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Office of Administrative Trials and Hearings/Environmental Control Board

Proposed Rules: Open to Comments

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Agency:
Comment By: 
Monday, May 5, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

On December 20, 2013, Mayor Bloomberg signed Intro. 1213-A of 2013,which became Local Law 153 of 2013 (LL 153/13). This law amends the Administrative Code (Ad. Code) to give respondents receiving a first violation for certain provisions the opportunity to avoid paying a civil penalty if they cure the violations within a specific time period. This proposed rule adds a $0 mitigated penalty to three ECB penalty schedules upon a showing that the underlying violations have been cured.

 

Ad. Code § 16-116(d)(i)

Paragraph (i) of subdivision d of section 16-116 of the Administrative Code provides the penalty for violations of subdivisions a and b of this section. LL 153/13 amends paragraph (i) of subdivision d of section 16-116 to provide for a cure period for a respondent who received a notice of violation (“NOV”) of subdivision b of section 16-116 for the first time. A respondent may receive a mitigated penalty of $0 if he or she provides proof to ECB that the violation was corrected before the date of the initial hearing. Such proof may include a copy of the actual decal, written receipts or an agreement from the private carter. 

 

Ad. Code §§ 24-165 and 24-166 (Air Code)

Section 24-165 sets forth requirements for air contaminant detectors. Section 24-166 sets forth requirements for combustion shutoffs, which are installed to automatically shut down oil-burning equipment when an emission which exceeds the prescribed opacity or density is detected. LL 153/13 adds a new subdivision (g) to section 24-165 and a new subdivision (c) to section 24-166. The new subdivisions are identical and provide that the DEP Commissioner can recommend the imposition of a zero penalty to the Board for a first offense of section 24-165 or 24-166 if, within 45 days of the return date indicated on the notice of violation (NOV), respondent admits the violation and submits evidence satisfactory to DEP that work has been performed to permanently correct the violation.

 

 

Ad. Code § 24-227 (Noise Code)

This section prohibits excessive noise from circulation devices. LL 153/13 adds a new subdivision (d) to section 24-227. It provides that the DEP Commissioner can recommend to ECB that no civil penalty be imposed for a first violation of this section if, within 45 days of the return date on the NOV, the respondent admits liability for the violation and files a certification with DEP that improvements have been made to the establishment and that measurements substantiate that the establishment is in full compliance with the sound levels described in section 24-227. The violation may nevertheless serve as a basis for imposing penalties for subsequent violations of section 24-227.

 

ECB is including these changes and accompanying head notes in its penalty schedule to comply with the requirements of the new law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

 

Subject: 

Proposed Rule regarding Cure Period for Certain Violations concerning ECB's Sanitation, Air Code and Noise Code Penalty Schedules.

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

Elizabeth Nolan at (212) 436-0592 and Jim Macron at (212) 436-0594

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 22, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

 

On August 12, 2013, Mayor Bloomberg signed into law Intro. No. 893-A, also referred to as Local Law No. 57 of 2013. This law created a new chapter in Title 16 of the Administrative Code of the City of New York, Chapter 4-D, which establishes several new violations related to the bulk collection of recyclable containers using motor vehicles.

The law prohibits the use of a motor vehicle to accept, receive, or collect recyclable containers in bulk from more than one person on streets and in public areas, except for by authorized city employees or agents or private carters licensed or registered pursuant to section 16-505 of the Administrative Code. It also restricts the transfer of recyclable containers in bulk from one vehicle to another on or in any street where one or more of the vehicles involved in the transfer has a commercial license plate. The use of city streets for this activity creates significant health and safety risks for pedestrians and drivers. Any owner of a motor vehicle used in violation of this law is also liable unless he or she can show that the vehicle was used without his or her knowledge. 

On private property, if individuals wish to accept, receive, or otherwise collect recyclable containers in bulk from more than two persons, or to transfer recyclable containers in bulk from one motor vehicle to another, they must register with the Department of Sanitation. They must also ensure that they do not create nuisances or hazardous conditions by maintaining clean sidewalks and roadways around their sites. They also must satisfy annual reporting requirements, as specified in Administrative Code 16-473.

Pursuant to Sections 1048 and 1049-a of the New York City Charter and Chapter 3 of Title 48 of the RCNY, the New York City Environmental Control Board (ECB) hears and decides notices of violation issued for violations of the Administrative Code requirements pertaining to the acceptance of recyclable containers in bulk using motor vehicles. These requirements can be found in Chapter 4-D of Title 16 of the Administrative Code, enacted by Local Law 57 of 2013. The proposed rule sets forth the penalties for these violations, which can result in fines of $250 to $1000 and/or an owner’s vehicle being impounded.

 

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.

 

 

 

Subject: 

Proposed Rule concerning the amendment of ECB's Sanitation Penalty Schedule pertaining to the bulk collection of recyclable containers.

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

Elizabeth Nolan at (212) 436-0592 or James Macron at (212) 436-0594

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 22, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

ECB is amending its penalty schedule to allow for enforcement of new laws and rules that set limits on volatile organic compound (VOC) emissions in carpets and carpet cushions. Local Law 2 of 2012 added a new Chapter 13 to Title 17 of the Administrative Code, effective July 1, 2013.  After the law was passed, DOHMH enacted rules implementing this new chapter. Those rules became effective on August 23, 2013.

 

VOCs are common chemical contaminants that easily evaporate into the air. Some VOCs may have short- or long-term adverse health effects. U.S. Environmental Protection Agency studies have consistently found that VOC levels can be two to five times higher indoors than outdoors. Their presence can be noticed as an odor from new building materials including carpet, carpet backing, carpet cushion and adhesives. Carpet products that limit VOC emissions protect public health by improving the indoor air quality in homes and workplaces.

 

The proposed rule sets seven new penalties, ranging from $150 to $500, related to VOC emissions:

1.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, first violation.

2.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, second violation.

3.      Required notice not posted in a conspicuous location, or not provided in written or electronic form.

4.      Required documentation not provided within three business days of request.

5.      Receipt not provided to consumer.

6.      Posted sign does not meet required specifications.

7.      Notice text does not conform to wording requirement.

 

The proposed penalties are within the limits of the penalty amounts authorized in Administrative Code section 17-1409. For violations issued under section 17-1402, a second and subsequent violation is a violation by the same respondent of the same section of law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Subject: 

Proposed Rule concerning the amendment to ECB's Health Code and Miscellaneous Food Vendor Violations Penalty Schedule regarding carpet emissions.

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

Elizabeth Nolan at (212) 436-0592 or James Macron at (212) 436-0594

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

The Environmental Control Board (ECB) held a public hearing on January 8, 2014, regarding amendments to section 48 RCNY 3-31(c) of its rules of procedure.  The rule clarifies that a single attempt at service of a notice of violation may be sufficient to constitute “a reasonable attempt” under Section 1049-a(d)(2)(b) of the New York City Charter (“Charter”).  Section 1049-a does not contain a definition of “reasonable attempt,” but ECB decisions have long held that a single attempt is sufficient.  However, recent court decisions have created some confusion as to the correct standard.  Therefore, ECB has codified its decisions via rulemaking. Four (4) members of the public attended the January 8, 2014, public hearing and two (2) members of the public testified on the proposed rule. Two written comments were received. The Board has considered the testimony from the 2 members of the public and the 2 written comments.
 
The Current Rule
 
ECB’s rules of procedure, as found in 48 RCNY 3-31(c), regulate the service of certain notices of violation (NOV).  A person accused of violating a provision of the Charter or the City’s Administrative Code under ECB’s jurisdiction is known as a respondent.  
 
Under Charter Section 1049-a(d)(2)(a), an agency typically must serve a NOV to a respondent in the same manner as is prescribed by article three of the Civil Practice Law and Rules (CPLR) or article three of the Business Corporation Law (BCL).  However, the Charter also includes a number of exceptions.  Section 1049-a(d)(2)(a)(i) allows for service of a NOV by delivering the notice to a person employed by the respondent on or in connection with the premises where the violation occurred.  Section 1049-a(d)(2)(a)(ii) allows for service of a NOV issued by the Department of Sanitation, the Department of Buildings, or the Fire Department by affixing such notice in a conspicuous place to the premises where the violation occurred.
 
Charter Section 1049-a(d)(2)(b) provides that these exceptions only apply after “a reasonable attempt” has been made to serve the NOV in a manner permitted by article three of the CPLR or article three of the BCL.  The Charter does not contain a definition of “reasonable attempt,” but ECB has long interpreted the language so that a single attempt could satisfy the requirement.  ECB’s interpretation is based on the plain language of section 1049-a(d)(2)(b), which requires “a reasonable attempt” (emphasis added), and also the section’s legislative history.  The State Legislature added section 1049-a(d)(2)(b) to the Charter with the intent that the new language would “eliminate the time-consuming, costly and often unrewarding process now entailed in identifying and locating the person responsible for the violation.”  Governor’s Memorandum on Approval, Bill Jacket, L. 1979, ch. 623.  The rule ensures that the legislative intent behind the creation of section 1049-a(d)(2)(b) is codified in ECB’s rules of procedure. 
 

ECB’s authority to implement this rule is found in Section 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 03/16/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

  

The Environmental Control Board held a public hearing on December 18, 2013 regarding amendments to its Sanitation Penalty Schedule. This 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 (RCNY). A representative from the Department of Buildings and one member of the public attended the public hearing. The member of the public testified on the proposed rule. No written comments were received. The Board has considered the testimony from the member of the public.

 

On August 12, 2013, Mayor Bloomberg signed Local Law No. 56 for the year 2013. This law repealed the prior theft of recycling laws and added new provisions that enhance the City’s enforcement of the scavenging law by punishing those who unlawfully take City property or recyclables for their own financial gain.

 

Specifically, Local Law No. 56 amended the City’s recycling law by requiring a written agreement between a building owner and a private recyclables collector prior to the removal of recyclables. As amended, the law now also requires any building with four or more residential units or occupied by a City agency that receives DSNY collection and is in need of supplemental collection to first request supplemental collection from DSNY before entering into any additional agreements.

 

Additionally, there has been an increase in the theft of recyclable material containing refrigerants, which often results in harmful CFCs being released into the air. Local Law No. 56 makes it unlawful to remove a refrigerant-containing item or Department-marked item that has been placed out by the owner for DSNY collection, and allows the City to issue penalties against those who remove, transport, and receive unlawfully taken materials. Finally, Local Law No. 56 creates a citizen reward program for persons who report unlawful scavenging activities that lead to a conviction. Notices of Violation issued as a result of a citizen complaint will be based on an affidavit filed by the citizen.

 

This rule has added new definitions and new penalty amounts in ECB’s DSNY penalty schedule to comply with Local Law No. 56. For tracking purposes, the rule contains different categories for actions commenced based on the observation of a DSNY employee and those commenced based on a citizen affidavit (marked “Affidavit” in the penalty schedule).

 

The penalty provisions in Local Law No. 56 are codified in Sections 16-118 and 16-464 of the Administrative Code of the City of New York. The new penalties added by Local Law No. 56 in section 16-464 are flat penalties, and the statute does not provide a range for each charge. Solely for the convenience of the public, ECB is including these charges and accompanying head notes in its penalty schedule to ensure that ECB’s Penalty Schedules are as comprehensive as possible.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 03/16/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

Pursuant to Sections 533 and 1049-a of the New York City Charter, the New York City Environmental Control Board (ECB) hears and decides Notices of Violation issued for violations of the rules and regulations of the Hudson River Park Trust relating to the use, government and protection of the Hudson River Park.

 

The ECB held a public hearing on January 8, 2014 regarding amendments to its Hudson River Park Penalty Schedule found in Section 3-113 of Title 48 of the Rules of the City of New York (RCNY). Four (4) members of the public attended the January 8, 2014 public hearing. Neither written comments nor oral testimony were presented at the January 8, 2014 public hearing concerning the Proposed Rule regarding amendments to ECB’s Hudson River Park Penalty Schedule.

 

Sections 1 and 2

 

The Hudson River Park Trust recently amended the Hudson River Park rules and regulations found in Title 21 of the New York Codes, Rules, and Regulations (NYCRR). These amendments went into effect on April 4, 2013 and included new provisions prohibiting smoking in non-designated areas and geocaching without an issued permit. ECB has amended its Hudson River Park Penalty Schedule to create penalties for the violations of these newly added provisions.

 

Section 751.6(v) of Title 21 of the NYCRR prohibits smoking “in all public areas within Hudson River Park except as may be designated by the trust.” In Section 1 of this rule, ECB has aligned the Hudson River Park Penalty Schedule with the New York City Department of Parks and Recreation Rules Penalty Schedule (“Parks Rules Penalty Schedule”) found in Section 3-116 of Title 48 of the RCNY by adopting a $50 standard penalty and a $50 default penalty for violations of Hudson River Park’s smoking ban.

 

Section 751.7(s) of Title 21 of the NYCRR provides that “Geocaching or other treasure hunting games, activities, devices, logbooks, trinkets, or other materials, are not allowed within Hudson River Park except as may be expressly permitted by the trust.”  According to a guidance document issued by the New York State Office of Parks, Recreation and Historic Preservation: 

 

Geocaching is an outdoor activity in which the participants use a Global Positioning System (GPS) receiver to place “geocaches” or “caches” and post the GPS coordinates on the internet. Cache-seekers then use their GPS units to locate the site. Some caches are small containers with a variety of items. Visitors to caches can take a few items as souvenirs and leave new items for others to find. Others are virtual caches, where the “treasure” may be simply in the beauty or uniqueness of the site.

 

Geocaching provides park visitors an opportunity to learn about nature and enjoy the outdoors. Left unmanaged however, this activity has the potential to damage natural and historic resources and can pose a possible risk to visitors. . . .

 

Any visitor wishing to place a cache must complete an application for a geocache placement permit, which requires review and authorization by the park manager or designee. The permit process will provide for review of all geocache placements to ensure the protection of natural, historic, and archeological resources, and the safety and security of park visitors. 

 

The geocaching restriction was implemented to discourage geocaching without an issued permit, rather than punish the actual offenders. In Section 2, ECB has adopted a $25 standard penalty and a $50 default penalty for violations of the geocaching restriction. These amounts are similar to the penalties imposed for unauthorized alcohol consumption in Hudson River Park, which were also adopted to discourage the activity rather than punish offenders.

 

Sections 3 and 4

 

Several changes have been made to align the Hudson River Park Rules Penalty Schedule with the Parks Rules Penalty Schedule found in Section 3-116 of Title 48 of the RCNY where the penalties are for similar offenses.  For such changes, where the penalty for a Parks rule violation is greater than $500 (the maximum penalty that can be imposed for violation of a Hudson River Park rule), ECB has adopted the $500 maximum penalty for violations of the similar Hudson River Park rule.

 

Section 751.6(i) of Title 21 of the NYCRR prohibits animals that are “unleashed or out of control in the park.” In Section 3, ECB has aligned the penalties for unleashed or uncontrolled animals in the Hudson River Park Penalty Schedule with the penalties for unleashed or uncontrolled animals in the Parks Rules Penalty Schedule by adopting a $400 standard penalty and $500 default penalty for a third offense, and the $500 maximum penalty for each subsequent offense. Further, by making the $500 penalty applicable to fourth and subsequent offenses, there is no need for a separate entry for a fifth offense, which is accordingly being deleted in Section 4.

Section 751.6(k) of Title 21 of the NYCRR requires the removal of animal waste in Hudson River Park. In Section 3, ECB has aligned the penalties for failure to remove animal waste in the Hudson River Park Penalty Schedule with the penalties for failure to remove canine waste in the Parks Rules Penalty Schedule by adopting a $250 standard penalty and a $250 default penalty for each violation.

Section 751.7(j) of Title 21 of the NYCRR prohibits planting, pruning, foraging, growing, maintaining, or fertilizing or interfering with any trees, plants, flowers, shrubbery or other vegetation in Hudson River Park.  In Section 3, ECB has aligned the penalties for “planting/pruning/interfering with tree/vegetation without permit” in the Hudson River Park Penalty Schedule with the penalties for “destruction of tree branch/pruning without permit/minor tree abuse” in the Parks Rules Penalty Schedule by adopting a $100 standard penalty and a $400 default penalty for each violation.

The remaining changes in Section 3 deal with various boating restrictions. Since enactment of the current penalty schedule, experience has shown that these penalties are disproportionate to the risk involved.

In the case ofSection 751.8(f) of Title 21 of the NYCRR, which prohibits boats to be operated within Hudson River Park at a speed greater than five miles per hour, the current $50 standard penalty and $200 default penalty have proven inadequate deterrents. Because the risk of potential harm to other park users is great if vessels are operated at an excessive speed, ECB has raised this penalty to the $500 maximum.

As to the other three boating restrictions, similar to the geocaching restriction above, the intent is to discourage the activity rather than punish offenders. Therefore ECB has lowered these penalties by adopting a $50 standard penalty and a $200 default penalty. 

 

ECB’s authority for these rules is found in Sections 533 and 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 03/16/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

The Environmental Control Board held a public hearing on December 18, 2013 regarding amendments to its Department of Buildings (DOB) Penalty Schedule. This schedule is found in Section 3-103 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY). A representative from the Department of Buildings and one member of the public attended the public hearing. The member of the public testified on the proposed rule. No written comments were received. The Board has considered the testimony from the member of the public.

 

On July 1, 2013, the Mayor signed Local Law 47 of 2013. This law requires contractors and building owners to consolidate required construction signage and permits into a single new standard in order to provide information that is more useful to the public and minimize the visual clutter of signage at construction sites.

 

The law repeals the existing Section 3301.9 of the Building Code (BC 3301.9)—pertaining to required signage—and replaces it with a new BC 3301.9, detailing requirements for signs to be posted at construction or demolition sites. The new BC 3301.9 requires that where a site is enclosed with a fence, a project information panel must be posted and remain as long as the fence is in place. On sites where a sidewalk shed is installed, a sidewalk shed parapet panel must be posted and remain as long as the shed is in place. BC 3301.9 spells out the content, design, and location of project information panels and sidewalk shed parapet panels. Fence and sidewalk shed signs placed before July 1, 2013 are subject to separate regulations detailed under BC 3301.9.3. Additionally, BC 3301.9 regulates the placement of other signs required by law, directing that they be posted inside the site where only the workers can see them, unless the law requires them to be visible to the public as well.

 

Section 1

In order to enforce the new requirements under BC 3301.9, the rule has modified the following violations in the ECB penalty schedule:

 

-          1 RCNY 27-03 “Prohibited sign on sidewalk shed or construction fence” will now reference BC 3307.1.1 and read “Prohibited Outdoor Advertising Company sign on sidewalk shed or construction fence”.

 

Section 28-105.11 of the Administrative Code “Failure to post permit for work at premises” will now read “Failure to post or properly post permit for work at premises”.

 

-          BC 3301.9 & 27-1009(c) “Failure to provide/post sign(s) at job site pursuant to subsection” will delete the reference to section 27-1009(c) of the Administrative Code and now read “Project Information Panel/Sidewalk Shed Parapet Panel/Construction Sign not provided or not in compliance with section.

 

-          BC 3307.6 & 27-1021 “Sidewalk shed does not meet code specifications” will delete the reference to section 27-1021 of the Administrative Code, reference BC 3307.1 and read “Pedestrian protection does not meet code specifications”.

 

-          BC 3307.7 & 27-1021(c) “Job site fence not constructed pursuant to subsection” will delete the reference to section 27-1021(c) of the Administrative Code and now read “Job site fence not constructed or maintained pursuant to subsection”.

 

 

Section 2

In order to enforce the requirement that sidewalk sheds be Hunter Green and to enforce the prohibition on the placement of unlawful signs under BC 3301.9, the rule has added the following three violations to the penalty schedule:

 

-          BC 3307.1.1, “Posting of unlawful signs, information, pictorial representation, business or advertising messages on protective structures.” This violation is a class 2 violation. The penalty and default amounts are listed in the table below.

-           

-          BC 3307.3 “Failure to provide pedestrian protection for sidewalks and walkways”. This violation is a class 1 violation with no cure. The penalty and default amounts are listed in the table below.

-           

-          BC 3307.6.4, “Sidewalk shed does not meet color specification”. This violation is a class 2 violation with a cure. The penalty and default amounts are listed in the table below.

 

 

Section 3

In order to effectively enforce the requirement under BC 3307.3.1 that construction and demolition sites have pedestrian protection for sidewalks and walkways, the rule has made the following additional changes to the penalty schedule:

 

-          The deletion of the class 2 charge for BC 3307.3.1 & 27-1021(a) “failure to provide a sidewalk shed where required”  and delete reference to section 27-1021(a) of the Administrative Code.

 

Accordingly, DOB will amend its Violation Classification rule (1 RCNY 102-01) to classify these charges as required by 28-201.2.

 

 

 

Effective Date: 
Sun, 03/16/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

On December 16, 2013, OATH published its final rules in the City Record. These rules, effective January 15, 2014, codified interim rules in effect after the Taxi and Limousine Tribunal was merged with OATH. After publication in the City Record, OATH staff noticed an incorrect citation contained in section 5-14 of the new rule. The rule corrects that citation.

Effective Date: 
Sat, 03/15/2014

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Sunday, February 9, 2014
Proposed Rules Content: 

 

Statement of Basis and Purpose of Proposed Rule

On December 16, 2013, OATH published its final rules in the City Record. These rules, effective January 15, 2014, codified interim rules in effect after the Taxi and Limousine Tribunal was merged with OATH. After publication in the City Record, OATH staff noticed an incorrect citation contained in section 5-14 of the new rule. This rule corrects that citation.

 

Subject: 

A public hearing would serve no public purpose since the change corrects an erroneous citation in the cited rule.

Contact: 

Not applicable as there is no public hearing scheduled.

Adopted Rules: Closed to Comments

Adopted Rules Content: 

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).

 

 

Effective Date: 
Wed, 01/15/2014

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