Article 3 - General Provisions
Proposed Rules: Closed to Comments
Statement of Basis and Purpose
These amendments to the New York City Health Code (the “Health Code”) are issued in accordance with §§556, 558, 1043 and 1046 of the New York City Charter (the “Charter”). Section 556 of the Charter provides the Department of Health and Mental Hygiene (the “Department”) with authority to regulate all matters affecting health in the city of New York. Paragraphs (b) and (c) of §558 of the Charter empower the Board of Health (the “Board”) to amend the Health Code and provide how the Health Code will be enforced. Section 1043 of the Charter gives the Department rulemaking powers and §1046 authorizes City agencies to adopt rules governing adjudications.
Background of Amendments
On November 2, 2010, New York City voters approved Charter revisions including an amendment authorizing the Mayor, by Executive Order, to consolidate certain administrative tribunals into OATH. In addition, the Charter amendment required the establishment of a committee whose mandate was to recommend which tribunals or types of cases should be transferred to OATH. The Mayor's Committee on Consolidation of Administrative Tribunals (“Mayor’s Committee”) issued its "Report and Recommendations," dated June 7, 2011, containing an Appendix with recommended modifications to rules of the various tribunals ("Report" and "Appendix").
By Executive Order No. 148 (June 8, 2011) (the “Executive Order”), the Mayor ordered the “transfer of the administrative tribunals established by the Board of Health pursuant to Section 558 of the Charter” to OATH, effective July 3, 2011. According to the Executive Order, certain provisions of the Health Code and other Rules of the City of New York pertaining to the Department’s Administrative Tribunal, as well as some additional interim procedures, would be deemed interim rules of OATH in accordance with the Mayor’s Committee’s Report and Appendix. These provisions, rules, and procedures, were designated interim rules until OATH itself completed official rulemaking in accordance with the Charter.
At its meeting on December 13, 2011, the Board adopted a Resolution repealing Article 7 (“Administrative Tribunal”) of the Health Code, and amending other provisions of the Health Code that refer to Article 7 and/or the Administrative Tribunal. Certain provisions of Article 7 survived the transfer to OATH and were added to Article 3 (“General Provisions”) of the Health Code. These provisions, incorporated in a new §3.12 (“Administrative Tribunal”) became effective July 20, 2012 when the OATH rules for the OATH Health Tribunal became effective.
Section 3.12 of the Health Code was further amended by the Board at its June 12, 2012 meeting (also made effective July 20, 2012) to provide for service of notices of violations (NOVs) returnable to the Environmental Control Board (ECB) (“Administrative Tribunal and Environmental Control Board proceedings”), which under the Charter has concurrent jurisdiction with the former Administrative Tribunal to adjudicate NOVs issued for violations of the Health Code. ECB’s rules provide that NOVs returnable to ECB that are not served personally pursuant to Charter §1049-a(d)(2) may be served “alternatively as provided by the statute, rule or other provision of law governing the violation alleged.” 48 RCNY §3-31 (c).
As amended, Health Code §3.12 (c) currently provides that NOVs returnable to ECB may be served personally, or by any form of mail delivery “that provides proof of mailing and receipt.” Health Code §151.05, which was adopted by the Board on March 15, 2011 and provides for hearing of NOVs returnable to ECB, similarly requires proof of mailing and receipt. The Department has been serving NOVs returnable to ECB by US Postal Service (USPS) first class mail. Although no return receipt is provided with this method of mailing, a uniquely numbered certificate of mailing provided by the USPS was used to track delivery. Until recently, the USPS website reported the actual address where the NOV was delivered and the date and time of its delivery when the number of the certificate of mailing was entered online. The USPS website, however, no longer provides address-specific information, but only the zip code where the mail was delivered. Because Health Code §3.12 (c) currently requires proof of receipt of the NOV, ECB has advised the Department that NOVs mailed this way will be dismissed if service of the NOV is challenged by the respondent. The dismissals will be automatic and occur even though respondents receive their NOVs and appear at their hearings. The Department is proposing that the Board further amend §3.12 (c) and §151.05 (b) to delete the requirement that it prove receipt of an NOV as an essential element of service to avoid these dismissals.
City agencies are authorized by §1046(b) of the Charter to make rules governing service of notices of adjudicatory hearings, as well as other elements of such proceedings; how notice is to be proved is not specified.