Article 7 - Administrative Tribunal

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Friday, July 20, 2012
Keywords:
Download Copy of Adopted Rule (.pdf): 

 

 

Statement of Basis and Purpose

 

Statutory Authority

 

These amendments to the New York City Health Code (the “Health Code”) are issued in accordance with §§556, 558 and 1043 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. Section 558(b) and (c) of the Charter empower the Board of Health (the “Board”) to amend the Health Code and to include in the Health Code all matters over which the Department has authority. Section 1043 of the Charter gives the Department rulemaking powers. These amendments are also promulgated pursuant to revisions to the Charter approved by the voters in 2010, authorizing the Mayor by Executive Order to consolidate certain administrative tribunals by transferring their adjudicatory functions to the Office of Administrative Trials and Hearings (OATH).

 

Basis and Purpose of the Rule Change

 

On November 2, 2010, New York City voters approved Charter revisions authorizing the Mayor, by Executive Order, to consolidate certain administrative tribunals into OATH. By Executive Order No. 148 (June 8, 2011) (the “Executive Order”), the Mayor ordered the “transfer of the administrative tribunals [sic] established by the Board of Health pursuant to Section 558 of the Charter” to OATH, effective July 3, 2011. The Executive Order further provided that 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 rules of OATH in accordance with the Report and the Appendix to the Report of the Committee on Consolidation of Administrative Tribunals (“Mayor’s Committee”) until OATH itself completed rulemaking in accordance with the Charter.

 

At its meeting on June 14, 2011, the Board of Health adopted a resolution facilitating the transfer by designating the Administrative Tribunal as the “Health Tribunal at OATH, which shall decide questions of fact and law and penalties to be imposed in all matters brought before such Administrative Tribunal…”

 

To further facilitate a smooth transition of adjudicatory and appeals functions to the Health Tribunal at OATH, the Board has repealed Article 7 and amended other provisions of the Health Code that refer to either or both Article 7 and the Administrative Tribunal, to be consistent with the Executive Order and Report and Appendix of the Mayor’s Committee. Those provisions of Article 7 that survive the transfer to OATH have been added to Article 3. In addition, certain provisions of the Department’s rules in Chapter 7 of Title 24 of the Rules of the City of New York ("RCNY"), which differentiated matters previously assigned to the Administrative Tribunal (penalties and fines) and OATH (show cause, permit revocations and suspensions) have also been incorporated in Article 3. In a separate rulemaking process that does not require Board of Health approval, the Department will take necessary actions to repeal Chapter 7 of Title 24 RCNY and Chapter 1 of Title 25 RCNY (Adjudications of the former Department of Mental Health and Retardation).

 

The following is a summary of the amendments that have been adopted:

 

Article 1 (Short Title and General Definitions). Section 1.03 (b), defining the Administrative Tribunal, has been amended by identifying the new Health Tribunal at OATH. A new subdivision (k) has been added that references and defines OATH.

 

Article 3 (General Provisions). Section 3.11 (c) (which provided that when a respondent fails to appear at the Administrative Tribunal and is found in default, any penalty imposed shall be double that which would have been imposed if the respondent was found in violation after a hearing) has been amended to reference the new name of the tribunal and add provisions recommended by Mayor’s Committee relating to the name of the tribunal (former §7.01); jurisdiction (former §7.03); and surviving provisions of Chapter 7 of Title 24 RCNY. Section

3.12 continues the tribunal created by the Board of Health, but transfers its operation to OATH.

 

Article 47 (Child Care Services). Section 47.77 (h), referring to the authority of the Department to issue notices of violation pursuant to Article 7, has been amended by changing the reference to Article 7 of the Health Code..

 

Article 151 (Pest Prevention and Management). Section 151.05 (a), which authorizes the Environmental Control Board in addition to the Administrative Tribunal to adjudicate notices of violation, has been amended to refer to the Health Tribunal at OATH.

 

Article 5 (General Permit Provisions) and Article 81 (Food Preparation and Food Establishments). Changes in the text of these two articles that reference Article 7 and the Administrative Tribunal have been incorporated into the resolutions adopting comprehensive amendments of these articles.

 

Statement Pursuant to Charter § 1043

 

This proposal was not included in the Department’s regulatory agenda because the need for the amendment became known after publication of the regulatory agenda.