Late on Friday March 27, 2020 the Governor released Executive Order 202.11 that brings enforcement to the local level.
In short, 202.11 makes non-compliance with occupancy levels or the operation of a facility or business that has been ordered closed a violation of the New York State Uniform Fire Prevention and Building Code (Uniform Code). Building Safety Inspectors, Code Enforcement Officers, and Fire Marshalls are now authorized to issue notices to vacate, appearance tickets, orders to remedy, and other actions to enforce the COVID-19 response measures in the Executive Orders in regard to occupancy levels and mandatory closure of facilities. At the end of this email is the language of 202.11 with the relevant provisions. Also.. a section detailing what construction is still permitted and what is not.
With these new responsibilities CEO’s will, as is the case with their normal responsibilities, have to address complaints they receive. As always, CEO response should begin with education before official actions are issued, and, if necessary, CEO’s should call 9-1-1 for assistance by law enforcement. Conversely, CEO’s may be contacted by law enforcement to determine occupancy levels that are acceptable and to issue official paperwork, including appearance tickets, that may lead to fines if and when law enforcement is unable to persuade people to close a business/facility or reduce occupancy levels.
It is important to remember that the authority granted CEO’s by 202.11 is still governed by each municipality’s local law for Administration of the Uniform Code, in the manner prescribed therein. It is not a grant of authority or direction for CEO’s to begin any general compliance efforts at this time. We do suggest you consult with your municipal attorney, elected officials, and management for guidance on this issue and keep checking ESD’s web site and the Governor’s posted Executive Orders for further updates, information, and guidance.
Hopefully, through education and cooperation, we can get everyone to comply,
Section of Executive Order 202.11
During the period when an Executive Order limiting operation of a type of facility or limiting the number of persons who may occupy any space is in effect, any operation of such a facility or occupancy of any such space by more than the number of persons allowed by said Executive Order shall be deemed to be a violation of law and in particular, but not by way of limitation, shall be deemed to be a violation of the Uniform Code or other local building code in effect in the jurisdiction in which the facility or space is located. In the event of any such violation, any state, county, or local police officer authorized to enforce laws within the jurisdiction in which the space or facility is located is authorized to remove persons from such space or facility. In addition, in the event of such violation, any state, county, or local code enforcement official or fire marshal authorized to enforce the Uniform Code or other local building code within the jurisdiction in which the facility or space is located is authorized to issue an appearance ticket, a Notice of Violation, an Order to Remedy such violation, which shall require immediate compliance, and/or a Do Not Occupy Order to any owner, operator, or occupant of any such facility or space. Nothing in this provision shall limit the authority of any governmental unit or agency to take such other and/or additional enforcement actions to the extent necessary to ensure compliance with such occupancy-related directives or facility operation-related directives.
Your NYSBOC Team
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