Dep’t of Buildings v. Buono OATH Index No. 1899/18 (Feb. 28, 2020), adopted, Comm’r Dec. (Mar. 9, 2020), appended Petitioner established that respondent was negligent, incompetent, lacked knowledge of or disregarded relevant laws; and made material false or misleading statements on documents that he submitted to the Department. Petitioner did not establish that respondent failed to cooperate with the Department’s investigation. Revocation of respondent’s licenses and registrations recommended. ______________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - VALENTINO BUONO Respondent ______________________________________________________ REPORT AND RECOMMENDATION ASTRID B. GLOADE, Administrative Law Judge This proceeding was referred pursuant to section 28-401.19 of the New York City Administrative Code. Respondent, Valentino Buono, is licensed by the Department of Buildings (“Department” or “DOB”) as a master plumber and fire suppression piping contractor and is also registered with the Department as a construction superintendent and a general contractor. The Department alleges that respondent was negligent, incompetent, lacked knowledge of or disregarded applicable laws and rules; failed to cooperate with an investigation as required by applicable laws and rules; and made material false or misleading statements on forms or reports filed with the Department. Petitioner charged that respondent violated sections 28-401.19(2), (6) and (7) of the Administrative Code and seeks revocation of all of respondent’s licenses and registrations (ALJ Ex. 1; Petitioner’s Closing Memorandum (“Pet. Mem.”) at 1). During a five-day trial, petitioner presented documentary evidence and the testimony of nine witnesses. Respondent presented the testimony of two witnesses and testified in his own behalf. The record was held open for the submission of written closing statements.
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Dep’t of Buildings v. Buono OATH Index No. 1899/18 (Feb. 28, 2020), adopted, Comm’r Dec. (Mar. 9, 2020), appended
Petitioner established that respondent was negligent, incompetent,
lacked knowledge of or disregarded relevant laws; and made
material false or misleading statements on documents that he
submitted to the Department. Petitioner did not establish that
respondent failed to cooperate with the Department’s investigation.
Revocation of respondent’s licenses and registrations
Loncke issued a summons at this location after an inspection on September 22, 2017.
Loncke testified that he conducted an inspection of work that was done under an EWN issued for
the location (Tr. 331-32). By letter dated September 6, 2017, respondent submitted an EWN
indicating that he was undertaking emergency work to repair a gas leak and to repair piping at
the location. The LAA Division issued an EWN number the same day (Tr. 333; Pet. Ex. 49).
When Loncke inspected the premises about two weeks after the EWN was issued, he
observed that work had been performed on the gas line in the cellar. Specifically, he observed
newly painted gas piping, newly installed piping with wet sealant, as well as equipment and
materials used by a plumber to test a gas line (Tr. 334-38, 352-55; Pet. Exs. 50, 51). He checked
the stove, boilers, and hot water heater and determined that the gas was turned on at the location
(Tr. 338). After his review of the Department’s BIS database indicated that no permit or LAA
for the work had been filed, Loncke issued a summons because Precision Plumbing failed to file
for an LAA within five business days of receiving approval of the EWN (Tr. 340).
Respondent acknowledged performing work at the location under the EWN. He testified
that after completing the work, he tried to obtain an LAA, but the LAA Division instructed him
to file the job as a PW1 application, which respondent did (Tr. 770-71). On November 3, 2017,
within 60 days of issuance of the EWN, he obtained a permit for plumbing work at the location
and completed the job (Tr. 680-82, 770-71; Resp. Exs. T. U).
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In his request for the EWN approval, respondent expressly stated “we will file an LAA
within five (5) business days of issuance of the EWN number and, if necessary a Plan Work
Application (PW1) . . . will be filled [sic] and approved within 60 days” (Pet. Ex. 49).
Respondent conceded that he did not file an LAA, but insisted that the LAA Division directed
him not to do so. This unsupported claim is not credible. Had the LAA Division directed
respondent to disregard the procedures outlined in respondent’s EWN request, it is reasonable
that respondent would have evidence of such instructions, such as the name of the person who
issued them and documentation of the instructions. None were offered here. Moreover,
respondent’s contention that he interpreted the Department’s written instructions as requiring
either an LAA or a PW1 is without basis (Tr. 663; Resp. Mem. at 36-37). The provision
respondent points to contains language almost identical to that included in respondent’s EWN
request and, on its face, requires that an LAA be submitted within five business days of issuance
of the EWN. It further states that in addition to the LAA, a PW1 is to be filed only if it is
necessary to do so.
In sum, petitioner established that respondent failed to timely submit the required permit
as alleged in charge 1, specification 21.
Failure to Perform Construction Superintendent Duties (Charge 1, Specification 22)
Petitioner charged that respondent, who was a construction superintendent at a worksite
located at 646 Greene Avenue, Brooklyn, in September 2017, failed to properly carry out his
duties at the site as required under 1 RCNY section 3301-02. The provision in effect in
September 20177 required that the construction superintendent conduct daily inspections at each
jobsite for which he or she is responsible to verify that work is being performed according to
sound construction and demolition practices. If unsafe conditions were observed during the
inspections, construction superintendents were also required to immediately notify the person or
persons responsible for creating the unsafe condition, order corrective measures, and take
appropriate action to ensure that the unsafe condition is corrected. 1 RCNY § 3301-02(c)(6).8
Construction superintendents are responsible for overseeing safety and ensuring that
operations on construction sites comply with the Codes (Tr. 290-91). They are required to visit
7 1-RCNY section 3301-02 was amended in the City Record on April 19, 2018, effective May 19, 2018, and no
longer contains this provision, which is now found at section 3301.13 of the Building Code. 8 See Statement of Basis and Purpose in City Record, April 21, 2016.
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the jobsite at least once a day, conduct inspections, and maintain a record of their inspections in a
logbook (Tr. 291). While general contractors hold permits for the jobsites, construction
superintendents are responsible for safety on the sites and may be issued summonses for failing
to fulfill their duties (Tr. 292-93).
Michael Camera is an inspector for the Department’s Buildings Enforcement Safety
Team (“BEST Squad”), which handles site safety inspections, low-rise inspections, complaints,
incidents, and accidents (Tr. 289). Camera, who has been with the squad for over five years, is
licensed by the Department as a site safety coordinator (Tr. 290). On September 21, 2017, after
an inspection at 646 Greene Avenue, Brooklyn, Camera issued a summons to respondent, the
registered construction superintendent at the site, after he observed several Code violations (Tr.
294, 300-01; Pet. Exs. 52, 54).
Camera testified that he saw a compromised fire escape on the property adjacent to the
jobsite (Tr. 294; Pet. Ex. 54). Photographs taken during the inspection show a fire escape on a
building next to the jobsite that exited to a hole in the ground on the worksite. That hole had
been created for the foundation on the jobsite (Pet. Ex. 53). Camera did not observe any other
means of egress from the house next to the jobsite other than the front door (Tr. 309). He
explained that this condition was dangerous because in the event of a fire, occupants of the
building who use the fire escape would end up in the hole in the ground (Tr. 296).
(Pet. Ex. 53 at 1, 3)
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Camera also noted that the work at the jobsite compromised the integrity of the
foundation of the building next to 646 Greene Avenue. He testified that excavation on the
jobsite involved a “straight sheer cut,” rather than being cut on an angle, which is not Code-
compliant (Tr. 307). In addition, metal or wood supports, sheeting, or shoring should have been
used to support the side of the excavation to prevent collapse. One of the photographs Camera
took during the inspection shows exposed dirt and a trench, which Camera estimated to be six to
eight feet deep, right next to the adjacent building (Tr. 307, 312; Pet. Ex. 53 at 3). An excavated
area shown in the photographs is against the neighboring property’s foundation, which Camera
maintained could have caused a collapse (Tr. 300; Pet. Ex. 53). Camera also recalled observing
gaps under the building adjacent to the jobsite where dirt had been removed (Tr. 308-09, 314).
He noted that a walkway had been created over the excavated hole using pieces of wood resting
on the dirt, which he described as an unsafe condition (Tr. 309).
According to Camera, he also observed the lack of required guardrails in areas where
workers were working. A photograph taken during the inspection shows framing for the first
floor decking, where the floor will be installed, and the foundation. A worker can be seen
underneath the decking in the basement or cellar area (Pet. Ex. 53 at 2). According to Camera,
the photograph depicts an unsafe condition because there are no guardrails around the perimeter
of the decking to prevent workers from falling, which the Code requires when the decking is at
least six feet high (Tr. 298-99; Pet. Ex. 53). Camera estimated the decking to be over six feet
above the floor of the cellar. He testified that a typical foundation is ten feet deep and that since
a worker was able to stand in the foundation, he presumed the foundation was over six feet deep
(Tr. 298-99, 310-11; Pet. Ex. 53).
Camera issued a summons for immediate hazard violations because of the safety risk the
conditions presented, issued a stop work order, and told the workers to leave the site because of
unsafe conditions, noting that there was no means of egress for the workers to enter and leave the
basement area (Tr. 301-03; Pet. Ex. 54). In addition, Camera’s supervisor contacted the
Department’s Emergency Response Team (“ERT”) because the fire escape and foundation of the
building next to the jobsite had been compromised (Tr. 304-05). According to Camera, if a
construction superintendent observed those conditions at a jobsite, he should have shut down the
site and corrected the conditions immediately (Tr. 305).
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Adrian Mondesir, the general contractor at the site, maintained that on the day of the
inspection, several safety measures were in place when he arrived at the jobsite at about 7:45
a.m. (Tr. 558-59). With regard to the excavated area under the fire escape, Mondesir conceded
that the plywood landing was not in place when the inspectors arrived, but insisted the workers
were going to reset it under the ladder on completion of their work. He testified that a plywood
landing had been in place under the fire escape the morning of the inspection, but by the time the
Department’s inspector arrived, the workers had removed the landing so they could work on
waterproofing the foundation. He said the usual practice is to remove the structural items and
replace them as soon as the work was completed or by the end of the day (Tr. 566-67, 575-78,
579-82, 585-86).
With respect to the foundation of the adjacent property, Mondesir maintained that at the
time of the inspection, the foundation had already been shored up, meaning that something had
been used to brace the dirt to prevent it from collapsing. He also stated that there was a 45-
degree berm in place, which he defined as a pile of dirt with shoring beams and wooden piles to
prevent dirt from collapsing during an excavation, even though it was not required (Tr. 567-68).
According to Mondesir, the shoring in place to protect the foundation of the adjacent property
was consistent with the design plans and included some added measures, such a steel piles with
lumber between the adjacent property and the worksite (Tr. 569).
As for the failure to have guardrails around the first floor decking above the cellar,
Mondesir insisted that no one was working in the area on the date of the inspection. He further
testified that workers were able to access the jobsite through the cellar of the adjacent building
and climb up a ladder. When shown a photograph taken by the inspector that shows a worker in
what looks to be a cellar or basement underneath first floor decking, Mondesir maintained that
there is an opening for a stairwell and the worker would have been able to use that stairwell to
access that area (Tr. 571-72, 589-90, 592; Pet. Ex. 53 at 2).
Mondesir sought to portray Inspector Camera as biased. He described the inspector as
“agitated” and “very hostile,” and maintained that before commencing the inspection, Camera
announced they were “in big trouble” and he was going to evacuate the adjacent building (Tr.
569). He testified that an ERT inspector who arrived on the jobsite after Camera’s inspection
determined that it was unnecessary to evacuate the building, discussed with Mondesir necessary
corrective measures, and gave him until 4:00 p.m. that day to take the necessary corrective steps
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(Tr. 569-71). He noted that later that day, between 4:00 and 4:30 p.m., two ERT inspectors
conducted a re-inspection to verify that the corrective actions had been implemented and left
without issuing new summonses (Tr. 571-72, 594).
Mondesir’s characterization of the inspector was not credible. Throughout his testimony,
Inspector Camera did not appear to be motivated by bias or hostility; rather, he was calm,
professional, and dispassionate. Moreover, his description of the conditions that he observed at
the jobsite is supported by photographs taken during the inspection. Lastly, that the ERT
inspectors gave Mondesir an opportunity to implement corrective measures after Inspector
Camera found violations and issued summons does not make Camera biased. Indeed, the need to
take corrective measures by 4:00 p.m. the day of the inspection supports the inspector’s
determination that there were pressing safety issues at the site.
Mondesir called respondent to the site after the inspectors arrived. By the time
respondent arrived, all the corrective measures that ERT required had been undertaken (Tr. 591,
593). Mondesir took photographs showing a plywood walkway on the ground underneath the
fire escape with fencing made of plywood and plastic mesh, shortly before the ERT inspector’s
4:00 p.m. deadline for corrective measures (Tr. 561, 564-66, 593-94; Resp. Ex. X). However,
those measures depicted in Mondesir’s photographs had not been present when DOB’s BEST
Squad inspected the location (Tr. 566).
Respondent testified that as a construction site superintendent, his duties include going to
the jobsite at least once per day to assess safety and alert the contractor as to any safety concerns
that required correction (Tr. 683). He also testified that he had designated Mondesir as a
competent person to be on site on the date of inspection, as is required, and that he went to the
site after it had been inspected by the BEST Squad (Tr. 774-75). Respondent admitted that the
fire escape was not usable in the condition shown on the photograph taken by Inspector Camera,
but maintained that boards under the fire escape had been removed that morning for work in that
area and were replaced at the end of the day (Tr. 775-76; Pet. Ex. 53). Moreover, according to
respondent, the building next to the jobsite is owned by the same person who owns the lot on
which the construction was occurring, and that owner notified tenants of the construction activity
(Tr. 776).
Respondent’s contention that he performed his duties as a construction superintendent
because “a platform to facilitate use of the fire escape was in place and available in the event of
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need” is unsupported by the credible evidence (Resp. Mem. at 30). First, there is no evidence
that the platform was produced during the inspection, undercutting the contention that it was
readily available in the event of an emergency. Respondent testified that the boards under the
fire escape were removed in the morning for work in the area and replaced “[b]efore the evening
was over” (Tr. 775, 776). The building adjacent to the jobsite was occupied and although
Mondesir testified that he checked to make sure that no residents were home before removing the
platform (Tr. 587), residents could have returned at any time during the day. Removal of the
safety platform under the fire escape created an unacceptable risk in the event there was an
emergency requiring evacuation of the building.
Respondent was issued an ECB violation for failure to carry out his duties as a
construction site superintendent so that the fire escape on the adjacent building was
compromised, as was the adjoining building’s foundation, and inadequate egress was noted.
According to respondent, an authorized representative appeared on his behalf at the hearing at
the OATH Hearings Division, where the representative admitted to the violation on respondent’s
behalf and a civil penalty of $5,000 was imposed (Tr. 685-87; Resp. Ex. W). Respondent sought
to make much of the Department’s amendment of the summons from a Class 1 violation, an
immediately hazardous condition, to a Class 2 violation, where no immediate action was
required, in the course of those proceedings (Resp. Mem. at 29-30; Resp. Ex. W). Respondent
argued that the Department’s failure to present this information in its case in chief shows
petitioner failed to fully investigate the allegations or that it intentionally concealed facts to
create the impression of immediate danger to the public in its quest to revoke respondent’s
licenses (Resp. Mem. at 30). Respondent misses the point: whether respondent’s plea was to a
Class 1 or Class 2 violation, he pled guilty to violating his obligations as a construction
superintendent (Resp. Ex. W).
As construction superintendent for the jobsite, respondent was responsible for ensuring
worker safety and compliance with applicable laws. He knew that workers at the site removed
the platform from under the fire escape and admitted that doing so rendered the fire escape
unusable. However, respondent allowed that condition to continue uncorrected, jeopardizing
public safety. Similarly, as respondent was aware that workers were engaged in excavation work
underneath the fire escape, it comports with common sense that he would have observed the
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excavation work that undermined the foundation of the adjacent building if, as required, he made
daily visits to the jobsite.
In sum, petitioner established that respondent failed to properly carry out his duties as a
construction superintendent at this site. His knowledge that unsafe conditions were present at the
site and failure to take appropriate measures constitutes negligence or incompetence as charged
in charge 1, specification 22.
High Rate of Denied Plumbing Sign-off and Gas Authorization Requests
(Charge 1, Specifications 11 and 12)
Petitioner alleged that between April 1, 2016, and April 1, 2018, 38.8 percent of the
plumbing signoff requests and 52.2 percent of the gas authorization requests respondent
submitted to the Department were denied. These denial rates, petitioner contends, establish that
respondent was negligent, incompetent, lacked knowledge of, or disregarded the applicable laws
and regulations (ALJ Ex. 1).
Licensed plumbers submit gas authorization requests to the Department for permission to
have gas turned on by a utility company after all the required work has been completed. Gas
authorization requires that the plumber install the pipes and test them for gas leaks, then connect
the gas appliance to the pipes and turn it on to ensure there are no leaks. Once the plumber has
successfully tested the gas piping, he or she can request that gas be authorized for the premises.
As part of its review of a gas authorization request, the Department examines filings submitted
by the licensed plumber to determine whether all the required inspections have been conducted
and all required documentation has been submitted (Tr. 19-21, 24, 84). With plumbing signoff
requests, the applicants seek permission to get water turned on after the necessary work and
inspections have been completed. Master plumbers may assign a delegate to submit requests for
gas authorization and plumbing signoffs, but delegates cannot submit the requests unless the
master plumbers include their seal with the request. In addition, the licensees or delegates must
certify the accuracy of their submission (Tr. 21-22, 94-95, 110-11, 114, 118-19, 120).
Beginning in December 2015, the Department required that gas authorization and
plumbing signoff requests be submitted using the DOB NOW Inspections system, an electronic
system for licensed professionals and their delegates. The system is also used to request and
schedule inspections, obtain the results of those inspections, get jobs electronically reviewed,
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submit documentation, and update license information (Tr. 15-16). Before DOB NOW, requests
were submitted using an OP-98 paper form, which the applicant had to fill out and submit to the
appropriate borough office (Tr. 112). Required inspections and documentation did not change
with the advent of DOB NOW Inspections, which merely made the process electronic (Tr. 109,
112-13).
Theresa Do is a Management Development Analyst in DOB’s Development Inspections
Unit, which inspects construction, plumbing, and electrical work performed throughout the City
to ensure that work performed on new buildings conforms to the plans that DOB approved. In
that capacity, Ms. Do, runs analytical reports, helps manage staff, and makes policy decisions for
the unit (Tr. 13-15). Ms. Do testified that before launching DOB NOW, the Department held
classes and open forums for licensees, to provide information about the system, demonstrate how
it worked, and to obtain feedback to improve the system before it was launched (Tr. 18).
As part of its launch of DOB NOW, the Department assigned licensees user names that
are linked to all their licenses (Tr. 16-18). The applicant of record or an assigned delegate,
makes requests for gas authorization by signing into DOB NOW, reviewing the application to
verify that all inspections have been completed, providing information as to the location and
number of the meter, the gas riser, and gas uses for which they are seeking gas authorization, and
uploading any required documentation. The request is then forwarded to the appropriate
borough based on where the work was performed for review (Tr. 87-88).
The Department’s inspectors review gas authorization requests by looking at the
summary of the scope of work, determining whether all the necessary inspections have been
completed, and reviewing any documents that must be submitted with the request. If any
inspections or required documents are missing, the reviewer denies the request and sends the
applicant an e-mail providing a reason for the denial (Tr. 84, 143-44).
Elias Katsihtis, a licensed master plumber and fire suppression contractor, has been a
Department employee for over seven years. He is an assistant chief in the Plumbing Unit, where
his duties include scheduling field inspections and reviewing gas authorization signoff requests
(Tr. 83-86). Katsihtis tested the DOB NOW inspections system when it was being developed
and trained all Department units on its use. He also directly trained the plumbing unit on how to
review applications to verify that all required inspections were completed (Tr. 89). In addition,
he reviewed the DOB NOW Inspections user manual before it was issued (Tr. 88-90, 143-44;
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Pet. Ex. 8). Katsihtis regularly reviews gas authorization and plumbing signoff requests filed
using DOB NOW (Tr. 96, 113-14).
Katsihtis testified that the scope of work for the job determines what documents, if any,
must be submitted with a gas authorization request. By way of example, he testified that if the
scope of work is to relocate a stove in a one family house, the job would require a gas rough
inspection, a gas test inspection, and a gas finish inspection, but would not require
documentation. If the scope of work is to relocate commercial gas appliances in a commercial
kitchen, the request must include a Fire Department approval letter, or an Ansul letter, for the
fire suppression system. Katsihtis explained that the Fire Department approval is a record of an
inspection of the fire suppression system conducted by someone other than the Department (Tr.
91). The Department will not allow the utility company to turn on gas in a commercial kitchen
until it has received proof that a Fire Department inspector successfully tested the fire
suppression system to ensure that if there is a fire in the commercial kitchen, the system can
extinguish the fire (Tr. 107-08). According to Katsihtis, a licensed plumber should know that a
Fire Department approval letter is required for a commercial kitchen (Tr. 108).
To upload documents to DOB NOW, the person requesting gas authorization must scan
the document and identify it in the system by its name, such as Fire Department approval letter.
DOB NOW records the identification for the applicant who, for gas authorization requests, is
typically the licensed plumber (Tr. 92-93). Information about the applicant, such as the requester
identification, is stored in the program, enabling DOB to determine who made the request for gas
authorization (Tr. 93).
According to Katsihtis, where gas authorization is concerned, there is a zero tolerance for
errors because of the risk to public safety if work relating to the delivery of gas is not performed
correctly. He testified that all required inspections must be completed and if there is no record of
a required inspection, DOB treats it as if the inspection has not been completed and will not
authorize gas. He explained that licensees who request gas authorization are representing that
the gas delivery system is ready for use and can be turned on (Tr. 106, 119-20).
Requests for plumbing signoffs undergo similar review. The scope of work determines
which inspections typically must be completed for a plumbing signoff request to be granted. For
a basic kitchen renovation in a single-family home that involved removing a kitchen sink,
relocating a stove, and installing new cabinets, a water sanitary rough-in inspection and a water
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sanitary finish inspection would be required for the sink. To relocate the stove, gas rough-in, gas
pressure test, and gas finish inspections would be required. If the work only required direct
replacement of equipment on existing pipes, only water finish and gas finish inspections would
be required (Tr. 116-18).
With both gas authorization and plumbing signoff requests, if the Department’s reviewer
denies the request, the applicant receives an e-mail providing the reason for a denial. The
applicant, and even members of the public, can request additional information about denial of a
request via e-mail, telephone, or in-person at the appropriate borough office (Tr. 97-98). When
plumbing signoff requests are denied, the applicants receive an automated e-mail in which the
workflow status, task comments, and reason for the denial is summarized (Tr. 49, 70). As with
plumbing sign off requests, when gas authorization requests are denied, the applicants receive
information about the basis for the rejection (Tr. 56, 70).
According to Katsihtis, the Department expects that all required inspections have been
completed and recorded, and all required documents have been uploaded into DOB NOW at the
time the applicant requests a gas authorization or a plumbing signoff. DOB NOW requires that
the applicant of record affirms, before submitting the signoff request, that he or she has verified
the accuracy of statements in the application and has complied with applicable laws (Pet. Ex.
118-19; Pet. Ex. 8 at 42). Specifically, licensees must affirm the following:
I certify the statements herein are true and comply with the NYC
Construction Codes (“Codes”). I meet the requirements of the
Codes and any other codes related to all inspection(s) and test(s)
performed. I understand that falsification of any statement is a
misdemeanor and is punishable by a fine or imprisonment or both.
I also understand that if I am found after hearing to have made or
allowed to be made a false statement in this submission or this
affirmation I may be subject to disciplinary action by the City of
New York and/or barred from filing further applications or
documents with the Department.
(Pet. Ex. 8 at 42).
Ms. Do’s unit collected data to track gas authorization and plumbing signoff requests
after DOB NOW was launched. Ms. Do is familiar with respondent because his name has
appeared in her reports every month since December 2015 as the licensed plumber with the
highest or second highest percentage of denials of his requests (Tr. 24-27).
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Ms. Do prepared Excel spreadsheets reflecting all the plumbing signoff and gas
authorization requests respondent submitted between April 1, 2016, and April 1, 2018. A
spreadsheet that consists of 1061 rows and 22 columns on 36 pages, reflects information about
the job and permit, the licensee (including respondent’s name, address, and license number),
whether it concerns plumbing or LAA, the nature of the request, status of the request, the date of
the submission, comments from the reviewer as to the reason for the action taken, the reviewer’s
name, and the unit that took the action (Tr. 30-35; Pet. Ex. 3).
A second spreadsheet, Exhibit 4, reflects a subset of the data contained in Exhibit 3 in
that it contains only plumbing signoffs requested by respondent that the Department rejected (Tr.
36; Pet. Ex. 4). Exhibit 4 indicates that 412 of 1061 plumbing signoff requests respondent
submitted between April 1, 2016, and March 27, 2018, were rejected, for a 38.8 percent rejection
rate (Tr. 49, 58; Pet. Exs. 3, 4, 7).
Respondent’s approved and denied gas authorization requests between April 1, 2016, and
March 30, 2018 are reflected a spreadsheet that consists of 833 rows and 22 columns on 37 pages
and reflects the same categories of information as in the plumbing signoff spreadsheet (Tr. 53-
54; pet. Ex. 5). Ms. Do also prepared a spreadsheet reflecting only gas authorization signoff
requests that were denied between April 1, 2016, and March 30, 2018. It shows that 435 of 833
gas authorization requests that respondent submitted were denied, for a rejection rate of 52.2
percent (Tr. 54-55, 58; Pet. Exs. 6, 7).
Ms. Do testified that she was able to determine the percentage of rejection of
respondent’s plumbing signoff and gas authorization requests using a pivot table function in
Excel software. She explained that the pivot table is a method of aggregating large amounts of
data into categories selected by the user. Ms. Do aggregated data for the total rejected plumbing
signoff requests and gas authorization requests, and reflected that as a percentage of the total
number of requests (Tr. 41, 59). Ms. Do insisted that the reports accurately reflect the rejection
rate of respondent’s plumbing signoff and gas authorization requests, describing the margin of
error as less than one standard deviation, or 99.9 percent accurate (Tr. 59-61).
Katsihtis, who reviewed the spreadsheet showing gas authorization denials, noted that a
52.2 percent denial rate for gas authorization indicates that on average, one out of every two of
respondent’s requests was denied. He testified that respondent’s gas authorization requests were
most often denied because of missing required inspections or documents, which shows that
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respondent repeatedly failed to review the requests to make sure they were complete before
submitting them (Tr. 99-100, 109-10).
Katsihtis testified that most of respondent’s plumbing requests were denied because of
missing required inspections or documents, or missing gas authorizations. He noted that for
plumbing signoff requests where gas authorization has not been granted, there is a public safety
issue because the applicant is seeking to walk away from the job before gas has been authorized
to be turned on (Tr. 100, 115-16).
Respondent testified that he reviews every request before it is uploaded to DOB NOW
and that he uploads his seal with each request (Tr. 787). He maintained that his requests were
rejected due to technical problems he experienced with DOB NOW, matters that were within the
control of others such as architects, engineers, or the owners of the premises, and errors by the
Department employees who reviewed his submissions.
Respondent testified that there were many occasions when the DOB NOW system did not
work when he tried to submit documents (Tr. 692). According to respondent, when he first tried
to submit documents using DOB NOW, the system was not compatible with the Google Chrome
web browser he used and the Department urged licensees to use a software program called
Silverlight when uploading documents to DOB NOW (Tr. 690-91, 780). In late 2015 or early
2016, respondent spoke to the Department’s plumbing chiefs about the trouble he had with DOB
NOW and was told to be patient and the issues would be resolved (Tr. 781). Some problems
persisted, however. Respondent encountered problems when he thought a form was uploaded
and later discovered that it was not. However, he did not know whether this was due to the
system or an error that he made (Tr. 782). Respondent reported the problems he was having with
DOB NOW to the Department via e-mail, which resolved the issues in as little as a minute or as
much as several days (Tr. 692).
Respondent maintained that the Department’s rejection of his gas authorization or
plumbing signoff requests were administrative matters that did not reflect on his competence as a
licensee (Tr. 695-96; Resp. Mem. at 22-23). Specifically, respondent noted that a plumbing
signoff request dated April 5, 2016, was rejected with comments indicating “need to upload tap,
meter, meter tag,” which is paperwork from the Department of Environmental Protection
(“DEP”) to allow water service into the building (Tr. 695-76; Pet. Ex. 4 at row 4; Resp. Ex. Z at
row 7). Respondent described the reviewer’s comment as referring to “just administrative
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paperwork” (Tr. 696). On April 11, 2016, one of respondent’s plumbing signoff requests was
rejected because of “missing documents for water service piping – tap letter and meter permit,”
which respondent described as another reference to documents from DEP to permit water service
(Tr. 696; Pet. Ex. 4 at row 7; Resp. Ex. Z at row 11). Respondent claimed that these instances do
not reflect his failure to perform plumbing work and noted that he subsequently submitted the
missing paperwork, and likely did so in all the other instances reflected in the exhibit where
DOB rejected his signoff requests (Tr. 696-97; Pet. Ex. 4).
Respondent also attributed the Department’s rejection of some of his requests to matters
over which he claimed to have no control. For example, in rejecting a signoff request dated
April 26, 2016, the Department reviewer questioned why area drains were in the cellar and noted
that storm inspections were missing. Respondent testified that the issue had to be corrected by
an architect or engineer (Tr. 697-98; Pet. Ex. 4 at row 22; Resp. Ex. Z at row 46). With respect
to a plumbing signoff request on July 14, 2016, which the Department rejected because of a
missing record of the Fire Department’s approval of the fire suppression system in a commercial
kitchen, respondent blamed the restaurant owner. He testified that it is the restaurant owner’s
responsibility to obtain the letter and give it to the licensee for submission to the Department (Tr.
699-700; Pet. Ex. 4 at row 84; Resp. Ex. Z at row 247). These entries, respondent insisted, do
not reflect on his ability or competence as a licensee (Tr. 698).
Respondent testified that he reviewed the list of rejected gas authorization requests and
noted that many of his requests were rejected because of missing documentation of inspections,
not because the inspections had not occurred. He also stated that Department inspectors who
reviewed the filings made mistakes that resulted in denial of his requests (Tr. 783-84). He
admitted, however, that in instances where a request does not include documentation that an
inspection occurred, the Department must assume that the inspection did not occur, which would
not be a Department error. Respondent described Department errors as instances when its
inspectors overlook forms that respondent had already uploaded, or when they fail to carefully
examine a job to determine if it was ready for signoff (Tr. 784). However, he did not identify
specific instances where this occurred. With respect to petitioner’s contention that between April
2016 and April 2018 52.2 percent of his requests for gas authorization and 38.8 percent of his
plumbing signoff requests were rejected, respondent insisted that petitioner failed to account for
the Department’s errors (Tr. 785-86).
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Respondent’s arguments are unpersuasive. Although the Department’s witnesses
acknowledged that there were some issues with DOB NOW when it was launched (Tr. 64-66,
144, 149-50), there is no reason on the record here to believe that those problems persisted
throughout the two-year period that is encompassed by the Department’s evidence. Indeed,
respondent testified about technical issues when DOB NOW was launched in December 2015,
but did not describe persistent problems that would account for denials of his requests that
continued two years after that launch. Respondent’s contention that the high rate of rejection of
his requests are not a reflection on his competence as a master plumber, but on his ability to
submit documents “via a new online system requiring a special web browser” are unpersuasive
(Resp. Mem. at 24).
Respondent argued that “many of the errors for which the Petitioner seeks revocation of
[respondent’s] licenses were ministerial and were not reflective of [his] competence as a master
plumber” (Resp. Mem. at 22). Respondent is mistaken. Submission of required documentation
with gas authorization and plumbing signoff requests is far from a ministerial matter because it
goes to the core of the review process and whether the licensee’s application will be granted.
Indeed, it is undisputed that without the missing documents, respondent was unable to obtain the
requested gas authorization and plumbing signoffs. Thus, respondent’s failure to submit required
documents and information goes to whether he was negligent, incompetent, lacked knowledge of
or disregarded applicable laws and rules in performing his duties as a licensed master plumber.
Petitioner bears the burden of proving that a gas authorization request rejection rate of
over 52 percent and a plumbing signoff request rejection rate of 38.8 percent constitutes
negligence or incompetence. To satisfy its burden, petitioner must prove that respondent failed
to display the competence and accuracy that average design professionals would exercise. Here,
petitioner’s evidence is largely unrebutted, as respondent vaguely asserted that petitioner’s
evidence of denials of his requests may include denials based on the Department’s own errors,
but offered no support. Respondent’s other argument amounted to an acknowledgement of
having failed to submit documents, but blamed others or sought to minimize the significance of
his failures. With respect to establishing that respondent’s performance fell below that of others
in his profession, petitioner offered no data comparing respondent’s rate of rejection to other
licensed master plumbers, save for Ms. Do’s testimony that respondent was consistently at the
top or second on her list of plumbers with the highest number and percentage of rejected requests
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(Tr. 26-27). The better practice would have been for petitioner to submit such evidence if its
charge is based on data that it contends shows respondent’s performance falls below the standard
of care for the profession.
Nevertheless, petitioner has met its burden. Because of the significant risk of explosion
associated with delivery of gas services, the Department has what has been described as a “zero
tolerance” policy and requires that all inspections be completed before it will authorize that gas
be issued to premises (Tr. 106). Therefore, failure to submit documentation of an inspection is
treated as if the inspection did not occur and the gas authorization request is denied. Where more
than 50 percent of a master plumber’s requests for gas authorization are rejected in a two-year
period, it indicates a lack of care in submitting the requests. Respondent testified that he reviews
every request before he affixes his seal and uploads it to DOB NOW (Tr. 787), which indicates
either he knew his requests were incomplete before he submitted them or he did not carefully
review the requests to ascertain if they were complete before he submitted them. In either case,
respondent displayed a profound lack of care that falls below the standard of a care for a licensed
master plumber. The same holds true for a denial rate of nearly 39 percent for the plumbing
signoffs.
In sum, petitioner established that respondent was negligent or incompetent because over
50 percent of the gas authorization requests and over 38 percent of the plumbing signoff requests
he submitted between April 1, 2016, and April 1, 2018, were rejected.
Charge 2: Failure to Cooperate with Investigation
Petitioner charged that respondent failed to cooperate with its investigation with respect
to the specifications discussed above, in violation of section 28-401.19(7) of the Administrative
Code.
Investigator Cooper testified that after he had conducted spot checks of respondent’s
jobs, he directed respondent to appear for an interview, which took place on January 31, 2018.
Respondent, who was represented by counsel, invoked his Fifth Amendment right against self-
incrimination and refused to answer questions regarding the different jobsites that were the
subject of the investigation (Tr. 167-68, 195-96, 206; Pet. Ex. 9).
Section 28-401.19(7) of the Construction Code provides that the Commissioner may
suspend or revoke a license or certificate of competence, and/or impose a fine up to $25,000 for
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each finding of violation for failing to cooperate with investigations related to the trade for which
one is licensed. Petitioner did not dispute that during the course of an investigation, he refused
to answer questions on Fifth Amendment grounds, but noted that he appeared at the interview as
directed and provided documents as requested. Respondent argued that there is no basis for
holding him responsible for failing to cooperate with the investigation (Resp. Mem. at 19-21).
Petitioner failed, however, to satisfy its burden of proof, rendering it unnecessary to
address the constitutional argument raised by respondent. The Department alleges that
respondent refused to cooperate with investigations relating to 19 specifications set forth in the
petition. Mr. Cooper testified that although respondent answered “general, background
questions,” he “refused to answer questions regarding the several job sites,” such as “workers on
the sites, work being performed” and questions “regarding a job site and [Cooper’s] findings on
the day of the [site] visit” (Tr. 168). There was no evidence, such as a recording or transcript of
the interview, to establish the scope of the interview and whether it encompassed all of the
specifications, or just the jobsites at which Cooper conducted spot checks. Accordingly, the
charge should be dismissed. See DOB v. Thomas, OATH Index No. 1898/18 at 18-19 (Jan. 28,
2019), adopted, Comm’r Dec. (Jan. 30, 2019) (“Absent more detailed testimony about the
questions that were asked, or a recording of the interview, DOB failed to prove [that respondent
failed to cooperate with its investigation] by a preponderance of the evidence.”).
FINDINGS AND CONCLUSIONS
1. Petitioner established that respondent performed plumbing
work outside the scope of work specified in approved
construction documents for 940 Flushing Avenue, Brooklyn,
and was negligent, incompetent, or lacked knowledge of or
disregarded applicable laws and regulations, as alleged in
charge 1, specification 1.
2. Petitioner failed to establish that workers not on respondent’s
payroll performed work under a permit issued to respondent for
work at 1159 St. John’s Place, Brooklyn, as alleged in charge
1, specification 2.
3. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations because workers who were not on his
payroll performed work under a permit issued to respondent at
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336 Flatbush Avenue, Brooklyn, as alleged in charge 1,
specification 4.
4. Petitioner failed to establish that workers not on respondent’s
payroll performed work under a permit issued to respondent for
work at 320 Macon Street, Brooklyn, as alleged in charge 1,
specification 5.
5. Petitioner failed to establish that workers not on respondent’s
payroll performed work under a permit issued to respondent for
work at 1472 Ogden Avenue, Bronx, as alleged in charge 1,
specification 7.
6. Petitioner failed to establish that workers not on respondent’s
payroll performed work under a permit issued to respondent for
work at 318 Bedford Avenue, Brooklyn, as alleged in charge 1,
specification 8.
7. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he submitted a self-certification for
work at 60-01 Roosevelt Avenue, Queens, that he knew or
should have known was incomplete, as alleged in Charge 1,
specification 9.
8. Petitioner failed to establish that respondent installed gas
piping on which prohibited materials were used at 60-01
Roosevelt Avenue, Queens, as alleged in charge 1,
specification 10.
9. Petitioner established that between April 1, 2016, and April 1,
2018, respondent submitted 1061 requests for plumbing signoff
and 412, or 38.8 percent, of those requests were denied, which
constitutes negligence or incompetence, as alleged in charge 1,
specification 11.
10. Petitioner established that between April 1, 2016, and April 1,
2018, respondent submitted 833 requests for gas authorization
and 435, or 52.2 percent, of those requests were denied, which
constitutes negligence or incompetence, as alleged in charge 1,
specification 12.
11. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he scheduled a self-certified gas
inspection for August 8, 2017, at 23-26 101st Street, Queens,
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but failed to appear for the inspection, as alleged in charge 1,
specification 13.
12. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he scheduled a self-certified gas
inspection for August 8, 2017, at 500 White Plains Road,
Bronx, but failed to appear for the inspection, as alleged in
charge 1, specification 14.
13. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he scheduled a self-certified gas
inspection for August 9, 2017, at 191 Knickerbocker Avenue,
Brooklyn, but failed to appear for the inspection, as alleged in
charge 1, specification 15.
14. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he failed to submit an LAA or
permit for work at 213 Surf Drive, Bronx, that was performed
pursuant to an EWN he obtained, as alleged in charge 1,
specification 17.
15. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he used prohibited materials on a
water heater installed at 1525 86th Street, Brooklyn, as alleged
in charge 1, specification 18.
16. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he self-certified that work he
performed at 1525 86th Street, Brooklyn, passed inspection
when he knew or should have known that prohibited materials
had been used on gas piping he installed, as alleged in charge
1, specification 19.
17. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he scheduled failed to submit an
LAA or permit for work at 134 Vernon Avenue, Brooklyn, that
was performed pursuant to an EWN he obtained, as alleged in
charge 1, specification 20.
18. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
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laws and regulations in that he failed to timely submit a LAA
for work at 73-47 52nd Avenue, Queens, performed pursuant
to an EWN he obtained, as alleged in charge 1, specification
21.
19. Petitioner established that respondent was negligent,
incompetent, or lacked knowledge of or disregarded applicable
laws and regulations in that he failed to properly fulfill his
duties as the construction superintendent at a worksite located
at 646 Greene Avenue, Brooklyn, as alleged in charge 1,
specification 22.
20. Petitioner did not establish that respondent failed to cooperate
with the Department’s investigations, as alleged in charge 2.
21. Petitioner established that respondent made a material false or
misleading statement to the Department in that he self-certified
that work at 60-01 Roosevelt Avenue, Queens, passed
inspection, when the work should not have passed inspection
because prohibited materials had been used, as alleged in
charge 3, specification 2.
22. Petitioner established that respondent made a material false or
misleading statement to the Department in that he self-certified
that work at 1525 86th Street, Brooklyn, passed inspection,
when the work should not have passed inspection because he
used prohibited materials on gas piping, as alleged in charge 3,
specification 3.
RECOMMENDATION
Section 28-401.19 of the Building Code provides that the Commissioner may suspend or
revoke a license or certificate of competence, and/or impose a fine up to $25,000 for each finding
of violation for, among other things, “[t]he making of a material false or misleading statement on
any form or report filed with the department or other governmental entity,” and “[n]egligence,
incompetence, lack of knowledge, or disregard of this code and related laws and rules.” Admin.
Code §§ 28-401.19(2), (6); see Admin. Code § 28-401.3 (“registration” falls within the definition
of “license” issued by petitioner).
The Department proved that respondent was negligent, incompetent, lacked knowledge
of, or disregarded applicable laws and rules on 16 occasions; and that he made material false or
misleading statements to the Department on two occasions. The proven misconduct relates to
respondent’s master plumbing license and, in one instance, to his duties as a construction
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superintendent, and revocation of the plumbing license and construction superintendent
registration is appropriate.
The Department relies on its licensees to be knowledgeable of applicable laws, abide by
those laws, and exercise care in performing their duties. This is especially important where, as
here, the Department’s central mission is to protect public safety and licensees perform critical
work on safety-sensitive systems, such as those involving delivery of gas service to residential
and commercial users. The licensee’s knowledge of relevant laws and care in performing
necessary work, inspections, and tests is the cornerstone of the self-certification system. Because
the process allows the licensees to carry out safety-sensitive inspections and tests with limited
Department review, the Department must be able to rely on licensees to be careful and honest in
their dealings with the agency. See Trombettas, OATH 2325/15 at 47 (“[t]he self-certification
process relies upon the master plumber’s knowledge of the relevant laws and care in performing
plumbing work and necessary inspections and tests.”); Pettit, OATH 190/02 at 22 (“[t]he self-
certification process relies on the integrity of professionals.”).
Respondent offered little by way of mitigation. He was repeatedly careless or
incompetent in conducting his duties and often blamed others. Troublingly, he seemed
unconcerned about his responsibilities as a licensee, minimizing the importance of submitting
required documents and proof of required inspections as part of his efforts to obtain permission
for gas authorization and plumbing signoff on his projects. His use of PVC on piping when he
knew that the Code expressly forbids its use is particularly egregious. Similarly, respondent’s
self-certification of inspections when he observed prohibited materials in use is of grave concern.
In addition, respondent’s negligence in performing his duties as a construction superintendent
jeopardized members of the public who were left without access to a functioning fire escape.
This tribunal has consistently held that license revocation is appropriate for similar
misconduct. See, Harvey, OATH 214/17 at 17-18 (revocation of respondent’s master plumber
and fire suppression piping contractor’s license recommended where respondent was negligent,
incompetent, and lacked knowledge of or disregarded applicable laws and rules on nine
occasions and made false or misleading statements to DOB on at least one occasion);
Trombettas, OATH 2325/15 at 47-48 (revocation of master plumber license recommended where
respondent was negligent, incompetent, or unfamiliar with applicable laws on multiple
occasions, made false or misleading statements in documents submitted to the Department, and
endangered public safety); Dep’t of Buildings v. Ward, OATH Index No. 1746/11 at 19-20 (Sept.
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1, 2011), adopted, Comm’r Dec. (Sept. 13, 2011), modified, 111 A.D. 3d 498 (1st Dep’t 2013),
rev’d, 23 N.Y.3d 1046 (2014) (single instance of “covering” by a licensed master plumber was a
sufficiently egregious violation of the Department’s trust to warrant revocation when the
plumber obtained a license for plumbing work knowing that neither she nor someone in her
direct employ would be performing work). Accordingly, respondent’s master plumber license
and construction superintendent registration should be revoked.
Petitioner also seeks revocation of respondent’s fire suppression piping contractor license
and general contractor registration, in addition to those associated with the proven charges,
asserting that “[t]he enormous amount of substantiated allegations against Respondent warrants
revocation of all four of his licenses and registrations” (Pet. Mem. at 48). In support of its
argument, respondent relies on Harvey, OATH 214/17 at 18, in which this tribunal recommended
revocation of Harvey’s master plumber and fire suppression contractor licenses although he had
been charged only with misconduct relating to his master plumber license (Pet. Mem. at 50). In
Harvey, the respondent was found to have been negligent, incompetent, and lack knowledge of
or disregard applicable laws and rules by permitting unlicensed non-employees to perform
plumbing work on two occasions, requesting plumbing signoffs without performing required
inspections on five occasions, and performing or allowing employees to perform work without a
permit on two occasions. He was also found to have made false or misleading statements to the
Department at least once. Judge Casey reasoned that revocation of all of Harvey’s licenses was
appropriate because the proven misconduct established that the Department could no longer trust
him to fulfill the duties relating to his licenses. This is consistent with the section 28-401.19 of
the Building Code, which grants the Commissioner the authority to revoke a license or
registration for enumerated misconduct, without requiring that the misconduct have been
committed under the license or registration for which the Department seeks revocation.
Although respondent has held his various licenses and registrations for between five and
20 years, petitioner established that he was negligent, incompetent or disregarded applicable laws
and regulations in 14 instances, including rejection of 52 percent of his gas authorization
requests and nearly 39 percent of his plumbing signoff requests during a two-year period. In
addition, respondent falsely certified plumbing work when he knew that it did not comply with
the relevant law. The magnitude and volume of the proven misconduct gravely undermines the
trust that the Department places in respondent to fulfill his duties with care and to be honest in
statements filed with the Department.
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Accordingly, I recommend revocation of respondent’s licenses and registrations.