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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

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: 
Wednesday, October 15, 2014
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

The Office of Administrative Trials and Hearings (“OATH”) is modifying the provisions in Chapter 6 in Title 48 of the Rules of the City of New York related to the Health Tribunal at OATH.  The changes 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 Health Tribunal at OATH consistent with those of other tribunals at OATH.

 

Specific Amendments to be Enacted

 

In Section 6-01“Definitions Specific to this Chapter,” the term “Hearing Examiner” is changed to “Hearing Officer”. 

 

Section 6-02 “Jurisdiction, Powers and Duties of the Health Tribunal at OATH” 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. 

 

Section 6-03 “Proceedings before the Health Tribunal at OATH” simplifies the requirements of service by no longer requiring certified or registered mailing.  

 

Section 6-04 “Appearances” is reordered, with some changes.  An 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 subdivision (b) detailing requirements for appearances by mail are moved to Section 6-05 “Adjudications by Mail and Online.”   
  • The provisions in subdivision (c) for pre-hearing adjournments are moved to Section 6-06 “Pre-Hearing Requests to Reschedule.” 
  • The provisions in subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-07 “Requests for Adjournments.”
  • The provisions in subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-08 “Default” and Section 6-09 “Request for a New Hearing after a Failure to Appear.” 
  • New subdivision (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.

Section 6-05 “Adjudications by Mail and Online” is renamed from the previous title “Hearings and adjudications in person, by mail, or by telephone.”  References in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) and (j) of this section to hearings in person or by telephone are moved to new Section 6-10 “Hearing Procedures.”  Subdivision (f) of this section, about the appearance of inspectors is moved to section 6-11 “Appearance of Inspectors”.

 

Section 6-06 “Subpoenas” is deleted in its entirety.  The Hearing Officer’s ability to issue subpoenas remains in Section 6-02(c) (3). 

 

New Section 6-06 is titled “Pre-Hearing Requests to Reschedule”.

  • It sets forth the procedures by which respondents may make a request for a hearing to be rescheduled 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 6-07 “Requests for Adjournments” contains provisions regarding requests for adjournments 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.

 

Section 6-08 “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 6-09 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e) 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.

Section 6-10 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) 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.
  • 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 6-11 “Appearance of Inspectors” is a new section that incorporates with some modifications, the provisions that were previously contained in Section 6-05(f).

  • Subdivision (a)(1) permits a respondent to make a pre-hearing request for the inspector up to three, rather than seven, business days prior to the hearing.  Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06.
  • Subdivision (b) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the officer. 

Section 6-12 “Payment of Penalties” is a new section that incorporates with some modifications  the provisions formerly found in Section 6-05(i) regarding the imposition of late payment penalties if the fine is not paid on time.

 

Section 6-13 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07.  There are no major substantive rule changes in the section.

 

Section 6-14 “Appeals” incorporates with some modifications the provisions formerly found in Section 6-08. 

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

Section 6-15 “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 or issue a registration card and identification number.  The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-16 “Misconduct” is a new section that enumerates 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.

 

Section 6-17 “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.

 

The Health Tribunal at OATH’s authority for these rules is also found in section 1049 of the New York City Charter.


Subject: 

The Health Tribunal at OATH proposes to modify the provisions in Chapter 6 in Title 48 of the Rules of the City of New York. The changes modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters related to the Health Tribunal at OATH.

 

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

Stacey Turner
(212) 933-3007

Download Copy of Proposed Rule (.pdf): 

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