Statement of Basis and Purpose
Executive Order No. 18 of 2016, dated June 23, 2016, transfers to OATH all of the adjudications under the Department of Consumer Affairs (DCA) Tribunal. Beginning on August 22, 2016 or as soon thereafter as may be practicable, OATH will adjudicate all pending and future violations issued by DCA. Because certain State laws require that final decisions of these adjudications be made by the DCA Commissioner, this proposed rule establishes that OATH hearing officer decisions on violations of those State laws will be recommended decisions only. The DCA Commissioner will make the final determination after reviewing OATH’s recommendation. Chapter 6 of Title 6 of the Rules of the City of New York contains the procedural rules that govern DCA’s determinations.
The proposed rule amends section 6-17 (Decisions) of OATH’s rules, contained in title 48 of the Rules of the City of New York, to set out the State laws to which this procedure applies.
Deleted material is in [brackets]. New text is underlined.
“Shall,” “will” 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.
Section 1. Section 6-17 of Chapter 6 of Title 48 of the Rules of the City of New York, as amended by the Environmental Control Board at its meeting on June 30, 2016, is amended to read as follows:
(a) Decisions. After a hearing, the Hearing Officer who presided over the hearing will promptly write a decision sustaining or dismissing each charge in summons. The Tribunal will promptly serve the decision on all parties. Each decision will contain findings of fact and conclusions of law. Where a violation is sustained, the Hearing Officer will impose the applicable penalty, which may include a fine, penalty points, a suspension or revocation of the respondent’s license or any other penalty authorized by applicable laws, rules and regulations.
(b) Except as provided in subdivision (c), the decision of the Hearing Officer is the final decision unless an appeal is filed pursuant to §6-19 of this Chapter.
(c) Recommended Decisions.
(1) For all violations of Article 13-E of the New York State Public Health Law, the Hearing Officer will issue a recommended decision and order, which the Commissioner of the Department of Health and Mental Hygiene may adopt, reject or modify, in whole or in part.
(2) For all violations of Article 13-F of the New York State Public Health Law:
(i) where the Department of Consumer Affairs is the petitioner, the Hearing Officer will issue a recommended decision and order, which the Commissioner of such department may adopt, reject or modify, in whole or in part.
(ii) where the Department of Health and Mental Hygiene is the petitioner, the Hearing Officer will issue a recommended decision and order, which the Commissioner of such department may adopt, reject or modify, in whole or in part.
(3) For all violations in which summonses are returnable to the Tribunal as authorized by the Board under §1049-aof the NewYorkCityCharter andprovisions of the NewYorkCity Administrative Code, any rules and regulations made thereunder, or provisions of New York State law, the Hearing Officer’s decision is a recommended decision to the Board. If an appeal is not filed pursuant to §6-19, theHearing Officer's recommendeddecisionwillbeautomaticallyadoptedbytheBoardandwillconstitutetheBoard'sfinaldecisioninthematter. The Board’s final decision is also the final decision of the Tribunal.
(4) For all violations of Section 194 of Article 11 of the New York State General Business Law, Article 5 of the New York State General Business Law, and Sections 192, 192-a, 192-b, and 192-c of Article 16 of the New York State Agriculture and Markets Law, and of any rules and regulations promulgated thereto, the Hearing Officer will issue a recommended decision and order, which the Commissioner of the Department of Consumer Affairs may adopt, reject or modify, in whole or in part.
(d) The Tribunal may, due to Tribunal needs or the unavailability of the Hearing Officer who heard the case, designate another Hearing Officer to write the recommended decision. The decision will state the reason for the designation and will be based on the record, which includes (i) the summons, (ii) all briefs filed and all exhibits received in evidence, and (iii) a complete audio recording of the hearing or, if a complete audio recording is unavailable for any reason, a complete transcript of the hearing.