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Office of Administrative Trials and Hearings/Environmental Control Board

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Background

 

Section 1049 of the Charter authorizes the Chief Administrative Law Judge of OATH to direct the office with respect to its management and structure and to establish rules for the conduct of hearings. With this rule, OATH is modifying its procedural rules to streamline processes, provide greater consistency across tribunals and give OATH the flexibility to transfer or allow new types of cases to be made returnable to OATH in the future. Changes include the revision of Chapters 1 and 2 of Title 48 of the RCNY and the repeal and reenactment of Chapter 6.

 

The OATH Trials Division

 

The changes to Chapters 1 and 2 rename the entity governed by these rules as the “OATH Trials Division.” These changes include:

·       modifying captions for Chapters 1 and 2 and Subchapter D;

·       adding a definition of “Trial” to section 1-01; 

  • changing the words “hearing” and “hearings” to “trial” and trials” throughout; and
  • providing a mechanism for  review by the Chief Administrative Law Judge to determine the proper venue for hearings or trials.
  • changing the name of the Center for Mediation Services to the Center for Creative Conflict Resolution in section 1-30 to reflect the recent name change of OATH’s internal mediation services provider

 

 

 

The OATH Hearings Division

 

The changes to Chapter 6 expand the applicability of these rules to the newly created OATH Hearings Division. They also modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters in order to simplify, clarify and expedite the adjudications process.  Where appropriate, the changes make the procedural rules at the OATH Hearings Division consistent with those of other tribunals at OATH.

 

Specific Amendments to be Enacted

 

The rules in Chapter 6 have been broken down into subchapters to provide for better clarity and readability.

 

Subchapter A--General

In Section 6-01“Definitions Specific to this Chapter,” the terms “Adjournment,”  “Appearance,” “OATH” and “Reschedule” are added, and the term “Hearing Examiner” is changed to “Hearing Officer.”  The term “Department” is deleted and the term “Petitioner” is modified to reflect that cases will be initiated by various agencies. The terms “Board of Health” and “Health Code” are also deleted as references to both are now contained within the rules that specifically refer to them.

 

Section 6-02 “Jurisdiction, Powers and Duties of the OATH Hearings Division” is changed to permit the Tribunal to adjudicate Notices of Violation issued by any agency consistent with applicable law.  It also reflects that settlement conferences are not being held at the Tribunal. The remainder of former section 6-02 is renumbered as 6-13 “Hearing Officers.”

 

Section 6-03 “Language Assistance Services” has been added to clarify that these services are available at the Tribunal.

 

Section 6-04 “Computation of time” continues, with one minor modification, former Section 6-10 “Computation of time.”  Subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, five, rather than seven, days will be added to the period of time within which the party has the right or requirement to act.

 

Subchapter B -Pre-Hearing Procedures

 

New Section 6-05 is titled “Pre-Hearing Requests to Reschedule” and includes material formerly found at section 6-04 with some changes:

 

·       It sets forth the procedures by which respondents may make a request to reschedule a hearing and reduces the number of requests to one per party for each violation. 

 

·       It extends the time, up until the time of the scheduled hearing, in which a respondent may request to reschedule a hearing. 

 

·       It requires that the petitioner notify the respondent three days before the hearing if the petitioner requests to reschedule the hearing.

 

Section 6-06 “Subpoenas” is deleted in its entirety.  The Hearing Officer’s ability to issue subpoenas remains in Section 6-13(b).

 

New Section 6-06 “Pre-Hearing Requests for Inspectors” contains text from former section 6-05(f)(i)(a) but shortens the time frame for respondent requests from seven business days prior to the scheduled hearing date to three business days. Such request is considered a request to reschedule under section 6-05.

 

Section 6-07 is added to include a provision for Pre-Hearing Discovery. This provision is consistent with rules governing other tribunals at OATH, which set out the scope of pre-hearing discovery.

 

Subchapter C -Hearings

 

Section 6-08 “Proceedings before the OATH Hearings Division” simplifies the requirements of service previously located at section 6-03(b) by no longer requiring certified or registered mailing.  It also deletes language specific to the Department of Health and Mental Hygiene as to who may be served. 

 

Section 6-09 “Appearances” reorders former section 6-04, with some changes.  The provision allows for the adjudication of cases in person, by mail or online. Appearances by mail and online are allowed unless the Notice of Violation specifies otherwise. An in-person appearance must be at the time, as well as on the date, of the scheduled hearing.  This section sets forth what happens when either the petitioner or the respondent fails to appear at the scheduled time.  In addition:

 

·       The provisions in former section 6-04 subdivision (b) detailing requirements for appearances by mail are moved to Section 6-10 “Adjudications by Mail and Online.”   

 

·       The provisions in former section 6-04 subdivision (c) for pre-hearing adjournments are moved to Section 6-05 “Pre-Hearing Requests to Reschedule.” 

 

·       The provisions in former section 6-04 subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-14 “Requests for Adjournments.”

 

·       The provisions in former section 6-04 subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-20 “Default” and Section 6-21 “Request for a New Hearing after a Failure to Appear.” 

 

·       New subdivisions (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.

 

Section 6-10 “Adjudication by Mail and Online” renumbers and renames former section 6-05, previously titled “Hearings and adjudications in person, by mail, or by telephone.”  It includes former sections 6-05 (a) and (h). If the Notice of Violation specifies the respondent must appear in person, these methods of adjudication may not be used.

 

Section 6-11 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c),  and (j) of former Section 6-05 “Hearings and adjudications in person, by mail, or by telephone.”

 

·       The provision in subdivision (b), “The hearings shall be open to the public,” is removed to accommodate the conduct of hearings by mail, telephone and online.

 

·       New subdivision (d) requires that counsel or authorized representatives who appear on behalf of respondents have sufficient staffing to complete their scheduled hearings.  It also gives the Tribunal discretion to determine the order in which the Notices of Violations are heard. 

 

Section 6-12 “Burden of Proof” is a new section that contains portions of former section 6-05(e).

 

Section 6-13 “Hearing Officers” is a new section that clearly delineates the powers of the Hearing Officers. It includes the powers of Hearing Examiners formerly found in section 6-02(c), information about amending Notices of Violation formerly found in section 6-03(d), and subpoena powers formerly found in section 6-06.

 

Section 6-14 “Requests for Adjournment” contains provisions regarding requests for adjournment made at a hearing, previously contained in Section 6-04(d).  It lists factors that will be considered in deciding whether there is good cause to grant an adjournment request.

 

Section 6-15 “Appearances of Inspectors” is a new section that incorporates, with some modifications, the provisions that were previously contained in Section 6-05(f).

 

·       Subdivision (a) sets forth the procedure for a respondent to request the presence of the inspector at the time of the hearing.  Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06, which permits such a request up to three, rather than seven, business days prior to the hearing.

 

·       Subdivision (c) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the inspector. 

 

Section 6-18 “Payment of Penalty” is a new section that incorporates, with some modifications, the provisions formerly found in Section 6-05(i). Fines imposed must be paid within thirty days of the date of the hearing decision. OATH will no longer impose late payment penalties if the fine is not paid on time.

 

Subchapter D-Appeals

 

Section 6-19 “Appeals” incorporates, with some modifications, the provisions formerly found in Section 6-08. It also adds a provision for extending the time to file an appeal due to impossibility or other explanation as well as a provision tolling the time to appeal if a recording is requested. 

 

·       Subdivision (c) describes the record to be considered on appeal and limits the evidence to that which was presented at the hearing.

 

Subchapter E-Defaults

 

Section 6-20 “Defaults” contains provisions previously contained in Section 6-04(e) regarding the consequences of a failure to appear at a hearing.  Default decisions no longer need to be rendered by a hearing officer.

 

Section 6-21 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e)(3) regarding procedures for motions to vacate a default. 

 

·       Subdivision (c) lists circumstances to be considered in determining “reasonable excuse” for a respondent’s failure to appear at the hearing.

 

·       Subdivision (e) provides that if a motion to vacate a default has been previously granted and a new default decision has been issued for the same Notice of Violation, the second default decision will not be opened except in exceptional circumstances and in order to avoid injustice.

 

·       Subdivision (f) provides that a motion to open a default received more than one year after the default decision will not be granted except in exceptional circumstances and in order to avoid injustice.

 

·       A new subdivision (g) has been added to clarify that if a motion to vacate a default is granted, requests for refunds of payments made after default will not be considered until after the hearing is completed.

 

Subchapter F-Miscellaneous

 

Section 6-22 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07.  There are no major substantive rule changes in the section.

 

Section 6-23 “Registered Representatives” incorporates, with some modifications, the provisions formerly found in Section 6-09 “Registration and disqualification of certain authorized representatives.”  Family members of respondents are exempt from the registration requirement.  The Tribunal will not charge a fee to register representatives and it will not issue a registration card.  The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-24 “Misconduct” is a new section that details prohibited conduct by a party, witness, representative or attorney, including prohibited communications.  It also provides penalties for misconduct and procedures for imposing discipline on attorneys or representatives.

 

OATH’s authority to establishthese rules is found in section 1049 of the New York City Charter.

 

Effective Date: 
Wed, 07/01/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

ECB has amended its Sanitation Penalty Schedule to create penalties for violations of Local Law 67 of 2014 (“Local Law 67”), which relates to publicly accessible collection bins (typically used for clothing donations). ECB has also created a penalty for violations of 16 RCNY 1-04.2 which prohibits the placement of electronic waste out for solid waste or recycling collection.

 

The Environmental Control Board (“ECB”) held a public hearing on April 14, 2015 regarding amendments to its Sanitation Penalty Schedule and amendments to ECB’s Department of
Buildings Penalty Schedule. The Sanitation Penalty Schedule is found in Section 3-122 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. One representative from the NYC Department of Buildings (“DOB”) and two (2) individuals from the public attended the April 14, 2015 public hearing. No written comments or oral testimony concerning this Proposed Rule were received at the April 14, 2015 public hearing.

           

Publicly Accessible Collection Bins

On December 14, 2014, Intro. Number 409-A of 2014 became a law, designated as Local Law 67, effective March 14, 2015.  Local Law 67 relates to the regulation of publicly accessible collection bins, which are prohibited from being placed on City property, property maintained by the City, or any public sidewalk or roadway. Bins may be placed on private property if the property owner or the property owner’s designated agent provides written permission to the bin owner. Owners of publicly accessible collection bins that operate lawfully on private property are required to place their names, addresses, and telephone numbers on their bins.

 

Local Law 67, effective on March 14, 2015, authorizes DSNY to immediately remove any publicly accessible collection bin placed on public property and to issue violations against owners of illegally placed collection bins.  Further, owners of bins that are lawfully placed on private property will be required to register and file an annual report with DSNY. Additionally, the bin owner and the private property owner will each be responsible for maintaining the bin in a clean and neat condition. Bin owners who fail to comply with these requirements will be liable for civil penalties.

 

The new law defines a subsequent offense as a violation issued to the same respondent within any eighteen-month period.  The rule reflects this definition.

 

Electronic Waste

As of January 1, 2015, the New York State Electronic Equipment Recycling and Reuse Act (Chapter 99 of the laws of 2010, codified as Title 26 of Article 27 of the Environmental Conservation Law) prohibits disposal of electronic waste as solid waste in the State of New York.  This act prohibits electronic waste from being placed or disposed of in any solid waste management facility, or being placed out for collection for disposal at a solid waste management facility or hazardous waste management facility in the State of New York.  Specifically, the law means that residents and businesses may no longer place electronic waste, such as computers and cell phones, for example, out for collection with either regular waste or with recyclables.

 

Pursuant to section753oftheNewYorkCityCharter, DSNY is responsibleforthefunctionsand operations of wastedisposal within theCity, andhasauthorityundersections16-118and16-120oftheNewYorkCity AdministrativeCodetoissueviolationstopersonswhoimproperlydisposeofsolidwaste.  In response to the new law, DSNY promulgated a new rule, 16 RCNY 1-04.2, to prohibit electronic waste from being set out for solid waste or recycling collection in New York City.

 

ECB’s authority for these rules is found in Sections 1043(a) and 1049-a of the New York City Charter and Sections 10-169, 16-118, and 16-120 of the New York City Administrative Code.

 

 

Effective Date: 
Sun, 06/21/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

ECB’s rule has modified the Buildings Penalty Schedule, in order to adequately enforce existing laws and rules and reflect changes brought about by Local Law 141 (LL 141), which went into effect on December 31, 2014.  LL 141 amended the Administrative Code of the City of New York (“Administrative Code”), the New York City Plumbing Code, the New York City Building Code, the New York City Mechanical Code and the New York City Fuel Gas Code.  LL 141 amended existing requirements, added new requirements, and renumbered existing sections of the affected codes.  In addition, unrelated to LL 141, ECB has modified the Buildings Penalty Schedule to reflect efforts by the Department of Buildings (DOB) to update existing violations in DOB rules by amending their sections of law and violation descriptions.

 

The ECB held a public hearing on April 14, 2015 regarding amendments to its Department of Buildings (DOB) Penalty Schedule found in Section 3-103 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. One representative from DOB and two (2) members of the public attended the April 14, 2015 public hearing. Neither member of the public presented testimony on the proposed rule at the public hearing. ECB received and considered one written comment on the proposed rule regarding amendments to its DOB Penalty Schedule.    

 

The rule includes twelve changes or additions to the Buildings Penalty Schedule, related to:

  • obtaining the relevant service equipment Certificate of Compliance prior to operation;
  • operating, maintaining, testing, and inspecting elevators and conveying systems (e.g., escalators, moving walkways, chair lifts and amusement devices);
  • providing notice when an elevator will be out of service due to repair work;
  • tampering, removing, or defacing a Stop Work Order or Vacate Order prior to its rescission by the Commissioner of Buildings;
  • failing to obey a Vacate Order;
  • failing to conduct or file a final inspection of permitted work with the DOB; and
  • damaging or removing trees in a Special Natural Area District without certification, authorization or special permit from the Department of City Planning.

 

The penalties for these violations fall within the guidelines for their respective classes of violations, as set forth in Section 28-202.1 of the Administrative Code.  The statutory maximum for each class of violation is:

Class 3 (lesser violations) - $500,

Class 2 (major violations) - $10,000, and

Class 1 (immediately hazardous violations) - $25,000.

 

Subject to these statutory maximums, the penalties in the Buildings Penalty Schedule are calculated as follows:

  • Where there is no default by a respondent, an Aggravated I Penalty is 2 ½ times the Standard Penalty and an Aggravated II Penalty is five times the Standard Penalty. 
  • In the case of a default by a respondent, an Aggravated I Default Penalty is ten times the Standard Penalty and an Aggravated II Default Penalty is set at the statutory maximum prescribed under law. 
  • The Default Penalty is five times the Standard Penalty.

           

New violations that are not Class 1 (immediately hazardous violations) may be indicated as curable in the penalty schedule.

 

 

Effective Date: 
Sun, 06/21/2015

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, June 15, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

Local Law 69 (LL 69) of 2013 holds the manufacturers of refrigerant-containing appliances responsible for the lawful recovery of refrigerants from appliances disposed of by residents.  Since the enactment of LL 69, the Department of Sanitation (DSNY) has adopted amendments to Chapter 17 of Title 16 of the Rules of the City of New York.  DSNY’s rules:

·       Establish the registration requirements for “responsible parties,” meaning the a brand owner or manufacturer of refrigerant-containing appliances;

·       Describe the obligations of responsible parties, including the requirement to indicate whether they will establish their own recovery program, participate with other responsible parties in a recovery program, or partake in DSNY’s recovery program;

·       Establish fees associated with DSNY’s refrigerant recovery program, and describe the required information that must be contained in the biannual bill sent by DSNY to a responsible party;

·       Create a process by which a responsible party can challenge DSNY’s biannual bill;

·       Establish annual reporting requirements for responsible parties who establish their own or participate with other responsible parties in refrigerant recovery programs;

·       Establish violations and fines for failing to comply with certain requirements of the proposed rule

·       Establish a violation, punishable by a fine of $500, for any responsible party who disposes of a refrigerant-containing appliance without arranging for the lawful recovery of the appliance’s refrigerants, as provided by LL 69; and

·       Establish that enforcement proceedings may be brought as civil actions or in a proceeding before the Environmental Control Board (ECB).

To enforce the amendments to Chapter 17 of Title 16 of the Rules of the City of New York related to the proper disposal of refrigerants, ECB is proposing to amend its Sanitation Penalty Schedule to create penalties for violations of these rules.

 

ECB’s authority for these rules is found in Chapter 4-E of Title 16 of the Administrative Code of the City of New York and Sections 1043(a) and 1049-a of the New York City Charter.

 

 

Subject: 

Proposed rule concerning the amendment of ECB's Sanitation Penalty Schedule concerning the recovery of refrigerants.

Location: 
Office of Administrative Trials and Hearings Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0708 or Jim Macron at (212) 436-0602

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, June 15, 2015
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

 

Hand Delivery of Hearing Officer Decisions and Orders

The Environmental Control Board (ECB) is proposing to amend sections 48 RCNY 3-57, 3-71 and 3-73 of its rules of procedure.  The proposed changes will allow for service by ECB of hearing officer decisions and orders by hand delivery or by mail.

 

ECB’s current rule, 48 RCNY 3-57,requires ECB to serve decisions and orders on all parties but is silent as to how decisions are served. However, sections 3-71 and 3-73 refer to “mailing” of decisions and orders. Currently, ECB serves all decisions and orders by mail. To reduce costs, provide an additional service option, and to further clarify when the time to appeal begins to run, ECB is amending the rule to allow for both mailing and hand delivery of decisions and orders.

 

The amendment to 48 RCNY 3-57 also requires amending sections 3-71 and 3-73 of ECB’s rules because, as stated above, those rules currently only refer to “mailing” of decisions and orders.

 

Delivery of Cease and Desist Orders and Notices of Special Hearing by Regular Mail

ECB is also amending 48 RCNY 3-91 to allow ECB to serve Cease and Desist Orders and Notices of Special Hearing by regular mail instead of by certified mail, return receipt requested. The Board issues a Cease and Desist order after the Department of Environmental Protection (DEP) has issued a respondent a notice of violation or several notices of violation, ECB has found the respondent in violation and the respondent has failed to correct the condition for which the violation was issued. The Cease and Desist Order requires the respondent to appear at a special hearing or have the equipment that is the subject of the violation sealed.

 

ECB has determined based on experience that service of these orders by certified mail   is not needed since the DEP also serves these orders by delivering them to respondents at the address where the equipment at issue to be sealed is located. Furthermore, ECB records show that the United States Postal Service returns many of these mailings to ECB because respondents fail to go to the post office to pick them up. Finally, ECB rules provide for prompt hearing (post-sealing special hearing) should equipment be sealed based on a failure to appear at a pre-sealing hearing.

 

Subject: 

Proposed Rule to amend ECB's rules of procedure to allow for service of hearing officer decisions and orders by hand delivery or by mail. The changes will also allow for regular mailing of Cease and Desist Orders and Notices of Specail Hearing.

Location: 
Office of Administrative Trials and Hearings Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0708 or Jim Macron at (212) 436-0602.

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

On August 12, 2013, Mayor Bloomberg signed into law Intro. No. 893-A, which was designated as Local Law No. 57 of 2013 (LL 57). This law created a new chapter in Title 16 of the Administrative Code of the City of New York, Chapter 4-D, which established several new violations related to the bulk collection of recyclable containers using motor vehicles.  ECB then conducted its rulemaking process, and amended its Sanitation Penalty Schedule to reflect this new law.

The manner in which the rules were promulgated during the last rulemaking process unintentionally did not make clear whether certain violations applied to vehicle owners.  The  technical change in the rule restores the intended purpose of the law to apply to vehicle owners.

ECB’s authority for these rules is found in Chapter 4-D of Title 16 of the Administrative Code of the City of New York and Sections 1043(a) and 1049-a of the New York City Charter.

 

The ECB held a public hearing on March 13, 2015 regarding amendments to its Sanitation Penalty Schedule found in Section 3-122 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. No members of the public attended the public hearing. Neither written comments nor oral testimony were presented at the March 13, 2015 public hearing concerning the Proposed Rule regarding amendments to ECB’s Sanitation Penalty Schedule.

Effective Date: 
Sat, 05/09/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

The Environmental Control Board has amended its Department of Transportation Penalty Schedule found in Section 3-124 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. The Department of Transportation issues violations for certain types of infractions against contractors who fail to provide adequate protection at worksites to ensure the safety of pedestrians and vehicles.  Although existing law allows fines for these infractions to be as high as $5,000, the current fine is set at only $400, and has been at that amount since 1995.  This amount is also relatively low compared to other DOT safety-related violations such as for failing to secure a steel plate.  The fine for that violation is $1,200 and reflects the danger to public safety that could occur from a steel plate that is not properly secured.

 

To maintain consistency across its safety related infractions, and to promote the safety of pedestrians and vehicles around a worksite, the Environmental Control Board (“ECB”) has promulgated a rule to increase the penalty for failure to provide adequate protection from $400 to $1,200.  The ECB has amended the default penalty for failure to provide adequate protection to be raised from $1,200 to $3,600.

 

The ECB held a public hearing on February 11, 2015 regarding amendments to its Department of Transportation Penalty (DOT) Schedule found in Section 3-124 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. One representative from DOT and two (2) individuals from the public attended the public hearing. Neither of the individuals from the public presented testimony on the proposed rule at the February 11, 2015, public hearing. ECB received one written comment on the proposed rule regarding amendments to its DOT Penalty Schedule.  

 

Effective Date: 
Sat, 05/09/2015

Proposed Rules: Closed to Comments (View Public Comments Received:2)

Agency:
Comment By: 
Thursday, May 7, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

Background

 

Section 1049 of the Charter authorizes the Chief Administrative Law Judge of OATH to direct the office with respect to its management and structure and to establish rules for the conduct of hearings. With this rule, OATH is modifying its procedural rules to streamline processes, provide greater consistency across tribunals and give OATH the flexibility to transfer or allow new types of cases to be made returnable to OATH in the future. Changes include the revision of Chapters 1 and 2 of Title 48 of the RCNY and the repeal and reenactment of Chapter 6.

 

The OATH Trials Division

The changes to Chapters 1 and 2 rename the entity governed by these rules as the “OATH Trials Division.” These changes include:

·       modifying captions for Chapters 1 and 2 and Subchapter D;

·       adding a definition of “Trial” to section 1-01; 

  • changing the words “hearing” and “hearings” to “trial” and trials” throughout; and
  • providing a mechanism for  review by the Chief Administrative Law Judge to determine the proper venue for hearings or trials.

 

 

The OATH Hearings Division

 

The changes to Chapter 6 expand the applicability of these rules to the newly created OATH Hearings Division. They also modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters in order to simplify, clarify and expedite the adjudications process.  Where appropriate, the changes make the procedural rules at the OATH Hearings Division consistent with those of other tribunals at OATH.

 

Specific Amendments to be Enacted

 

The rules in Chapter 6 have been broken down into subchapters to provide for better clarity and readability.

 

Subchapter A--General

In Section 6-01“Definitions Specific to this Chapter,” the terms “Adjournment,”  “Appearance,” “OATH” and “Reschedule” are added, and the term “Hearing Examiner” is changed to “Hearing Officer.”  The term “Department” is deleted and the term “Petitioner” is modified to reflect that cases will be initiated by various agencies. The terms “Board of Health” and “Health Code” are also deleted as references to both are now contained within the rules that specifically refer to them.

 

Section 6-02 “Jurisdiction, Powers and Duties of the OATH Hearings Division” is changed to permit the Tribunal to adjudicate Notices of Violation issued by any agency consistent with applicable law.  It also reflects that settlement conferences are not being held at the Tribunal. The remainder of former section 6-02 is renumbered as 6-13 “Hearing Officers.”

 

Section 6-03 “Language Assistance Services” has been added to clarify that these services are available at the Tribunal.

 

Section 6-04 “Computation of time” continues, with one minor modification, former Section 6-10 “Computation of time.”  Subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, five, rather than seven, days will be added to the period of time within which the party has the right or requirement to act.

 

Subchapter B -Pre-Hearing Procedures

 

New Section 6-05 is titled “Pre-Hearing Requests to Reschedule” and includes material formerly found at section 6-04 with some changes:

 

·       It sets forth the procedures by which respondents may make a request to reschedule a hearing and reduces the number of requests to one per party for each violation. 

 

·       It extends the time, up until the time of the scheduled hearing, in which a respondent may request to reschedule a hearing. 

 

·       It requires that the petitioner notify the respondent three days before the hearing if the petitioner requests to reschedule the hearing.

 

Section 6-06 “Subpoenas” is deleted in its entirety.  The Hearing Officer’s ability to issue subpoenas remains in Section 6-13(b).

 

New Section 6-06 “Pre-Hearing Requests for Inspectors” contains text from former section 6-05(f)(i)(a) but shortens the time frame for respondent requests from seven business days prior to the scheduled hearing date to three business days. Such request is considered a request to reschedule under section 6-05.

 

Section 6-07 is added to include a provision for Pre-Hearing Discovery. This provision is consistent with rules governing other tribunals at OATH, which set out the scope of pre-hearing discovery.

 

Subchapter C -Hearings

 

Section 6-08 “Proceedings before the OATH Hearings Division” simplifies the requirements of service previously located at section 6-03(b) by no longer requiring certified or registered mailing.  It also deletes language specific to the Department of Health and Mental Hygiene as to who may be served. 

 

Section 6-09 “Appearances” reorders former section 6-04, with some changes.  The provision allows for the adjudication of cases in person, by mail or online. Appearances by mail and online are allowed unless the Notice of Violation specifies otherwise. An in-person appearance must be at the time, as well as on the date, of the scheduled hearing.  This section sets forth what happens when either the petitioner or the respondent fails to appear at the scheduled time.  In addition:

 

·       The provisions in former section 6-04 subdivision (b) detailing requirements for appearances by mail are moved to Section 6-10 “Adjudications by Mail and Online.”   

 

·       The provisions in former section 6-04 subdivision (c) for pre-hearing adjournments are moved to Section 6-05 “Pre-Hearing Requests to Reschedule.” 

 

·       The provisions in former section 6-04 subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-14 “Requests for Adjournments.”

 

·       The provisions in former section 6-04 subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-20 “Default” and Section 6-21 “Request for a New Hearing after a Failure to Appear.” 

 

·       New subdivisions (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.

 

Section 6-10 “Adjudication by Mail and Online” renumbers and renames former section 6-05, previously titled “Hearings and adjudications in person, by mail, or by telephone.”  It includes former sections 6-05 (a) and (h). If the Notice of Violation specifies the respondent must appear in person, these methods of adjudication may not be used.

 

Section 6-11 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c),  and (j) of former Section 6-05 “Hearings and adjudications in person, by mail, or by telephone.”

 

·       The provision in subdivision (b), “The hearings shall be open to the public,” is removed to accommodate the conduct of hearings by mail, telephone and online.

 

·       New subdivision (d) requires that counsel or authorized representatives who appear on behalf of respondents have sufficient staffing to complete their scheduled hearings.  It also gives the Tribunal discretion to determine the order in which the Notices of Violations are heard. 

 

Section 6-12 “Burden of Proof” is a new section that contains portions of former section 6-05(e).

 

Section 6-13 “Hearing Officers” is a new section that clearly delineates the powers of the Hearing Officers. It includes the powers of Hearing Examiners formerly found in section 6-02(c), information about amending Notices of Violation formerly found in section 6-03(d), and subpoena powers formerly found in section 6-06.

 

Section 6-14 “Requests for Adjournment” contains provisions regarding requests for adjournment made at a hearing, previously contained in Section 6-04(d).  It lists factors that will be considered in deciding whether there is good cause to grant an adjournment request.

 

Section 6-15 “Appearances of Inspectors” is a new section that incorporates, with some modifications, the provisions that were previously contained in Section 6-05(f).

 

·       Subdivision (a) sets forth the procedure for a respondent to request the presence of the inspector at the time of the hearing.  Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06, which permits such a request up to three, rather than seven, business days prior to the hearing.

 

·       Subdivision (c) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the inspector. 

 

Section 6-18 “Payment of Penalty” is a new section that incorporates, with some modifications, the provisions formerly found in Section 6-05(i). Fines imposed must be paid within thirty days of the date of the hearing decision. OATH will no longer impose late payment penalties if the fine is not paid on time.

 

 

Subchapter D-Appeals

 

Section 6-19 “Appeals” incorporates, with some modifications, the provisions formerly found in Section 6-08. It also adds a provision for extending the time to file an appeal due to impossibility or other explanation as well as a provision tolling the time to appeal if a recording is requested. 

 

·       Subdivision (c) describes the record to be considered on appeal and limits the evidence to that which was presented at the hearing.

 

 

Subchapter E-Defaults

 

Section 6-20 “Defaults” contains provisions previously contained in Section 6-04(e) regarding the consequences of a failure to appear at a hearing.  Default decisions no longer need to be rendered by a hearing officer.

 

Section 6-21 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e)(3) regarding procedures for motions to vacate a default. 

 

·       Subdivision (c) lists circumstances to be considered in determining “reasonable excuse” for a respondent’s failure to appear at the hearing.

 

·       Subdivision (e) provides that if a motion to vacate a default has been previously granted and a new default decision has been issued for the same Notice of Violation, the second default decision will not be opened except in exceptional circumstances and in order to avoid injustice.

 

·       Subdivision (f) provides that a motion to open a default received more than one year after the default decision will not be granted except in exceptional circumstances and in order to avoid injustice.

 

·       A new subdivision (g) has been added to clarify that if a motion to vacate a default is granted, requests for refunds of payments made after default will not be considered until after the hearing is completed.

 

Subchapter F-Miscellaneous

 

Section 6-22 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07.  There are no major substantive rule changes in the section.

 

Section 6-23 “Registered Representatives” incorporates, with some modifications, the provisions formerly found in Section 6-09 “Registration and disqualification of certain authorized representatives.”  Family members of respondents are exempt from the registration requirement.  The Tribunal will not charge a fee to register representatives and it will not issue a registration card.  The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-24 “Misconduct” is a new section that details prohibited conduct by a party, witness, representative or attorney, including prohibited communications.  It also provides penalties for misconduct and procedures for imposing discipline on attorneys or representatives.

 

 

OATH’s authority to establishthese rules is found in section 1049 of the New York City Charter.

 

Subject: 

OATH proposed rule concerning the establishment of the Trials Division and Hearings Division.

Location: 
NYC Office of Administrative Trials and Hearings
100 Church Street 12th Floor, Courtroom G
New York, NY 10007
Contact: 

Stacey Turner at (212) 933-3007.

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 14, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

ECB is proposing to amend its Sanitation Penalty Schedule to create penalties for violations of Local Law 67 of 2014 (“Local Law 67”), which relates to publicly accessible collection bins (typically used for clothing donations). ECB is also proposing to create a penalty for violations of 16 RCNY 1-04.2 which prohibits the placement of electronic waste out for solid waste or recycling collection.

 

Publicly Accessible Collection Bins

On December 14, 2014, Intro. Number 409-A of 2014 became a law, designated as Local Law 67, which will become effective on March 14, 2015.  Local Law 67 relates to the regulation of publicly accessible collection bins, which are prohibited from being placed on City property, property maintained by the City, or any public sidewalk or roadway. Bins may be placed on private property if the property owner or the property owner’s designated agent provides written permission to the bin owner. Owners of publicly accessible collection bins that operate lawfully on private property are required to place their names, addresses, and telephone numbers on their bins.

 

When Local Law 67 takes effect on March 14, 2015, DSNY will be authorized to immediately remove any publicly accessible collection bin placed on public property and to issue violations against owners of illegally placed collection bins.  Further, owners of bins that are lawfully placed on private property will be required to register and file an annual report with DSNY. Additionally, the bin owner and the private property owner will each be responsible for maintaining the bin in a clean and neat condition. Bin owners who fail to comply with these requirements will be liable for civil penalties.

 

The new law defines a subsequent offense as a violation issued to the same respondent within any eighteen-month period.  The proposed rule reflects this definition.

 

Electronic Waste

As of January 1, 2015, the New York State Electronic Equipment Recycling and Reuse Act (Chapter 99 of the laws of 2010, codified as Title 26 of Article 27 of the Environmental Conservation Law) prohibits disposal of electronic waste as solid waste in the State of New York.  This act prohibits electronic waste from being placed or disposed of in any solid waste management facility, or being placed out for collection for disposal at a solid waste management facility or hazardous waste management facility in the State of New York.  Specifically, the law means that residents and businesses may no longer place electronic waste, such as computers and cell phones, for example, out for collection with either regular waste or with recyclables.

 

Pursuant to section753oftheNewYorkCityCharter, DSNY is responsibleforthefunctionsand operations of wastedisposal within theCity, andhasauthorityundersections16-118and16-120oftheNewYorkCity AdministrativeCodetoissueviolationstopersonswhoimproperlydisposeofsolidwaste.  In response to the new law, DSNY promulgated a new rule, 16 RCNY 1-04.2, to prohibit electronic waste from being set out for solid waste or recycling collection in New York City.

 

ECB’s authority for these rules is found in Sections 1043(a) and 1049-a of the New York City Charter and Sections 10-169, 16-118, and 16-120 of the New York City Administrative Code.

 

Subject: 

ECB Proposed Rule concerning the amendment of its Sanitation Penalty Schedule regarding electronic waste and collection bins on public property.

Location: 
NYC Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0708 or Jim Macron at (212) 436-0602

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 14, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

ECB is proposing a rule to modify the Buildings Penalty Schedule, in order to adequately enforce existing laws and rules and reflect changes brought about by Local Law 141 (LL 141), which went into effect on December 31, 2014.  LL 141 amended the Administrative Code of the City of New York (“Administrative Code”), the New York City Plumbing Code, the New York City Building Code, the New York City Mechanical Code and the New York City Fuel Gas Code.  LL 141 amended existing requirements, added new requirements, and renumbered existing sections of the affected codes.  In addition, unrelated to LL 141, ECB proposes to modify the Buildings Penalty Schedule to reflect efforts by the Department of Buildings (DOB) to update existing violations in DOB rules by amending their sections of law and violation descriptions.

 

The proposed rule includes twelve changes or additions to the Buildings Penalty Schedule, related to:

  • obtaining the relevant service equipment Certificate of Compliance prior to operation;
  • operating, maintaining, testing, and inspecting elevators and conveying systems (e.g., escalators, moving walkways, chair lifts and amusement devices);
  • providing notice when an elevator will be out of service due to repair work;
  • tampering, removing, or defacing a Stop Work Order or Vacate Order prior to its rescission by the Commissioner of Buildings;
  • failing to obey a Vacate Order;
  • failing to conduct or file a final inspection of permitted work with the DOB; and
  • damaging or removing trees in a Special Natural Area District without certification, authorization or special permit from the Department of City Planning.

 

The penalties for these violations fall within the guidelines for their respective classes of violations, as set forth in Section 28-202.1 of the Administrative Code.  The statutory maximum for each class of violation is:

Class 3 (lesser violations) - $500,

Class 2 (major violations) - $10,000, and

Class 1 (immediately hazardous violations) - $25,000.

 

Subject to these statutory maximums, the penalties in the Buildings Penalty Schedule are calculated as follows:

  • Where there is no default by a respondent, an Aggravated I Penalty is 2 ½ times the Standard Penalty and an Aggravated II Penalty is five times the Standard Penalty. 
  • In the case of a default by a respondent, an Aggravated I Default Penalty is ten times the Standard Penalty and an Aggravated II Default Penalty is set at the statutory maximum prescribed under law. 
  • The Default Penalty is five times the Standard Penalty.

           

New violations that are not Class 1 (immediately hazardous violations) may be indicated as curable in the penalty schedule.

 

 

Subject: 

ECB Proposed Rule concerning the amendment of its Department of Buildings Penalty Schedule regarding the implementation of Local Law 141.

Location: 
NYC Environmental Control Board
66 John Street 10th Floor Conference Room
New York , NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0708 or Jim Macron at (212) 436-0602

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