Last December, Cho Wing Li received a spate of violations for failing to properly maintain the cooling towers atop a mixed use building in Kensington, Brooklyn. If found responsible, Li likely would have owed several thousands of dollars in fines. But seven months later, Li challenged the alleged health code violations in front of OATH, the Office of Administrative Trials and Hearings.
There, Li said he did not, in fact, own the building where the cooling violations reportedly occurred. Instead, he was the principal of the LLC for the building next door, which had no cooling towers.
“[Li] testified that the cited place of occurrence, 205 Church Avenue, was a separate property which housed a meat market and which did have cooling towers,” wrote OATH Hearing Officer Judith Thatcher. “He testified that he had absolutely nothing to do with the cited property.”
Case dismissed.
In another hearing, the OATH officer dismissed the case because the Health Department’s inspector failed to properly sign the violation document.
“I find that this section requires at least some scintilla of indication… that the printed name of the issuing officer is intended to be his electronic signature,” wrote Hearing Officer Mitchell Regenbogen. “I make no determination as to what that scintilla of information should be, but I do find that on the instant summonses there is absolutely none.”
Other cases reviewed by WNYC and Gothamist show that cooling tower inspectors from the Department of Health regularly neglected to list relevant dates, cited the wrong section of law, and made “material alterations” to documents submitted to OATH officers.
These mistakes, among others, resulted in OATH dismissing nearly 90% of the cooling tower cases it heard in 2017, roughly double the average rate for citations issued by other city agencies. Out of the more than 27,000 summonses the Health Department handed out last year, approximately 15,700 respondents decided to take their cases to a hearing at OATH. Roughly 14,000 of those cases were dismissed, according to an analysis by WNYC.
The numbers indicate a department struggling to keep up with rigorous new legislation intended to crack down on cooling tower cleanliness in an effort to prevent the deadly cases of Legionnaires disease that have plagued the city for years.
Those cases are on the rise in New York City, where nearly 450 people got sick from breathing Legionella bacteria in 2017, a 65 percent increase from the year before. That upward trend is mirrored nationwide.
When the city’s new legislation was signed in 2015, following an outbreak of Legionnaires disease in the Bronx that killed several people, lawmakers praised the prospect of increased enforcement. Elected officials said the new standards would help curtail dangerous levels of legionella from developing inside the towers, making the mist emitted from those systems safer for New Yorkers to breathe.
“The inspection regime that we put in place does give New York City a leg up over most other cities,” said City Council Member Mark Levine, chair of the Committee on Public Health. “But to see how many cases are being dismissed is really worrisome, especially since so many of the dismissals seem to be for technical reasons.”
The large majority of cooling tower cases dismissed last year were thrown out because “no violation” was found, the Health Department presented insufficient evidence, or there was a “defective notice of violation” issued by the inspector, according to Gothamist / WNYC’s analysis.
"The Department’s newly created tablet data system, responsible for summonses, faced some challenges last year during its initial rollout," a Health Department spokesperson told Gothamist / WNYC, adding that their inspection program is the largest in the country. "These issues have been corrected, and we continue to see improvements in compliance as building owners better understand the cooling tower regulations.”
But on-the-ground enforcement protocols appear to be befuddling inspectors.
In yet another case, a hearing officer described a Health inspector who presented OATH with “no evidence to support the allegation” that a building manager failed to present her weekly cooling tower maintenance records.
“[T]he inspectors seemed novice and inexpert,” the hearing officer summarized.
The apparent misunderstanding of their enforcement responsibilities was so extensive that health inspectors often struggled to physically and legally differentiate between cooling towers and water towers. (The former help keep buildings cool, the latter house drinking water.)
“Respondent is cited with a violation of NYC Health Code… which governs drinking water tanks,” wrote Hearing Officer Maria Pochia. “[The respondent] stated that there is no water tower at the location, but that there is a cooling tower which services his supermarket space.”
The local law the city is trying to enforce is not necessarily simple. The Department of Health has gone as far as to implement Cooling Tower Academies for building owners and operators to help them be fully compliant. The high dismissal rate, however, indicates health department employees themselves are unclear about the details of the law, or how to properly identify violations.
For some lawmakers intent on halting the spread of Legionnaires disease, the rate of dismissals is concerning.
“A system in which so many cases are being dismissed indicates that we might be diverting resources to fining landlords [who] are actually adequately maintaining their units,” Levine said. “It also makes me wonder if we might be missing fining building owners who are not maintaining their units.”
The Health Department’s enforcement method “really needs to be fixed,” Levine continued, “so that New Yorkers have the confidence that cooling towers are being inspected in line with the highest standards.”
