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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, September 26, 2018
Proposed Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Notice of Public Hearing and Opportunity to Comment on Proposed Rule

What are we proposing? The Office of Administrative Trials and Hearings (OATH) proposes to amend section 6-09 of subchapter C and section 6-24 of subchapter F of chapter 6 of title 48 of the rules of the City of New York, concerning appearances.

When and where is the Hearing? OATH will hold a public hearing on the proposed rule. The public hearing will take place from 10:00 a.m. through 11:30 a.m. on September 26, 2018. The hearing will be in the OATH Conference Room located at 66 John Street, 10th Floor, New York, NY 10038.

How do I comment on the proposed rules? Anyone can comment on the proposed rule by:

  • Mail.  You can mail written comments to OATH, Attention: Simone Salloum, Senior Counsel, 100 Church Street, 12th Floor, New York, NY 10007.
  • Fax. You can fax written comments to OATH, Attention: Simone Salloum, Senior Counsel, at 646-500-5742.
  • Hearing.  You can speak at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling OATH at 212-436-0708, or you can also sign up in the hearing room before the hearing begins on September 26, 2018. You can speak for up to three (3) minutes.

Is there a deadline to submit written comments? You may submit written comments up to 5:00 p.m. on September 26, 2018.

What if I need assistance to participate in the Hearing? You must tell us if you need a reasonable accommodation of a disability at the Hearing. You must tell us if you need a sign language interpreter. You can tell us by mail at 100 Church Street, 12th Floor, New York, NY 10007. You may also tell us by telephone at 212-436-0708. Advance notice is requested to allow sufficient time to arrange the accommodation. Please tell us by September 19, 2018.

This location has the following accessibility option(s) available: Wheelchair Accessible.

Can I review the comments made on the proposed rule? You can review the comments that have been submitted online by visiting the NYC rules website at http://rules.cityofnewyork.us/. A few days after the hearing, a transcript of the hearing and copies of the written comments will be available to the public at OATH, 66 John Street, 10th Floor, New York, NY 10038.

What authorizes OATH to make this rule? Section 1049(2)(a) of the New York city charter (“charter”) authorizes OATH to make this proposed rule. This proposed rule was included in OATH’s regulatory agenda for this Fiscal Year.

Where can I find OATH’s rules? OATH’s rules are in title 48 of the rules of the city of New York.

What laws govern the rulemaking process? OATH must meet the requirements of section 1043(b) of the charter when creating or changing rules. This notice is made according to the requirements of Sections 1043(b) and 1049(2)(a) of the charter.

Statement of Basis and Purpose of Proposed Rule

The Office of Administrative Trials and Hearings (“OATH”) proposes to amend section 6-09 of subchapter C and section 6-24 of subchapter F of chapter 6 of title 48 of the rules of the City of New York, concerning appearances.

The proposed amendments to section 6-09 reorder the subdivisions and clarify the rules about appearing before the Tribunal, as follows:

  • Proposed subdivisions (a) and (b) set out who may appear on behalf of a respondent and how a respondent or representative may appear.
  • Proposed subdivision (c) explains that if a respondent does not wish to contest the summons, they can pay the penalty before the hearing, which is considered an appearance and admission.
  • Proposed subdivision (d) provides the framework for when a current owner of a property may appear on behalf of a prior owner.
  • Proposed subdivision (e) provides that the failure of a respondent to timely appear constitutes a default.
  • Proposed subdivision (f) references the requirements in § 6-24 for registered representatives who wish to appear on 15 or more summonses on a given hearing date, and provides that failure to comply with § 6-24 will constitute a default. 
  • Proposed subdivisions (g) and (h) set out how Petitioner may timely appear, and provide that the hearing may proceed without Petitioner.

The proposed amendments to section 6-09 are intended to expedite hearings and improve the overall efficiency of the Tribunal.  These proposed amendments set timeframes for Respondent and Petitioner’s appearance to be considered timely. Proposed section 6-09(b)(1) adds the condition that a respondent’s appearance is timely if the respondent appears at the scheduled hearing location within two hours of the scheduled time. Proposed section 6-09(g) adds the condition that, if the Petitioner elects to appear at the Tribunal, Petitioner’s appearance is timely if Petitioner is ready to proceed within 30 minutes of the timely appearance of the respondent.

The proposed amendments to section 6-09 also no longer permit a person to move for discretionary intervention, which, if granted, would have allowed an intervenor to participate in a hearing, as a witness but not as a party, at the discretion of the hearing officer. Discretionary intervention was rarely sought and did not grant the intervenor the status of a party to the proceeding.

The proposed amendments to section 6-24 clarify the requirements for an attorney or registered representative to appear on 15 or more summonses on a given hearing date and replace former subdivision (b), which gave the Tribunal discretion on the day of the hearing to add cases to the list provided by the attorney or registered representative, with a provision stating that failure to appear at or before the scheduled hearing time constitutes a default.

This proposal was included in OATH’s FY 2018 and 2019 Regulatory Agendas.

Subject: 

.

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules, 212-436-0708

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, September 26, 2018
Proposed Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Notice of Public Hearing and Opportunity to Comment on Proposed Rule

What are we proposing? The Office of Administrative Trials and Hearings (OATH) proposes to amend sections 6-14 and 6-15 of subchapter C of chapter 6 of title 48 of the rules of the City of New York, concerning adjournments.

When and where is the Hearing? OATH will hold a public hearing on the proposed rule. The public hearing will take place from 10:00 a.m. through 11:30 a.m. on September 26, 2018. The hearing will be in the OATH Conference Room located at 66 John Street, 10th Floor, New York, NY 10038.

How do I comment on the proposed rules? Anyone can comment on the proposed rule by:

  • Mail.  You can mail written comments to OATH, Attention: Simone Salloum, Senior Counsel, 100 Church Street, 12th Floor, New York, NY 10007.
  • Fax. You can fax written comments to OATH, Attention: Simone Salloum, Senior Counsel, at 646-500-5742.
  • Hearing.  You can speak at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling OATH at 212-436-0708, or you can also sign up in the hearing room before the hearing begins on September 26, 2018. You can speak for up to three (3) minutes.

Is there a deadline to submit written comments? You may submit written comments up to 5:00 p.m. on September 26, 2018.

What if I need assistance to participate in the Hearing? You must tell us if you need a reasonable accommodation of a disability at the Hearing. You must tell us if you need a sign language interpreter. You can tell us by mail at the address given above. You may also tell us by telephone at 212-436-0708. Advance notice is requested to allow sufficient time to arrange the accommodation. Please tell us by September 19, 2018.

This location has the following accessibility option(s) available: Wheelchair Accessible.

Can I review the comments made on the proposed rule? You can review the comments that have been submitted online by visiting the NYC rules website at http://rules.cityofnewyork.us/. A few days after the hearing, a transcript of the hearing and copies of the written comments will be available to the public at OATH, 66 John Street, 10th Floor, New York, NY 10038.

What authorizes OATH to make this rule? Section 1049(2)(a) of the New York city charter (“city charter”) authorizes OATH to make this proposed rule. This proposed rule was included in OATH’s regulatory agenda for this Fiscal Year.

Where can I find OATH’s rules? OATH’s rules are in title 48 of the rules of the city of New York.

What laws govern the rulemaking process? OATH must meet the requirements of section 1043(b) of the city charter when creating or changing rules. This notice is made according to the requirements of sections 1043(b) and 1049(2)(a) of the city charter. 

Statement of Basis and Purpose of Proposed Rule

OATH proposes amendments to sections 6-14 and 6-15 of subchapter C of chapter 6 of title 48 of the rules of the City of New York, concerning adjournments. Current section 6-14 addresses both general requests for adjournment and requests for adjournment specifically for inspector testimony.  OATH proposes amending sections 6-14 and 6-15 to address separately general requests for adjournment in section 6-14 and requests for adjournment for inspector testimony in section 6-15. 

Proposed section 6-14 contains minimal amendments to the rules concerning general requests for adjournment, removing unnecessary language and clarifying that a hearing officer should consider whether a party had a reasonable opportunity to prepare for a hearing, instead of simply an opportunity to prepare.

Proposed section 6-15 contains amended versions of the rules formerly in section 6-14(a), (b), and (c) that set forth the limitations to granting an adjournment request for inspector testimony, consistent with the limitations set forth in New York city charter section 1049-a(b-1)(3).

This proposal was included in OATH’s FY 2018 and 2019 Regulatory Agendas.

Subject: 

.

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules, 212-436-0708

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, September 26, 2018
Proposed Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Notice of Public Hearing and Opportunity to Comment on Proposed Rule

What are we proposing? The Office of Administrative Trials and Hearings (OATH) proposes to amend section 6-21 of subchapter E of chapter 6 of title 48 of the Rules of the City of New York, concerning requests for new hearings after default.

When and where is the Hearing? OATH will hold a public hearing on the proposed rule. The public hearing will take place from 10:00 a.m. through 11:30 a.m. on September 26, 2018. The hearing will be in the OATH Conference Room located at 66 John Street, 10th Floor, New York, NY 10038.

How do I comment on the proposed rules? Anyone can comment on the proposed rule by:

  • Mail.  You can mail written comments to OATH, Attention: Simone Salloum, Senior Counsel, 100 Church Street, 12th Floor, New York, NY 10007.
  • Fax. You can fax written comments to OATH, Attention: Simone Salloum, Senior Counsel, at 646-500-5742.
  • Hearing.  You can speak at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling OATH at 212-436-0708, or you can also sign up in the hearing room before the hearing begins on September 26, 2018. You can speak for up to three (3) minutes.

Is there a deadline to submit written comments? You may submit written comments up to 5:00 p.m. on September 26, 2018.

What if I need assistance to participate in the Hearing? You must tell us if you need a reasonable accommodation of a disability at the Hearing. You must tell us if you need a sign language interpreter. You can tell us by mail at 100 Church Street, 12th Floor, New York, NY 10007. You may also tell us by telephone at 212-436-0708. Advance notice is requested to allow sufficient time to arrange the accommodation. Please tell us by September 19, 2018.

This location has the following accessibility option(s) available: Wheelchair Accessible.

Can I review the comments made on the proposed rule? You can review the comments that have been submitted online by visiting the NYC rules website at http://rules.cityofnewyork.us/. A few days after the hearing, a transcript of the hearing and copies of the written comments will be available to the public at OATH, 66 John Street, 10th Floor, New York, NY 10038.

What authorizes OATH to make this rule? Section 1049(2)(a) of the New York City Charter (“City Charter”) authorizes OATH to make this proposed rule. This proposed rule was included in OATH’s regulatory agenda for this Fiscal Year.

Where can I find OATH’s rules? OATH’s rules are in title 48 of the Rules of the City of New York.

What laws govern the rulemaking process? OATH must meet the requirements of Section 1043(b) of the City Charter when creating or changing rules. This notice is made according to the requirements of Sections 1043(b) and 1049(2)(a) of the City Charter.

Statement of Basis and Purpose of Proposed Rule

The Office of Administrative Trials and Hearings (“OATH”) proposes to amend section 6-21 of subchapter E of chapter 6 of title 48 of the Rules of the City of New York, concerning requests for new hearings after a failure to appear. OATH proposes replacing references to “motion to vacate a default” with “request for a new hearing after default,” which is easier for the public to understand and is similar to the terminology on OATH’s forms and website. OATH also proposes amendments to clarify subdivisions (e) and (f) of section 6-21. Subdivision (e) applies to respondents seeking to file a second request for a new hearing, and subdivision (f) applies to respondents filing a first request for a new hearing at least one year after receipt of the default decision. 

The first paragraph of subdivision (e) clarifies that respondents who have defaulted twice are not eligible to file another request for a new hearing and that the second default decision is the Tribunal’s final determination, subject to judicial review pursuant to Article 78 of the New York Civil Practice Law and Rules. The second paragraph of subdivision (e) clarifies the exception under which the Chief Administrative Law Judge or his or her designee may consider granting a new hearing after the issuance of a second default decision. These proposed amendments make clear that there are no additional administrative procedures to exhaust after the receipt of a second default decision in order to file a petition pursuant to Article 78. 

The proposed amendments to subdivision (f) clarify that the discretion of the Chief Administrative Law Judge or his or her designee to consider a request for a new hearing more than one year from the date of the default decision applies only if it is the first such request made by the respondent.

This proposal was included in OATH’s FY 2018 and 2019 Regulatory Agendas.

Subject: 

.

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules, 212-436-0708

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, September 26, 2018
Proposed Rules Content: 

City of New York

Office of Administrative Trials and Hearings

 

Notice of Public Hearing and Opportunity to Comment on Proposed Rule

 

What are we proposing? The Office of Administrative Trials and Hearings (OATH) proposes to repeal and restate section 6-19 of subchapter D of chapter 6, and amend section 5-04 of chapter 5 of Title 48 of the Rules of the City of New York, concerning the appellate procedures at OATH.

 

When and where is the Hearing? OATH will hold a public hearing on the proposed rule. The public hearing will take place from 10:00 a.m. through 11:30 a.m. on September 26, 2018. The hearing will be in the OATH Conference Room located at 66 John Street, 10th Floor, New York, NY 10038.

 

This location has the following accessibility option(s) available: Wheelchair Accessible.

 

How do I comment on the proposed rules? Anyone can comment on the proposed rule by:

 

 

 

  • Mail.  You can mail written comments to OATH, Attention: Simone Salloum, Senior Counsel, 100 Church Street, 12th Floor, New York, NY 10007.

 

  • Fax. You can fax written comments to OATH, Attention: Simone Salloum, Senior Counsel, at 646-500-5742.

 

  • Hearing.  You can speak at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling OATH at 212-436-0708, or you can also sign up in the hearing room before the hearing begins on September 26, 2018. You can speak for up to three (3) minutes.

 

Is there a deadline to submit written comments? You may submit written comments up to 5:00 p.m. on September 26, 2018.

 

What if I need assistance to participate in the Hearing? You must tell us if you need a reasonable accommodation of a disability at the Hearing. You must tell us if you need a sign language interpreter. You can tell us by mail at 100 Church Street, 12th Floor, New York, NY 10007. You may also tell us by telephone at 212-436-0708. You must tell us by September 19, 2018.

 

Can I review the comments made on the proposed rule? You can review the comments that have been submitted online by visiting the NYC rules website at http://rules.cityofnewyork.us/. A few days after the hearing, a transcript of the hearing and copies of the written comments will be available to the public at OATH, 66 John Street, 10th Floor, New York, NY 10038.

 

What authorizes OATH to make this rule? Section 1049(2)(a) of the New York City Charter (“City Charter”) authorizes OATH to make this proposed rule. This proposed rule was included in OATH’s regulatory agenda for this Fiscal Year.

 

Where can I find OATH’s rules? OATH’s rules are in Title 48 of the Rules of the City of New York.

 

What rules govern the rulemaking process? OATH must meet the requirements of Section 1043(b) of the City Charter when creating or changing rules. This notice is made according to the requirements of Sections 1043(b) and 1049(2)(a) of the City Charter.

 

 

Statement of Basis and Purpose of Proposed Rule

 

The Office of Administrative Trials and Hearings (“OATH”) proposes to repeal and restate Section 6-19 of Subchapter D of Chapter 6 of the Rules of the City of New York, concerning OATH’s appellate procedures. The restated Section 6-19 clarifies the appellate procedures, simplifies the language, and re-organizes the rules to make them easier to read and understand. In addition to providing clearer appellate procedures, OATH is also proposing the following substantive changes to the rules:

 

  • A respondent who has chosen to perform community service instead of paying a monetary penalty is not required to pay the penalty as a condition to filing an appeal.  This comports with Section 7-06(a) of OATH’s rules on community service.

 

  • A party who requests an extension of time to file an appeal or respond to an appeal will be granted one automatic extension of thirty (30) days.  A request for an audio recording of the hearing will no longer provide an automatic extension of a party’s time to appeal.  After the automatic extension has been granted, any additional requests for an extension of time will be granted for good cause shown.

 

  • Additional submissions by either party on an appeal other than the appeal and response will not be considered unless requested by the Appeals Unit.

 

  • Current section 6-19(b) provides that the Appeals Unit only considers evidence that was presented to a hearing officer at the hearing. Now, upon good cause shown, the Appeals Unit may consider dispositive government records, such as a death certificate or deed to establish a material fact or defense.

 

OATH also proposes to amend section 5-04 of chapter 5 of title 48 of the Rules of the City of New York so that the requirement in section 19-506.1(c) of the New York City Administrative Code that respondents are not required to pay penalties, fines, or restitution in order to file an appeal is reflected in OATH’s rules.

 

This proposal was included in OATH’s FY 2018 and 2019 Regulatory Agendas.

Subject: 

.

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules, 212-436-0708

Adopted Rules: Closed to Comments

Adopted Rules Content: 

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:

 

§6-17 Decisions

 

(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.

 

 

Effective Date: 
Mon, 08/22/2016

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, August 9, 2016
Proposed Rules Content: 

 

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.

Subject: 

OATH Amendment to Chapter 6 of Title 48 of RCNY.

Location: 
OATH ECB Conference Room
66 John Street, 10th Floor
New York, NY 10038
Contact: 

Elizabeth Nolan, 66 John Street, 10th Floor, New York, NY 10038, (212) 436-0708.

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, August 9, 2016
Proposed Rules Content: 

 

Statement of Basis and Purpose 

OATH ECB is proposing an amendment to the Department of Buildings (DOB) Penalty Schedule, found in Section 3-103 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, to continue to promote a zero tolerance policy for safety-related violations and to ensure that penalties for safety-related infractions serve as an effective deterrent.

The proposed amendment to the penalty schedule will add five new infractions and amend two existing infractions:

  • The proposed five new infractions reflect penalties for the broadened range of jobs that require a Construction Superintendent’s supervision and the duties and responsibilities of a Construction Superintendent. The proposed new infractions will allow DOB to effectively enforce the new provisions found in Section 3301-02 of Chapter 3300 of Title 1 of the Rules of the City of New York (effective May 30, 2016), and assist DOB in meeting its mission of enhancing the quality of life for all New Yorkers and making New York City a safer place.
  • The amendments to the two existing infractions increase penalty amounts and clarify the infraction descriptions. Failing to designate or provide a Site Safety Manager or Site Safety Coordinator results in unsafe jobsites that are ill-equipped to handle situations involving public or worker safety. In addition, site-specific safety orientation programs prepare workers to perform their jobs properly and in a safe manner, mitigating hazards related to construction work.
Subject: 

OATH ECB Amendment of Buildings Penalty Schedule

Location: 
OATH ECB
66 John Street, 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan, 66 John Street, 10th Floor, New York, NY 10038, (212) 436-0708

Adopted Rules: Closed to Comments

Adopted Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Environmental Control Board

 

Notice of Promulgation of Rule

 

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED in the Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) in accordance with Sections 1049-a and 1043 of the New York City Charter. OATH ECB amends 48 RCNY §3-100 of its rules of procedure and repeals its Air Code Penalty Schedule in Section 3-102 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. The proposed rule amendments and repeal were published in The City Record on April 15, 2016, and a public hearing was held on May 16, 2016. 

 

Five members of the public attended the public hearing. No one testified at the public hearing concerning this rule amendment and repeal and OATH did not receive any written comments. 

 

Statement of Basis and Purpose

 

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) is centralizing and streamlining its hearings to make it more efficient for the public to have their cases heard.  As part of this process, OATH ECB is amending 48 RCNY §3-100, which instructs Hearing Officers to impose penalties set forth in OATH ECB’s rules, to instruct Hearing Officers to impose penalties set forth in the current or future rules of enforcement agencies.

 

In addition, OATH ECB is repealing its Air Code Penalty Schedule.  This schedule is found in 48 RCNY §3-102, and contains penalties for summonses issued by the New York City Department of Environmental Protection (DEP) for violations of the Air Code. At the same time, DEP will also enact a penalty schedule within its own rules at 15 RCNY Chapter 43. In the future, OATH ECB will repeal all penalty schedules in its rules at Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY) so that they, like the Air Code Penalty Schedule, can be relocated to the rules of the agencies with primary rulemaking and policymaking jurisdiction over the laws underlying the violations. 

 

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the enforcement agencies have the expertise to recommend appropriate penalties based on the severity of each violation and its effect on City residents. Moving the penalty schedule will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already gone through the City Administrative Procedure Act (“CAPA”) rulemaking process.  The public will still have the opportunity to comment on proposed penalties during this process.

 

 

[Deleted material is in brackets.]

New material is underlined.

 

“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


Section 1. Section 3-100 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York is amended to read as follows:

 

Whenever a respondent is found in violation of any [of the following provisions] provision of the New York City Administrative Code, Rules of the City of New York, New York City Health Code, New York State Public Health Law, New York Codes, Rules and Regulations, New York City Zoning Resolution, New York State Vehicle and Traffic Law, or New York State Environmental Conservation Law, and the summons (as defined in §6-01 of this Title) for such violation is returnable to the Environmental Control Board, any civil [penalties] penalty recommended by a Hearing Officer pursuant to §3-57(a) [and/or], any default [penalties] penalty imposed pursuant to §3-81(a) and in accordance with §1049-a(d)(1)(d) of the Charter, and[/or] any civil [penalties] penalty imposed for admissions of violation(s) pursuant to §3-32 or late admissions pursuant to §3-81(b) will be imposed pursuant to the [penalty schedules] Penalty Schedules set forth below. If no Penalty Schedule is contained in these rules, any such civil penalty and default penalty will be imposed pursuant to the Penalty Schedule contained in the rules of the agency with primary jurisdiction to enforce the provisions of law related to the violation alleged in the summons.

 

Please note that some of the penalties in the Penalty Schedules set forth below are established by law as flat penalties. Thus, for some of the penalties set forth below, no range of dollar amounts is set forth in the Administrative Code or other applicable law. However, solely for the convenience of the public, these flat penalties are included in the Penalty Schedules set forth below, to ensure, to the extent possible, that these Penalty Schedules are comprehensive.

§ 2. The Air Code Penalty Schedule, found in Section 3-102 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED, effective May 6, 2016.

Effective Date: 
Fri, 07/08/2016

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, May 16, 2016
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

 

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) is centralizing and streamlining its hearings to make it more efficient for the public to have their cases heard.  As part of this process, OATH ECB is proposing to amend 48 RCNY §3-100, which instructs Hearing Officers to impose penalties set forth in OATH ECB’s rules, to instruct Hearing Officers to impose penalties set forth in the current or future rules of enforcement agencies.

In addition, OATH ECB is repealing its Air Code Penalty Schedule.  This schedule is found in 48 RCNY §3-102, and contains penalties for summonses issued by the New York City Department of Environmental Protection (DEP) for violations of the Air Code. At the same time, DEP will also enact a penalty schedule within its own rules at 15 RCNY Chapter 43. In the future, OATH ECB will repeal all penalty schedules in its rules at Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY) so that they, like the Air Code Penalty Schedule, can be relocated to the rules of the agencies with primary rulemaking and policymaking jurisdiction over the laws underlying the violations. 

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the enforcement agencies have the expertise to recommend appropriate penalties based on the severity of each violation and its effect on City residents. Moving the penalty schedule will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the proposed rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already gone through the City Administrative Procedure Act (“CAPA”) rulemaking process.  The public will still have the opportunity to comment on proposed penalties during this process.

Subject: 

Amendment of 48 RCNY 3-100 of ECB Rules of Procedure and Repeal of ECB Air Code Penalty Schedule.

Location: 
OATH ECB
66 John Street, 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan, OATH ECB, 66 John Street, 10th Floor, New York, NY 10038, (212) 436-0708.

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

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