N.Y.C. Admin. Code § FC 104: Section FC 104: Duties and Powers of Commissioner

104.1 Enforcement.

The commissioner shall be responsible for the administration, interpretation and enforcement of this code. The commissioner may adopt policies, procedures, rules and regulations in order to clarify or implement the application of its provisions. Such interpretations, policies, procedures, rules and regulations shall be in compliance with the intent and purpose of this code and shall, except in those instances in which a modification has been granted, not have the effect of waiving requirements specifically provided for in this code.

104.1.1 Asbestos abatement activity.

Notwithstanding any other provision of law, the commissioner may designate officers and employees of the Department of Environmental Protection to issue notices of violation, violation orders and Criminal Court process at premises in which asbestos abatement activity is taking place, for violations of this code and other laws, rules and regulations enforced by the department.

104.1.2 Review of design and installation.

The commissioner may authorize the Department of Buildings to review construction documents filed with that agency for compliance with the design and installation requirements of this code for stationary energy storage systems, fire apparatus access roads, rooftop access and obstructions, and such other design and installation requirements as the commissioner, in consultation with the Commissioner of Buildings, may determine facilitates the design and construction process. The manner and scope of such review and the standards to be applied thereto shall be established by the commissioner in consultation with the Commissioner of Buildings, consistent with FC 104.2.1.

104.2 Applications and approvals.

The department shall receive, review and, if satisfactory, approve, applications for permits, certificates and other approvals, and design and installation documents required to be submitted to the department by this code or the construction codes, issue permits, inspect buildings, structures, facilities, premises, marine vessels, watercraft and motor vehicles for the purpose of enforcing compliance with the requirements of this code, and otherwise administer, implement and enforce the provisions of this code.

104.2.1 Acceptance of professional certification.

The department shall not accept professional certification of compliance with the requirements of this code and the rules in lieu of required department inspections, witnessing of tests, or approval of design and installation documents, except as otherwise provided in this section. The department may accept professional certification of compliance with the construction codes, this code and the rules with respect to fire alarm system devices or equipment that are not part of the building core, in accordance with the following requirements:

1. For purposes of this section, "professional certification" or "professionally certified" means the submission to the department of a signed, personal verification by a person holding a certificate of fitness for professional certification of fire alarm and emergency alarm installations and testing who is a registered design professional, master electrician, special electrician, or fire alarm system installer with NICET-Level III certification licensed by or registered with the State of New York, that accompanies an application and/or design and installation documents filed with the department that attests that such application or design and installation documents do not contain any false information and that such application or design and installation documents are in compliance with all applicable laws, rules and regulations.

2. The department shall adopt a written policy setting forth procedures by which professionally certified fire alarm system devices or equipment will be audited by the department to ensure the accuracy of such professional certifications.

3. The department may adopt rules setting forth the penalty for submission of false or fraudulent documents certifying compliance with the requirements of this code and the rules

. Penalties may include disqualification from submission of professionally certified applications.

4. Nothing contained herein shall be deemed to prohibit the submission of design and installation documents for department review and approval in lieu of professional certification.

104.3 Right of entry.

The commissioner and his or her authorized representatives, in the discharge of their duties, shall have the right to enter upon and inspect, at all reasonable times, any building, structure, facility, premises, marine vessel, watercraft, vehicle or any part thereof, for the purpose of determining compliance with the requirements this code and other applicable laws, rules and regulations enforced by the department. If access is not obtained, the commissioner shall have recourse to remedies provided by law to secure entry.

104.4 Identification.

When entering property pursuant to FC 104.3, officers and employees of the department shall identify themselves by exhibiting the badge or other official identification of the department; and other authorized representatives of the commissioner shall identify themselves by producing and exhibiting their authority in writing signed by the commissioner.

104.5 Notices and orders.

Notices, orders and violations may be issued by or in the name of the commissioner in accordance with Title 15 of the New York City Administrative Code to enforce the provisions of this code or the rules.

104.5.1 Seizure of contraband material.

The commissioner may order the seizure, destruction or other arrangement for disposal thereof of any device, equipment or other article, the manufacture, storage, handling, use, transportation or sale of which is prohibited by this code or the rules, or which is manufactured, stored, handled, used, transported or sold in violation thereof.

104.6 Official records.

The department shall keep official records of applications received, approvals, inspections, administrative decisions, permits and certificates issued, modifications approved, fees collected, and notices, orders and violations, and such other records as the commissioner may prescribe. Such official records shall be retained for the period required for retention of public records.

104.7 Approved devices and equipment.

All devices, equipment or other articles approved by the commissioner shall be designed, constructed, installed and used in accordance with such approval. Devices, equipment and other articles required by the provisions of this code to be of a type for which a certificate of approval has been issued shall be designed, constructed, installed and used in accordance with such certificate approval conditions, FC 112 and the rules.

104.7.1 Device, equipment and system reuse.

Devices, equipment and systems shall not be reused or reinstalled unless they have been reconditioned, tested and placed in good and proper working condition. Devices, equipment and systems that are unsafe to operate or use shall not be operated or used.

104.7.2 Technical assistance.

To determine the acceptability of technologies, processes, products, facilities, materials and uses attending the design, operation or use of a building, structure, facility or other premises subject to inspection by the commissioner, the commissioner may require the owner to provide, at the owner's expense, a technical opinion and report prepared by a registered design professional or other individual or organization whose qualifications are acceptable to the commissioner. Such individual or organization shall evaluate the safety of the design, operation or use of the building, structure, facility or other premises and the facilities, operations and conditions situated or conducted thereon, as applicable.

104.8 Modifications.

When the circumstances, conditions, limitations or surroundings of any business, occupation, trade, industry or premises to which this code or the rules apply are unusual, or such as to render it impracticable to enforce all the provisions applicable thereto, the commissioner may waive or modify such provisions to such extent, for such period of time, as the commissioner may deem necessary consistent with public safety.

104.8.1 Application for modification.

Any owner or other person subject to a provision of this code or the rules may request the modification of such provision in accordance with this section.

104.8.1.1 Submission.

Any person seeking a modification shall submit a written request to the commissioner stating the grounds thereof supported by relevant evidence and citation to this code or any other law, rule or regulation or other legal authority. Any additional information or other supplemental submission requested by the commissioner shall be filed with the department within 20 calendar days of the date of the request, or within such other time as may be prescribed by the commissioner.

104.8.1.2 Determination.

The commissioner shall render a written determination denying the request, or granting such modification as the commissioner determines is necessary and appropriate upon such terms and conditions as the commissioner may prescribe.

104.8.1.3 Stay of enforcement.

The filing of such request for a modification shall not stay the enforcement of the provision. The person filing such modification may request a stay of enforcement of such provision. Such request shall be in writing and shall be subject to the same requirements as a modification. The commissioner shall expeditiously render a written determination of such request for a stay, giving due consideration to the interests of public safety, the costs of compliance, and the apparent merits of the request.

104.8.2 Board of standards and appeals variances.

Notwithstanding any other provision of law, rule or regulation, no application for a variance shall be granted by the board of standards and appeals in approving changes in bulk storage in excess of the standards set forth in this code or the rules, as it may apply to the storage of liquefied natural gas, synthetic or substitute natural gas or naphtha in the liquid or gaseous state.

104.9 Alternative devices, equipment and systems.

The provisions of this code and the rules are not intended to prevent the design, installation or use of any device, equipment or system not specifically prescribed or prohibited by this code or the rules, provided that any such alternative has been approved by the commissioner. The commissioner may approve such an alternative device, equipment or system where the commissioner finds that the proposed design, installation or use is satisfactory and complies with the intent of the provisions of this code or the rules, and that the device, equipment or system offered is, for the purpose intended, at least the equivalent of that prescribed in this code or the rules in quality, strength, effectiveness, fire resistance, durability and safety.

104.10 Fire investigations.

The commissioner may investigate the cause, origin and circumstances of any fire, explosion or other life safety hazard.

104.11 Authority at fires and other emergencies.

The firefighting personnel in charge at the scene of a fire or other emergency involving the protection of life or property, or any part thereof, shall have the authority to direct such operation as necessary to extinguish or control any fire, perform any rescue operation, investigate the existence of suspected or reported fires, gas leaks or other hazardous conditions or situations, or take any other action necessary in the reasonable performance of duty. In the exercise of such power, firefighting personnel may prohibit any person, vehicle, marine vessel, watercraft or object from approaching the scene and may remove, or cause to be removed or kept away from the scene, any vehicle, marine vessel, watercraft or object which could impede or interfere with the operations of the department and, in the judgment of firefighting personnel, any person not actually and usefully employed in the extinguishing of such fire or in the preservation of property in the vicinity thereof.

104.11.1 Barricades.

The firefighting personnel in charge at the scene of a fire or other emergency may place ropes, guards, barricades or other obstructions across any street, alley, place or private property in the vicinity of such operation so as to prevent accidents or interference with the lawful efforts of the department to manage and control the situation.

104.11.2 Obstructing representatives of the department.

It shall be unlawful to obstruct, interfere with or otherwise hamper any representative of the department in conducting any inspection, issuing any notice, order or violation, or otherwise enforcing the provisions of this code, or any other law, rule or regulation enforced by the department, or otherwise executing the performance of his or her lawful duties.

104.11.3 Systems and devices.

No person shall render a life safety device, equipment or system inoperative during an emergency except as directed by the firefighting personnel in charge of the scene of a fire or other emergency.

104.11.4 Authority to disconnect utility service.

The department shall have the authority to disconnect or authorize disconnection of water, natural gas, electricity or other utility service in or on a building, structure or premises when necessary to safely or effectively conduct firefighting or other emergency operations or to abate a condition presenting an imminent danger to fire or life safety. If utility service has not been restored when the department leaves the premises and there is no representative of the owner at the premises, the department shall notify the utility within a reasonable time thereafter.

104.12 Cooperation of other departments.

Upon request of the commissioner, it shall be the duty of all departments to cooperate with the department at all times and to furnish the department with such information, reports and assistance as the commissioner may require.