**§28-104.2.1 Less Than Full Examination of Applications for Construction and Related Document Approval

The commissioner may, in the commissioner's discretion, establish a program whereby construction and related documents may be accepted with less than full examination by the department based on the professional certification of an applicant who is a registered design professional. On a monthly basis, the commissioner shall audit no less than 25 percent of construction documents which are for multiple dwellings where 25 percent or more of the dwelling units are occupied and such multiple dwellings, in whole or in part, either (i) are subject to rent regulation, (ii) are being rehabilitated or maintained as affordable housing through a department of housing preservation and development program, (iii) are subject to a city regulatory agreement mandating the creation or preservation of a certain number of affordable units, (iv) contain affordable housing units created, sponsored or preserved through other city programs or initiatives, or (v) where the department knows or has reason to know, are the subject of a rent overcharge application which is in the process of being investigated by the New York State division of housing and community renewal.

*Section 28-104.2.1 was amended by Local Law 149 of 2017. This law has an effective date of December 28, 2017.

**Section 28-104.2.1 was amended by Local Law 158 of 2017. This law has an effective date of August 30, 2018.

Except as otherwise specified in this code or in the rules of the department, for the purposes of this code, the acceptance of construction and related documents in accordance with such program shall have the same force and effect as the approval of construction and related documents after full examination by the department. Except as otherwise specified in this code or in the rules of the department, references in this code to approved construction and/or related documents or to the approval of construction and/or related documents shall also be deemed to refer to accepted construction and related documents or to the acceptance of construction and related documents, as applicable.

The commissioner may establish qualifications and requirements for registered design professionals to participate in such program and may exclude, suspend or otherwise sanction participants for cause. The commissioner shall send an annual notification to registered design professionals who are currently participating in this program notifying them, in a manner to be determined by the commissioner, of the grounds upon which they may be excluded, suspended or otherwise sanctioned.

Registered design professionals participating in such program shall be subject to sections 28-104.2.1.3.1 through 28-104.2.1.3.2.

A registered design professional shall not be eligible to participate in the program during any period of probation imposed as a sanction by the board of regents pursuant to section 6511 of the education law.

The commissioner shall, after the opportunity for a hearing before the office of administrative trials and hearings in accordance with department rules, exclude, suspend or otherwise condition the participation of a registered design professional who (i) knowingly or negligently submits a professional certification of an application and/or construction and other related document that contains false information or is not in compliance with all applicable provisions of law, (ii) submits two professionally certified applications for construction document approval within any 12-month period containing errors that result in revocation of an associated permit or that otherwise demonstrate incompetence or a lack of knowledge of applicable laws, or (iii) knowingly orders or directs another registered design professional to submit a professional certification of an application and/or construction and any other related document that contains false information or is not in compliance with all applicable provisions of law or that otherwise demonstrates incompetence or a lack of knowledge of applicable laws, or with knowledge of such specific conduct, ratifies or assents to such conduct or with knowledge of such specific conduct and while acting as a supervisor otherwise fails to prevent it. The commissioner may, after the opportunity for a hearing before the office of administrative trials and hearings in accordance with department rules, exclude, suspend, or otherwise condition the participation of a registered design professional who submits two professionally certified applications for construction document approval within any 12-month period containing errors that result in a stop work order. The term "otherwise condition" shall mean limitations on such professional's participation in the program, such as, but not limited to, audits and monitoring of the registered design professional's applications and other submissions. For the purposes of this section, a professionally certified application shall include the professional certification of construction and other related documents and the satisfaction of objections issued at plan examination.

A registered design professional who is excluded from the program in accordance with section 28-104.2.1.3 may apply for reinstatement one year or more after such exclusion. An applicant who the commissioner finds is qualified to resume participation in the program shall be on probation for a period of not less than 6 months after reinstatement and during that time shall as a condition of such reinstatement attend one or more training or continuing education courses, approved by the department, related to compliance with the building code and related laws and rules and the zoning resolution. The professional shall submit satisfactory proof of the successful completion of such training or continuing education courses to the department.

The commissioner (i) shall permanently revoke, without the opportunity of restoration, the professional certification privileges of an engineer or architect who, while on probation, professionally certifies an application, plans, construction or other related document that contains false information or is not in compliance with all applicable provisions of law or who otherwise demonstrates incompetence or a lack of knowledge of applicable laws and (ii) may permanently revoke the professional certification privileges of an engineer or architect who knowingly orders or directs another registered design professional to, while on probation, professionally certify an application, plans, construction or other related document that contains false information or is not in compliance with all applicable provisions of law or that otherwise demonstrates incompetence or a lack of knowledge of applicable laws, or with knowledge of such specific conduct, ratifies or assents to, or with knowledge of such specific conduct and while acting as a supervisor otherwise fails to prevent it.

Nothing herein shall be construed to limit the commissioner's power, consistent with state and local law, to adopt rules that include additional grounds to limit the filing privileges of or otherwise sanction registered design professionals, after the opportunity for a hearing, who it determines, knowingly or negligently submit applications or other documents to the department that contain false information or are not in compliance with all applicable provisions of law or that otherwise demonstrate incompetence or a lack of knowledge of applicable law or standards.

The department shall create and maintain a database of all registered design professionals who have been excluded, suspended or otherwise sanctioned by the department, all current firms of employment or affiliation of such professionals, if known or readily ascertainable, and the firm that employed such professionals, or with which such professional was affiliated, at the time such professionals were sanctioned, and the status of such sanction or sanctions. Within 7 business days of the date a sanction is imposed, the department shall post on its website, in a non-proprietary machine-readable format that permits automated processing, and shall make available upon request, the name of the registered design professional, and the firm that employed such professionals, or with which such professionals were affiliated, at the time such professionals were sanctioned, and a description of the sanction, the initial date of the sanction, the reinstatement date, if applicable, the address of the premises for which the application associated with the sanction was submitted, and whether the sanction was imposed after a hearing or a settlement. The department shall provide requested information concerning the exclusion, suspension or other sanction of a specific registered design professional and the firm of employment of such professionals, or the firm with which such professionals were affiliated, when such professionals were sanctioned, within 30 days of such request.

The program shall include a condition that the applicant remain with the project until it is signed-off by the department, all current firms of employment or affiliation of such professionals, if known or readily ascertainable, and the firm that employed such professionals, or with which such professional was affiliated, at the time such professionals were sanctioned, and the status of such sanction or sanctions and that if the applicant withdraws from or is unable to continue a project before the issuance of a letter of completion or certificate of occupancy, as applicable, all work shall stop and no permit, letter of completion or certificate of occupancy shall be issued until a successor registered design professional is designated as applicant of record and such person:

1. Completes a thorough review and evaluation of the previously filed and accepted construction and other related documents to determine that they conform to the applicable laws and rules in accordance with rules of the board or regents, 8 NYCRR 29.3(a)3;
2. Inspects any built work to confirm that the observable conditions are consistent with the previously filed and accepted construction documents; and
3. Based on the result of the evaluation and inspections, secures department approval after examination of construction and other related documents submitted by and under signature and seal of the successor. All deficiencies shall be addressed by the successor in such documents.

The department shall provide written notice to the New York state department of education of any registered design professional who was the subject of any disciplinary proceeding where there has been an adverse determination or sanction by the department including any settlement agreement that is reached between the parties that resulted in a sanction of privileges being imposed by the department. Such notice shall be sent within ten business days after a determination is made in any such disciplinary proceeding or after a settlement of such proceeding has been reached, and shall include the name, and business firm name and address of such registered design professional, as well as any supporting documentation for the sanction imposed. The department shall also provide such notice to the state department of education of any registered design professional that has been the subject of any disciplinary proceeding where there has been an adverse determination or sanction by the department within the five calendar years immediately preceding the effective date of this section.