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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For the reasons set forth below, I find that petitioner proved most of the charges and

recommend revocation of respondent’s licenses and registrations.

ANALYSIS

Background

Respondent has been a licensed master plumber and licensed fire suppression contractor

for over 20 years. He is president of Precision Plumbing Services, Inc. (“Precision Plumbing”),

which employs over 20 people and is engaged in plumbing and fire suppression work. In his

capacity as a licensed fire suppression contractor, he designs and installs fire suppression

systems that include sprinklers and stand pipes. In addition, respondent is registered with the

Department as a general contractor and as such is permitted to design and erect buildings

consistent with the Construction Codes (“Codes”). He is also registered as a construction

superintendent, in which capacity he is responsible for ensuring safety on construction sites (Tr.

615-16, 707; ALJ Ex. 2). Respondent has been a registered general contractor for over seven

years and a construction superintendent for over five years (Tr. 708, 772).

In addition to serving as president of Precision Plumbing, respondent is vice-president of

MPI Plumbing Corporation (“MPI Plumbing”), a company engaged in plumbing work that

employs over 100 people and is associated with respondent’s master plumber license. He is also

vice-president of Hydro Tech Mechanical Corporation (“Hydro Tech”), which does plumbing

and sprinkler work. Precision Plumbing and Hydro Tech are associated with respondent’s fire

suppression license, and his general contractor registration is associated with Precision Plumbing

(Tr. 617-18, 707-08; ALJ Ex. 2).

Petitioner alleges that on multiple occasions, respondent displayed negligence,

incompetence, lack of knowledge or disregard of applicable laws and regulations, in that he

performed work that was outside the scope of design drawings and plans, had non-employees

perform plumbing work, used prohibited materials, failed to appear for gas tests that he

scheduled, failed to obtain required permits after he performed emergency work, did not perform

his duties as a construction superintendent, and had over 52 percent of his gas authorization and

38 percent of his plumbing signoff requests denied by the Department. Petitioner also charged

that respondent filed documentation with the Department that contained materially false or

misleading statements and that he failed to cooperate with its investigation.

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Charge I: Negligence, Incompetence, Lack of Knowledge or Disregard of Applicable Laws

and Regulations

Petitioner bears the burden of establishing the charges by a preponderance of the credible

evidence, which is “the burden of persuading the triers of fact that the existence of [a] fact is

more probable than its non-existence.” Prince, Richardson on Evidence § 3-206 (Lexis 2008)

(citations omitted); see also Bazemore v. Friday, 478 U.S. 385, 400-01 (1986); Dep’t of

Buildings v. Trombettas, OATH Index No. 2325/15 at 5 (Jan. 29, 2016), adopted, Comm’r Dec.

(Feb. 11, 2016). Petitioner met its burden as to many, but not all, of the charges.

To satisfy its burden as to allegations of negligence, incompetence, or lack of knowledge

of applicable laws, petitioner must prove that respondent failed to display the competence and

accuracy that average design professionals would exercise. Dep’t of Buildings v. Masucci,

OATH Index No. 2469/16 at 3-4 (May 9, 2017), adopted, Comm’r Dec. (May 24, 2017); Dep’t

of Buildings v. Ali, OATH Index No. 2751/15 at 13 (Mar. 16, 2016), modified on penalty,

Comm’r Dec. (Mar. 21, 2016); Dep’t of Buildings v. Fernando, OATH Index No. 2423/10 at 3

(Sept. 9, 2010), adopted, Comm’r Dec. (Sept. 14, 2010). “Negligence, incompetence, or

unfamiliarity with the law and rules can be proved by presenting unrebutted evidence or by

showing errors that are so glaringly obvious that no reasonable professional would commit

them.” Masucci, OATH 2469/16 at 4. See also Dep’t of Buildings v. Harvey, OATH Index No.

214/17 at 3 (Nov. 29, 2017), adopted, Comm’r Dec. (Nov. 30, 2017), aff’d, 2020 N.Y. App. Div.

LEXIS 937 (1st Dep’t Feb. 6, 2020) (“Negligence, incompetence, or lack of knowledge of laws

and regulations can be shown by repeated, similar, and serious errors or errors that are so

obvious that no reasonable professional would commit them”); Dep’t of Buildings v. Velasquez,

OATH Index No. 1557/10 at 10-11 (Nov. 24, 2010), modified on penalty, Comm’r Dec. (Dec. 2,

2010) (“obvious errors” constitute a failure to exercise a professional standard of care).

Professional negligence, incompetence, or lack of knowledge of the laws and rules can

also be established with credible testimony regarding the expected standard of care for design

professionals. See, e.g., Fernando, OATH 2423/10 at 6 (evidence established that engineer did

not exercise professional standard of care and showed unfamiliarity with fire and safety

standards, where plan examiner testified that she had worked with numerous design

professionals and respondent displayed an unusual “lack of interest,” did not talk during

meetings, and referred all questions to a filing representative who was not an architect or

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engineer); Dep’t of Buildings v. Fekete, OATH Index Nos. 1118/07 & 1119/07 at 9-12, 19 (Oct.

26, 2007), modified on penalty, Comm’r Dec. (Jan 15, 2008), modified sub nom. St. Clair Nation

v. City of New York, 60 A.D.3d 468 (1st Dep’t 2009), rev’d, 14 N.Y.3d 452 (2010) (engineer

who submitted suspicious photographs that had been altered by another party without carefully

reviewing the photographs and detecting flaws failed to exercise professional standard of care;

petitioner presented credible testimony regarding engineer’s professional code and need for site

visits).

Work Outside Scope of Approved Construction Documents

Petitioner alleged that respondent performed plumbing work that was not reflected in the

scope of work on design plans and drawings that the Department had approved and the permit it

had issued, in violation of Administrative Code section 28-105.12.2. That section provides that

“[a]ll work shall conform to the approved construction and submittal documents, and any

approved amendments thereto. Changes and revisions during the course of construction shall

conform to the amendment requirements of this code.” Admin. Code § 28-105.12.2 (Lexis

2020). The Department argues that respondent’s conduct constitutes negligence, incompetence,

or a lack of knowledge of or disregard of applicable laws (ALJ Ex. 1).

940 Flushing Avenue, Brooklyn (Charge 1, Specification 1)

Petitioner alleged that on or about August 22, 2017, its investigators observed plumbing

work being performed at 940 Flushing Avenue, Brooklyn, that was outside the scope of work

specified in approved construction documents and plans that had been submitted to the

Department and outside the scope of work under the plumbing permit that had been issued to

respondent.

On August 10, 2017, respondent was issued a permit to legalize plumbing work that had

been performed in 1997, thereby removing violations that had been issued by the Environmental

Control Board (“ECB”), and to install new bathrooms in an existing commercial space on the

first floor. A Schedule B is a form prepared by the design professional and submitted to the

Department to indicate the type of piping and fixtures to be installed under a permit (Tr. 404,

514, 710-11).

Charles Cooper, a confidential investigator in the Department’s Buildings Special

Investigations Unit and Dale Barbieri, a Plumbing Inspector in the Plumbing Enforcement Unit,

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conducted an inspection at 940 Flushing Avenue in August 2017. Cooper testified that the

Special Investigations Unit investigates complaints from the public or referrals from within the

Department relating to any license issued by DOB. Cooper’s work involves casework and spot

checks, as well as responding to accidents that may involve licensees (Tr. 161-62). A spot check

means that the investigator reports to a jobsite where the licensee has filed a job and reviews

onsite practices at the location. In late spring 2017, after the Department received a complaint

about plumbing work performed by respondent, Cooper was assigned to investigate work done

under respondent’s plumbing and fire suppression licenses (Tr. 163-65). Barbieri accompanied

Cooper on the inspection because, as a plumbing inspector, Barbieri is more knowledgeable

about plumbing and the Department requires that a senior investigator accompany Cooper on

such inspections (Tr. 173, 175).

Barbieri has been a plumbing inspector for over three years and worked in the plumbing

field for about ten years before he became a plumbing inspector. His role at the spot check

inspections was to identify work that was being performed according to the permit and make

sure that the work was performed correctly and that it conformed to the applicable laws. The

inspector who he accompanied, Cooper, was responsible for interviewing workers present at the

jobsites (Tr. 400, 496-97).

Barbieri testified that before going to the site, he reviewed the permit information and the

Schedule B for the location. The Schedule B shows that residential gas stoves were to be

installed from the second through fourth floors of the mixed use building, gas piping from the

cellar through the fourth floor of the building, as well as toilets, wash basins, and sanitary piping

from the first through fourth floors. A number of other permits, dating back to 1998, had been

issued for the location, but the only active plumbing permit at the time of the inspection had been

issued to respondent (Tr. 403-406, 408, 410-12; Pet. Exs. 55, 56, 57).

When Barbieri and Cooper arrived at the site, they went into the first floor commercial

establishment and reviewed the design professional’s plans for work at the site, which conflicted

with the schedule B. The plans showed that plumbing fixtures were already existing on the

second through fourth floors and were to be legalized to remove an ECB violation, which had

been issued in 1997 for plumbing work performed without a permit, including sanitary and water

piping installed on all levels of the building, walls finished, and new fixtures. The plans

indicated that with respect to the second through fourth floors:

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EXISTING PLUMBING FIXTURES

NO WORK TO BE DONE

TO BE LEGALIZED & REMOVE ECB VIOL

(Pet. Ex. 58). The plans showed that new plumbing fixtures were to be installed only on the first

floor of the site (Tr. 403, 406-08, 410-12, 423, 465; Pet. Exs. 57, 58).

After reviewing the plans, Barbieri inspected the building, which had two apartments on

each of the residential floors, each with one bathroom. Barbieri testified that he observed

plumbing work, such as new sanitary piping, new water piping, a new bathtub, rough-in for a

toilet and a sink, being performed under the permit in a second floor apartment (Tr. 404, 412-13,

418-20, 467-68; Pet. Ex. 15). Cooper took a photograph showing pipes in an open wall in a

second floor apartment at the location to depict the type of work that he observed being

performed (Tr. 174, 207-09, 420; Pet. Ex. 15). According to Barbieri, the photograph is

consistent with his observations as it shows new piping, a bathtub that was still in the box, and

the rough-in piping that was intended to be hooked up to a sink, toilet, and bathtub (Tr. 414-15;

Pet. Exs. 15, 58). Barbieri determined that the work was new because the water valves were not

installed, there was a new shower body, new tile stops, and the tub had not yet been removed

from the box (Tr. 415-17).

Barbieri also noted that the piping and couplings, which connect the pipes, appeared

shiny and new (Tr. 414, 417-18). According to Barbieri, he observed the same type of work on

the second through fourth floors of the building (Tr. 420). Barbieri concluded that the work he

observed, installation of new bathroom piping and fixtures on the second through fourth floors,

was inconsistent with the filed design plans, which showed that new plumbing fixtures were to

be installed only on the first floor (Tr. 408-09, 420-23, 493; Pet. Exs. 15, 58).

Barbieri testified that legalization of work performed without a permit does not entail any

new plumbing work. Instead, it requires ensuring that work performed without a permit

complies with applicable codes, rules, and regulations (Tr. 465, 494-96).

Shawn Jones has been Chief of Plumbing Enforcement for over eight years and oversees

the day-to-day operations of the unit (Tr. 508). Consistent with Barbieri’s testimony, Jones

testified that legalization does not require that the plumber perform new work, but instead

requires that the plumber establish that work already performed without a permit is code-

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compliant, notifies the Department of the work, and gets the Department to approve the work

(Tr. 534-35).

Barbieri testified that the second page of the Schedule B shows two sets of new bathroom

fixtures and piping for each floor of the building, which is not indicated on the approved plans

(Tr. 421-22; Pet. Ex. 58). While the design professional is responsible for creating the plans and

Schedule B, he explained, it is the licensed master plumber’s responsibility to resolve

discrepancies between the plans and the Schedule B (Tr. 423). Following the inspection,

Barbieri issued a summons to Precision Plumbing based on his observations of work on a new

bathroom being installed in an apartment when the approved design plans depict only an existing

bathroom and do not show new fixtures to be installed (Tr. 422-23; Pet. Ex. 59).

Respondent offered no compelling defense to the charge that he performed work outside

the scope of that reflected on the approved plans. He testified that he reviewed the Schedule B,

and believes that he also reviewed the design plans before he started work at the location (Tr.

710-12). Respondent described the design plans as “an actual blueprint of how the work should

unfold,” and the Schedule B as “outlin[ing] the specific fixtures” (Tr. 712). The plumbing

permit he obtained for the job describes the work as legalization work to remove two violations

and install new bathrooms in existing commercial space, specifying that the new bathrooms were

to be installed “as per plans submitted” (Tr. 620-21, 624; Resp. Ex. B). According to

respondent, the Schedule B, together with the plan work application (“PW1”) filed by the design

professional, and the design plans and the permit, provided the guidance he needed to work at the

location (Tr. 625, 664).

Respondent’s argument appears to be that there was no inconsistency between the plans

and the Schedule B; that to the extent there were inconsistencies, the architect was responsible

for resolving them; and that there was no harm because the work passed an inspection on

September 8, 2017 (Respondent’s Closing Memorandum (“Resp. Mem.”) at 32-33; Tr. 716). His

contentions are unpersuasive.

Respondent acknowledged that the plans show that new plumbing fixtures were to be

installed on the first floor, not on the second through fourth floors of the building. The Schedule

B, however, shows that new fixtures were planned for the second through fourth floors (Tr. 719-

20, 722; Pet. Exs. 56, 58). Yet, respondent testified that he did not know whether the Schedule B

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conflicts with the design plans (Tr. 716-20, 722). Respondent’s testimony is incredible as the

design plans did not reflect new fixtures on the second through fourth floors.

Respondent also testified that he conferred with the architect regarding the plans and the

permit to confirm that he was complying with both, as if to suggest that doing so relieved him of

responsibility for performing work that was not reflected on the plans (Tr. 621; Resp. Mem. at

33). However, Barbieri and Jones knowledgeably testified that the master plumber bears the

responsibility for ensuring that his work is consistent with the plans that are filed with the

Department (Tr. 423, 514-16). According to Jones, master plumbers are responsible for knowing

the information included in the Schedule B so they can alert the design professionals if there are

differences among the design professional’s plans, the Schedule B, and the work that is being

performed on the site. He further testified that the Schedule B is not a tool for the master

plumber to use while performing work. Instead, the Department looks at the Schedule B when

reviewing gas authorization or sign off requests to determine if all necessary inspections were

performed. According to Jones, performing work not reflected on the plans, even if that work is

indicated on the Schedule B, can cause problems because the Schedule B indicates how many of

each fixtures or appliances are being installed at a particular jobsite, but does not give the exact

location where the fixtures are to be installed. This information is supposed to be reflected on

the plans (Tr. 514-16).

Similarly unpersuasive is respondent’s testimony that a water sanitary rough inspection

of the sewage and water piping for the plumbing system was performed on September 8, 2017,

after the spot inspection, resulting in a “pass” (Tr. 626; Resp. Ex. C; Resp. Mem. at 32). That

respondent’s work passed the rough inspection is no defense to the charge that his installation of

new bathroom pipes and fixtures on the second through fourth floors at the location exceeded the

scope of the design plans.

In sum, petitioner established that the design plans filed with the Department for work at

940 Flushing Avenue, Brooklyn, indicated that new fixtures were to be installed only on the first

floor, with legalization of plumbing work in the bathrooms on floors two through four that did

not involve installation of new fixtures. In contrast, the Schedule B indicated new fixtures were

to be installed in each bathroom on the second through fourth floors. Respondent obtained a

permit to legalize existing plumbing work that was performed without a permit and to install a

new bathroom on the first floor based on the approved plans, but he instead installed new

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plumbing fixtures and piping on all floors of the premises. This work is beyond what was set

forth in the design plans and permit. Respondent’s failure to adhere to the work specified in the

construction documents violates section 28-105.12.2 and constitutes negligence, incompetence,

disregard for or lack of knowledge of applicable laws. Accordingly, charge 1, specification 1

should be sustained

Non-employees Engaged in Plumbing Work

The Administrative Code requires that all plumbing or gas piping work in New York City

be performed by a licensed a master plumber or an individual working “under the direct and

continuing supervision” of a licensed master plumber and that the persons actually performing

such work be “in the direct employ” of a licensed master plumber business. Admin. Code §§ 28-

408.1, 28-408.6(2), (4). Similar requirements apply to individuals who perform fire suppression

piping work. See Admin. Code §§ 28-410.1, 28-410.8. “Direct and continuing supervision” is

defined, in part, as control exercised “by a [licensee] either personally or through one or more,

but no more than three, levels of competent supervision over individuals performing the actual

work . . . who are in the direct employ of an individual who is a licensee” or, where the licensee

uses his license on behalf of a business, is in the direct employ of such business, provided it is

disclosed to the Department. Admin. Code § 28-401.3. Further, the Code provides that an

individual is in the “direct employ” of a licensee or business when he or she is on the payroll and

has the status of an employee, as “evidenced by payroll records, such as social security

payments, income tax withholding or the disbursement of other funds as required by law for the

benefit of such employee, timekeeping records, such as time cards and sign-in sheets, work

orders, and assignment or route logs.” Id.

Petitioner alleges that in five instances, respondent violated these provisions by having

individuals who were not under respondent’s direct supervision or in his direct employ perform

plumbing work under permits that were issued to respondent.

Cooper testified that as part of his investigation, he obtained 2016 and 2017 W-2s and

quarterly payroll records for Hydro Tech. He took the names of the Hydro Tech employees

found in the records and created an Excel spreadsheet that he used to check employees that he

encountered during the site visits (Tr. 169-70; Pet. Ex. 14). Cooper also received 2017 W-2

documents from Precision Plumbing, as well as 2017 payroll records for an entity called

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Precision Plumbing & Services, an entity with a different federal employer identification number

from Precision Plumbing. Precision Plumbing & Services, respondent’s payroll processing

company, is not associated with respondent’s licenses (Tr. 172-73; Pt. Exs. 12, 13). In the course

of inspections at five jobsites for which respondent had obtained plumbing permits, DOB

inspectors encountered workers that it contends performed plumbing work but were not included

as employees in the payroll records obtained from respondent.

1159 St. John’s Place, Brooklyn (Charge 1, Specification 2)

On August 16, 2017, the Department issued a permit to respondent and Precision

Plumbing to perform plumbing work at 1159 St. John’s Place, Brooklyn, (Pet. Ex. 61). In

August 2017, Barbieri and Cooper performed a spot check. According to Cooper, they

encountered workers who stated that they worked for Simon Piping and Heating and wore T-

shirts bearing that company’s name (Tr. 175-77; Pet. Ex. 16). The workers Cooper interviewed

stated that they were working for respondent and “Roy,” but Cooper did not know who “Roy”

was (Tr. 178). Cooper testified that he also spoke to the supervisor at the jobsite, whose name

was Leroy Patterson, but did not provide details as to the content of their discussion (Tr. 216).

Cooper testified that the workers were “performing plumbing work” and “touching the pipes,”

but denied knowledge as to the specific nature of the work, deferring to the Barbieri’s expertise

as the plumbing inspector (Tr. 178-79, 215).

Barbieri testified that before visiting the jobsite, he reviewed the permits in process and

the Schedule B, which show that respondent, under the auspices of Precision Plumbing, obtained

a permit for interior renovation of an existing four-story multiple dwelling. The work involved

sanitary and water piping from the cellar to the fourth floor, installation of bathtubs, sinks,

dishwashers, gas stoves, and toilets from the first to fourth floors, washing machines and gas

dryers in the cellar, gas piping from the cellar to the fourth floor, and two gas meters in the cellar

(Tr. 425, 427, Pet. Exs. 61, 62).

During the inspection, Barbieri observed four or five workers installing sanitary piping in

the cellar. Specifically, he saw workers tightening couplings on new sanitary piping and using

tools that included a wrench, chain cutter, and hangers (Tr. 427-29, 469-71, 500). A photograph

that Barbieri took in the cellar of the premises shows an individual wearing a hardhat near a

ladder and what Barbieri stated was sanitary piping over his head. Barbieri concluded that the

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piping shown in the photograph was new based on the shiny appearance of the couplings on the

pipe and the hangers used to hold the pipes in place (Tr. 497-99; Pet. Ex. 16 at 2).

Cooper obtained the names of the workers during the inspection. After a review of the

Department’s records, Cooper determined that Simon Piping and Heating is not licensed by

DOB, nor is it associated with any of respondent’s licenses (Tr. 179-80). He also determined

that none of the workers encountered at the site, whose names he compared to names on

respondent’s payroll records, are employed by respondent (Tr. 180). None of the employees’

names were submitted into evidence.

Respondent denied that anyone other than Precision Plumbing employees installed

plumbing piping or fixtures at the location. He testified that there were other contractors on the

job and maintained that he is unfamiliar with Simon Piping and Heating, its employees, or its

principals or representatives. Precision Plumbing’s work in the cellar, respondent testified,

involved running water sanitary piping, specifically drainage for the toilets, sinks, and other

fixtures. He could not recall where in the cellar the piping was located, but acknowledged that

some of it might have been installed on the ceiling. When shown a photograph of pipes running

along the ceiling taken during the inspection, respondent could not recall where in the cellar they

were located. He agreed, however, that the piping shown along the ceiling in photographs taken

during the inspection is the same type of piping that Precision Plumbing was hired to install and

that the only active plumbing permit in August 2017 was issued to his company (Tr. 628-29,

725-26, 727-28; Pet. Ex. 16).

Respondent maintained that there is no specific evidence to establish that Barbieri and

Cooper observed plumbing work being performed during their inspection (Resp. Mem. at 5-7).

Respondent is mistaken.

The Code defines “Plumbing work” as

The installation, maintenance, repair, modification, extension or

alteration of plumbing, standpipe where a sprinkler is not

connected or is not now being connected, domestic water,

connections to the domestic water, combination domestic water

and reserve standpipe supply tank up to and including the roof tank

check valve, gas piping or any piping system referred to in the

New York city plumbing code, and/or up to thirty sprinkler heads

off the domestic water in any building in the city of New York.

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Admin. Code § 28-401.3. Barbieri testified that he observed installation of sanitary piping in the

cellar at the location, which falls within this definition.

Respondent contends that Barbieri’s testimony should not be believed because he also

testified that the individuals stopped working when the inspectors arrived so his photographs did

not capture them actually engaged in the work he observed. However, Barbieri credibly testified

that it is not unusual for workers to become nervous and reluctant to be photographed when he

arrives at a site for inspection (Tr. 502). It makes sense that workers who are subject to

unannounced Department inspections that may result in the imposition of fines or other penalties

would cease working when inspectors arrive. Moreover, the photographs that were taken during

the inspection are consistent with Barbieri’s testimony as to his observations regarding plumbing

work at the location.

Although petitioner established that plumbing work was performed at the location under

respondent’s permit, it failed to establish that the workers who performed that work were not on

respondent’s payroll. Cooper testified that he obtained the names of the workers at the site,

memorialized those names in a memorandum following the site visit, compared the workers’

names to those on respondent’s payroll records, and determined that none of the workers are

respondent’s employees (Tr. 180). However, the names of those workers were not submitted

into evidence. Instead, petitioner relies on Cooper’s testimony that he obtained the worker’s

names and determined they were not on respondent’s payroll. However, critical to this charge is

evidence that the workers were observed doing plumbing work under respondent’s license were

not in respondent’s employ. Petitioner cannot meet its burden of proof through conclusory and

unsupported testimony that its investigator reached the very conclusion that it is asking this

tribunal to reach.

In sum, petitioner failed to prove that workers who performed plumbing work under a

permit issued to respondent were not in his direct employ. Charge 1, specification 2 should be

dismissed.

336 Flatbush Avenue, Brooklyn (Charge 1, Specification 4)1

Cooper, Barbieri, and another Department inspector conducted a spot check inspection at

336 Flatbush Avenue, Brooklyn, in August 2017 (Tr. 183, 430, 475-76). Cooper testified that he

1 In the course of the trial, petitioner withdrew charges 1 and 2, specifications 3, 6 and 16, as well as charge 3,

specification 1 (Tr. 5, 363).

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observed workers working on bathroom installations on the fifth floor of the building (Tr. 182).

He spoke with three workers, Andrui Gomez, Silvestre Hogan, and Jeifre Beltre, who identified

themselves as Precision Plumbing employees. He took photographs of the identification they

produced and of the worksite (Tr. 183-86; Pet. Ex. 17). According to Cooper, the workers’

clothing was labeled Precision Plumbing and they readily acknowledged that they worked for

that entity (Tr. 186; Pet. Ex. 17). Cooper determined that the workers at the site were not

included as respondent’s employees in the documents respondent provided (Tr. 186, 218; Pet.

Ex. 12).

According to Barbieri, before the inspection, he reviewed the permits issued for work at

the site and noted that three permits had been issued to respondent. Two of the permits allowed

respondent to renovate six existing apartments on the third through fifth floors, including new

plumbing fixtures. The third permit was for renovations to commercial space and to existing

apartments on the second floor, including new plumbing fixtures (Tr. 431-32; Pet. Ex. 63).

When he arrived at the site, Barbieri observed workers in the apartments, which were vacant,

performing plumbing work such as installing new shower fixtures (Tr. 433-34).

One of the photos taken at the site shows a hat labeled “Precision Plumbing,” a faucet

and sink, as well as copper piping and a tube of silicone on what appears to be a counter.

Another photograph shows a worker carrying what Barbieri described as a tube of pipe sealant as

he walked out of the bathroom where work was being performed. Barbieri testified that he saw

that worker installing shower fixtures, including tub spouts, shower heads, and piping in the wall.

Another photograph shows an area where a kitchen sink is to be installed, including the waste

piping, dishwasher line, a trap, and valves. Although a worker’s hand is shown in the

photograph, Barbieri conceded that he is not shown doing any work. The last photograph shows

piping located behind the kitchen sink (Tr. 478-82, 501; Pet. Ex. 17).

Respondent stated that Beltre, Gomez, and Hogan were employees of Precision Plumbing

while the firm worked at the location and that they typically perform plumbing work such as

installing toilets and sinks, and doing rough plumbing. He insisted that W-2 wage and tax

statements show that they were employed by Precision Plumbing during the time they worked at

the location (Tr. 630-32, 730-32; Resp. Ex. G; Resp. Mem. at 10). Respondent is mistaken.

Precision Plumbing is associated with respondent’s plumbing license and is listed as

respondent’s business for purposes of the work permit (Pet. Ex. 63; Resp. Ex. F). However, the

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2017 W-2 forms for Gomez, Hogan, and Beltre that respondent submitted into evidence identify

their employer as “Precision Plumbing & Services” (Resp. Ex. G). As respondent

acknowledged, these entities are not the same. Respondent explained that Precision Plumbing &

Services is a company he uses to administer Precision Plumbing’s payroll. Precision Plumbing

& Services is not engaged in any plumbing, fire suppression, or general contracting work and is

not associated with respondent’s licenses (Tr. 632-34, 732-33; Resp. Ex. G). The evidence

further shows that Gomez, Hogan, and Beltre were not Precision Plumbing employees in 2017

(Pet. Ex. 12)

The Code requires that entities conducting a plumbing contract business be a “master

plumber business” so that at least 51 percent of the control and voting stock of the plumbing

contracting business is owned by a licensed master plumber, all plumbing and gas work

performed by the plumbing contracting business is performed by or under the direct and

continuing supervision of a licensed master plumber, and the persons performing such work are

in the direct employ of the master plumber business. Admin. Code § 28-408.6. Thus, workers

who perform plumbing or gas work must be in the direct employ, meaning “on the payroll . . .

and . . . has the status of an employee” of the plumbing contracting business. Admin. Code § 28-

401.3. Here, the evidence establishes that the workers at the jobsite were on the payroll of

Precision Plumbing & Services, a payroll processing business.

Respondent testified that not every employee who worked on projects under permits

issued to Precision Plumbing in 2017 was on the payroll for Precision Plumbing & Services,

undermining his contention that Precision Plumbing & Services was merely a payroll company

for Precision Plumbing workers (Tr. 734-35). Although it is unclear from this record the precise

nature of the relationship between the two entities, what is evident is that the workers were not in

the direct employ of Precision Plumbing, which is the plumbing contracting business.

Respondent argued that even if the workers are found not to have been in the direct

employ of Precision Plumbing, petitioner failed to establish that they were engaged in plumbing

work. That is not the case. Respondent admitted that Beltre, Hogan, and Gomez had been doing

plumbing work, such as installing toilets and sinks, and doing rough plumbing, at the location

(Tr. 630-32, 730-32). Barbieri and Cooper credibly testified that they observed workers

installing bathroom fixtures in an apartment at the location. Barbieri specifically recalled

observing Gomez, who was photographed carrying pipe sealant in an apartment at the location,

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installing a tub spout, shower head, and piping in the wall of the bathroom (Tr. 182, 478-82).

See Harvey, OATH 214/17 at 6 (investigator’s eyewitness testimony, worker’s admissions, and

photographic evidence established that worker performed unlicensed and unsupervised plumbing

work).

Accordingly, petitioner established that respondent had workers who were not in his

direct employ perform plumbing work under a permit issued to him as alleged in charge 1,

specification 4. As the licensee to whom the plumbing permit was issued, respondent was

responsible for performing the plumbing work himself or ensuring that the workers who

performed the work were under his direct employ through his plumbing contracting business.

His failure to adhere to these requirements constitutes negligence, incompetence, or lack of

knowledge or disregard of applicable laws and charge 1, specification 4 should be sustained.

320 Macon Street, Brooklyn (Charge 1, Specification 5)

Cooper, Barbieri, and a senior investigator conducted a spot check inspection at this

location in August 2017 or September 2017. Before visiting the site, Barbieri determined that

the only active work permit had been issued to respondent. The Schedule B for the job indicated

that respondent’s work involved relocating a toilet and sink and installing gas fired equipment in

the first floor commercial space of the mixed-use building (Tr. 186, 435-36; Pet. Ex. 65).

Cooper testified that during the inspection he observed ongoing interior renovation and

plumbing work at the site (Tr. 186-87). He spoke with a worker, who identified himself as

Reyes Oider. Oider told Cooper he worked for Compost Construction, an entity that Cooper

determined is not licensed by the Department and is not associated with any of respondent’s

licenses (Tr. 188-89). Cooper described Oider as forthright in his statements, including that he

was performing bathroom plumbing work at the site for Compost Construction (Tr. 188).

Cooper took a photograph of Oider demonstrating for the inspectors the type of work he was

performing and the piping he was using for the bathroom plumbing work (Tr. 188-89, 218-20;

Pet. Ex. 18). He also took photographs that show open walls with wooden beams and electrical

work at the jobsite (Tr. 197; Pet. Ex. 18).

Barbieri’s testimony regarding his observations at the site was equivocal and unhelpful.

He initially testified that he saw a bathroom that was being renovated, and “plumbing work . . .

like, toilets, bathroom. There was a bathroom that was being renovated” (Tr. 439). However, he

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acknowledged that he did not see workers actually working on the bathroom and subsequently

testified that he “didn’t see anybody doing any plumbing work” at the location (Tr. 439, 485).

Respondent testified that Precision Plumbing contracted to convert a store to an eating

and drinking establishment. He denied knowing of Compost Construction or its employees and

denied that Precision Plumbing contracted with Compost Construction to do work under

respondent’s permit. According to respondent, other contractors worked at the location

performing construction work, but he could not recall the names of the other entities.

Respondent denied that Precision Plumbing hired any laborers to perform work at the location,

but provided no details regarding the work that Precision Plumbing’s workers performed at the

location under his permit (Tr. 634-36, 736-37; Pet. Ex. H).

Petitioner bears the burden of proof, which it failed to satisfy. Although it is undisputed

that Oider is not on respondent’s payroll, neither inspector testified to observing plumbing work

in progress during their inspection. Thus, other than Cooper’s testimony that Oider stated he was

performing plumbing work for Compost Construction, the record is devoid of evidence that

plumbing work was being performed at the location. The photograph of Oider holding a pipe

over a bucket was not given any weight as proof that Cooper and Barbieri observed him doing

plumbing work at the site. This is because their testimony indicated that the photograph captured

a demonstration, staged at their behest, of the type of work that Oider performed at the location.

Further, as the plumbing inspector with expertise regarding whether plumbing work was being

performed, Barbieri vacillated as to whether he actually observed plumbing work at the location.

Moreover, petitioner offered no contemporaneous memoranda of the inspection.

Accordingly, petitioner failed to meet its burden and charge 1, specification 5 should be

dismissed

1472 Ogden Avenue, Bronx (Charge 1, Specification 7)

In August 2017, Cooper, Barbieri, and a senior investigator conducted a spot check at

1472 Ogden Avenue, Bronx, where respondent had an active work permit for interior alteration

of a restaurant, including addition of a bathroom in the cellar. The Schedule B indicated that the

work would involve water piping, and installation of sinks, toilets, and urinals, including six

toilets in the cellar (Tr. 189, 192; Pet. Ex. 68).

During his visit to the site, Cooper spoke with a worker named Yessell Cajina, who

identified himself as an employee of Precision Plumbing. According to Cooper, Cajina stated he

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was “conducting plumbing work” at the site, but not gas work (Tr. 191). Cooper took a

photograph of the Cajina’s identification, as well as a photograph to demonstrate the kind of

work that was being performed at the location (Tr. 190-92, 223; Pet. Ex. 19). That photograph

shows sanitary and water piping in the cellar, which Barbieri testified appeared intended for use

with toilets and was consistent with the work described on the Schedule B. Cajina was not listed

as an employee on Precision Plumbing’s payroll and tax records (Tr. 442-44, 487; Pet. Exs. 19,

28).

Barbieri testified that respondent had the only active plumbing permit issued for the site

at the time of the inspection (Tr. 440; Pet. Ex. 67). When he arrived at the site, Barbieri did not

see Cajina or other workers actively performing plumbing work (Tr. 441, 487-88, 501).

However, he concluded that ongoing plumbing work was being performed in the cellar because

no fixtures were attached to the piping, indicating that the plumbing work was incomplete (Tr.

442-43, 487, 501; Pet. Ex. 19). Similarly, Cooper did not recall seeing Cajina do any work while

he was at the site (Tr. 223-24).

Respondent acknowledged that the work depicted in the photograph of work in the cellar

bathroom reflects work performed by Precision Plumbing (Tr. 739). He testified that the owner

of a restaurant at the location hired Precision Plumbing to do work on a bathroom in the cellar

and he obtained a plumbing permit (Tr. 637, 738; Resp. Ex. I). Other contractors were

performing work at the premises, which is a residential and commercial use building. Precision

Plumbing had about four employees at the location, but the number decreased as the job

progressed (Tr. 637-38). Respondent denied knowing Cajina, and insisted that Cajina did not

perform plumbing work for Precision Plumbing at the jobsite (Tr. 638-39, 740; Resp. Ex. J).

Petitioner failed to establish that unlicensed workers who were not in respondent’s direct

employ performed plumbing work at the location. Neither Cooper nor Barbieri observed Cajina

or any workers engaged in plumbing work during their inspection. Although Cooper testified

that Cajina told him that he performed “plumbing work” for Precision Plumbing at the site, this

uncorroborated hearsay was afforded little weight. See Trombettas, OATH 2325/15 at 9

(statements made to inspector at inspection amounted to multiple hearsay and were afforded little

weight, especially because they went to a critical issue of whether respondent performed the

work that was the basis of the charges). Given the technical nature of how “plumbing” is defined

in the Code, additional evidence such as specific description of the actual work Cajina

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performed, eyewitness testimony describing plumbing work observed at the site, or photographs

depicting workers engaged in plumbing work, would have made the testimony more reliable.

See Harvey, OATH 214/17 at 6.

Thus, petitioner failed to meet its burden with respect to charge 1, specification 7, which

should be dismissed.

318 Bedford Avenue, Brooklyn (Charge 1, Specification 8)

Cooper and Barbieri conducted a spot check at this location in or about September 2017

(Tr. 192-93). Before the inspection, Barbieri reviewed the open permits report and the Schedule

B for the job. He determined that there was an active sprinkler permit issued to respondent on

August 8, 2017, to install a new sprinkler system throughout the building. That work entailed

installing sprinkler piping, water piping, water service piping, sub-meters, and 28 sprinkler heads

(Tr. 444-46; Pet. Ex. 71; Resp. Ex. K).

According to Cooper, the site was a residential building that was undergoing interior

renovation (Tr. 224). During the inspection he encountered workers from other trades, but no

plumbers were on the site. However, the other workers told him that there was ongoing

plumbing work at the site (Tr. 194). Cooper took a photograph of a sprinkler head at the site, but

acknowledged that he did not see anyone working on it during the inspection (Tr. 225, Pet. Ex.

20).

Cooper asked a worker doing carpentry work, who identified himself as Anthony from

Nikon Restoration Services, to put him in touch with the plumber who was working on the site.

Using his cellphone’s speakerphone, Anthony called someone who identified himself as Ramone

Felic of Precision Plumbing.2 Felic told Cooper that he was from Precision Plumbing and that he

had worked at the site, but had not been working at the site for longer than two months. Felic did

not indicate whether the job had been completed (Tr. 194-95). Cooper determined that Felic’s

name did not appear on the payroll records respondent provided to DOB (Tr. 194-95, 224-27).

Barbieri recalled very few details about the inspection. Although he testified to

observing work in progress at the site, as reflected in a photograph depicting sprinkler piping and

a sprinkler head, Barbieri could not recall if he saw anyone working on the sprinkler head or

sprinkler pipe (Tr. 447, 489; Pet. Ex. 20). He was unfamiliar with the name Felic and could not

2 Cooper did not memorialize Anthony’s full name (Tr. 194).

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recall important details about the inspection, including whether he saw anyone working at the

location (Tr. 490).

Respondent testified that Precision Plumbing installed a new sprinkler system at the

location, but denied knowing Felic and stated that he did not know why Felic would claim to

have worked for Precision Plumbing (Tr. 640, 743-44).

Petitioner failed to meet its burden with respect to this specification. There is no

evidence that the inspectors observed plumbing work at this jobsite. Cooper’s testimony about a

phone call with someone named Felic was unclear and lacked specificity as to the nature of the

work that Felic purportedly performed at the location and when he did that work sufficient to

establish that he performed plumbing work. Accordingly, charge 1, specification 8 should be

dismissed.

Use of Prohibited Materials and False Statements

Petitioner alleges that on two occasions, respondent used prohibited materials in

performing plumbing work and made false statements in documents submitted to DOB relating

to that work.

60-01 Roosevelt Avenue, Queens (Charge 1, Specifications 9 and 10;

Charge 3, Specification 2)

Alessandro Frigolino, an inspector in the Department’s Plumbing Enforcement Unit,

conducted an inspection at 60-01 Roosevelt Avenue, Queens, on October 20, 2017, together with

Cooper and three other DOB investigators. Frigolino’s role was to inspect the work under

review to ensure that it complied with applicable laws and was consistent with the permit (Tr.

239-40).

Before conducting the inspection, Frigolino reviewed the permit and Schedule B for the

job (Tr. 240, 242; Pet. Exs. 22, 23). The documents show that on June 29, 2017, the Department

issued a permit to respondent and Precision Plumbing for gas piping work to install cooking

equipment at the location. That permit was active at the time of the inspection. The Schedule B

shows that the permit allowed respondent to install gas piping running from a gas meter in the

cellar of the building to commercial cooking equipment on the first floor of the premises, a

mixed commercial/residential use building (Tr. 240-44; Pet. Exs. 22, 23). Frigolino noted that

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the job started in 2000 under a permit that had been issued to a different plumber and that the

permit expired in 2001 (Tr. 241; Pet. Ex. 22).

Frigolino described the first floor space that he inspected as a “deli store” (Tr. 244). In

the building’s cellar he observed that “a black bushing fitting” had been used on gas piping,

which he maintained is not Code-compliant (Tr. 245-48; Pet. Ex. 24 at 1). Bushing, which is

used to make piping smaller, is prohibited on gas piping because it does not seal the pipe

completely and increases the risk of a gas leak (Tr. 248-49, 524 ). He determined that gas was

flowing through the piping and was being used in the first floor deli (Tr. 251; Pet. Ex. 24 at 3).

Frigolino testified the gas piping in the cellar was exposed, so he visually traced it from the

meter in the cellar to the first floor deli with assistance from the other inspectors. He concluded

that the work had been performed under the permit issued to respondent because the permit was

for respondent to do gas work from the cellar to the first floor deli, and the condition he observed

at the inspection is consistent with the work described in the permit (Tr. 249-50, 273-74). In

addition, he located a Fire Department Ansul valve letter that linked the deli to the gas work

covered by respondent’s permit (Tr. 250, 270-73).3 However, that letter was not produced.

Frigolino took photographs to show the bushing in use on the gas pipe (Tr. 245-49; Pet Ex. 24 at

1, 6).

Frigolino testified to other violations observed during the inspection. He saw gas piping

that formed a “T” that had been capped, which he described as an impermissible future

connection. He explained that future connections are not permitted on gas piping because

someone can remove the cap from the piping and install gas equipment without it being

inspected or tested (Tr. 252-53; Pet. Ex. 24 at 5). Frigolino noted another future connection, this

time in the cellar, which he described as an “illegal future T open end connection” on gas piping

(Tr. 254; Pet. Ex. 24 at 6). He also saw gas flex hose being used on commercial cooking

equipment on the first floor, which he testified is not permitted because the flex hose can bend or

rip when moved, causing a gas leak (Tr. 252, 254; Pet. Ex. 24 at 4, 7). He determined that the

flex hose was installed under respondent’s permit by tracing the gas piping from the cellar to the

commercial cooking equipment to which the flex hose was attached (Tr. 252). Frigolino issued a

summons to Precision Plumbing after the inspection because the open permit had been issued to

3 An Ansul valve is an emergency fire suppression valve that must be installed when commercial cooking equipment

is used at a location. An Ansul valve letter establishes that the Fire Department approved the fire suppression

system used in a commercial kitchen (Tr. 270, 669-70).

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that entity. The summons alleged that on October 20, 2017, Frigolino observed an illegal future

T connection and black bushing on the cellar floor, an illegal future T connection on the first

floor, and prohibited gas flex connection on commercial cooking on the first floor (Tr. 255; Pet.

Ex. 25).4 The summons was a “Class 1” summons, meaning that the conditions observed were

an immediate hazard because they involved gas, which can be extremely dangerous (Tr. 260-61;

Pet. Ex. 25).

Respondent acknowledged that bushing is not permitted on gas piping and that the

photographs taken during the inspection show that bushing had been used on the piping. He

insisted, however, that he had not worked on that gas piping, noting that he was not the original

plumber on the job, which had been open since 2008 or 2009 (Tr. 642, 749-50). According to

respondent, he assumed responsibility for the job on June 29, 2017, and obtained a permit to

continue work started by another licensee and to “straighten out anything [the prior permit

holder] might have done that’s not correct” (Tr. 742, 746). He described his work as installing

new gas piping for commercial cooking equipment from the cellar to the first floor, but noted

that there was gas piping already existing at the location (Tr. 747). Respondent did not know if

the piping with the bushing reflected work by the prior permit holder, but insisted that he would

not have allowed the condition to remain had he observed it during the self-certified gas

inspection (Tr. 750-51).

As for future connections, respondent admitted one of the photographs taken during the

inspection shows a prohibited future T connection (Tr. 751; Pet. Ex. 24 at 5). He denied that

there was a second future T connection shown in the photographs taken during the inspection,

describing the piping depicted in that photograph a 90 degree pipe, with a valve, that is plugged

(Tr. 753; Pet. Ex. 24 at 6).

Petitioner failed to establish that respondent installed the piping on which prohibited

materials was observed, as alleged. Petitioner charged that its inspectors observed prohibited

materials, specifically bushing, on gas piping “installed by Respondent,” which constitutes

negligence, incompetence, or lack of knowledge or disregard of applicable laws (Specification

10). However, there is scant evidence to establish that respondent installed the piping on which

bushing was observed. Indeed, the evidence appears to be to the contrary, as Frigolino

4 Petitioner did not address use of the flex hose in its discussion of specifications 9 and 10 in its closing

memorandum and that violation will not be discussed here (Pet. Mem. at 26-28).

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acknowledged that the piping he observed during his inspection looked several years old and

could have been installed by a prior plumber (Tr. 259).

Petitioner contends that even if respondent did not install the bushing, he is responsible

for it because he took responsibility for the work performed under the original permit, even if he

did not do that work. Without reference to authority, petitioner maintained that having taken

over the permit, respondent was responsible for ensuring that all work performed under permit

complied with the Code (Pet. Mem. at. 27). This is consistent with Frigolino’s testimony that

“per Department, once you take over a permit, you’re responsible to make everything legal and

Code compliant” (Tr. 259). Petitioner argued that “[w]hether installed by respondent or by the

previous permit holder, Respondent should have never allowed these conditions to persist” (Pet.

Mem. at 27). However, specification 10 alleges that respondent installed the piping with the

prohibited material, which is not supported by the evidence. Thus, petitioner failed to prove this

charge.

Although the evidence established that future T connections were observed at the October

20, 2017, inspection, petitioner did not specifically allege that they were prohibited materials in

its pleadings or that respondent was responsible for their presence (ALJ Ex. 1, charge 1,

specifications 9, 10).

Petitioner established, however, that respondent made material false or misleading

statements in documents he filed with the Department and that this constitutes negligence or

incompetence.

Section 28-211.1 of the Administrative Code prohibits a person from making “a material

false statement in any certificate, professional certification, form, signed statement, application,

report or certification of the correction of a violation.” The false statement may have been

knowingly or negligently made. See Dep’t of Buildings v. Schnall, OATH Index No. 2750/15 at

27-28 (Feb. 10, 2017), modified on penalty, Comm’r Dec. (Feb. 21, 2017) (professional engineer

negligently made a material false statement by certifying that there was no change to use, egress,

or occupancy, which was contrary to representations on the approved plans). In addition,

“inaccurate statements as to permitted work or existing conditions have been found to be

materially false.” Ali, OATH 2751/15 at 12 (citing cases and finding that statement in alteration

application that the proposed work involved only “interior renovation” was materially false

because the plans that were submitted show the addition of three exterior balconies). Here,

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petitioner established that respondent knew or should have known that the plumbing work had

not passed the self-certified rough-in inspection and that his certification was materially false.

The Department permits licensed master plumbers to conduct inspections of their own

work and to certify the results of those inspections to the Department for certain inspections,

including gas tests and rough-in inspections of water, sanitary, and gas piping (Tr. 121-24, 269-

70, 518-19). For a gas rough-in inspection, the inspector has to visually inspect exposed gas

piping, from start to end point, to ensure that the piping is installed correctly and complies with

the applicable laws. This means that the gas pipes cannot be enclosed by a wall for the

inspection (Tr. 269-70, 382). A rough-in inspection must be performed on piping before the

work has been signed off as complete. See New York City Fuel and Gas Code (“FGC”) §

107.2(1.2) (Lexis 2020). Self-certified inspections are scheduled on 48 hours’ notice to the

Department, which may elect to send an inspector to the site (Tr. 122).

If, in the course of a self-certified rough-in inspection, materials prohibited by the Code

are discovered, the inspection result should be a “fail” and the person conducting that inspection

should remedy the condition and schedule another inspection (Tr. 259, 287, 522). If a licensee

discovers prohibited materials used on piping, even if that piping is unrelated to the licensee’s

work, he or she should inform the owner of the property. If the owner does not address the

hazardous condition, the licensee is required to contact the Department of Buildings (Tr. 540).

After conducting the test, the licensed master plumber certifies the results of test he has

conducted by uploading the record of the inspection to the Department’s electronic filing system

(Tr. 121-22, 269, 651-52, 748-49, 753).

According to Frigolino, the inspection history for the Roosevelt Avenue job indicated

that on July 5, 2017, respondent passed a self-certified rough-in inspection of the gas, water, and

sanitary piping for the cellar and first floor (Tr. 257-58; Pet. Ex. 28). However, based on his

inspection on October 20, 2017, Frigolino determined that respondent should have failed the gas

rough-in inspection of the piping because of the presence of future T connections and the use of

bushing on active gas piping (Tr. 256-58). Petitioner contends that by certifying to the

Department that his work had passed inspection, respondent submitted a statement to the

Department that he knew or should have known was false or misleading, in violation of section

28-211.1 of the Administrative Code.

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Respondent testified that he performed and passed a self-certified gas rough-in inspection

at the location (Tr. 648, 748-49; Pet. Ex. 28). Yet the Department’s inspection nearly three

months later revealed bushing and future T connections, which are conditions that should have

resulted in failure of that self-certified inspection. Frigolino’s detailed, consistent testimony that

the gas piping with bushing is part of the piping for which respondent obtained a permit is more

credible than respondent’s general denial of having worked that portion of the piping.

Furthermore, respondent admitted that he passed the self-certified inspection even though he had

observed one of the future T connections in his rough-in inspection and knew that they are

prohibited (Tr. 750-52). He said that the future T connection on the piping was removed after

the inspection but before the job ended (Tr. 752). However, that does not rebut the evidence that

respondent certified the inspection results when he knew or should have known of conditions

that required that he fail his own inspection. Furthermore, respondent made reference to a partial

inspection as if to suggest that would explain the incongruity of passing the rough-in inspection

even though he saw the future T connection, but offered no meaningful explanation of such an

inspection or proof that this was such an inspection (Tr. 752).

Lastly, respondent contended that after the Department issued a summons for the use of

bushing on the gas pipe and the future connection, he immediately corrected those conditions

and passed a gas finish inspection in November 2017 (Tr. 645-47; Resp. Ex. L). Such remedial

efforts do not rebut petitioner’s proof that respondent’s earlier self-certification was false.

Accordingly, petitioner established that respondent submitted a statement to the

Department that he knew or should have known was materially false or misleading by certifying

to the Department that his work had passed the gas rough-in inspection, when, in fact, conditions

existed during that inspection that should have resulted in a failure, as alleged in charge 3,

specification 2, of the petition. Furthermore, respondent’s submission of the certification when

he knew or should have known that it was inaccurate constitutes negligence, incompetence, or

lack of knowledge or disregard of the law, as alleged in charge 1, specification 9. However,

petitioner failed to prove that respondent installed piping with prohibited materials as alleged in

charge 1, specification 10.

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1525 86th Street, Brooklyn (Charge 1, Specifications 18 and 19;

Charge 3, Specification 3)

The Department alleges that respondent was negligent, incompetent, lacked knowledge of

or disregarded applicable law in that he used prohibited materials on a water heater he installed,

and he improperly certified that piping passed inspection (charge 1, specifications 18 and 19).

Petitioner also alleged that respondent made material false or misleading statement in his filings

with the Department because he self-certified that the gas piping he installed passed inspection

even though prohibited materials was used on that gas piping (charge 3, specification 3).

In November 2016, respondent obtained a plumbing permit to install a hot water heater in

the cellar at 1525 86th Street. On September 27, 2017, Inspector Omar Hane, a plumbing

inspector in DOB’s Plumbing Enforcement Unit, conducted an inspection during which he

observed PVC pipe in use on the water heater (Tr. 365).

Before visiting the site, Hane reviewed the permit information and Schedule B for the

job. The documents indicated that on November 16, 2016, respondent obtained a permit for

plumbing and gas work, as well as water and sanitary work in the cellar and first floor of the

premises (Tr. 374-76; Pet. Exs. 39, 40). He noted that a second permit, issued in May 2017 to a

plumber other than respondent, was active when he inspected the premises (Tr. 375; Pet. Ex. 39).

During his inspection, Hane determined that the hot water heater in the cellar of a

restaurant at the location was vented with PVC, which is prohibited for use on a hot water heater

(Tr. 377-79, Pet. Ex. 44). Section 503.4.1 of the FGC prohibits use of PVC piping in venting gas

appliances because heat discharged from the appliances can crack the piping, which might cause

a carbon monoxide leak (Tr. 526-27, 541).5 Hane took photographs which show PVC piping

attached to the heater, which was in operation at the time of the inspection (Tr. 379; Pet. Ex. 44).

He put a tag on the pipe and heater to indicate that it was unsafe and directed that the pipe be

replaced (Tr. 380). Hane issued a Class 1 summons to Precision Plumbing for filing a document

that contained a material false statement based on respondent’s self-certification that the work

was done properly even though a prohibited condition was present (Tr. 380-81; Pet. Ex. 42).

5 Section 503.4.1 states: “Plastic piping used for venting appliances listed for use with such venting materials shall

be listed and installed in accordance with the terms of its listing and the manufacturers’ instructions. Installation

shall be in accordance with the New York City Building Code. PVC shall not be permitted.” (Emphasis added).

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Respondent admitted that the PVC piping was installed under his permit and that it is

prohibited on vent lines, but insisted that it was appropriate to use PVC because the hot water

heater manufacturer indicated that it could be used. Moreover, he maintained, the same PVC

pipe observed during Hane’s September 2017 inspection had been present during an August

2017 inspection by a different Department inspector who did not inform respondent of any

problem with his use of PVC piping (Tr. 669-70, 764-66).

In his closing memorandum, respondent urged that this tribunal dismiss specification 18

(alleging observed “use of prohibited materials on a water heater that had been installed by

Respondent”) because the petition fails to specify the prohibited material at issue and the statute

prohibiting its use (Resp. Mem. at 37-40). However, the charge here is that respondent’s use of

prohibited materials constitutes negligence, incompetence, lack of knowledge or disregard of

applicable law, which was sufficiently pleaded so as to provide requisite notice of the matters to

be determined. See Block v. Ambach, 73 N.Y.2d 323, 333 (1989) (“in the administrative forum,

the charges need only be reasonably specific, in light of all relevant circumstances, to apprise the

party whose rights are being determined of the charges against him”); Schnall, OATH 2750/15 at

28 (“Pleadings in administrative proceedings serve a notice-giving function, and a petition is

sufficient if it provides notice of the matters to be adjudicated.”)

Respondent’s defense that he complied with the water heater manufacturer’s instructions

instead of the applicable FGC provision serves only to support the allegation that respondent was

negligent, incompetent, lacked knowledge of, or disregarded applicable laws. Respondent

acknowledged that the water heater manufacturer sells the heaters in jurisdictions other than New

York City that may have different requirements for installing the heaters. And he knew that the

FGC expressly prohibits use of PVC (Tr. 764-66). Therefore, it is puzzling that he chose to

adhere to the manufacturer’s instructions in the face of specific prohibitions to the contrary

contained in the Code.

Respondent noted that during an inspection by a different Department inspector in

August 2017, PVC piping was present, but no violation was issued (Tr. 668-70; Pet. Ex. 41).

However, failure of the first inspector to hold respondent responsible for using the prohibited

material does not relieve him from the obligation to comply with applicable laws, especially

where respondent admitted that he knew those laws. Similarly, that respondent took corrective

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steps after he had been issued the violation does not absolve him for having used the prohibited

material (Tr. 676).

Finally, having passed the self-certified inspection, respondent certified to the

Department that his work, which included installing the water heater, complied with the Code.

Yet he knew this was not the case with regard to his use of PVC. This constitutes a false

statement in violation of section 28-211.1 of the Administrative Code.

In sum, petitioner established that respondent was negligent, incompetent, lacked

knowledge of, or disregarded applicable laws when he installed PVC piping on the water heater

and self-certified work that he knew did not comply with the applicable laws, as alleged in

charge 1, specifications 18 and 19. In addition, he made a material false or misleading statement

to the Department when he certified that his work passed inspection, knowing that use of the

PVC piping violated the FGC, as alleged in charge 3, specification 3.

Failure to Appear for Scheduled Gas Tests

23-26 101st Street, Queens; 500 White Plains Road, Bronx; 191 Knickerbocker Avenue,

Brooklyn (Charge 1, specifications 13, 14, 15)

Petitioner established that respondent was negligent, incompetent, lacked knowledge of

or disregarded applicable laws when he failed to appear for three self-certified gas tests he

scheduled in August and November 2017.

As a licensed master plumber, respondent is permitted to conduct inspections of his own

work, self-certify the results of those inspections, and notify the Department of the results.

Permissible self-certified tests include a gas test, which is a pressurized test of the entire gas

piping system for no less than 30 minutes to ensure that the system does not leak. The licensed

master plumber must be present for a gas test (Tr. 122-24, 264, 517-19, 521-22). The licensed

master plumber must submit a notice of intent to self-certify gas work to the Department at least

two business days before the proposed date of the test, including the planned date, time, and

location of the gas test. The scheduled test must start at the time stated in the notification

submitted to the Department (Tr. 122, 518; Pet. Ex. 30).

The Department does not send an inspector to every scheduled test or inspection (Tr. 368,

519-20; Pet. Ex. 30). However, it may assign inspectors to physically appear at a scheduled gas

test to conduct a spot check inspection without advance notice to the master plumber (Tr. 280,

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286). During the inspection, the inspector will check to see whether the master plumber is

present at the site, verify that the gas system has been set up for testing, and might stay to

observe the master plumber as he or she oversees the gas test (Tr. 122-23, 521).

Licensed master plumbers who intend to self-certify a gas test inspection must appear at

the scheduled time or cancel the inspection by notifying the Department at least 24 hours before

the test. However, in an emergency, they can call the Plumbing Enforcement Unit to cancel the

inspection if they do so before the scheduled inspection time (Tr. 538-39).

Master plumbers who fail to appear at the site location for a scheduled gas test when a

Department inspector appears will fail the inspection (Pet. Ex. 30; Tr. 122-25, 281-82, 522). In

instances where an inspector appears for a spot check and the master plumber is not present at

the scheduled start time, the inspector will contact the Department’s Plumbing Enforcement Unit

ten minutes past the scheduled inspection time to see if the master plumber contacted the

Department (Tr. 266, 282, 371, 376, 386, 520). The unit will then contact the master plumber’s

office regarding the inspection. The inspector typically waits an additional ten minutes for the

master plumber to arrive at the site location (Tr. 266, 281-82, 371, 376, 386). If a master

plumber fails to appear, he or she will lose self-certification privileges for that particular job and

a subsequent inspection must be a physical inspection conducted by Department inspectors (Tr.

520-21).

Petitioner alleges that respondent was negligent, incompetent, lacked knowledge of or

disregarded the applicable laws in that he failed to appear for self-certification inspections of

scheduled gas tests, in violation of section 28-318.3 of the Administrative Code and as set forth

in DOB’s Form OP-98, which requires that gas tests be witnessed by the licensed master

plumber of record (ALJ Ex. 1; Pet. Ex. 30).

Inspector Cooper testified that respondent scheduled a self-certified gas test inspection

for August 8, 2017 at 8:00 a.m. at 23-26 101st Street, Queens. Cooper and plumbing inspector

Yonos Vassilikos went to the site to conduct a spot check. They waited for respondent for “a

half an hour to an hour” past the scheduled test time, but he never appeared and the gas test

resulted in an automatic fail (Tr. 198-99, 229-30; Pet. Ex. 80).

Respondent did not dispute that he failed to appear for the scheduled self-certified

inspection. He testified that he was traveling from Brooklyn to Queens and was stuck in traffic

when he received a call from his office that the inspectors were at the site. Respondent could not

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contact the inspectors directly because he did not have the inspectors’ telephone numbers.

However, he informed his office that he would not be able to make it to the inspection (Tr. 652-

53, 756; Resp. Br. at 34).

Respondent’s claim that he was stuck in traffic and that there is no protocol for

contacting the Department when on his way to a job does not relieve him of responsibility for

having failed to appear at the test. Respondent testified that he preferred to schedule his gas tests

for 8:00 a.m. (Tr. 756). Therefore, he should have been well aware of necessary travel

arrangements for him to arrive on time. Moreover, the inspectors waited for respondent past the

appointed time before calling the Department, giving respondent additional time to get to the

site.

With respect to the gas test at 500 White Plains Road, Bronx, Inspector Hane testified

that respondent scheduled a self-certified gas inspection for 8:00 a.m. on August 8, 2017, but

failed to appear during an audit spot check inspection (Tr. 371). When respondent failed to

appear at the scheduled inspection time, Hane notified the Department, which in turn contacted

respondent’s office to inform him that Hane was waiting at the site. Although inspectors

typically wait 20 minutes from the scheduled start time, Hane waited 30 minutes for respondent

to arrive. When respondent did not appear, the gas test failed inspection (Tr. 371-72; Pet. Exs.

37, 38).

It is notable that respondent had scheduled gas tests for the same date and time at 500

While Plains Road in the Bronx and 23-26 101st Street in Queens. Respondent admitted that he

did not appear at the scheduled self-certified gas test inspections, but maintained that he was in

transit to both White Plains Road in the Bronx and 101st Street in Queens when he became stuck

in traffic (Tr. 655, 658, 757). It is difficult to believe that respondent would have been able to

conduct both inspections, which were scheduled for the same time in different boroughs,

effectively requiring that he be in two locations at the same time. Respondent was simply not

credible in his testimony that he was on his way to the gas tests, but got stuck in traffic.

Respondent suggested that his office “likely did make an attempt to cancel” one of the two gas

tests, but was uncertain and offered no corroborating evidence (Tr. 758). In any event, this

contention is at odds with his claim that he was on his way to both tests when he got stuck in

traffic.

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On August 9, 2017, one day after respondent failed to appear for the two self-certified

gas tests, he again failed to appear for a test he had scheduled. Cooper testified that he and

Frigolino met at 191 Knickerbocker Avenue, Brooklyn, to conduct an audit of respondent’s self-

certified gas test inspection at that location (Tr. 200). The gas test was scheduled to begin at

8:00 a.m., and Cooper remained at the site for about 30 minutes to one hour, but respondent

never appeared (Tr. 200, 231). Respondent’s failure to appear automatically resulted in failure

of the self-certified gas test inspection (Tr. 265-66; Pet. Ex. 31).

Respondent admitted that he failed to appear for the self-certified gas test inspection that

he had scheduled at this location, again claiming that he was stuck in traffic. Respondent’s

office notified him that an inspector was onsite to observe the gas test inspection, but would

leave at 8:20 a.m. (Tr. 659-60). Respondent pointed out that he later passed a field inspection of

the gas test (Tr. 660; Resp. Ex. P; Resp. Br. at 34).

It is undisputed that respondent failed to appear for three scheduled self-certified gas tests

for which he was required that be present as a licensed master plumber. That respondent

scheduled two of the tests for the same date and time, but in different boroughs, creates the

inference that he had no intention of being present at one or both of these tests. In addition, he

failed to appear for a gas test scheduled one day after the Department had alerted him to his

failure to appear at two other gas tests, suggesting a lackadaisical attitude towards his obligations

with regard to these tests.

Respondent’s failure to appear for three gas tests that he had scheduled and was required

to attend as the licensed master plumber constitute negligence or incompetence. See Velasquez,

OATH 1557/10 at 9 (“Repeated, similar, and serious errors demonstrate neglect or lack of

competence.”) (citing Dep’t of Buildings v. Pettit, OATH Index No. 190/02 at 9 (July 30, 2002)).

Accordingly, charge 1, specifications 13, 14, and 15 should be sustained.

Failure to Obtain Permit After Emergency Work

Section 28-105.4.1 of the Administrative Code provides that work normally requiring a

permit may be performed without one to the extent necessary to relieve an emergency condition,

but an application for a permit “shall be submitted within 2 business days after the

commencement of the emergency work.” Emergency work includes repairing gas leaks and

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repairing or replacing heating or hot water equipment in residential buildings during the heating

season. Admin. Code § 28-105.4.1.

The Emergency Work Notification (“EWN”) process allows licensees to remedy a

hazardous condition by submitting a request to the Department’s Limited Alteration Application

(“LAA”) Division for permission to perform work necessary to resolve the emergency condition

before the licensees file an LAA. Although the Code provides that permit applications are to be

submitted within two business days, the LAA Division gives the licensees five business days

after submission of the EWN to file for an LAA to cover the work (Tr. 447-48, 529).6 Licensees

seeking permission to perform emergency plumbing or gas work must submit a signed letter to

the LAA Division, bearing their professional seal, describing the work to be performed and

stating that they will file an LAA within five business days of the Department’s issuance of the

requested EWN approval, and a PW1 within 60 days if the scope of the work exceeds what is

allowed under an LAA. When the LAA Division approves the request for emergency work, it

issues an EWN number to the licensees, who then have five business days to file for an LAA for

the work (Tr. 318-19, 529, 543; Resp. Ex. S).

If licensees need more time to do the work after an EWN has been approved, the LAA

Division may grant extensions of five additional business days if requested on or before the date

the initial five days expires (Tr. 530). Licensees who wish to withdraw EWNs must submit a

withdrawal request to the LAA Division that states the reason for the request (Tr. 491-92, 530).

After an EWN has been approved, if required LAAs have not been submitted within five

days, the Plumbing Enforcement Unit will inspect the jobs. Licensees must get an LAA before

filing a PW1. If the licensees fail to submit an LAA and instead obtain a permit within the

allotted time period, DOB will generally issue a violation (Tr. 530, 543).

Petitioner contends that respondent was negligent, incompetent, lacked knowledge of, or

disregarded applicable rules because he was not issued a permit or an LAA application to cover

work after he submitted an EWN for emergency work at three locations.

213 Surf Drive, Bronx (Charge 1, Specification 17)

Respondent submitted an EWN, dated October 23, 2017, stating that he was starting

emergency work at the Surf Drive location to provide heat and cooking gas to the property after

6 Petitioner alleged that respondent failed to submit required permits within two business days (ALJ Ex. 1);

however, based on the Department’s practice extending this period, specifications 17, 20, and 21 are analyzed

consistent with the five business days.

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the utility company had turned off the gas (Pet. Ex. 76). Respondent’s letter stated “[w]e will

file an LAA within five (5) business days of issuance of the EWN number and, if necessary a

Plan Work Application (PW1) along with associated permit application will be filled [sic] and

approved within 60 days” (Pet. Ex. 76). The EWN was approved on October 24, 2017 (Tr. 450;

Pet. Ex. 76).

On December 5, 2017, Barbieri conducted an inspection at the jobsite, during which he

took photographs. According to Barbieri, he saw two gas meters, one of which was locked,

meaning that no gas was going to the building (Tr. 453; Pet. Ex. 77). He observed new gas

piping connecting a hot water heater to a furnace in the boiler room. Barbieri concluded that the

piping was new because the sealant around the piping was still wet (Tr. 454-55). According to

Barbieri, the gas piping work he observed was consistent with work described in the EWN, to

restore heating and cooking gas (Tr. 455-56). He also concluded that a new gas shutoff valve

had been installed behind the stove based on the appearance of the sealant, which, in his

professional experience, looked new (Tr. 457-58; Pet. Ex. 77). Barbieri issued a summons

because he determined that no LAA had been filed and no permit had been issued to respondent

for the work he observed (Tr. 458-60; Pet. Ex. 78).

Respondent maintained that although he submitted an EWN for work at the location, the

client ceased communicating with him and Precision Plumbing did not do the work at the

location. He testified that he subsequently learned that the client had “illegally turned his gas

back on” (Tr. 665, 761).

Respondent testified that he was unaware of any written procedures for withdrawing an

EWN notice, but that claim is not persuasive. He testified that Precision Plumbing has “a good

relationship with the LAA Division” and sent them an e-mail “asking them how to handle” the

situation, but did not receive a response indicating that the permit was withdrawn (Tr. 665-66).

Respondent later described his e-mail as a request to withdraw the EWN (Tr. 761-62). Taken at

face value, respondent’s testimony indicates that he knew to contact the LAA Division when he

wanted to withdraw the EWN. Respondent’s attempt to split hairs by denying knowledge of

“written” procedures for withdrawing an EWN is simply unavailing (Resp. Mem. at 36).

Respondent’s testimony is even less credible given his failure to submit into evidence the e-mail

seeking to withdraw the EWN that he claims to have sent to the LAA Division (Tr. 761-62).

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Petitioner established that respondent failed to file an LAA or obtain a permit for work

performed under an EWN he obtained, as alleged in charge 1, specification 17.

134 Vernon Avenue, Brooklyn (Charge 1, Specification 20)

By letter dated October 26, 2017, respondent submitted an EWN to the LAA Division for

emergency work at the location after the utility company turned off gas services (Pet. Ex. 45). In

his request for the EWN, respondent indicated that he and Precision Plumbing would perform a

gas test, register replacement boiler and hot water heater, and repair piping, as necessary (Tr.

326; Pet. Ex. 45). The EWN was approved the next day (Tr. 323; Pet. Ex. 45).

Deon Loncke, an inspector in the Plumbing Enforcement Unit, inspected the location on

December 8, 2017, to determine if work performed under the EWN had been completed (Tr.

316, 320-21). Someone who identified himself as responsible for the establishment, a church,

escorted Loncke through the premises and retrieved a telephone number for Precision Plumbing

(Tr. 325, 343-44). That person said that Precision Plumbing had been at the site to perform

work, telephoned Precision Plumbing to determine in which areas they had worked, and showed

Loncke the areas in the cellar where that work had been performed (Tr. 326-27, 344). Loncke

took photographs of the piping in the area the man said work had been done (Tr. 326-38; Pet. Ex.

46). He concluded that gas piping he observed had been changed based on its condition

compared to the rest of the pipe (Tr. 346; Pet. Ex. 46). He also considered recent painting and

wet sealant as signs that the gas piping had been worked on recently (Tr. 347).

Loncke reviewed DOB’s Building Information System (“BIS”) property profile

overview, which indicated that no LAA or permits had been issued to Precision Plumbing (Tr.

330-31; Pet. Ex. 47). He issued a summons to Precision Plumbing, classified as a “Class 1”

summons for an immediate hazardous condition, because Precision Plumbing failed to obtain a

permit, meaning that the work had not been subject to DOB inspection (Tr. 331; Pet. Ex. 47).

As with the Surf Drive EWN, respondent maintained that his company did not perform

work at the Vernon Avenue location. Respondent testified the owners of the premises ceased

communicating with him after he gave them a copy of the approved EWN. He noted that there

was no Department guidance on how a licensee can cancel an EWN in such circumstances, and

stated that Precision Plumbing notified the Department of the breakdown in communication,

albeit not immediately, and tried to get the Department to determine what was happening at the

location. He later learned that the utility company had restored gas to the building, but he did not

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know the circumstances under which that occurred. Respondent notified the Department by e-

mail that the utility company had turned the gas back on (Tr. 678, 768-69).

Respondent’s self-serving testimony is not credible. The LAA was due five business

days after the EWN had been approved on October 27, 2017. If, as respondent claims, the

owners ceased communicating with Precision Plumbing after he gave them the approved EWN,

he had ample time before the December 8, 2017, inspection to have resolved any issues or to

have notified the Department of them. He failed to provide any corroboration, such as proof of

his purported notice to the Department, of the breakdown in communications with his clients to

establish that Precision Plumbing did not perform the work at the location.

Accordingly, petitioner established that respondent failed to file an LAA or obtain a

permit for work performed under an EWN he obtained, as alleged in charge 1, specification 20.

73-47 52nd Avenue, Queens (Charge 1, Specification 21)

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.

Astrid B. Gloade

Administrative Law Judge

February 28, 2020

SUBMITTED TO:

MELANIE E. LA ROCCA

Commissioner

APPEARANCES:

HANNAH SCHWAGER, ESQ.

PATRICIA PENA, ESQ.

Attorneys for the Petitioner

KLEIN SLOWIK PLLC

Attorneys for Respondent

BY: JOHN L. OVERLAND, JR., ESQ.