
- DOB management should ensure that audit re-inspections are performed timely and in accordance with all applicable procedures, including the proper use of LS-4 notices.[6]
Agency Response
In its response, DOB agreed to implement four recommendations (#5, #6, #10, and #11), partially agreed to one (#1), and disagreed with six recommendations (#2, #3, #4, #7, #8, and #9). DOB also disagreed with some of the report’s findings and conclusions relating to the agency’s time targets for attempting inspections, the submission and review of C of Cs, and the posting of LS-4 notices. After carefully reviewing DOB’s arguments, we find no basis to alter any of the report’s findings or conclusions.
The full text of DOB’s response is included as an addendum to the report.
[1] We excluded priority D complaints from our testing because they are quality-of-life type complaints rather than more immediate safety issues.
[2] Class 1 (Immediately Hazardous) – those specified as such by the NYC Construction Codes, or those where the violating condition poses a threat that severely affects life, health, safety, property, the public interest, or a significant number of persons so as to warrant immediate corrective action.
Class 2 (Major) – those specified as such by the NYC Construction Codes, or those where the violating condition affects life, health, safety, property, or the public interest but does not require immediate corrective action.
Class 3 (Lesser) – those where the violating condition has a lesser effect than a Class 1 or Class 2 violation on life, health, safety, property, or the public interest.
[3] DOB refers to these as “hazardous re-inspections.”
[4] Because of the way in which DOB’s computer software reporting tool B-Smart extracts data from BIS, complaints are listed multiple times. In addition, if a complaint received multiple inspections, the file will show multiple records with the same complaint number. DOB provided a total of 291,163 complaint records from BIS for Fiscal Year 2019.
[5] In its MMR reporting, DOB counts Monday through Friday (weekdays) except public holidays as work days; however, the agency performs inspections seven days per week.
[6] An LS-4 notice is a document DOB inspectors post on-site when they are unable to gain access to a property. It notifies the property owner to call DOB to arrange for an inspection.