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July 6th, 2004

A Sick System: 311,HPD,BEH & Inspector Clouseau

by D. Clark MacPherson

There was a tremendous amount of fanfare when the 311 system was introduced to us in New York City. It was purported to be the solution to the disorganized way in which complaints were reported to the City. It was an exciting concept that was accepted with a less than believing smiles by most apartment dwellers in Manhattan.

It was thought that the numerous problems that have accumulated over the last 15 to 20 years in rent-stabilized apartments, among other important quality of life issues, might now be accurately assessed and some type of action might be taken. So, we investigated one problem area that 311 handled-referring a tenant to agencies to solve housing problems.

In the past, various attorneys would recommend that tenants hold back rent and wait until the landlord started an eviction when there were chronic housing issues like lack of heat and unhealthy conditions and the landlord refuses to act responsibly. The tenant could present the rent abatement issues in front of the Court to seek redress.

That no longer works well. Tenants now wind up paying more money in legal fees than the abatement affords. Plus, there would still then be the problems that one has to deal with. Success in court does not ensure follow through to resolution.

One tenant recently filed an “HPD action.” The “prosecutor” for HPD filed a complaint in the tenant’s name against the landlord. Several months later after carefully managed legal delays (there was no heat) and towards the Spring, after the weather made the problem a moot issue, the Court was ready to hear the tenant’s case. Only, the landlord had transferred the building into a new name-the prosecutor’s two-year-old records were wrong and the case was dismissed for lack of having the correct defendant.?Ǭ It was now summer and there was no point in prosecuting a non-existent problem. Besides, the prosecutor pointed out that the tenant had no “proof” of the lack of heat. The tenant had not kept accurate, daily logbooks and there had not been enough HPD inspector visits. The landlord was now emboldened.

Lead paint was then found in the apartment. There were also numerous water leaks each year from 80-year-old pipes that had never been replaced by the original developer resulting in constantly buckled floors-followed by the inevitable Black Mold growth. You know, the stuff that kills you. The downstairs tenant had so many waterfalls in his loft that the only excuse that the landlord could think to give him was that this tenant was pouring water on his floor to create leaks below.

To counter the persistent ongoing problem over several years, the tenant did start to keep logs of the problems and reported them to the landlord as well as HPD. Then the tenant had black mold growing on the walls for three straight years, buckled floors which caused a broken ankle, lead paint in their children’s bedroom, corroded leaking pipes, and no heat for most of each winter. Numerous plumbing companies tried to fix the problem that “didn’t exist.”

Here’s how the HPD chronically (mis)handled this.?Ǭ Complaints were taken over the phone. Complaint numbers were issued by calling 311. A week or two later someone would come by to look at the situation and say, “yes, you do have a problem.” That is, if the tenant happened to be at home when they arrived. Six months after the lead paint issue was identified, for example, an inspector with an XRF Analyzer finally showed up -and confirmed-the existence of lead paint (in the 5 year old’s bedroom no less). According to the landlord, there was no lead paint in the building. The tenant reported that the landlord also denied the existence of asbestos in the building, which was finally documented and removed.

So here is how 311/HPD “works.” After a complaint is first made, a foot soldier arrives with a clipboard. He looks around and jots down a few notes and basically says, “We’ll get back to you.” A few weeks after this (and innumerable phone calls asking if the condition still exists), the cavalry arrives. This is a second inspector who comes to verify the first guy’s report. This is where it gets interesting. In this case it was BEH (Bureau of Environmental Hazard) He didn’t know that the guy with the XRF Analyzer had already been there-fortunately he also had arrived to verify the tenants’ toxic mold. The mold was visually pointed out to him. His response to the tenant? “No, I can’t look at that because it isn’t in my report.”

The first report had incorrectly identified the wall -north, instead of east- so the BEH/HPD Inspector proceeded to take a photo of a perfectly normal, clean wall. He could not identify or photograph what was directly in front of him-an entire wall of black Toxic mold, which had been contained with clear plastic sheets (covered to prevent anyone from breathing it). The final, official report stated there was no mold in the tenant’s apartment. As far as HPD, BEH, the 311 system, our saviors and protectors, are concerned, hazardous conditions never existed in this tenants apartment.

This is efficiency on a grand scale-Inspector Clouseau could not have done a better job. Many SoHo families have suffered (and still do suffer) from years of ailments ranging from Bronchial asthma and lung cancer, to skin conditions and psychological trauma. The mold situation in this case, for example, is not limited simply to water leaks. There had been a fire in the building where this tenant lives and another of the apartment’s mold growth resulted in what resembled a cashmere sweater growing on the walls. The landlord’s solution was to hire undocumented and untrained workers to paint over the Stachybotrys Black toxic mold rather than bring in an environmental company to clean it up. That unsuspecting tenant was in the hospital for 3 months. With HPD and BEH’s visual inspection rule, the conditions that put him in the hospital probably would never have “officially” existed. The landlord in this case actually told the tenant that “we don’t give a fuck about you”- apparently HPD agrees.

D. Clark MacPherson

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