Unlicensed Activity Rule

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, June 22, 2015

Statement of Basis and Purpose of Proposed Rule

Section 20-105 of the Administrative Code of the City of New York (“Administrative Code”) provides that it shall be unlawful for any person to engage in any trade, business or activity for which a license is required without such license.  Section 20-105(b) of the Administrative Code provides that the Commissioner of the Department of Consumer Affairs (“the Department”) shall be authorized to impose fines, after notice and a hearing, upon any such person of $100 per violation, per day for each and every day during which such person commits such violation.  

The proposed rule is necessary to establish that if the Department, on notice of violation, charges a business or individual with engaging in unlicensed activity, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the first date of unlicensed activity identified by the Department in the notice through the date of the hearing.  The first date of identified unlicensed activity may be the date of inspection; the date a business or individual entered a contract to conduct unlicensed business; the date a business or individual advertised or offered unlicensed services; or any other date on which activity occurred that demonstrates that unlicensed business took place.

In addition, if a decision or order that predates the hearing found that the business or individual engaged in unlicensed activity, or if the business or individual settled earlier charges of unlicensed activity, the proposed rule provides that it shall be presumed that the unlicensed activity continued from the date of the decision, order or settlement through the date of the hearing, unless the settlement specifically provides otherwise. 

A business or individual may present credible evidence at the hearing to rebut the presumption of continued unlicensed activity, such as proof of obtaining a license or proof that the unlicensed activity ceased.  

The proposed rule will effectuate the legislative intent behind imposing a fine of $100 per day for unlicensed activity without requiring the Department to inspect a business or individual each and every day, which is impracticable.

 “Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this department, unless otherwise specified or unless the context clearly indicates otherwise.

New text is underlined; deleted material is in [brackets].

Proposed Rule

Chapter 1 of Title 6 of the Rules of the City of New York is amended by adding a new section 1-19 to read as follows:

  §1-19  Presumption of Continued Unlicensed Activity.

  (a)  Unless otherwise specified in the notice, if the Department, on notice, charges a business or individual with engaging in activity without a license required under Chapter 2 of Title 20 of the New York City Administrative Code or under provisions of state law enforced by the Department, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the date specified by the Department in the notice as the first date of unlicensed activity through the hearing date. 

  (b)  The first date of unlicensed activity specified by the Department in the notice may be the date of an inspection at which unlicensed activity is identified or any other date on which unlicensed activity first occurred, such as the date the business or individual entered into a contract to conduct business for which a license was required or the first date a business or individual advertised or offered services for which a license was required.

a.

  (c)  Regardless of the date specified by the Department in the notice, if the Department presents at the hearing a copy of a decision or order from a prior proceeding finding that the business or individual engaged in the same unlicensed activity, or a copy of a settlement from a prior proceeding resolving a charge of the same unlicensed activity, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the date of the decision, order or settlement through the date of the hearing, unless the decision, order or settlement specifically provides otherwise. 

  (d)  A party may present credible evidence at the hearing to rebut the presumption of continued unlicensed activity, such as written proof that the party obtained a license; receipts or other documentation indicating that merchandise was returned to distributors; written termination of leases or agreements; or photographs demonstrating the discontinuance of the unlicensed activity.

Public Hearing
Subject: 

Unlicensed Activity Rule

Public Hearing Date: 
Monday, June 22, 2015 - 10:00am
Contact: 

Mary Cooley at 212-436-0392 and mcooley@dca.nyc.gov

Location: 
66 John Street, 11th Floor
New York, NY 10038