Statement of Basis and Purpose of Final Rule
Background of Rule Amendments
On November 2, 2010, New York City voters approved a number of Charter revisions, including:
· an amendment authorizing the Mayor, by executive order, to consolidate City administrative tribunals into the Office of Administrative Trials and Hearings (“OATH”), and,
· the establishment of a committee to recommend which tribunals or types of cases should be transferred to OATH.
The Mayor’s Committee on Consolidation of Administrative Tribunals issued its “Report and Recommendations,” dated June 7, 2011, containing an Appendix with recommended modifications to the various tribunals’ rules (“Report” and “Appendix”). The rules contained in the Appendix that were designated as OATH rules, referred to below as “interim rules,” were proposed to be continued until OATH conducted rulemaking governing the procedures of the tribunals to be under its jurisdiction.
As further authorized by the Charter amendments, on June 8, 2011, the Mayor issued E.O. 148, which accepted the Committee’s recommendations and, among other things, transferred to OATH the administrative tribunals then located within the Taxi and Limousine Commission (TLC), and the Department of Health and Mental Hygiene, effective July 3, 2011.
With respect to the Taxi and Limousine Tribunal, E.O. 148, by approving the Report and adopting its Appendix, provided that the rules and procedures governing adjudication at, and otherwise affecting, the TLC Administrative Tribunal, contained in chapters 68 and 69 of Title 35 of the Rules of the City of New York, would generally be continued with some modifications as interim rules of OATH applicable to the Taxi and Limousine Tribunal within OATH. This set of interim rules would be continued until such time as OATH completed rulemaking in accordance with the Charter. See Executive Order 148, §1(b) and (c).
Moreover, TLC is promulgating other conforming changes to chapter 68 of Title 35 of the Rules of the City of New York. The rulemaking actions of TLC and OATH are being coordinated so that the amendments proposed by each entity will take effect at the same time.
Unless otherwise specified, references to 35 RCNY chapters 68 and 69 that are included here refer to provisions modified in accordance with E.O. 148.
Summary of Rule Amendments
OATH will repeal the interim rules transferred by Executive Order 148, and add a new chapter 5 in Title 48 of RCNY, which will in general codify the interim rules, but with some further changes reflecting OATH practice. The changes in the new chapter 5 in Title 48 of RCNY:
· Replace all references to the existence and jurisdiction of the TLC Adjudications Tribunal with references to OATH generally or the OATH Taxi and Limousine Tribunal in particular;
· Modify various hearing procedures relating to reschedules, adjournments, notifications, defaults, appeals, and other matters in order to reduce the burden on OATH and respondents, as well as to improve record-keeping;
· Provide language assistance services to respondents when needed;
· Modify rules governing the conduct of people who appear at the OATH Taxi and Limousine Tribunal, including registration and obligations of non-attorney representatives; and
· Where appropriate, make these procedural rules consistent with OATH’s practice generally and with respect to other tribunals.
Specific Amendments to be Enacted
Section 5-01 (“Definitions Specific to this Chapter”) sets forth the meanings of terms specifically applicable to the Taxi and Limousine Tribunal.
Section 5-02 (“Scope of this Chapter”) subdivision (a) sets forth the jurisdiction of the tribunal. Subdivision (b) sets forth the tribunal’s powers, which include imposing fines and penalties in accordance with the rules of the TLC. Subdivision (c) sets forth the powers of the tribunal’s hearing officers. Subdivision (d) provides that the tribunal’s rules apply to all cases heard at the tribunal.
Section 5-03 (“Service and Filing of Summons”) cross-references TLC’s rules for the requirements for the proper service of the summons and adds the requirement of filing of the summons with the tribunal prior to the first scheduled hearing date.
Section 5-04 (“Contents of Summons”) subdivision (a) cross-references TLC’s rules for the required contents of summons. Subdivision (b) of this section continues, with changes, interim rule 35 RCNY §68-06, which retained the existing TLC rule on the failure of a summons to contain all required information. Where information required by subdivision (a) is missing, the hearing officer may proceed with the hearing, correct the rule or code section cited, grant an adjournment, or dismiss the violation. Subdivision (c) of this section provides that if a summons is sworn to under oath or affirmed under penalty of perjury, the summons will constitute prima facie evidence of the facts stated therein.
Section 5-05 (“Appearance Requirements”) continues, with non-substantive reorganization, interim rule 35 RCNY §68-07. Subdivision (a) of the new rule sets forth a respondent’s options for responding to a summons where the respondent’s personal appearance is not required. It also clarifies that payment of a fine under this section constitutes a guilty plea. Subdivision (b) sets forth a respondent’s options for responding to a summons where the respondent’s personal appearance is required. Subdivision (c) sets forth the consequence of a respondent’s failure to respond pursuant to subdivisions (a) or (b).
Section 5-06 (“Requests to Reschedule”) continues, with changes, the portion of interim rule 35 RCNY §68-09 related to requests to reschedule a hearing. Subdivision (a) of the new rule sets forth who may make requests to reschedule. Subdivision (b) of the new rule provides procedures for such requests to reschedule. Under the interim rule, pre-hearing reschedule requests were required to be made before the first scheduled hearing date. Reflecting the fact that under the new rule, both TLC and the respondent each have the right to request a prehearing reschedule, the new rule eliminates the requirement that such requests be made prior to the first scheduled hearing date in order to afford both parties the opportunity to request one pre-hearing reschedule, so long as such requests are made at least five business days before the hearing date sought to be adjourned.
Section 5-07 (“Requests for Adjournment”) provides procedures for requests for adjournment. As with the interim rule, the new rule requires that all adjournment requests be made at a hearing either to obtain the testimony of a complaining witness or for good cause. Subparagraph (a)(4)(iii) of interim rule 35 RCNY §68-09, which addressed the non-attendance of complaining witnesses who have submitted a sworn or affirmed summons, has been deleted and moved to new rule Section 5-09 (“Hearings Procedures”).
Section 5-08 (“Hearings – Who Must or Can Appear for the Respondent”) continues, with changes, interim rule 35 RCNY § 68-10. It removes the requirement that a respondent who is not a licensee must appear personally and provides that any respondent may be represented at a hearing by an attorney or by an authorized non-attorney representative.
Section 5-09 (“Hearings – Procedures”) continues, with changes, interim rule 35 RCNY § 68-11. The new rule makes several substantive changes to the interim rule, described below.
· Subdivision (b) provides that OATH will provide appropriate language assistance services to respondents when needed. This subdivision describes how the hearing officer may make such a determination.
· Subdivision (d) continues, with modifications, the interim rule regarding a respondent’s right to confront TLC witnesses. Subparagraph (d)(1)(i), which addresses the non-attendance of complaining witnesses who have submitted a sworn or affirmed summons, has been moved to this section from interim rule 35 RCNY § 68-09(a)(4)(iii) (“Hearings – Adjournment Requests”).
· Subdivision (h) provides that payment of fines must be made in accordance with TLC’s rules.
Section 5-10 (“Defaults”) continues, with changes, interim rule 35 RCNY § 68-12. The new rule removes requirements from former § 68-12 for certain findings by the hearing officer before a default judgment is issued, to make them consistent with procedures currently in place at the Environmental Control Board (ECB). The new rule additionally standardizes penalties imposed after default determinations as the maximum penalties permitted under TLC rules or other applicable laws.
Section 5-11 (“Respondent’s Right to Challenge a Default Decision”) continues, with changes, interim rule 35 RCNY § 68-13. The new rule makes several substantive changes to the interim rule, described below.
· Subdivision (c) requires that a first motion to vacate filed within 60 days of the default decision state a reasonable excuse for the respondent’s failure to appear at the hearing, without the requirement in the interim rule to show a defense to the charge.
· Subdivision (d) requires that motions filed after 60 days but before two years, provide a reasonable excuse for the respondent’s failure to appear at the hearing and a reasonable excuse for delay in presenting the motion, without the requirement in the interim rule of a reasonable excuse for delay in presenting the motion and a defense to the charge.
· Subdivision (e) of the interim rule, which provided for subsequent motions to vacate, is removed. Subdivision (h) is added, which allows subsequent motions to vacate only in exceptional circumstances and in order to avoid injustice.
· Subdivision (g)(3) of the interim rule, which provided that any default fines paid be refunded when a default was vacated, has been removed. Instead, in accordance with subdivision 5-09(h) of the new rules, policies relating to the collection of fines are to be governed by TLC’s rules.
Consistent with its experience with motions to vacate default decisions at the ECB Tribunal, OATH anticipates that these changes will simplify the process for respondents and increase efficiency without an impact on due process.
Section 5-12 (“Appeals”) combines, with changes, interim rules 35 RCNY §§ 68-14 and 68-15, which provided separate procedures for appeals by respondents and appeals by the TLC. Under the new rule, the procedures for appealing a decision are the same for both respondents and the TLC. In addition to that change, the new rule does the following:
Re-orders some provisions and adjusts some of the technical requirements for notice and filing of appeals and answers in subdivisions (c), (d), and (e);
Deletes the Appeal Unit’s authority to modify lawfully imposed penalties;
Provides that appeals of cases where a hearing officer’s decision results in the suspension or revocation of a license will be expedited by the Appeals Unit.
Consistent with its experience with appeals at the ECB Tribunal, OATH anticipates that these changes will increase efficiency and reduce scheduling difficulties and backlogs without an impact on due process.
Section 5-13 (“Chairperson Review”) is added to be consistent with the new TLC 35 RCNY § 68-12.
· The rule acknowledges the new TLC process that permits the TLC Chairperson, or if he or she designates, the General Counsel for the TLC, to review any determination of the Appeals Unit that interprets an enumerated rule or statute which the TLC administers, and to issue a decision adopting, rejecting or modifying the Appeals Unit decision.
· The Chairperson’s interpretation of the Commission’s rules and the statutes it administers shall be considered agency policy and must be applied in future adjudications involving the same rules or statutes.
Section 5-14 (“Special Procedures”) sets forth special procedures, including timeframes for calendaring and for issuing decisions, applicable to certain kinds of cases heard at the tribunal, as provided by either the Administrative Code of the City of New York or chapter 68 of the TLC’s rules. The procedures in this section apply to cases involving a failure to take a drug test in which respondent submits written documentation for review by a hearing officer, and also to unlicensed activity cases.
Sections 5-15 and 5-16 replace Chapter 69 of the interim rules. Consistent with its experience at the ECB Tribunal, OATH anticipates that these changes to the requirements and regulation of the conduct of representatives at the tribunal will increase access to justice and provide for more orderly hearings, without an impact on due process.
Section 5-15 (“Registered Representatives”) requires representatives of five or more respondents (other than family members) within a calendar year to register with OATH. The new rule prohibits representatives who are not attorneys from misrepresenting their qualifications (see also Prohibited Conduct below). Attorneys admitted to practice in New York State are not required to register.
Section 5-16 (“Prohibited Conduct”) defines prohibited conduct and includes conduct that occurs both inside and outside of the hearing room. It also covers conduct outside OATH that would lead OATH personnel to conclude that a representative lacks honesty and integrity that will adversely affect a representative’s practice before the tribunal—for example, attempted bribery of an issuing officer. The new rule allows the Chief Administrative Law Judge of OATH to suspend registered representatives or attorneys who do not comply with OATH’s rules, but only after the attorney or representative is given notice and a reasonable opportunity to rebut the claims against him or her. The suspension may be for a specified period of time or indefinitely.
Section 5-17 (“Computation of Time”) was added to clarify how to calculate any period of time prescribed in these rules.
OATH’s authority for these rules is found in Sections 1043 and 1049 of the City Charter and Section 1(c) of Mayoral Executive Order No. 148 (June 8, 2011).