City to get tough on safety.

In the wake of recent accidents such as the November 2 death of a construction worker who plummeted from scaffolding on 5th Avenue, the city is fighting to nail legislation in place that would establish new safety measures for what has always been an inherently dangerous business.

Few builders would argue that the sideeffects of the current boom, including strained labor forces, competition for heavy equipment, and streets cramped by multiple projects, require new legislation; but some question whether the city is using the right tactics.

Chief among these is legislation proposed at a council meeting that would substantially increase fines for some types of code violations and land the worst offenders in jail. This includes raising the fine for working after a stop work was issued from $500 to $2,000 a day. It could raise the fine for working without a permit from $500 to $5,000, and could include up to six months of jail time.

"If fear of jail time will scare contractors into complying, then so be it," said Jennifer Givner, spokesperson for the New York City Department of Buildings, which endorses a variation of the posed legislation. This year's record breaking 116,647 issued permits require reinforcement of pre-existing laws and regulations, Givner said. As the volume of work increases, more violations overall have been written, she said.

"We hope our safety campaign sends a message to the industry that we are monitoring this closely and hoping to do everything in our power to see that regs are properly followed," Givner said

Lou Coletti, BETA Contractors Association, agrees with the legislative measures proposed by the city, but believes they are just the tip of the iceberg, targeting problems after they surface.

The scaffolding accident which Coletti called a "poster child for everything that is done wrong in the business," prompted a subsequent meeting spearheaded by the DOB and the United States Labor Department's Occupational Safety and Health Administration (OSHA). Coletti is one of the task force members appointed to monitor worker safety and review current legislation relating to supported scaffolds.

"This is increasingly becoming a 'Tale of Two Cities,' said Coletti said. "Those owners who follow the rules and those who don't, those owners who expect the rules to be followed and those who look the other way expecting to save a few dollars."

"On the back end of the standards, I think we have to look at enforcement methods--and when those firms blatantly and intentionally fail to follow rules and regulations, they should be stopped from working on those projects and possibly future projects," Coletti said.

Martin Bruno, director of environmental health and safety of the New York branch of Skanska, USA, agrees that fines are appropriate for flagrant violators, and jail time might be appropriate in cases of contractors with shoddy sites whose unsafe practices cause a death. Yet Bruno does not believe fining is always the way to go, he said. A retired policeman, Bruno has adapted a new attitude towards crime and punishment along with the Skanska USA's $3 million adoptation of a safety certification program called Injury Free Environment (IFE).

"The old way, we would beat the guy over the head who was committing a safety violation, you know, scream at him to get off that ladder. If he had an accident, he was usually blamed. That was the norm," Bruno said.

"Now, if a worker has an accident he is not going to get blamed. He knows he can talk to us about what happened and we can figure out what happened so we can prevent it from happening again. I think we have to be focused that way on a large scale, across the entire industry."

Other recent safety measures organized by the city include an excavation rule that requires builders to give the DOB 24-48 hours notice prior to beginning any excavation or earthwork or face penalties which could include a three-day stop work order. Though not every excavation or earthwork project would be required to phone in, only a sample of the new projects would be audited. Inspectors will visit the excavation sites to photograph and analyze characteristics of the site like excavation depth and proper shoring. Those who do not meet safety standards could be issued stop work orders for a minimum of three days. The stop work order could last until the conditions are fixed.

Those who fail to report to the Department prior to excavation may also be issued a minimum three day work order, according to Patricia J. Lancaster, FAIA buildings commissioner

Some contractors are wary of the rule. "It seems duplicative to me," said Janine Getler, Esq. general counsel for HRH Construction, LLC. "We've already applied for permits and plan approval so the city already knows what work we are doing."

Other unsavory offshoots of the boom include safety lawsuits that have recently been gathering momentum, according to Fredrick Cohen, co-chair of the construction law practice at Brown, Raysman, Milstein, Felder and Steiner LLP.

"It has just begun to happen in the past 3-6 months and I think it is a trend that will proliferate," Cohen said.

Contractors who may be motivated more by the survival of their companies than fear of fines or lawsuits have devised their own safety methods in accordance with the changing industry.

HTA created new positions in their company--including risk managers and site safety managers who do spot checks and surprise checks, and required of their superintendents and project managers to get certified in safety by the BETA.

Skanska is among the builders finding themselves vying for new workers to employ who know promoting safety is more necessary than ever to preserve their businesses.

"There was a time when there were union workers sitting at the hall waiting for a call and not knowing if they would work that day," Bruno said. ."Now there is so much construction going on, nobody is sitting at home. If you lose an experienced worker to an injury and have to replace him you are in big trouble."