STATE OF NEW YORK
________________________________________________________________________
S. 7033--C A. 9918--C
SENATE - ASSEMBLY
April 24, 2012
___________
IN SENATE -- Introduced by Sen. MARCELLINO -- read twice and ordered
printed, and when printed to be committed to the Committee on Local
Government -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
IN ASSEMBLY -- Introduced by M. of A. CONTE, RAIA -- read once and
referred to the Committee on Local Governments -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
-- again reported from said committee with amendments, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the general municipal law, in relation to authorizing
the creation of certain local civil administrative enforcement bureaus
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general municipal law is amended by adding a new arti-
2 cle 14-BBB to read as follows:
3 ARTICLE 14-BBB
4 LOCAL CIVIL ADMINISTRATIVE ENFORCEMENT BUREAU
5 Section 390. Code and ordinance violations; administrative enforcement.
6 391. Director.
7 392. Administrative law judges.
8 393. Jurisdiction to impose civil penalties.
9 394. Commencement of proceedings; default judgments.
10 395. Administrative appeals panel.
11 396. Judicial enforcement.
12 397. Restriction on collateral use.
13 § 390. Code and ordinance violations; administrative enforcement. The
14 town of Huntington in the county of Suffolk may adopt a local law estab-
15 lishing an administrative enforcement hearing procedure under the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04431-05-2
S. 7033--C 2 A. 9918--C
1 provisions of this article for all code and ordinance violations regard-
2 ing conditions which constitute a threat or danger to the public health,
3 safety or welfare. Such bureaus shall be responsible for the impartial
4 administration and conduct of enforcement proceedings in such town.
5 § 391. Director. a. The head of the bureau shall be the director who
6 shall be the chief administrative law judge of the bureau and shall have
7 all the powers of an administrative law judge pursuant to this section.
8 The director shall be appointed by the governing body of such town for a
9 term of five years. The director shall be removable only for neglect of
10 duty or misfeasance in office after notice and an opportunity for a
11 hearing. Once appointed and confirmed, the director shall serve until
12 his or her term expires and until his or her successor has been
13 appointed and confirmed. The director shall devote his or her entire
14 work time to the duties of the office.
15 b. The director shall be an attorney admitted to practice for at least
16 five years in the state of New York and shall be knowledgeable on the
17 subject of administrative law and procedures.
18 c. The director shall have the power to promulgate rules consistent
19 with this article for the practice and procedure of the bureau, the
20 conduct of enforcement proceedings and the dismissal or settlement of
21 such proceedings.
22 d. The director shall develop and implement a program of evaluation to
23 aid in the performance of his or her duties, and to assist in the making
24 of promotions, demotions or removals. This program of evaluation shall
25 focus on three areas of performance: competence, productivity and demea-
26 nor. It shall include consideration of: industry and promptness in
27 adhering to schedules, making rulings and rendering decisions; toler-
28 ance, courtesy, patience, attentiveness, and self control in dealing
29 with litigants, witnesses and representatives, and in presiding over
30 enforcement proceedings; skills and knowledge of the subject of adminis-
31 trative law and procedures and new developments therein; analytical
32 talents and writing abilities; settlement skills; quantity, nature and
33 quality of case load disposition; impartiality and conscientiousness.
34 The director shall develop standards and procedures for this program,
35 which shall include taking comments from selected litigants and repre-
36 sentatives who have appeared before an administrative judge. The methods
37 used by an administrative judge but not the results arrived at by the
38 administrative law judge in any case may be used in evaluating an admin-
39 istrative judge. Before implementing any action based upon the finding
40 of the evaluation program, the director shall discuss the findings and
41 proposed action with the administrative law judge; provided however that
42 the director's authority pursuant to this subdivision is subject to the
43 provisions of the civil service law and any applicable collective
44 bargaining agreement.
45 e. To the extent permitted by law, the director shall publish and make
46 available to the public all significant decisions rendered by adminis-
47 trative law judges and all decisions rendered by the administrative
48 appeals panels. The director may charge a reasonable fee for a copy of
49 such determination or decision. Whenever any law of confidentiality
50 prevents the publication of the identity of any of the parties, an edit-
51 ed version of the decision shall be prepared which shall not disclose
52 the identities of the protected parties.
53 f. The director shall collect, compile, and publish statistics and
54 other data with respect to the operations and duties of the bureau and
55 submit annually to the mayor, the town board and the public a report on
56 such operations including but not limited to, the number of hearings
S. 7033--C 3 A. 9918--C
1 initiated, the number of decisions rendered, the number of partial or
2 total reversals by the appeals panel, the number of proceedings pending,
3 and on any recommendations of the bureau of statutory or regulatory
4 amendments.
5 g. The director shall study the subjects of administrative adjudi-
6 cation and enforcement in all aspects, and develop programs including
7 alternate dispute resolution and including preliminary or prehearing
8 conferences or mediation which would promote the goals of fairness,
9 uniformity and cost-effectiveness.
10 h. The director shall adopt, promulgate, amend and rescind rules and
11 regulations to carry out the provisions of this article and the policies
12 of the bureau in connection therewith. Such rules and regulations shall
13 substantially comply with article three of the state administrative
14 procedure act, shall supersede any inconsistent agency rules, and shall
15 include, but not be limited to, uniform standards and procedures, rules
16 of practice, standards for determining when an expedited hearing will be
17 conducted, standards for uncontested proceedings, standards for the
18 assignment of administrative law judges and their removal from cases,
19 and for the maintenance of records.
20 i. The director shall secure, compile and maintain all reports of
21 administrative law judges issued pursuant to this article, and such
22 reference materials and supporting information as may be appropriate and
23 to establish appropriate management information systems.
24 j. The director shall develop and maintain a program for the continu-
25 ing training and education of administrative law judges and ancillary
26 personnel.
27 § 392. Administrative law judges. a. The director shall appoint admin-
28 istrative law judges who shall be attorneys admitted to practice in the
29 state of New York for at least three years and shall have such other
30 qualifications as may be prescribed by the director. The director may
31 prescribe qualifications for administrative law judges which may vary
32 based on the type or kind of adjudicatory hearing to which such adminis-
33 trative law judge may be assigned.
34 b. The director may pursuant to rule establish such special units
35 within the bureau as are appropriate to the matters before the bureau
36 for adjudication.
37 c. An administrative law judge shall not participate in any proceeding
38 to which he or she is a party, in which he or she has been attorney,
39 counsel or representative, if he or she is related by consanguinity or
40 affinity to any party to the controversy within the sixth degree or
41 where such participation is otherwise prohibited by law. Administrative
42 law judges shall ensure that all hearings are conducted in a fair and
43 impartial manner.
44 d. Except as otherwise provided by law, in the conduct of an enforce-
45 ment, an administrative law judge may:
46 (1) hold conferences for the settlement or simplification of the
47 issues, provided that the settlement and dismissal of proceedings shall
48 be in accordance with the rules of the director;
49 (2) administer oaths and affirmations, examine witnesses, rule upon
50 offers of proof, receive evidence, and oversee, regulate, order and
51 enforce such discovery as is appropriate under the circumstances;
52 (3) upon motion of any party including an agency, or upon the adminis-
53 trative law judge's own motion with consent of the respondent, subpoena
54 the attendance of witnesses and the production of books, records, or
55 other information;
S. 7033--C 4 A. 9918--C
1 (4) regulate the course of the hearing in accordance with the rules of
2 the bureau or other applicable law;
3 (5) rule on procedural requests or similar matters;
4 (6) make final findings of fact and final decisions, determinations or
5 orders;
6 (7) where the bureau is authorized to render a final decision, deter-
7 mination or order imposing civil penalties, impose such civil penalties.
8 No such civil penalty shall exceed the maximum provided under law for
9 the violation; and
10 (8) take any other action authorized by law.
11 e. Unless inconsistent with this article, all hearings shall substan-
12 tially comply with the requirements of article three of the state admin-
13 istrative procedure act.
14 f. An administrative law judge shall render all findings of fact,
15 decisions, determinations and orders in an expeditious manner.
16 g. Unless otherwise authorized by law and except as provided in subdi-
17 vision h of this section, an administrative law judge shall not communi-
18 cate in connection with any issue that relates in any way to the merits
19 of a proceeding pending before the administrative law judge with any
20 person except upon notice and opportunity for all parties to partic-
21 ipate.
22 h. An administrative law judge may consult on questions of law and
23 ministerial matters with his or her supervisor, other administrative law
24 judges, and support staff of the bureau, provided that such supervisors,
25 administrative law judges or support staff have not been engaged in
26 functions in connection with the enforcement proceeding under consider-
27 ation or a factually related proceeding.
28 § 393. Jurisdiction to impose civil penalties. a. Such local law may
29 authorize such bureau to (1) conduct proceedings for the enforcement of
30 those code or ordinance violations described in section three hundred
31 ninety of this article for which civil penalties may be imposed, and (2)
32 to render decisions and orders and impose the civil penalties provided
33 under law for such violations.
34 b. No person subject to any charges may be sentenced to a term of
35 imprisonment upon being found guilty thereof, nor may an administrative
36 law judge order the arrest or detention of any person, nor may an admin-
37 istrative law judge deprive any person of a right to counsel.
38 § 394. Commencement of proceedings; default judgments. a. The bureau
39 shall conduct the proceedings authorized by local law in accordance with
40 this section and with rules promulgated by the director.
41 b. Such proceedings shall be commenced by the service of notice of
42 violation. The notice of violation or copy thereof when filled in and
43 served shall constitute notice of the violation charged, and, if sworn
44 to or affirmed, shall be prima facie evidence of the facts contained
45 therein. The notice of violation when sworn to or affirmed shall
46 constitute the testimony of the signator and, when filed with the bureau
47 shall be admitted into evidence as such testimony at any hearing on the
48 violation charged. Every such notice of violation shall state whether
49 the facts set forth therein are known personally to the signator and if
50 the facts are not so known the notice of violation shall specifically
51 identify the source of knowledge of such facts. If the respondent
52 disputes the facts stated in the notice of violation, the administrative
53 law judge, where appropriate may reject the signator's facts, accept
54 facts the respondent offers, or direct the signator's appearance.
55 c. (1) The form and wording of notices of violation shall be
56 prescribed by the director. The notice of violation shall contain
S. 7033--C 5 A. 9918--C
1 information advising the person charged of the manner and the time in
2 which such person may either admit or deny the violation charged in the
3 notice. Such notice of violation shall also contain a warning to advise
4 the person charged that failure to plead in the manner and time stated
5 in the notice may result in a default decision and order being entered
6 against such person. The original or a copy of the notice of violation
7 shall be filed and retained by the bureau and shall be deemed a record
8 kept in the ordinary course of business.
9 (2) Every notice of violation shall identify the provision of law
10 charged and shall set forth the factual basis for the violation. Where a
11 notice of violation does not contain this information, it shall be
12 dismissed at the request of the respondent or the administrative law
13 judge may dismiss the notice of violation upon his or her own motion.
14 d. Where a respondent has failed to plead within the time allowed by
15 controlling law or, if there is no such controlling law, by the rules of
16 the bureau, or has failed to appear on a designated hearing date or a
17 subsequent date following an adjournment, such failure to plead or
18 appear shall be deemed, for all purposes, to be an admission of liabil-
19 ity and shall be grounds for rendering a default decision and order
20 imposing a penalty up to the maximum amount prescribed under law for the
21 violation charged. A default decision and order may be opened within one
22 year of its entry upon written application showing excusable default and
23 a defense to the charge; a default decision and order may thereafter be
24 opened in the discretion of the director only upon written application
25 showing excusable default, a defense to the charge, and good cause for
26 the delay.
27 e. Any final order of the bureau imposing a civil penalty, whether the
28 adjudication was had by hearing or upon default or otherwise, shall
29 constitute a judgment rendered by the bureau against the respondent
30 which may be entered in the district court, city court or other equiv-
31 alent court of the town or any other place provided for the entry of
32 civil judgments within the state, and may be enforced against the
33 respondent and his, her or its property without court proceedings in the
34 same manner as the enforcement of money judgments entered in civil
35 actions; provided however that no such judgment shall be entered which
36 exceeds the jurisdiction of the district court, such city court or other
37 court.
38 f. Notwithstanding the foregoing provision, before a judgment based
39 upon a default may be so entered the bureau must have notified the
40 respondent by first class mail in such form as the director may require:
41 (1) of the default decision and order and the penalty imposed;
42 (2) that a judgment may be entered in the district court, city court
43 or other equivalent court of the town or any other place provided for
44 the entry of civil judgments within the state of New York; and
45 (3) that entry of such judgment may be avoided by requesting a stay of
46 default for good cause shown and either requesting a hearing or entering
47 a plea pursuant to the rules of the bureau within thirty days of the
48 mailing of such notice.
49 g. The bureau shall not enter any final decision or order unless the
50 notice of violation shall have been served in the same manner as is
51 prescribed for service of process by article three of the civil practice
52 law and rules or article three of the business corporation law, except
53 that:
54 (1) service of a notice of violation may be made by delivering such
55 notice to a person employed by the respondent
S. 7033--C 6 A. 9918--C
1 (A) to work on the premises the occupancy of which caused such
2 violation, or
3 (B) at the premises at which the respondent actually conducts the
4 business the operation of which gave rise to the violation, or
5 (C) at the site of the work with respect to which the violation
6 occurred, or
7 (D) at the place at which the violation occurred;
8 (2) service of a notice of violation may be made by certified mail,
9 return receipt requested; and
10 (3) a notice of violation of any code or ordinance relating to the
11 prevention of noise pollution caused by an audible motor vehicle burglar
12 alarm or relating to the parking, stopping or standing of a motor vehi-
13 cle may be served upon the owner of such motor vehicle by affixing such
14 notice to such vehicle in a conspicuous place.
15 h. Proof of service made pursuant to this article shall be filed with
16 the bureau and, where service is made by certified mail pursuant to
17 paragraph two of subdivision g of this section, shall include the return
18 receipt evidencing receipt of the notice served by mail. Service shall
19 be complete ten days after such filing.
20 i. Where any final decision or order may not be entered and enforced
21 as a judgment because the amount of civil penalty exceeds the jurisdic-
22 tional amount of the district court, city court or other equivalent
23 court of the town, with respect to actions and proceedings for the
24 recovery of money, such decision or order may be enforced by the
25 commencement of an action or proceeding for the recovery of such civil
26 penalties in a court of competent jurisdiction by the town.
27 j. Where service of a notice of violation is not made in a manner
28 authorized by law for the violation charged, it shall be dismissed at
29 the request of the respondent or the administrative law judge may
30 dismiss the notice of violation upon his or her own motion.
31 § 395. Administrative appeals panel. a. There shall be one or more
32 administrative appeals panels within the bureau. Each panel shall
33 consist of three administrative law judges. In no event shall the admin-
34 istrative law judge from whom such appeal of a decision, determination
35 or order is taken be included in the panel determining such appeal.
36 Administrative law judges serving on the administrative appeals panel
37 shall not regularly conduct administrative hearings, but shall serve
38 primarily as administrative appeals panel members.
39 b. A respondent may appeal, on the facts and/or the law, a final deci-
40 sion, final determination or final order. An agency aggrieved by a final
41 decision, final determination or final order may appeal on the law, but
42 only after notice to the respondent and a finding by the appeals panel
43 that the issue upon which the agency seeks to appeal is significant and
44 affects the agency's legitimate enforcement functions.
45 c. Upon rendering a decision, making a final determination or issuing
46 a final order, the administrative law judge shall provide the non-agency
47 party with a form notice of appeal and shall explain to such party on
48 the record
49 (1) the method of filing the notice and the applicable time limits;
50 (2) the requirements of subdivision f of this section concerning the
51 payment of penalties and posting of bonds pending appeal, including the
52 right to request exemption therefrom; and
53 (3) that no further court challenge is permitted by law unless an
54 administrative appeal is taken.
55 d. Notice of appeal shall be filed with the appeals panel within thir-
56 ty days of the entry of such decision, determination or order. If no
S. 7033--C 7 A. 9918--C
1 such notice of appeal is filed within such thirty day period, such deci-
2 sion, determination or order shall finally and irrevocably determine all
3 the issues in the proceeding before the administrative law judge.
4 e. For good cause shown, the administrative appeals panel may permit
5 the filing of a notice of appeal after the thirty day period.
6 f. The appeals panel shall have the power to review the record and the
7 findings of the administrative law judge and may reverse, modify or
8 remand any such decision, determination or order appealed therefrom.
9 g. Except as otherwise provided in this subdivision no appeal of a
10 decision, determination or order of an administrative law judge imposing
11 civil penalties shall be decided unless such civil penalties are paid or
12 a cash or recognized surety company bond shall have been posted in the
13 full amount of such civil penalties. No such payment or posting of such
14 bond shall be required where the respondent is the holder of a current
15 license or permit for the operation of a business issued by an agency or
16 officer of such city. Upon a showing of undue hardship or where justice
17 may require, the administrative law judge who decided the case or appel-
18 late panel to which the appeal is assigned may order that the appeal
19 shall be decided without requiring such payment or posting of such bond.
20 h. The director of the bureau shall promulgate rules governing the
21 practice and procedure of appeals to the administrative appeals panel
22 pursuant to this section.
23 i. The determination of the appeals panel shall be rendered within
24 ninety days after the submission of all relevant papers to the panel, or
25 if oral argument is permitted, within ninety days after such oral argu-
26 ment.
27 j. The determination of the appeals panel shall be the final determi-
28 nation of the bureau for the purposes of review pursuant to article
29 seventy-eight of the civil practice law and rules.
30 k. Where the respondent prevails in any proceeding pursuant to this
31 section, civil penalties paid to the town shall be returned with inter-
32 est at the rate set by the commissioner of finance of the city of New
33 York for the refund of overpayments of business taxes pursuant to
34 section 11-537 of the administrative code of the city of New York.
35 § 396. Judicial enforcement. Any order or subpoena or any final deci-
36 sion or determination rendered by the bureau shall be subject to
37 enforcement by the judiciary in an action or proceeding commenced in a
38 court of competent jurisdiction by the prevailing party including the
39 town.
40 § 397. Restriction on collateral use. Decisions, determinations and
41 orders issued by the bureau shall not be cited, and shall not be consid-
42 ered precedent nor be given any force or effect in any criminal proceed-
43 ing.
44 § 2. Severability. If any provision of this act or the application
45 thereof shall for any reason be adjudged by any court of competent
46 jurisdiction to be invalid, such judgment shall not affect, impair, or
47 invalidate the remainder of this act, but shall be confined in its oper-
48 ation to the provision thereof directly involved in the controversy in
49 which such judgment shall have been rendered.
50 § 3. This act shall take effect immediately.
